However, if the relationship comes to an end, whether by termination of marriage or domestic partnership, there may be different situations to consider, depending on the applicable laws in Spain.
Let’s start with parental responsibility (also known as parental authority). There will be multiple scenarios, from denying parental authority to one of the parents to granting said authority to just one of them. The most common practice is to grant parental responsibility and the ability to exercise these rights to both parents.
The custody and guardianship of the children should be granted to one or the other, or shared by both parents when they stop living together. This is the famous “joint custody”.
In current custody cases, only a few autonomous communities have developed their own Civil Laws. Catalonia is one of these communities, while others are governed by a uniform Civil Code. But what are the differences between these laws? The most recent Civil Code publication standardizes custody and guardianship models and establishes that both parents are equally qualified for parenting. The only legal requirement to award sole custody to one of the parents is that it is in the best interest of the child. There is also a stipulation that this should be the guiding principle for court decisions. Therefore, both types of custody apply in uniform Civil Law.
Previously, joint custody was rarely granted in contentious divorce or separation proceedings but it was usually granted if there was mutual consent. However, the Supreme Court has continued to streamline the law since its standardization in 2005. In the most recent court decision in June of this year, the High Court stimulated that in order to reach a joint custody agreement, at least one of the parents must request it. Without this critical requirement, there can be no agreement. Thus, joint custody is the standard option but it must be requested because there have been cases in which the courts have granted it without either party or the prosecution (representing the minor) petitioning for it.
Joint custody in Catalonia
In 2010, the Civil Code of Catalonia repealed the former Family Code. Catalan family law prefers to grant joint custody and provides two new changes.
First and foremost, it states that every proposal made by the parents must be included in the proposed Parenting Plan, a legal instrument that specifies the way both parents plan to exercise their parental responsibilities. And second, it eliminates the general principle whereby the dissolution of a marital union automatically meant that children should be separated from one parent. The new legislation aims to enhance joint parental responsibilities to the extent possible, always observing the best interests of the child.
Nevertheless, joint custody is not automatically granted. If the parents are not in agreement, then the Judge must make a determination and possibly grant custody to one of the parents, if it is in the best interest of the child.
Without a doubt, a separation or divorce is a very sensitive and complex matter with many legal implications that affect everyone involved, especially the children. It is for these reasons that ICN LEGAL recommends obtaining legal advice from experienced professionals who are knowledgeable of applicable regional and local laws because there is a lot at stake, especially for your children’s future.