Although it may seem unbelievable now, until not too long ago marriage between people of the same sex was unfeasible in Spain.
In fact, the approval of the law allowing same-sex marriage (and, therefore, divorce for same-sex couples) met with considerable resistance in our country, which is increasingly being overcome in all ideological strata.
It is irrefutable proof that, sometimes, the law must go ahead of the citizenry (or, at least, part of it) and create the necessary framework and space to guarantee equal rights.
In this article we would like to review the history of same-sex marriage in Spain and answer a key question in Family Law: Is there any difference between same-sex divorce and heterosexual divorce?
A bit of history: same-sex marriage in Spain
Before going into the history of same-sex marriage, we answer the question raised in this article: as it could not be otherwise, same-sex divorce works identically to that of heterosexual couples in Spain. This is so thanks to a regulation of same-sex marriage that guarantees equal rights at all levels, including a possible breakup.
Equal marriage has been possible in Spain since July 3, 2005, as a result of the Law.
This made us the third country in the world to have equal rights in this area, including joint adoption, inheritance and pension.
The first were the Netherlands and Belgium.
However, the case of Spain went further in the recognition of rights, clearly enshrining that. “marriage will have the same requirements and effects when both contracting parties are of the same or different sex.” The Law also makes it clear that “the legal and regulatory provisions that contain any reference to marriage shall be understood to be applicable regardless of the sex of its members.” At the time, social support for this measure was relatively broad: 66 percent of Spaniards were in favor of same-sex marriage.
It was, therefore, a somewhat controversial measure that generated demonstrations and mobilizations against it during its parliamentary processing.
One of the points of debate was the use of the term ‘marriage’, which some citizens wished to reserve exclusively for the union between a man and a woman.
Those in favor of the regulation, however, defended equality at all levels, which should include both the concept and all the rights it brings with it.
The possibility of adopting minors was another sticking point for the more conservative sector, and part of the public was in favor of marriage, but not of the possibility of adopting.
On the other hand, it must be taken into account that there had already been previous steps to this law at the autonomous community level: in the 90s, some autonomous communities already had their own rules on unmarried couples (the exclusive competence to regulate the forms of marriage corresponds to the State), allowing people of the same sex to enter into this type of union, obtaining some administrative benefits. The first case was that of Catalonia (1998).
Have things changed since then in terms of public perception of homosexuality?
A study by the European Social Survey, reported by La Información, assures that not only has there been a generational replacement, but that Spanish citizens, in general, have become more tolerant and open-minded over the last decades.
The study shows that those social strata that were against same-sex marriage have been gradually changing their perception, without the increase in the normalization of this type of unions being due only to the entry of new generations.
Divorce in homosexual couples: Is there a difference?
As we have seen, just as there is full equality of rights regarding same-sex marriage, the same logic applies to divorce or separation. We only colloquially speak of homosexual divorce but, in reality, the rules that apply are identical, both in terms of how to enter into a marriage and how to maintain or dissolve it.
Specifically, the Civil Code tells us that “marriage is dissolved, whatever the form and time of its celebration, by the death or the declaration of death of one of the spouses and by divorce”. In case of divorce, the legal tools at your disposal will be the same as for heterosexual couples and the aspects to be negotiated will also be the same.
Specifically, the divorce settlement agreement (or the divorce decree) will have to pronounce on these points:
- The parental authority, the custody of the children and the regime of communication, stay and visits of the children with the parent who does not habitually live with them.
- The attribution of the use of the family home and the family trousseau.
- Alimony.
- The liquidation of community propertythe economic regime of the marriage, when applicable.
- Compensatory pension.
- Dissolution of marriage.
In those cases in which an amicable agreement is not reached, it will be the judge who will determine the measures that will be included in the agreement, attending to the requests of the parties and putting the interest of the minor (if any).
In the contentious process it will not be possible to share lawyer (each of the parts of the couple will go with its own, in defense of its interests), with which the process becomes more complicated and expensive with respect to a divorce by mutual agreement.
In addition, the solution dictated by the judge is usually not the most appropriate: it can hardly be prepared with the same care and detail as the one that can be given by the couple themselves with the assistance of a common lawyer who mediates and negotiates thinking of both parties.
Finally, if you are in Catalonia, and given that this autonomous community has its own Civil Code, bear in mind that the proposal of the regulatory agreement must determine these minimum aspects:
- A parenting plan with respect to the children.
- The food to be provided, both for ordinary and extraordinary needs, indicating the periodicity, method of payment, criteria for updating and, if provided for, guarantees.
- If applicable, the regime of personal relations with grandparents and siblings who do not live in the same household.
- The compensatory benefit (if any) attributed to one of the spouses, indicating the method of payment and, if applicable, the duration, the criteria for updating and the guarantees.
- The attribution or distribution of the use of the family home with its furnishings.
- The economic compensation for work-related reasons (if applicable).
- The liquidation of the matrimonial property regime and the division of assets in ordinary undivided community property.
- In addition, the spouses may also agree in the agreement to provide alimony for children of legal age or emancipated children who have no financial resources of their own.
In short, there is no difference between one case and the other: same-sex couples have the same protection and the measures that can be adopted are the same.
It should be noted that none of the financial benefits available in the event of divorce and, in particular, the compensatory benefit or financial compensation for work, are linked to the gender or sex of the persons involved.
If you need help in a divorce proceeding or you want to know more about any specific point of this process, you can consult our team of Family Lawyers without obligation..
