It has been over eight years since gay couples have been able marry in equality with other Spaniards. Law 13/2005, of the 1st of July, modified one of the fundamental institutions of the Spanish Civil Code, contemplating the union between people of the same sex as legal marriage for the first time. With this reform, it is argued, the law satisfies the demands of article 32.1 of the Spanish Constitution, which establishes that “Men and the women are entitled to enter into marriage with full legal equality”. The number of people who have taken this road has been growing steadily, ranging between 0.6% and 4% of contracted marriages, according to the National Institute of Statistics.
Proof of this is the recent Spanish Supreme Court judgement of the 5th of December 2013, which decided on a case of filiation between two married women. Here, the spouses, after employing assisted reproduction techniques, had only enrolled their two daughters in the civil register with the maternity of the biological mother, which led to her being initially considered a single mother.
After the breakdown of the union, the non-biological mother claimed filiation, which was granted both by the local court and the Provincial Audience.
The judgement highlights the inconvenience of a reform (that of 2005) that “was made without dealing with other aspects that are in intimate relationship with marriage, such as the legal institution of filiation, in which appeals and legal actions were designed exclusively for heterosexual couples, without taking into account homosexual unions in which one of the partners is not directly involved in the fertilization”. It has been, therefore, the judges´ task to consider how these grey areas in the law can be clarified.
The Supreme Court states the possibility of coexistence of two filiations in favour of same-sex unions, adding that the lack of a biological link is overcome by the giving of consent to carry out the assisted reproduction technique.
This previous argument is reinforced, according to the Court, by the continuous parental attitude displayed by the non-biological parent and also by the idea that the best interest of the children should be the guiding force in these matters.
With this judgement Spain has taken further steps towards establishing the legal security that any civil institution needs to thrive.Article by Mark Athos Franklin, English lawyer at the Rodriguez Bernal law firm. For more articles on Civil law or for more articles in English, click the links provided. Antonio Pedro Rodríguez Bernal Lawyer and expert in family law. He has led civil cases of all kinds during the last 15 years of legal practice and has helped clients from many countries and nationalities. For more information about the services we offer on family issues, visit our web site or contact us directly. Email: firstname.lastname@example.org