Judgment no. 135/2009 of the Provincial Court of Navarre, Section 1, 1 September 2009.

Article 272 of the Fuero Nuevo of Navarre must be interpreted to mean that it applies only where there are children from a previous marriage. It does not apply if the earlier children are born out of wedlock.

Below we set out the extract of this judgment on the proceedings handled by Aránzazu Abogados in Navarre.

Rapporteur: RAFAEL LARA GONZALEZ

Appeal number: 91/2009

Decision number: 135/2009

Decision date: 1 September 2009

Court: Provincial Court – Navarre, Section 1

vLex ID: VLEX-76251250

Link: http://vlex.com/vid/-76251250

Original
Article 272 of the Fuero Nuevo of Navarre must be interpreted to mean that it applies only where there are children from a previous marriage. It does not apply if the earlier children are born out of wedlock.

Contents

• STATEMENT OF FACTS
  • FIRST
  • SECOND
  • THIRD
  • FOURTH
  • FIFTH
• LEGAL GROUNDS
  • FIRST
  • SECOND
  • THIRD
  • FOURTH
  • FIFTH
  • SIXTH
• RULING

JUDGMENT No. 135/2009

President

1. FERMÍN ZUBIRI OTEIZA

Judges

Dª. ESTHER ERICE MARTÍNEZ

1. RAFAEL LARA GONZÁLEZ

In Pamplona/Iruña, on 1 September 2009.

The First Section of the Provincial Court of Navarre, composed of the Honourable Judges named in the margin, has heard on appeal Civil Chamber File no. 91/2009, arising from Ordinary Proceedings no. 951/, of Court of First Instance No. 5 of Pamplona/Iruña; the appellant being Mr Jacinto, represented by the court representative Mr JAIME GOÑI ALEGRE and assisted by the lawyer Ms Mª ARANZAZU CAGIGAL CASQUERO; the respondent being Ms Carlota, represented by the court representative Mr JAVIER ARAIZ RODRÍGUEZ and assisted by the lawyer Mr JAVIER IRIBARREN GOÑI.

The Rapporteur Judge being the Hon. Mr RAFAEL LARA GONZÁLEZ.

STATEMENT OF FACTS

FIRST

Those of the appealed judgment are accepted.

SECOND

On 18 December 2008, the said Court of First Instance No. 5 of Pamplona/Iruña issued Judgment in Ordinary Proceedings no. 951/2007, the operative part of which reads literally as follows: “That upholding the claim filed by the court representative Mr Araiz, with legal assistance from Mr Iribarren, in the name and on behalf of Ms Carlota, against Mr Jacinto, represented by the court representative Mr Goñi and with legal assistance from Ms Cagigal, I declare and do declare that Ms Rita held Navarrese foral status at the time that will was made, specifically that her daughter Ms Carlota must not receive from her mother less than the surviving spouse Mr Jacinto, and the defect must consequently be corrected by equalising Ms Carlota at the expense of Mr Jacinto in accordance with the provisions of Law 272 of the Fuero Nuevo of Navarre, and the costs must consequently be imposed on the defendant.”

THIRD

Once that decision was notified, it was appealed in due time and form by the procedural representation of Mr Jacinto, who sought a decision declaring the dismissal of the action for inofficiousness under the Law of the Fuero Nuevo brought against him, because that limitation on the freedom to dispose by succession is not applicable to a daughter born of a non-stable claim against the parent who concurs with a later spouse of the mother. The dismissal of the action for inofficiousness for lapse of time, as it was brought out of time, 13 years later. No order for the costs of first instance against the defendant, as an order for costs against the defendant is not legitimate since the claimant’s claim was partially upheld. All this, with the costs generated in this instance imposed on the respondent.

FOURTH

The respondent, Ms Carlota, answered the notice for submissions, opposing the appeal and seeking its dismissal and confirmation of the first-instance judgment, with express order for costs in both instances against the appellant defendant.

FIFTH

The appeal having been admitted with both effects and the case file sent to the Provincial Court, after allocation it was assigned to the First Section of the Provincial Court of Navarre, where Civil Appeal File no. 91/2009 was opened, with 27 July 2009 set for deliberation and ruling, the legal requirements having been observed.

LEGAL GROUNDS

FIRST

The first-instance judgment upheld the originating claim by declaring the deceased’s Navarrese foral status at the time she made her will and likewise recognising the exercise of the action for inofficiousness brought by the claimant. Consequently, the claimant (the deceased’s daughter) was not to receive from her mother less than the surviving spouse (the defendant) by virtue of Law 272 of the Fuero Nuevo. The defendant was ordered to pay costs.

The defendant’s procedural representation appeals that judicial decision, arguing, first, that the action brought could not be exercised by a daughter born out of wedlock from a non-stable or occasional union, as the wording of Law 272 of the Fuero Nuevo precluded it; and, second, that the action had lapsed at the time it was exercised. In the opposite direction to that set out in the appeal, the respondent, in her statement of opposition, requests its complete dismissal and payment of the procedural costs in this second instance as well, considering the judicial decision to be in accordance with the law.

SECOND

The present dispute reaches this second instance confined exclusively to the interpretation to be given to Law 272 of the Fuero Nuevo of Navarre, thereby bypassing the issue raised in the claim as the first request, namely the nullity of the will made on 27 August 1993. And for these purposes, the factual scenario is as follows: the claimant is the daughter of the deceased, born of a sporadic relationship outside marriage; the mother -then single- later married the defendant, whom she appointed sole heir by the aforementioned testamentary provision.

The court a quo considers that “… at this stage the distinction between children born in and out of wedlock has been sufficiently overcome, it appearing that in the statement of defence the defendant merely said that inofficiousness is not applicable because the claimant is not a child of the marriage and therefore nothing has to be reserved for her, all the more so if free disposition of property by the Navarrese deceased is admitted, because it is a general principle that does not conflict with the legal reserve of this Law, except that here children or descendants who are harmed or their successors must be understood to include those born outside marriage, since the same reason exists for both of protection and equalisation with the later beneficiaries (children) or with the spouse, and in any case, there is here a most evident consideration, which is that it is a matter of reason and justice to understand that no intention to put aside her daughter born out of wedlock can be attributed to the deceased, treating her worse than other children (even if they are not hers), and that this cannot at present be the legislator’s will” (sic Third Legal Ground).

THIRD

Law 272 of the Fuero Nuevo establishes, as relevant at present, that “children of a previous marriage shall not receive from their parents less than the most favoured of the children or the spouse of a later marriage”. It has generally been pointed out that this rule is a safeguard against any possible capture of the deceased’s will by the personal affections of the members of his or her second marriage, and a preservation of the fair inheritance expectations of the children of the first marriage. It is, moreover, a principle with manifestations in other areas, such as the non-impairment of the rights of children of the first marriage by any renunciation that children of the second marriage may make (law 77 FN ), the same non-impairment by gratuitous dispositions made by the second or later spouse (law 157 FN ) or the reservation of the twice-married person (laws 274 et seq. FN). Furthermore, this rule is supported by various provisions that prevent circumvention of the law in this matter, such as the ineffectiveness of hereditary substitutions that harm the rights of children of a previous marriage (law 222 FN ) or the requirement that the partition respect those rights (law 339 FN ).

Well then, the question raised in the present dispute is whether that rule, which literally protects only “children of a previous marriage”, extends to any type of prior filiation, and specifically to prior filiation outside marriage. On this matter, as can be seen, the wording refers only to children born in wedlock; however, the rule of non-discrimination of filiation on grounds of its kind (law 68.II FN, Art. 1 Foral Law 6/2000, Arts. 14 and 39.II Spanish Constitution and 108.II Civil Code), could lead rather to the conclusion that the rule must be interpreted as relating to both filiation within and outside marriage, and within the latter both that arising from a stable relationship and from a sporadic one.

FOURTH

The defenders of this latter interpretation (extension of law 272 FN to children born outside marriage) rely on the principle of non-discrimination on grounds of filiation, present in Articles 14 and 39.II of the Spanish Constitution as well as in law 68.II of the Fuero Nuevo as worded in its 1987 reform. This principle was, moreover, reformulated from another perspective in Article 1 of Foral Law 6/2000 of 3 July, on the legal equality of stable couples, under which “in the interpretation and application of the Navarrese legal system, no one may be discriminated against by reason of the family group to which he or she belongs”. If all children have equal rights, and cannot be discriminated against because they were born in or out of wedlock, law 272 FN could only be interpreted to mean that children born outside or within marriage prior to the first, second or later marriages have the right to receive, at least, the same amount of property as the spouse or children of a later marriage. This interpretation is, at bottom, the one adopted by the court a quo and was likewise fully argued by the Second Section of this Provincial Court in its Judgment of 29 February 2008, following an initial line set by the Third Section of this same Court in its Judgment of 15 February 2006.

On the contrary, in favour of the first interpretation indicated (limitation of Law 272 FN to children born in wedlock only) it has been argued that the clear and unequivocal wording of the provision refers only to children of a previous marriage. It cannot be interpreted that there was an “oversight” by the legislator or poor drafting in not including children born outside marriage, since in the 1987 reform of the Fuero Nuevo some provisions did take into account the new principle of non-discrimination of filiation, amending them to equalise children of one kind or the other (laws 304 and 305 on ancestral and non-ancestral property, law 268 on foral legitime or laws 308 et seq. on the right of representation). If this was not done in Law 272 it was precisely because the intention was to reserve the rule for children born in wedlock only. This position, moreover, according to some of its defenders, would not contradict the principle of non-discrimination on grounds of filiation since law 272 is not based on the fact of filiation, but on belonging to a specific family group, that of the first marriage. This is shown by the fact that equalisation applies both if it benefits any of the children of a later marriage and the spouse who married the deceased in second nuptials. Filiation would not historically have been the reference element for attributing those rights, and that is why it has been possible to dispose mortis causa without restrictions in favour of children born outside marriage. In accordance with this reasoning, unequal situations may indeed be treated unequally, according to the well-known doctrine of the Constitutional Court, and the Navarrese legislator may lay down rules referring only to family groups based on marriage, without this conflicting with non-discrimination on grounds of filiation (cf. in this line of argument the cited Judgment of the Provincial Court of Navarre -Section 2- of 29 February 2008).

FIFTH

It is precisely to give effect to this interpretation of Article 272 that the Judgment of the High Court of Justice of Navarre of 24 November 2008 came, quashing the previously cited judgment of the Second Section of this Provincial Court of 29 February 2008. The High Foral Court concludes that “a literal reading of law 272 FNN shows that it has no point of connection with the disputed case: there are no children from a previous marriage, there are not two marriages, there is no conflict between two family relationships, and there is no discrimination or inequality between children, because the conflict arises with the only spouse of the only marriage. And if law 272 FNN could have any element at odds with modern sensibilities, it is for the Navarrese legislator or, as the case may be, the Constitutional Court to assess the grounds and limits of that discord” (sic last paragraph of the Fifth Legal Ground). This Section, aware that the primary purpose of foral cassation is precisely the interpretation, adaptation and development of Navarre’s historical law, places itself within the interpretative coordinates that the High Court of Justice makes, in its recent decision, of law 272 of the Fuero Nuevo this being the reason why the appeal brought by the person who was the defendant at first instance succeeds; even though the Chamber has certainly weighed the possibility of raising a question of constitutionality as to the fit of the said provision of foral civil law in light of the constitutional principle prohibiting discrimination (art. 14 SC ).

In relation to law 272 of the Fuero Nuevo itself, this Section must also point out that the second ground raised in the appeal is the lapse of the action for inofficiousness. Thus, the provision of the Fuero Nuevo states that “only children or descendants who are harmed or their successors may bring the action for inofficiousness, and they must file it within four years counted from the death of the disposer”. There is no doubt that the said period provided for in the foral rule falls within the institution of lapse (caducidad). Indeed, in the Fuero Nuevo, when a lapse period is established for the exercise of a given action, it merely sets it, following the pattern of the first sentence of law 26, without prefixing the term “lapses” or similar (see laws 59, 70, 85, 164, 272 and 451), with the sole exception of law 458 which uses the expression “within the following lapse periods” (cf. in this regard the Judgment of the Provincial Court of Navarre -Section 3- of 16 February 2000). It should be borne in mind that the date of death of the claimant’s mother was 22 May 1994 and the action for inofficiousness was brought in 2007 (thirteen years later), the different ways of interrupting limitation periods not being applicable to lapse periods, since limitation and lapse, although they produce the same extinctive effect and serve the common purpose of preventing rights from remaining indefinitely uncertain, present as a distinguishing feature, among others, that in the former the time factor can be halted in its progress towards extinguishing the legal relationship if there are acts opposing the limitation design, which does not occur with lapse, where interruption is not possible (see, among all, the classic Supreme Court Judgments of 17 November 1948 and 25 September 1950).

These latter judicial decisions of the High Court further argue that, for a limitation defence to succeed, it must be asserted by means of a plea duly raised by the defendant, whereas lapse, operating the extinction of the right automatically, may be noted ex officio by the Judge, even if its existence only emerges from the claimant’s or the defendant’s statement. In fact, at first instance the defendant raised this manifestation of the importance that the passage of time has in legal relationships, although he called it “limitation”. However, once the possible existence of an institution that calls into question the lapse of the right through the inaction of its holder (whether called limitation or lapse) was noted in the case file, the court a quo, applying the principle iura novit curia, should have noted that the period provided for in law 272 of the Fuero Nuevo falls within the institution of lapse. Recall that choosing the applicable rule is a function proper to the office of judging, in accordance with the well-known adage da mihi factum, dabo tibi ius.

SIXTH

The upholding of the appeal means that the costs of the appeal are not expressly imposed (ex art. 398.II LEC ). As for the costs of first instance, we consider that the general rule of defeat must be set aside, as the very rule of Article 394.I of our Civil Procedure Act allows, since it concerns a controversial legal question and there was no case law that could clearly indicate the direction of the interpretation.

Seen the legal provisions invoked, those concordant and others of general and pertinent application

R U L I N G

That upholding the appeal to which this file relates, lodged by the court representative Mr Jaime Goñi Alegre, in the name and on behalf of Mr Jacinto, against Judgment no. 238/2008 issued by Court of First Instance No. 5 of Pamplona dated 18 December 2008 (Ordinary Proceedings no. 951/2007), we must revoke and do revoke the said decision, issuing this one in its place by which we must dismiss the claim filed by the court representative Mr Javier Araiz Rodríguez, in the name and on behalf of Ms Carlota. Without express order for costs in either of the two instances.

Thus, by this our Judgment, we pronounce, order and sign it.

“Extracted from vLex (Judgment no. 135/2009 of the Provincial Court of Navarre, Section 1, 1 September 2009)