Foreign legal documents – validity in Spain
LEGAL documents from abroad that need to be recognized and used in Spain must fulfil several requirements to be considered valid. Firstly, the documents must be legalised, that is they must contain proof of the fact that they are authentic and that the signature of the authority or person who has signed them is really the said persons or authorities’ signature.
Normally, this requirement of legalisation is fulfilled by means of what is called an Apostille in the cases in which the document comes from a country that is a signatory of the Hague Treaty of October 5, 1961 but in the case of countries who have not signed the said treaty, the legalisation procedure can be carried out via a diplomatic legalisation which is normally admitted when the legalisation has been carried out by the Spanish Consulate in the country of issue. Documents issued by the consular services of other countries can also be legalised directly in Spain via the Spanish Ministry of Foreign Affairs.
Once the requirement concerning the legalisation has been fulfilled, the documents will normally need to be translated into Spanish (or the official language of the autonomous community in which the document will be used) and if the notary is not familiar with the language in which they are written. An official translation is produced in Spain by socalled sworn translators who are officially recognised translators who are regulated by the Spanish Ministry of Foreign Affairs.
There are some exceptions to the general rules above which are listed below:
Dual language certificates issued pursuant to the Vienna Treaty of September 8, 1976 (normally certificates that document one’s civil status) do not require an Apostille nor a translation as they are issued in a dual language format. However, in this case, the United Kingdom is not included on the list of signatories.
Consular certificates issued by countries who are signatories to the Treaty of London dated June 7, 1968. These documents do not require an Apostille but do require an official translation. The United Kingdom is amongst the signatories of the treaty.
Civil status certificates issued by member states of the EU. From February 16, 2019 it is no longer necessary to fulfil the formal requirements for this type of documents if the documents are issued within the EU as per the EU Regulation 2016/1191. These documents are issued on standard forms with multiple language formats. Exceptionally the country in which they are to be used may request an official translation but this is not normal.
Public documents that are issued abroad which need to be considered as such in Spain for the purposes of a Spanish legal transaction must comply with the equivalent requirements to Spanish public documents.
This principle of documentary ‘equivalence’ entails the fulfilment of a formal or apparent equivalence, an actual functional equivalence and an equivalence of effects, that is that the document has the same effects in Spain as in the country in which it is issued.
Due to these reasons, documents issued in the UK by solicitors may not be considered to be equivalent to their Spanish equivalents which would be granted normally before a notary public due to the fact that solicitors in the UK and notaries in Spain have different functions.
A will for example witnessed or certified by a solicitor would not be considered as a valid certified copy of a will in Spain unless the copy was certified by a notary or unless the will itself was attached to the probate which would be considered as a public document.
Another example would be certified copies of company articles of association. These would not be recognised if they were certified by a solicitor and they would have to be certified and apostilled by a notary public.
Although it may seem confusing, the actual Apostille itself does not actually confer public effects to the documents themselves but it does evidence and confirm that the signature on the document is the signature of the purported signatory and his/her official status.