RÉGIMEN JURÍDICO DE LOS BIENES PRIVATIVOS CONFESADOS.

Abstract

This paper attempts to address the wealth of problems resulting from the legal procedure for assets recognized as privately owned, i.e., assets whose privacy of ownership stems solely from the fact that they are acknowledged by the owner's consort as privately owned. The paper examines article 1324 of the Civil Code and its implementation in mortgage law (mainly article 95 of the Mortgage Regulation), which contains a substantive regulatory component that makes mortgage law different in some respects from civil legislation. Special attention is paid to the stances taken in legal thought and especially the positions taken in case law by both the Supreme Court and the Directorate-General of Registries and Notarial Affairs, which are examined from an essentially practical view, with the healthy intention of working past the most conflictive of the legal procedure's drawbacks. Certain conclusions are thus reached, possibly conclusions not intended by legislators. We are led to the conclusion that it would be advisable to remodel the legal procedure now in force to encompass the freedom of contract between spouses established in article 1323 of the Civil Code, which was one of the fundamental pillars of the family law reform of thirty years ago. To paraphrase Tirso Carretero, the paper proposes less over-regulation and more direct use of the Civil Code.