As some of you are aware the new Law for Family Relation for children whose parents live apart is now in force. This new Generalitat Valenciana Law Number 5/11 of April 1 is also called VALENCIA LAW FOR SHARED CUSTODY.
This law applies to the children, under parental custody of parents with civil neighbourhood in the Valencia Community. Civil neighbourhood should not to be mistaken with administrative neighbourhood or the place of residence.
Civil neighbourhood is regulated under the preliminary title of the Spanish Civil Code.
As a general rule the civil neighbourhood of under age children will be the same as the parents. Please take into account that children, of a foreign parent, who acquire the Spanish nationality can opt for civil neighbourhood in the Valencia community if they live or are born there.
Firstly we must say that this new Law has created some legal and political controversy. The central government of Spain has agreed to file a constitutional appeal against it based on the fact that it regulates over civil institutions that did not exist in the field of civil statuary Laws of the Valencia Community and thus exceeds the powers of the region in breach of the exclusive faculties of the State.
In any case we have to highlight the fact that this Law clearly points out that in the absence of a FAMILY COEXISTENCE AGREEMENT (PACTO DE CONVIVENCIA FAMILIAR) agreed by consent by both parents regulating the relationship between each other and their children in a friendly matter IT WILL BE THE judicial authority who will set the following points of the relationship:
a.) Coexistence regime between the children and their parents.
b.) Relationship regime between the children and their brothers, sisters grandparents and other family members this is something new and different to the previous applicable law, as did not expressly mentioned these relatives.
c.) Distribution of properties and house goods owned by the family.
d.) Setting the Maintenance and expenses amounts for the children.
One of the main novelties of this Law is that it establishes in article 5.2 that the general rule will be the shared living regime between parents and children (equivalent to JOINT CUSTODY in a broader sense).
Only the custody or living regime could be granted to one of the parents when it is necessary to guarantee the well being of the minors and supported by the necessary backups and reports from doctors, social workers etc. In these cases a system for family relations must be set to guarantee the relationship of the minor with both parents (contact, visits, and holidays). The judge can also monitor the family situation periodically.
Also this Law states in its article 6 that in regards to who will keep the use of the properties and house goods, that in case of allocating the family home to one of the parents being the other parent the sole or part owner, a compensation should be paid to the parent who loses use of the property. The compensation amount will be determined taking into account the general renting fees in the area where the property is located. In addition the Law states that the allocation of the house will be on a temporary basis setting a maximum period of use which can be modified by a Court decision.
One of the most notable aspects of this Law is that it foresees the revision of any definite Decree granted as per the previous legislation, in a separation, divorce and annulment court process. This revision could be applied for by any of the parties or the prosecutor. This could mean a significant increase in the amount of decrees to be revised requesting among others the shared custody and the allocation of the family home previously given to the other party, etc.
NOTE: After writing this article, on the 26th of July2011 was published in the BOE (National Official Bulleting) that the Constitutional Court admitted the Constitutional Appeal raised by the Prime Minister, which has led to the suspension of force and implementation of the contested precepts of this Law, from the date of the appeal.
The information provided on this article is not intended to be legal advice, but merely conveys general information related to legal issues.
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Carlos Baos (Lawyer)
Tel: 966 426 185
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