Regulating cohabitation in Spain: the unconstitutionality of current legislation
Civil unions and domestic partnerships have not been regulated by the central state in Spain, despite the major reforms in family law in the last decade. Since July 1998, all but one of the 17 Spanish Autonomous Communities have regulated cohabitation according to different patterns, including the factual model and the formal one. These regulations have attracted controversy, and several regional laws have been challenged before the Constitutional Court. On April 2013 the Court released two decisions about the unconstitutionality of certain provisions of the Acts of Madrid and Navarre. Concerning the first decision, the issue was about the powers of the Autonomous Communities to legislate on cohabitation. The latter case was decided on the basis of arguments relating to fundamental rights of the citizens. The factual model, which gives legal effect to mere cohabitation, is considered contrary to the right to the free development of personality and, thus, unconstitutional. The two judgments put an end to the regulatory framework for civil unions which has existed in Spain for the last 15 years. These decisions will have a huge impact on family law practice, and their effects may extend to the whole of Spanish regional legislation, leading to a significant regulatory vacuum and considerable legal uncertainty.
By Dr Albert Lamarca, Universitat Pompeu Fabra, Barcelona
The full version of this article appears in the March 2014 issue of International Family Law.
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