SPAIN Law and Practice Contributed by: Esther Susín, E. Susín International Law Firm
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility Spanish Civil Code (CC) Parental authority is regulated in Articles 154 to 171 of the CC. • Definition (Article 154 CC) – a set of duties and powers vested in parents to look after their une - mancipated minor children, keep them in their company, feed them, educate them, and ensure their overall development. • Core content: (a) legal representation of the children; (b) administration of their property; and (c) decisions concerning their education, training, and place of residence. • Exercise (Articles 156 and 159 CC) – parental authority is exercised jointly by both parents, regardless of their marital status or whether they live together. Civil Code of Catalonia (CCC) In Catalonia, parental authority is regulated in Book Two, Articles 236-1 to 236-30 of the CCC. • Definition (Article 236-1 CCC) – the function of par - ents to care for, maintain, educate, and ensure the overall development of their unemancipated minor children. • Core content (Article 236-17 CCC): (a) decide on their habitual place of residence; (b) ensure their health, education, leisure, and personal development; and (c) represent them legally and manage their as - sets. • Exercise – both parents exercise parental author - ity jointly, even after separation, unless otherwise agreed by the parties or ordered by the court. 1.2 Requirements for Birth Mothers In Spain – whether under the CC (state law) or the CCC (foral law) – a birth mother automatically acquires parental responsibility ( patria potestad/potestat paren- tal ) for her child from the moment of birth.
Key Points • No additional legal requirements must be met beyond the fact of giving birth. • The mother is registered as such in the Civil Reg - istry at the time of birth, which serves as formal proof of maternity and automatically confers paren - tal responsibility. • This parental authority is a combination of rights and duties toward the child: care, custody, educa - tion, legal representation, and administration of assets. • It is not contingent on marital status, cohabitation with the father, or any administrative/court applica - tion. • Loss, suspension, or limitation of this authority can only occur by court decision in exceptional circum - stances (eg, risk to the child’s welfare). However, there are a few situations in which a birth mother might not automatically have parental respon - sibility under Spanish law, such as adoption cases or assisted reproduction with legal disclaimers. 1.3 Requirements for Fathers Automatic Acquisition A father acquires parental responsibility automati - cally from the moment he is legally established as the child’s father, if: • he is married to the mother at the time of birth (presumption of paternity – Article 116 CC/Article 235-9 CCC); • he recognises the child at birth registration or before a notary/public official at the time of birth; or • paternity is determined by a court judgment. Requirements Where Parents Are Unmarried or Paternity Is Not Presumed If the parents are not married, the father must recog - nise the child legally ( reconocimiento de paternidad ) before the Civil Registry, a notary, or in a will. This recognition can be done: • at the time of birth, through registration (jointly with the mother or with her consent); or
122 CHAMBERS.COM
Powered by FlippingBook