The draft family law considers that people united in marriage, but also common-law couples, or individuals who live stably with ascendants or descendants, form part of a family unit. The draft of the report of the General Council of the Judiciary (CGPJ) on the norm —to which EL PAÍS has had access— supports the commitment to a “broad conception” of this concept, but criticizes that “the fragmentation that the law carries out to when it comes to detailing the cases included in its scope of application” (…) “it goes beyond the constitutional framework and creates confusion, legal uncertainty and inequality among the recipients of the protection measures”. The Council of Ministers is expected to approve the draft on Tuesday, which must then go through Congress.
The provisional report of the CGPJ, mandatory but not binding, indicates that “although the Constitution establishes the public protection of the family, in no case does it identify it with that which originates in marriage.” For this reason, it considers that the definition included in the draft “adjusts to the doctrine of the Supreme Court, the Constitutional Court and the European Court of Human Rights, to the extent that it is contemplated on the basis of parental ties or cohabitation, which which deserves positive consideration.”
However, the document of the Judiciary also criticizes “the atomization that the law carries out when detailing the cases included in its scope of application”, since it provides for different types of protection based on different assumptions, and can even be given cases of overlap in various categories (for example, large family, single parent, vulnerable, etc.). Added to this is “the equating of single people so that they can be recipients of the measures provided for in the norm, without explaining the reasons for their equating to families and the specific assumptions”. In fact, single people and other non-family cohabitation units may benefit from “the benefits and measures derived” from the law when “it is expressly provided for”.
For this reason, the CGPJ understands “that the projected norm exceeds the constitutional framework and creates confusion, legal uncertainty and inequality among the recipients of the protection measures included in the draft.” In addition, the body estimates that the norm “contains a regulation that is less confusing in what refers to the concepts of family unit and family.”
The previous report also criticizes that the text “introduces certain provisions that are already contained in other legal bodies in force and affects their normative sphere”, for which reason it asks to avoid concurrence with other regulations to guarantee legal certainty. It also asks to guarantee the visitation rights of the grandparents, an aspect that does not appear in the law.
Best interests of children
The draft positively highlights “the inclusion of the best interests of children, not only as one of the fundamental values of family support policies, but throughout the articles of the projected norm in relation to certain situations that are regulate”. It also appreciates that the legislator establishes among the purposes of the regulations “the comprehensive protection of the family model provided for in the Constitution and in the regulations of International Law.”
Regarding the creation of a future State Register of Domestic Partnerships, the Judiciary indicates that couples who are not registered in any regional or local body will be able to access it, “not determining what type of couples and under what conditions they will access it”. In this sense, “from the point of view of the future interpretation that the courts can carry out of the norm, the projected text introduces elements of legal uncertainty and uncertainty in the disputes that have to be raised”.
The draft family law was approved in December at first reading by the Council of Ministers. Its main measures include a leave of five days a year that will be paid and which workers may have for the care of cohabitants or relatives of up to the second degree of consanguinity (such as grandparents, grandchildren or siblings). It also includes the extension of the benefit of 100 euros per month for mothers with children from 0 to 3 years of age, which currently only women workers receive and who with the rule will be able to request more families.
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