When dealing with legal matters across different countries, understanding the role and functions of legal professionals is crucial. Two such professionals are the UK notary public and the Notario Público in Spain. Although their titles may sound similar, their roles and responsibilities differ slightly due to the legal systems they operate within. This blog will explore the key differences between these two important legal professions.
1. Roles and Responsibilities
UK Notary Public:
Authentication and Certification: A UK notary public primarily authenticates and certifies documents for use abroad. This includes verifying signatures, certifying copies of documents, and witnessing affidavits.
Preparation of Legal Documents: They prepare and attest legal documents such as powers of attorney, contracts, and property deeds intended for international use.
Translations: They may also be involved in translating and certifying translations of documents.
Assessment of Mental capacity: UK notaries are vigorously trained in assessing mental capacity of individuals (following the provisions of the Mental Capacity Act 2005) involved in legal transactions. This training ensures that individuals understand the documents they are signing and are doing so voluntarily and without duress. Assessing mental capacity involves evaluating whether a person can understand, retain, and weigh the information relevant to a decision and communicate their decision.
Custodian of Records: UK notaries keep a record of every document that is signed, some of them must even be kept forever, such as documents drafted in public form, resembling the Spanish system. The notary will also keep a register of the person or company that signed the document and the ID method employed at the time of identification.
Spanish Notario Público:
Public Official Duties: A Notario Público is a public official who certifies documents and plays a key role in drafting and advising on legal documents, such as wills, deeds, and contracts.
Legal Advice: They provide legal advice and ensure that parties fully understand the implications of the documents they are signing. This advisory role is legally mandated and extends to family law, inheritance, and business transactions.
Custodian of Records: Spanish notaries also maintain and archive original legal documents, ensuring their preservation and accessibility for future reference.
Judicial Functions: In some cases, they perform quasi-judicial functions, such as acting as arbitrators in disputes and overseeing the execution of certain legal transactions.
2. Education and Training
UK Notary Public:
Qualification: To become a notary public in the UK, one must first be a qualified solicitor, a barrister or have passed a number of prescribed subjects in English law and then undergo additional specialised training in notarial practice.
Regulation: The profession is regulated by the Faculty Office of the Archbishop of Canterbury, ensuring that notaries adhere to high standards of practice and ethics.
Ongoing training: UK notaries continue to train and update their knowledge every year by means of mandatory credits imposed by the Faculty Office (the regulator) on all notaries, which can take the form of courses, conferences, or other work.
Mental Capacity: Part of their training includes assessing mental capacity. This involves understanding the principles of capacity law and the practical application of these principles to ensure that clients have the necessary understanding and mental capability to engage in legal transactions. This training helps prevent undue influence, fraud, and ensures the validity of the documents. They are also trained in how mental capacity is assessed in countries like Spain.
Spanish Notario Público:
Qualification: Becoming a Notario Público in Spain requires a law degree followed by rigorous postgraduate training and competitive examinations (public exams). This process is highly selective, ensuring that only the most qualified candidates enter the profession.
Regulation: Spanish notaries are regulated by the General Council of Notaries (“Consejo General del Notariado”), which oversees their professional conduct and ensures compliance with legal standards.
3. Scope of Authority
UK Notary Public:
International Focus: The primary function of a UK notary public is to facilitate the use of UK documents abroad.
Powers of Attorney and other deeds such as Deeds of Transfer of Property, Deeds of Acceptance of Inheritance, deeds granted by Spanish Companies for registration at the Commercial Registry in Spain and others are recognised under Spanish Law when signed before a Notary Public in the UK as long as the document follows the same legal formalities as if it was signed before a notary in Spain (equivalence principle), provided it does not contravene principles of public policy (the document must be compatible with the fundamental principles and legal norms of the Spanish legal system) and that it meets the formal requirements of a notarial act as per Spanish law (this includes proper identification of the parties, clear expression of their consent, and accurate documentation of the act or transaction).
Limited Domestic Role: Within the UK, their role is more limited compared to solicitors and barristers.
Spanish Notario Público:
Domestic and International Role: A notario público has a significant role both domestically and internationally. They are integral to the execution of many types of legal transactions within Spain and ensure that these transactions comply with Spanish law.
Wide-Ranging Authority: Their authority extends to various areas of law, including property transactions, company formation, and family law matters.
At Lopez & Moreno Associates, Notaries & Spanish Lawyers, we are able to perform the functions of a Spanish Notario Público from the UK as we are familiar and have a technical understanding of the Spanish legal system in our capacity of Spanish lawyers. We are also able to provide advice in the same way a Spanish lawyer or Spanish Notary would do as we are not affected by the rules of incompatibility of functions.
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