European Family Law Volume II
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European Family Law Volume II

The Changing Concept of ‘Family’ and Challenges for Domestic Family Law

Edited by Jens M. Scherpe

This four-volume set maps the emerging European family law. It is intended to serve as a resource for anyone interested in this area of law, as well as a basis for teaching on comparative and international family law courses. The first volume examines the impact of institutions and organisations on European family law. While there is no European body that could actually legislate definitively on family law, there are some institutions that have a direct impact on European family law, while the impact of others is more indirect. In the second volume the changing concept of ‘family’ and challenges for domestic family law are analysed in 21 different jurisdictions, in 16 chapters. All contributions look at ‘horizontal’ family law (the law concerning the relationships between adults), ‘vertical’ family law (the law concerning the relationships of adults and children) as well an ‘individual’ family law (the law on names and gender identity). In the third volume the contributions take a comparative view on specific issues from a European perspective. The fourth volume, which works as a stand-alone monograph, draws on all of the previous chapters, and discusses the present and future of European family law. It establishes areas where ‘institutional’ European family law exists – in the sense that there are binding legal rules for all European jurisdictions – for example, as a result of a decision by the European Court of Human Rights. It also identifies areas where, as a result of common legal and social developments for ‘horizontal’, ‘vertical’ and ‘individual’ family law, an ‘organic’ European family law is emerging and suggests how family laws in Europe are going to develop in the future.
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Chapter 14: The changing concept of ‘family’ and challenges for family law in Spain and Catalonia

Albert Lamarca Marquès


Spanish family law has undergone a profound transformation in the last decade. The same challenges faced by other jurisdictions in regulating family relations have been on the agenda of the Spanish legislature, which has handled them well. Since 2005, Spain has enacted new legislation regulating, among other things, the right to divorce, same-sex marriage, custody of children, the economic consequences of divorce, assisted reproductive techniques, international adoption, change of legal gender, the law relating to names, and cohabitation. In all these areas the law has moved forward, advancing individual rights and contributing to citizens’ welfare by removing inequalities and barriers to the right to the free development of the personality. This recent legislation is the product of shifting political majorities: it was the Socialist government that promoted the amendments while in power from 2004 to 2011. During this period, Spain experienced an extraordinary wave of reforms in family law, which compares only to the wave of reforms that occurred during the 1980s after the restoration of democracy. The 1978 Spanish Constitution (CE) followed the model of the post-war European constitutional framework, and set out the principles to implement a new family law in accordance with democratic standards, European fundamental rights, and international human rights treaties. The Spanish Constitutional Court (TC) contributed to shaping this legislation. Nonetheless, the in-depth reform of family law has taken place in the first decade of the 21st century. These reforms have gone far beyond what an interpretation of the Constitution adapted to social changes requires.

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