Professional Documents
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Fam Law
Fam Law
Fam Law
Family law protects family as a fundamental unit, as it is the best interest of the society. As stated for
example, in art. 32 & 39 Sc and art. 6,8,12 & 14 ECHR.
Regulation:
- Mandatory law
- Rights and obligations vs powers and duties
- duties:
→ moral content in art. 65 &855 SCC
→ for example in Art. 226.2-227.1 & 228 of the Criminal Spanish Code
- Random legislation, EU reunification law shapes the concept of family.
Meddling of the state: justification. Why and how? Regulation and jurisdiction.
Formalities
Change of status
SESSION 2: WHAT IS A FAMILY? SOCIAL AND LEGAL CONCEPT
Objective:
1. To analyse the social and legal concept of the family:
Ordinary legislation. Shapes narrow and promotes a form of family.
- For example the Council Directive 2003/86/EC of 22 September 2003 on the right to
family reunification and others.
- Polygamy: art. 4
2. Examine the harmonising EU approach to the concept of family and limits:
- Art. 8,12 & 14 ECHR:
Freedom: balancing public order & harmonization.
The case of gay families on Oliari Case.
Surrogacy: case of Paradiso and Campanelly vs Italy
Articles defining these concepts:
Article 8: Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the protection of the rights
and freedoms of others
Article 12: Right to marry
Men and women of marriageable age have the right to marry and to found a family, according to the
national laws governing the exercise of this right
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Article 14: Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other status
Conclusions:
- Given its moral and public order, positive national law has broad discretion to regulate family life
and which adult unions should be considered family as a relationship that deserves protection.
- The EU is sensitive enough to understand that the concept must be shaped by national
legislation, since what constitutes a family is a matter of public order closely linked to the culture
and morals of each country.
- The courts have a duty to adapt the concept to new realities on a case-by-case basis, but
Regulation is necessary in order to protect family realities. The evolution of case law alone is not
enough and, in the long run, will create uncertainty. We cannot delegate not even in common law
systems the regulation to the courts.
- The law must adapt to social changes
- The approach used to analyse the concept of family is the functional approach : What does a
family do? The limit: public order.
- Marriage is no longer the only form to found a legal family; other forms of family are protected..
- Equality is paramount in the development of the concept.
SESSION 3: Legal Family
Family: social institution that exits regardless of the law
Natural fundamental group and is entitled to be protected by society and state
Legislation:
Art. 16 ECHR: fam is natural and fundamental group of units of society and entitled to protection
Art. 12 ECHR: right to marry and to form a family
Art. 14 ECHR: limit to discretion (no discrimination): regulate marriage but no discriminate
Historically, marriage has been the way to create a legal family.
The court has a very important role when defining the law. Family is such an important element for
society that it is essential to be regulated.
Marriage is no longer the only form of legal family: other forms are also protected.
Civil partnership
= as Civil unions, de facto couples (people that stay together outside marriage)
What is it? Stable union between two people. It is resemblance of a marriage, and they share existence and
life, take care of each other and raise children.
People that don’t want to enter to marriage, nor be subject to the regulation that it carries.
The case of Spain: gay marriage 2005: There is gay marriage and unilateral divorce in this case. In Spain
there is no national legislation about partnership, so no references. So, each autonomous community
regulates it, therefore it is different in each of the 17.
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The Spanish law states for example that if there is a conflict between a couple that has been together for
20 years in a partnership, and the supreme court, they say: if they do not get into an agreement it passes to
the national law (and as in Spain we don’t have, it is up to the law in each autonomous communities).
Marriage:
Art 16 UCHR UN:
Men and women of full age, without any limitation due to race, nationality or religion, have the right to
marry and to find a family. They are entitled to equal rights as to marriage, during marriage and at its
dissolution. (2) marriage shall be entered into only with the free and full consent of the intending spouses.
(3) the family is the natural and fundamental group of unit of society and is entitled to protection by
society and the state.
Def: stable union between two people intended for life to live a share exitance for which formalities are
needed.
Marriage: institution (cultural universal, which means that it is present as a social institution in all cultures)
/ semi-public contract.
Today: recognised it as an special relationship: other forms of legal families, which freedom, trend for
non-fault and able to unilateral divorce.
National law regulates:
- Rights and obligations of married couples – ex: ownership of marital property, parental
duties, married name
- Formalities and recognition of religious and civil marriages
- Pre-requisites for marriage and the legl capacity of the spouses
Session 5: Effects of marriage
Effects of marriage:
1. PERSONAL EFFECTS: CHECK ART. 66-67-68-71 SCC:
Act in the best interest of the family: duty of respect , live together, have a family home, financial
aid , share family duties towards children , be faithful, assist each other ,etc..
• Are these duties/obligations enforceable? What are the legal effects attached to
these duties?
• Can the spouses dispose of these duties, Can they be subject of prenup? No.
2. PATRIMONIAL EFFECTS:
• A) SYSTEMS WITH MANDATORY MATRIMONIAL REGIMES (CIVIL
LAW SYSTEMS).
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• CONCEPT of matrimonial regime (Economic systems of the marriage): Rules
that govern the ownership, administration and management of private and common assets
and liabilities during the marriage and the distribution of common assets upon
termination of the marriage.
• The effects of these rules are displayed, both, during the marriage
and upon termination.
• Principles that guide the regulation: Freedom of stipulation**/
Equality between the spouses and Flexibility.
• MAIN TYPES OF REGULATION:
• Title-based” regimes of property: assets are owned according to
who holds ownership title of each asset. Absolution separation.
• Community property regimes: implies the existence of marital
assets commonly own by spouses.
• B) SYSTEMS WITH NO MATRIMONIAL REGIMES (COMMON LAW
SYSTEMS): based on separation of property with equitable legal distribution of
assets that upon divorce are re-classified as matrimonial. Marriage does not affect
ownership.
BEFORE WE START: A reminder on co-ownership of THINGS.
1. ROMAN COMMUNITY (TENANCY IN COMMON) = The comuneros (the partners) each owns a
part/share /quota of the THING.
2. GERMAN COMMUNITY (JOINT TENANCY). Not divided into quotas. The co-ownership exists
until the community is extinguished *** if so, equal shares.
A. SYSTEMS WITH MATRIMONIAL REGIMES
Civil law systems; generally, the regulation is combined with regulation of legal heirs : the
surviving spouse, and children being a legal heirs.
• Concept: The «economic system of marriage» or «matrimonial regime» is the group of rules
stated by the law to regulate the different patrimonial issues a rising from the matrimony.
Art. 1.315 et seq. SSC
Prenup: Art. 1325 et seq. SSC
• MAIN TYPES of REGIMES
Default rules in parties do not chose in the prenup agreement: E.g: Art. 1316 et seq. SSC
- Community of gains (Community property´s regime- Joint tenancy of
after-acquired marital property- Community of acquest- Community of
accrued gains regime).
Countries that have regulated it as a default regime: Among others, Belgium, Brazil ,
Chile , Colombia, Czech republic , France , Germany , Italy, Malta and Spain.
- Absolute separation (Title-based” regimes of property) .
Countries that have regulated it as a default regime: among other, Greece, Israel,
Iran, Jordan Lebanon, Ireland and Japan.
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- articipation regime (mix system) where the spouse whose income is lower
P
at the end of the marriage has the right to received half of gains of the other
spouse
E.G:
A´s income at the beginning 10 ud and 10 ud at the end : 0 ud gain
B´s income at the beginning 6 ud and 10 ud at the end. Total gain 4 ud
A has the right to received ½ of the 4 ud gained by B.
Study of the community of gains regime as an matrimonial economic regime
Classification of assets/ownership things:
• Private/exclusive assets: art 134 1346 et seq. SSC. Absolute separation.
• Common Assets. Art. 1.347 SSC held in a Joint Tenancy until termination of
marriage.
• Specific Rules: Art. 1.348 et seq. SSC. + E.g 1.359 SSC
Management and liabilities. Art. 1362 et seq SSC and Art. 1375 et seq. SSC
Termination of the regime: can be because Death or Divorce
- Effects: Joint tenancy terminates -Tenancy in common arises. 50/50
shares.
- Payment of creditors, compensation between spouses and the common pot (
art. 1359 SCC) , and distribution of common assets : 50/50 . Art. 1392 et seq.
SSC
B. SYSTEMS WITH MATRIMONIAL REGIMES
No effects during the marriage. There is an absolute separation.
Equitable distribution of marital assets upon divorce. Aim: parties should leave the marriage
financially in the same terms (fairness).
Marital assets (common law) may include inheritance, donation and assets prior marriage.
Generally regulated in common law systems and combined with inheritance rules where freedom
of disposal mortis causa prevails.
- USA:
Bezo´s case: He and her wife married without a prenup agreement. So if no prenup,
default rule applies:
They agreed and that agreement was acceptable for the court. They understood the
division was fair.
Freedom of disposal and non-matrimonial regimes.
- UK:
During the marriage, the starting point: the spouses are equal parties in a marriage
and should share “the fruits of the matrimonial partnership” equally. No definition
of marital property (discretion of the court).
Civil law system: matrimonial regime
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Common law: no system, just some principles and court has discretion
Starting point for a financial division on divorce: nullity or judicial separation is 50:50
is still good law for the majority of cases.
The decision in Sharp v Sharp 2017 tells us that the principle of a 50/50 split will not
automatically be applied in every case. A departure from the principle equal sharing
was justified so as to achieve fairness
Prenups:
Tool to decide which regime to apply.
Content: division and ownership of property
Limits: public order, moral and law: a prenuptial agreement cannot be used to determine issues regarding
child custody, child visitation rights, or child support payments.
Formalities needed: independent advice, full disclosure, written requirement and registration
Different ways to address prenup
- US: federal law which is the uniform premarital and marital agreement act 2012. Guideline
for the prenup agreement to be valid.
- UK: they don’t believe prenups agreement can solve anything. Marriage should be long
enough, so it is not possible to regulate what will happen to the marriage when it finishes
from the beginning.
Court can and will change the terms made by the parties if it would not be fair to hold them to
their agreement
Session 6: Divorce
Introduction:
It is a process for legal and formal dissolution of marriage.
Issues we have to consider when analysing a divrce case:
1. Change of status: Decree of divorce : national law
- fault divorce and litigious: petitioner must show the irretrievable breakdown of
marriage (ground for divorce)
- new trend ( human rights) = non fault divorce- fast track- unilateral divorce.
→ Who can grant a change of status ? Form : Judgment / Notary public.*
2. Liquidation of the marital assets : different systems:
- Mandatory Economic Regime and
- non mandatory regime.
→ Role of prenups . Which ones are marital assets? Principle : Fair distribution and/or
equitable distribution of marital assets ( Sharp v Sharp UK ).
3. Reorganising the family life: this entails the cancelling or reorganizing of the legal duties and
responsibilities and the creating obligations post marriage:
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→ compensation , custody ( trend = Share custody) , visiting rights and child support and or
alimony.
How to solve the legal conflicts?
1. Contentious: the judge decides
2. Settlement: Agreement between the spouses validated by the judge.
3. Mediation: ADR. → “Tailor made settlement” : limits of autonomy of will, nullity , consent,
legal capacity etc..)
→ Is it enforceable? Yes, by the Court .
- Formalities: Public Deed = directly enforceable by the judge. No need for validation.
- The issue with minor children.
Case study: Divorce of Carlos and Maria
Facts:
Maria and Carlos (Spanish and living in Segovia) married in November 2010 being Maria pregnant.
Maria´s personal assets before the wedding were:
- 100.000 EUROS in a bank deposit. Interest accrued since the marriage: 20.000 EUROS.
- A house inherited from her grandmother 300.000 EUROS.
Carlos´s personal assets before the marriage ceremony were:
- 75.000 € company shares. Today´s value 65.000 €.
In January 2011, Maria gave birth to twins. The couple agreed that Carlos would take care of the kids and
stop working. Also, all family living cost and expenses since May 2010 has been financed by Maria´s
income.
In January 2010, Carlos bought the family home (price 250.000 EUROS). He paid 50.000 EURO with the
money he received as the indemnity for damages suffered in a car accident in 2007. The rest of the money
was paid after they got married with Maria´s income (mortgage).
Last year, they bought a house in Málaga worth 150.000 €. They paid the house with Maria´s last work
bonuses.
Carlos´s uncle passed away in 2020. Carlos inherited 1 Mill €. He bought two apartments with the
inheritance. He has rented these apartments making a net profit of 50.000 € in 2020. Carlos has invested
this money in the constructions of a second floor in the house in Malaga. The value of the property in
Malaga has increased up to 225.000 €.
Issue:
Spanish law applies. SCC - Carlos wants to divorce and seeks your advice.
a. How would personal and/or family assets be distributed?
b. Could Maria and Carlos agree or settle how to distribute the assets and/or on any other personal
or economic effects resulting from divorce?
c. Has Carlos a right to alimony or compensatory pension for having gave up his career to take care
of the children?
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→ they did not chose any determined system on their prenups, so the default one will apply:
- Applicable law and jurisdiction: Default rule
- Article 1316 SCC : In the absence of a nuptial agreement, or if it were to be ineffective,
the system shall be the community of acquisitions during marriage. Regulated 1344 et seq
- Article 1344 SSC: By means of the community of acquisitions during marriage any gains
or profits obtained indistinctly by either spouse become common to both spouses and
shall be allocated by halves upon dissolution thereof.
- Classification of Exclusive and Common assets
- Articles : 1346 and 1347 et seq.
Based on these articles, we must determine how will the distribution of assets be done and submit hte
information, for example, on a table like this, to the client:
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→ each of the spouses is entitled to that amount of money, on the
way they chose: by receiving assets, or some of them may not want a house, then, they must receive the
corresponding economic compensation for it.
Could Maria and Carlos agree or settle how to distribute the assets and/or on any other personal
or economic effects resulting from divorce?
→ How? By settlement agreement.
- Content Art. 90 SCC
Care of the children subject to the parental authority of both spouses, the exercise thereof and
the schedule of communications and stays of the children with the parent who does not usually
live with them.
- Art. 92 joint custody. public prosecutor. Art. 92- and 159 et seq
b) If deemed necessary, the schedule of visits and communications between grandchildren and
grandparents, always considering the interests of the former.
c)Attribution of the use of the family dwelling and appurtenances.
d)Contribution to the expenses of the marriage and support, the basis on which it is to be
updated, and guarantees thereof, if applicable.
e)Liquidation, if applicable, of the marriage property system. As far as they can get is to
allocate the assets one way or the other, but they must do an equal sharing.
f)Alimony to be paid, as the case may be, pursuant to Article 97, to one of the spouses.
Has Carlos a right to alimony or compensatory pension for having gave up his career to take care
of the children?
- Article 97
The spouse for whom the separation or divorce were to give rise to an economic imbalance in
relation with the other’s position, involving a deterioration of his situation prior to the marriage,
shall be entitled to compensation, which may consist of a temporary or indefinite allowance or a
lump sum settlement, as determined in the settlement agreement or in the judgment.
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→ In the absence of an agreement between the spouses, the Judge shall determine, pursuant
to a judgment, the amount thereof, considering the following circumstances: 1. Agreements
reached by the spouses. 2. Age and state of health. 3. Professional qualifications and likelihood
of getting a job. 4. Past and future dedication to the family. 5. Collaboration by working in the
other spouse’s business, industrial or professional activities. 6. The duration of the marriage and
of their marital cohabitation. 7. The possible loss of pension rights;8. Economic wealth and
resources and the needs of each spouse. 9. Any other relevant circumstance.
- Article 99.
At any time, the parties may agree to replace the alimony set by the Judge pursuant to Article 97
by the constitution of a life annuity, usufruct over certain goods or payment of a capital sum in
the form of ownership or cash.
- Article 100:
After the setting of the alimony and the bases to update it in the separation or divorce judgment,
it may only be amended because of material alterations in the fortune of one or the other spouse.
The alimony and the bases to update it, as set out in the settlement agreement formalised in the
presence of the Court Clerk or the Notary Public, may only be modified by a new agreement,
pursuant to the requirements established in this Code.
- Article 101:
The right to receive the alimony shall be extinguished because of the removal of the cause which
motivated it, or because of the beneficiary thereof marrying again or living with another person in
a situation akin to marriage. The right to receive the alimony shall not be extinguished by the
mere fact of the debtor’s death. Notwithstanding the foregoing, the latter’s heirs may request the
Judge to reduce or suppress it if the estate cannot satisfy the requirements of the debt or if it
were to affect their right to a reserved share.
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