Shortly thereafter we informed our readers that on 26-07-2011 the Official State Bulletin (BOE) published that a proposed appeal for unconstitutionality of this Law filed by Spanish Prime Minister had been admitted to procedure by the Constitutional Court which led to the suspension of enforcement and application.
The Constitutional Court recently lifted the interim suspension, so for the time being the Law can now be applied. The Constitutional Court understands that it does not cause irreversible damage as it will be the judge, at end of the day, who will make the corresponding decision to protect the interest of the under aged, while taking into consideration this rule and all the pertinent regulations.
This law applies to the children, under parental custody of parents with civil neighborhood in the Valencia Community. The Civil neighborhood is regulated under the preliminary title of the Spanish Civil Code and should not to be mistaken with administrative neighborhood or place of residence. The general rule is that the civil neighborhood of under aged children will be the same as their parents, as long as the parents share a common one.
Children of foreign parents, who acquires Spanish nationality can opt for civil neighborhood in the Valencian community if they live or were born here.
We discussed the main changes of this Law some time ago, but due to its IMPORTANCE we, once again highlight some of them below:
.-Article 5.2 of this Law establishes that the general rule will be the shared living regime between parents and children (equivalent to JOINT CUSTODY in a broader sense).
This custody or living regime can only 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 periodically the family situation.
.-In regards to the use of the properties and house goods, this Law also states on article 6, 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 previously granted definite separation, divorce or annulment Decrees or court order.
Therefore, this Law represent a very important change that should result in the alteration of the trend of Court rulings made until today in relation to these matters. The starting point for those cases where this is applicable will be the shared custody of the minors and also compensation for one of the parents when he is deprived of the house use.
Hence all those divorced or separated persons, to whom this law was and is applicable, but they did not received shared custody or compensation for losing use of the family home, now have a new opportunity to request the revision of the approved measures according to the new rule now back in force.
Should any reader be in this situation or similar please do not hesitate to contact us and the appropriate advice will be provided.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
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