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Seven years after its entry into force, and after more than 22,124 same-sex marriages, the Spanish Constitutional Court has declared same-sex marriage constitutional. The non unanimous decision of 6 November 2012 thus puts an end to the legal debate on the validity of this new form of marriage in Spain. In its decision, the Constitutional Court found that the new regulation did not change the institution of marriage as recognized in the Constitution in such a way that makes changes to the nature of marriage or renders its essential characteristics unrecognizable. The Court refers to the Constitution as a 'living tree', meaning that under an evolutionary interpretation the Constitution must conform to new realities and societal developments unimagined by its drafters. The Court also used arguments of legal culture, understanding law as a social phenomenon linked to the reality in which it develops, and saw same-sex marriage as part of the Spanish legal culture and the current social understanding. Furthermore, the Court found that the new regulation has not adversely affected the right to marry, but rather expanded it to a new social group. Finally, the Court held that joint adoption by same-sex spouses does not affect the child's best interest.
By Dr Albert Lamarca, Professor of Law, Universitat Pompeu Fabra, Barcelona
The full version of this article appears in the March 2013 issue of International Family Law.
The practice title for family lawyers engaged in/dealing with issues European and worldwide