Oath of Nationality before a Notary. Guide for its processing
The reform enacted by Law 6/2021 of 28 April introduced the possibility that declarations of intent relating to the acquisition of Spanish nationality by residence could be made before a Notary. As is often the case, the regulation was approved but it was not specified how this would be applied in practice. For this reason, through the Instruction of the Directorate General of Legal Security and Public Faith of 22 December 2021, certain aspects affecting the oath of nationality have been clarified, which we proceed to explain by updating the previous post we published.
What is the oath of Spanish nationality and how is it processed?
The oath of nationality, not to be confused with the oath of allegiance that the military take, is the final procedure for acquiring Spanish nationality, by which the applicant swears and/or promises loyalty to the King of Spain and to the Spanish constitution and legal system. Likewise, as we will see in this post, a civil residence is chosen and the previous nationality is renounced, except for the exceptions explained below. Once the oath is taken, it will be presented at the corresponding Civil Registry and the birth certificate will be obtained, which will show the Spanish nationality.
Until now, the oath of nationality was taken before the person in charge of the Civil Registry, once received. However, on 23 September 2021, the Instruction of the Directorate General of Legal Security and Public Faith of 16 September was published in the BOE, which allows the oath of nationality to be taken before a Notary, further completed by the aforementioned Instruction of 22 December. Taking the oath before a Notary has the advantage of the speed with which it is carried out compared to the process at the Civil Registry, which is much slower, sometimes delayed by months due to their overload, among other reasons.
Before which Notary should I start the file and in which Registry must it be submitted?
One of the most important changes introduced by the Instruction of 22 December is the one referring to notarial jurisdiction. Following the Instruction, the oath of nationality must be sworn before the Notary competent in the applicant's domicile in Spain as stated in the grant resolution. If the domicile has changed, the competent Notary will be that of the latter, but this must be proven by means of a certificate of registration indicating the length of residence.
In our opinion, this affects the citizen's right to freely choose the Notary, a right recognised in article 3 of the Notarial Regulation, and is further limited by a mere Instruction. On the other hand, some Civil Registries, abusing this limitation, are rejecting oaths sworn before the indicated date, attributing retroactive effects, which it lacks, to the Instruction, causing harm to the citizen acquiring nationality, contrary to the most basic principles of non-retroactivity of laws, recognised in article 9.3 of the Constitution and article 2 of the Civil Code, among others.
Regarding the competent Registry, the oath must be registered in the Civil Registry of the domicile stated in the resolution communicated to the interested party, with one exception: if they provide a certificate of registration with a registration date prior to the date of the resolution.
However, once signed by the client, the Notary's office takes care of sending a copy of the granted document to the competent Civil Registry, so the client does not have to worry about this, either electronically, when established, or by ordinary mail.
