How is an out-of-court agreement approved by a court?

Question

José Manuel Alburquerque · Accepted Answer

Court approval (“homologación”) means that the judge approves an agreement so that it has the effects of a judgment and can be enforced like one if it is not honoured. As a general rule, it is only possible when proceedings are already under way, because it is done by the judge hearing the case, at the parties' request. If there are no proceedings, the agreement is not approved by a court, but it is binding all the same, like a contract. So that it can be enforced in court without a prior trial, it is signed as a public deed before a notary. Agreements reached in conciliation before the court clerk (“letrado de la Administración de Justicia”), the justice of the peace, a notary or a land registrar can also be enforced in this way. If proceedings are already under way The parties can reach an agreement at any stage of the proceedings, including during appeals or the enforcement of the judgment. For the judge to approve the agreement, the usual steps are as follows: Put everything that is agreed in writing, including who pays the costs of the proceedings. File it with the court, signed by the parties, normally with a joint pleading, or set it out before the judge at the preliminary hearing or at the hearing. The judge checks that the parties are free to dispose of what they are agreeing on and that the agreement is not unlawful and does not harm third parties. If so, the judge approves it by a decision called an order (“auto”). If the parties do not sign in person, their court agent (“procurador”) needs a special power of attorney allowing him or her to reach agreements on their behalf. The approved agreement has the effects of a court settlement, which is the agreement by which the parties bring a case to an end, each giving something up. If one party does not honour it, the other can apply for its enforcement as if it were a judgment, without a new trial. It can only be challenged on the grounds that invalidate contracts, such as mistake, deception or intimidation. If there are no proceedings An agreement reached out of court is binding on those who sign it, without any need for a judge to approve it. If it results from an appropriate dispute resolution method (the “MASC”), such as negotiation or mediation, in principle no new claim can be brought over the same matter, except to have the agreement declared void on the grounds that invalidate contracts. What it does not have on its own is enforceability, that is, it does not allow you to ask the court directly to attach assets if it is not honoured. There are two ways of obtaining it: Formalising it in a public deed before a notary. The notary checks that the legal requirements are met and that the content is not unlawful. With the deed, enforcement can be sought directly. Reaching it in conciliation before the court clerk, the justice of the peace, a notary or a land registrar, which leaves a record of the agreement and allows its enforcement to be sought. If the agreement is a private document and it is not honoured, its performance will have to be claimed in court proceedings, as with any contract. Family matters have their own rules, because agreements affecting minor children generally need the judge's approval.