Family Law

Question 1

What is Family

Answer 1

Group of people organised with human and social transcendence, who under the power of one of its members are united by bonds that can be determined by affection, blood or the Law.

The concept of family changes when people of the same sex can marry (2005).

Question 2

Uniqueness of Family Law

Answer 2

Family Law emerge as a special branch of Civil Law.

Family Law is different from others laws as it prevails personal relationships rather than economical relationships. It involves emotions and personal relationships, and usually tries to uphold such relationships.

This type of laws provide predominance to personal relationships and social interests (framework understands the family as the smallest organised group in society).

Due to the social importance of a family group, the State intervenes with greater intensity in the relationships that occur in its environment through the Public Prosecutor .

Question 3

Key aspects of Family Law

Answer 3

• • Ethical quality of its institutions: a markedly more moral than legal character in the content of its laws.
• • The predominance of strictly personal relationships over property-subordination of the latter to the former. It is a discipline of status(spouse, parent, child, relative), which are related to the individual and are imposed as absolute rights, inside & outside the group.
• • The primacy of social interest over that of the individual, which imposes very strong limitations on the principle of autonomy of the will.

Question 4

The family is a source of internal & external relationships.

Answer 4

Internal ones:

• • Affection between spouses
• • The performance of these in the interest of the family
• • The custody of the children
• • Food…

External ones:

• • Freely chosen address
• • Nationality
• • Surnames, Name…

Question 5

Marriage

Answer 5

No definition

Since 1981, the marriage does not restrict the capacity of either of the spouses for the fact of contracting marriage.

Coexistence more uxorio as a social alternative to marriage.

In the absence of marriage or permanent coexistence between legitimate, natural or adoptive relatives in a straight line, a biological relationship or the will to constitute a permanent group would be required.

Question 6

Types of Marriages (3)

Answer 6

They are all civil marriage recognised by the Spanish State, however, they differ in obligations and procedures:

• • Canonical Marriage
• • Civil marriage
• • Non-canonical religious marriage

Question 7

Canonical Marriage

Answer 7

«The marriage covenant, by which a man and a woman establish between themselves a partnership for the whole of their lives, ordained by its very nature for the good of the spouses and the procreation and education of children […].»

Relevant legal sources in Spain:

• • Code of Canon Law
• • The Agreement between the Spanish State & the Holy See 1979
• • All provisions of the CC with its complements to the Civil Register on canonical marriage.

Question 8

Civil Marriage

Answer 8

== No Definition ==
Can be considered:
«The marriage is the status of two people, whose union has been enshrined in law»

============Art 68: «The spouses are obliged to live together, be faithful and help each other.» ============

Article 49 CC, by providing that «Any Spaniard may marry within or outside Spain: Firstly, before the judge, mayor or official indicated by the Code. Secondly, in the religious manner legally prescribed.»

Art 51 CC states: «The following are competent to celebrate the marriage:

1. The judge in charge of the Civil Registry and the mayor of the municipality where the marriage takes place or the council or to whom this is delegated.
2. The delegate designated by regulation in municipalities where a Judge does not reside.
3. The diplomatic civil servant or consular official in charge of the civil registrar abroad.»

Spanish Law 13/2005:

• • a.same-sex marriage& equality between heterosexual & homosexual marriage
• • joint or successive adoption for «homosexual spouses» – the right to exercise the right not to be married without the previous occurrence of any cause
• • the principle of shared responsibility in the exercise of parental authority (patria potestad)
• • the express provision for joint custody or the use of family mediation.

Question 9

Non-canonical religious marriage

Answer 9

Art 59 stipulates that «Matrimonial consent may be given in the form prescribed by a religious confession registered in the terms agreed with the State or, failing that, authorised by its legislation.»
Art 60 says that «Marriage celebrated according to the norms of canon law or any religious form referred to in the previous article produces civil effects. The full recognition of the same will be provided in the next chapter.
Through Laws 24, 25 & 26/1992, various agreements were approved with:
== The Federations of evangelical organisations
== The Federation of Jewish Communities
== The Islamic Commission of Spain.

Subject to state law except for the solemn celebration of form.
Civil validity by its listing in the Civil Registry.
Law 15/2015 “these collectives have the right to celebrate religious marriage with civil effects”.

Question 10

Marriage contract in Spain (Economic regime)

Answer 10

Art 1315 CC provides that «the economic regime of marriage will be what the spouses stipulate in marriage contracts, without other limitations than those established in this Code».

The marriage contracts (or nuptial agreements or settlements) can be defined as «a contract for goods on the occasion of marriage.»

Question 11

Marriage economic regimes (3)

Answer 11

1) Regime of community of property –1344 & 1345 CC.
2) Regime of separation of property or goods.
3) Participation regime.

Question 12

Regime of community of property

Answer 12

In the conjugal partnership the gains or profits made by either of them are in common for the spouses, to be allocated to them in halves on its dissolution.
«The conjugal partnership will begin at the time of the marriage or as subsequently agreed upon at the time of the contract».

Question 13

Regime of separation of property or goods

Answer 13

«that in which each spouse retains, independently of the other, mastery, enjoyment & administration of their own property.»

The separation of goods will exist between spouses:

1. When they have so agreed.
2. When spouses have agreed in marriage contracts that community of property will not govern between them without express rules that are to govern their property.
3. When, community property or the regime of participation is extinguished although the marriage continues (see Article 1435 CC).

Question 14

Participation regime

Answer 14

Article 1411 of the CC provides that «each spouse becomes entitled to participate in the profits of his/her spouse during the time that the scheme is in force.»

Article 1412 of the CC states that «each spouse is responsible for the administration, enjoyment and free disposal of both the property belonging to him/her at the time of marriage and those acquired later by any title».

Question 15

Marriage Void (Nullity)

Answer 15

1. The marriage is celebrated without consent.
2. The marriage is between persons referred to in Articles 46 and 47, except in cases of exemption under Article 48.
   ==== Art 46 CC The following persons may not marry:
   - Non-emancipated minors.
   - Persons who are already joined in marriage.
   ==== Art 47 CC The following persons may also not marry each other:
   - Direct line relatives by consanguinity or adoption.
   - Collateral relatives by consanguinity up to the third degree.
   - Persons sentenced as authors of or accomplices in the murder of the spouse of either of them.
   ==== (can be seen as exceptions to Art. 47) Art 48 CC The Minister of Justice may waive the impediment of murder of the former spouse at the request of one of the parties.
   - The First Instance Judge may waive, with just cause and at the request of one of the parties, impediments relating to third degree collateral consanguinity and the age impediment for persons older than fourteen.
   - The minor and his parents or carers must be heard in proceedings to waive the age impediment. A subsequent waiver shall validate the marriage from the date of its performance, where neither party has applied to the court to have it declared null and void.
3. The marriage is contracted without the intervention of the judge, mayor or official before whom it should be held, or without witnesses.
4. A marriage celebrated by mistake about the identity of the person of the other party or those personal qualities which by their nature, shall have been determinants of giving consent».

Question 16

Marriage Dissolution

Answer 16

By death or declaration of death of one of the spouses and by divorce.
Art 81 CC points out «separation will be judicially decreed whatever the form of marriage if:
1) At the request of both spouses or of one with the consent of the other, after three months of the celebration of the marriage. A petition will be accompanied by a proposed regulatory agreement in accordance with Art 90 CC.
2). This period for the filing of the petition is not required (exception to 1) where it is proven that there is a risk to life, physical integrity, freedom, moral integrity or sexual freedom.

Question 17

Adoption

Answer 17

A person/marriage receives as a child a child with all the rights and obligations that entails in order to provide a safe, permanent and stable context in the framework of a family.

It is a legal act that creates between two people an exclusively legal relationship, producing the same effects as if it were marital or extramarital filiation.

Homosexuals and two unmarried people are allowed to adopt.

The Civil Registry inscription will not refer to the condition of adopted person. This person will be son of the adopter and breaks all his links with the previous family.

It is irrevocable and is extinguished by judicial resolution.

Question 18

Adoption Criteria

Answer 18

# The adopter must have full capacity to act and can never adopt a legal person. 
# Singles must be over 25 years old.
# The adopter must necessarily have at least 14 years more than the adopted one. 
# A deceased person can adopt if he had previously given his consent before the judge.
# Only non-emancipated minors can be adopted. 
# You can not adopt a descendant, even a relative in the second degree of collateral line by consanguinity or affinity. Neither a ward can be adopted by his guardian until the accounts justifying the guardianship have been approved.