Family Law as a Right to Freedoms: The Case of Same Sex Marriage in Spain+
Year: 2017

The family as a social group has experienced a radical change especially after the end of the Second World War. The first question that arises from this concerns the role the legal system has to play when social circumstances change so fast that no sooner has the legislature decided to regulate a situation than it is already overtaken by events that are heading in another direction. To try to find the most appropriate response to this, this article uses different ideological approaches that lead to protecting autonomy as the best way of regulating family circumstances in the present context. The problems of the constitutionality of marriage between persons of the same sex and the protection of independence for those who do not want to marry are analysed from that perspective. I I N T R O D U C T I O N In Haydn's oratorio, The Creation, Eve addresses Adam as follows: Your wish is my command. The Lord has to provide and by obeying you, I find joy, happiness and glory. This extract demonstrates an old fashioned type of family. All European codes, including that of Spain, have removed the former obligation imposed on a woman to obey her husband and his corresponding obligation to protect her. Eve did not have the right to freedom. Nevertheless, those words sum up in clear terms the view of spousal relations held until very recently throughout Europe. But the family has undergone radical changes, especially after the end of the Second World War. This includes equality between men and women, women entering the labour market, widespread access to birth control and systems of artificial insemination, demands from people of the same sex to be able to join institutions that were traditionally designed for heterosexual couples, weakening of the institution of marriage as a form of creating a family, widespread application of human rights in the field of family law together with the corresponding popularization of divorce as a form of terminating VC The Author 2017.  2017, 31, 79 93 doi: 10.1093/lawfam/ebw020 Article D ow naded rom http/academ ic.p.com law am /article ab/31/1/79/3065584 by gest on 16 O cber 2019 marriages, and the need to rebuild post divorce relationships. All this leads to a certain lack of clarity about how we should legally regulate families. The first question that arises from this concerns the role the legal system has to play when social circumstances change so fast that no sooner has the legislature decided to regulate a situation, than it is already overtaken by events that are heading in another direction at a rate that was unimaginable only 25 years ago. As one might expect, there are many important wide ranging issues that affect family law today, starting with its fundamental purpose. My impression is that neither lawmakers nor their advisors are aware of what they have to deal with and even less of the role judges play in the whole system, since their role is far more limited as is clearly outlined in Article 117.1 of the CE (Spanish Constitution) according to which judges are subject 'exclusively' to the rule of law, which means that formally they do not play a decisive role in innovating the legal system, although they may do so when they adapt rules designed for outdated conditions, which are not very different despite seeming similar on the surface. This article addresses several problems that arise in this context, based on Spain's constitutional approach. The first issue to be addressed refers to the kind of legislation that best suits the changing social environment to which it is addressed. The second concerns the influence of certain ideologies contained in regulations regarding the family, although I cannot explore this here fully in the depth it requires. I I R E G U L A T I O N O R D E R E G U L A T I O N I often cite an article written by Professor Petit Calvo, which explains that one of the concerns of the codifiers was whether families should be regulated under the Civil Code (CC) or whether people should be free to organize their relationships according to their needs. The application of the principle of legal certainty led lawmakers to codify rules relating to the family in all its aspects and in all branches of law. Clear proof of this is Article 39.1 CE that states that authorities must ensure the social, economic, and legal protection of families. The principle of legal certainty has been accepted as one of the cornerstones of our constitutional system. As set out in Article 9.3 CE, the principle prevents leaving the application of constitutional principles such as equality and freedom in the hands of individuals. Therefore, it is necessary to have legal rules regulating the family system. But changes occur so quickly and so deeply that once lawmakers decide to regulate this system (Article 9.2 CE) they need immediately to decide what kind of legislation is best suited to this task. I have repeatedly argued that legislative solutions must be adaptable, since the subject matter of the regulation is highly volatile. At this point, there are two schools of legal thought regarding which methodology should be used: on the one hand are those who believe we should legislate through general clauses, and on the other, those who believe that the legislation that best complies with constitutional requirements is that which anticipates every possible problem that may arise and develops rules to achieve completeness. Choosing one or the other system leads to quite different consequences: (i) open legal clauses such as the 'the best interest of the child' 'needs' 'interests needing of protection' which are commonly used in legislation create a feeling of uncertainty 80 Encarna Roca Trias D ow naded rom http/academ ic.p.com law am /article ab/31/1/79/3065584 by gest on 16 O cber 2019 for anyone working in the field of law since they have no control over the meaning given to them in everyday legal practice; (ii) the need to interpret events in each case gives the impression that this is a matter of the discretion of individual judges; (iii) with these types of general rule there is an 'area of uncertainty' and the judge must seek the best solution for each case, without this being regarded as an arbitrary exercise of discretion, which is the objection supporters of a specifically rule based approach make; and (iv) the system of general rules requires highly trained judges and a major investment in support to enable them to reach the most appropriate decision for each case and avoid judicial activism. In short, legislation regarding the core aspects of family law uses a mixed system that includes specific and general rules. Using general rules that use indeterminate concepts does not imply judicial arbitrariness, although it does involve the exercise of judicial discretion. Two examples appear in Supreme Court rulings where we can see how the criteria of the best interests of the child should be applied. In STS [Supreme Court Ruling] 1 October 2010, the Supreme Court granted shared custody using the criteria based on the best interests of the child. The ruling states that the line of arguments of the lower court were incorrect because shared custody must always be settled in the best interests of the child, as this is the fundamental criterion to be taken into account when making such decisions, and that criterion is independent of the views of those taking such decisions and it must be based on objective reasons' (Emphasis added) According to this, the Supreme Court says that to argue that shared custody can only be ordered in exceptional cases is wrong because every case must be determined according to the best interests of the child, which is the fundamental criterion. The second is the case of STS, 13 March 2010. In this ruling, the Supreme Court reinstated a shared custody order because the court below had overturned the original order partly because it involved moving the child and partly because the mother had left the home. The Supreme Court stated that moving children is a consequence of shared custody and 'shared custody does not consist of "rewarding or punishing" the parent who has behaved better during the marital crisis, but of a certainly complex decision, in which one should take into account the aforementioned open criteria that determine what to consider when determining the best interests of the child' In fact, every case has a unique correct solution, so there are no 'general and abstract' best interests of the child but interests of each child in each circumstance. So when applying a general rule to a specific case, such as the best interests of the child, it is a case of judicial interpretation that can be controlled by means of the appropriate appeal. Therefore, the conclusion is that the specific application of a general rule is perfectly controllable by judges through the usual appeals system. I I I F A M I L Y A U T O N O M Y A N I N D E T E R M I N A T E L E G A L C O N C E P T Interpretation of dilemmas arises starkly in one of the most crucial concepts of family law: autonomy. To what extent may we allow spouses to exercise their autonomy when making decisions that affect the group members? The traditional view of the compulsory nature of family law regulations has changed dramatically. In the codification period, possibly due to the desire to Family Law as a Right to Freedoms 81 D ow naded rom http/academ ic.p.com law am /article ab/31/1/79/3065584 by gest on 16 O cber 2019 arrange the family system uniformly, most of the rules governing families were compulsory. For example, spouses could not alter the prenuptial agreements after marrying although they could agree, to a limited extent, on the economic system that they thought best suited their needs, but always pr