ALGUNOS PROBLEMAS DEL RÉGIMEN JURÍDICO DE LOS ACTOS INSCRIBIBLES RELATIVOS A CIUDADANOS BRITÁNICOS.

Abstract

This paper analyses some practical problems of property registration involving individuals of British nationality, particularly when the system governing the individuals' marital assets and succession must be determined. First, stress is laid on the difficulties of determining what law applies to the person of British nationals under articles 9.1, 9.2 and 9.8 of the Civil Code. Because there is no English or Scottish nationality, the delimitation of the law applicable to English persons or Scots, pursuant to article 12.5 of the Civil Code, requires use of the criterion of domicile, as conceived in the jurisprudence of the House of Lords. That makes it needful to clarify three basic concepts: domicile of origin, domicile of choice and domicile of dependence. When the domicile is located in Spain or a third country, it is necessary to analyse the scope of the English and Scottish rules of conflict and, lastly, to determine in what cases referral to Spanish law may be admitted. If the application of English or Scottish law to the system of marital assets or succession is established, it is best to specify the true scope of the substantive law of said territories. So, as opposed to widespread belief, the paper highlights the real rights of the spouse in ownership of the family home (constructive trust), even in those cases where the other spouse appears as the sole formal owner. Similarly, emphasis is placed upon the differences between English and Scottish law in matters of freedom to make wills, and the limits that such freedom faces even in English law. In the light of this analysis, a number of proposals and precautions for the practice of registration are shared.