Filiation, Adoption, and Guardianship in Spanish Law
Item 23: Filiation and Parental Authority
Filiation (Descent)
Definition: Filiation is the legal determination of parentage, establishing the relationship between parents and their children.
Types of Filiation
- By Nature: Based on a biological (blood) bond.
- By Adoption: Established through a legal process.
Biological Filiation
- Matrimonial Biological Filiation: Occurs when the parents are married to each other at the time of the child’s birth.
- Non-Matrimonial Biological Filiation: Occurs when the parents are not married to each other at the time of the child’s birth.
Maternity
Maternity is established by birth; the mother is the woman who gives birth to the child.
Paternity
In the Spanish legal system, paternity can be established in several ways:
- Presumption of Paternity (Marital): A child born during a marriage is presumed to be the child of the husband.
- Presumption of Paternity (Non-Marital): A child born outside of marriage may be presumed to be the child of the man who was cohabiting with the mother at the time of conception, or if it is proven that the man had sexual relations with the mother during that period.
- Judicial Determination: Paternity can be established or challenged through a court ruling. A court can overturn a presumption of paternity.
- DNA Testing: While DNA testing is a common method, submission to DNA testing is not mandatory in Spain. However, an unjustified refusal to undergo testing, combined with other evidence, may lead a court to attribute paternity.
Effects of Filiation
- Parental Authority: Filiation establishes parental authority (patria potestad).
- Surnames: The legal default is to assign the father’s first surname followed by the mother’s first surname. However, parents can agree to reverse this order. If there is no agreement, the father’s surname comes first. The chosen order applies to subsequent children of the same parents.
- Inheritance Rights: Filiation grants rights to inheritance.
- Support Rights: Filiation establishes rights to financial support (alimony/maintenance).
Adoption
Definition: Adoption is a type of filiation where the biological link is replaced by a legal relationship, established exclusively by a judicial decree.
Requirements to Adopt
- Must have full legal capacity to act.
- Must be at least 25 years old.
- There must be a minimum age difference of 14 years between the adopter and the adoptee.
Adoption by Couples
Generally, adoption is by a single person. Exceptionally, adoption by more than one person is permitted for married couples or registered domestic partners. In such cases, it is sufficient for only one of the partners to meet the minimum age requirement of 25 years.
Parental Authority (Patria Potestad)
Definition: This is an effect of filiation, comprising a set of rights and duties between parents and their children.
- Subjects: Parents hold parental authority over their unemancipated minor children.
- Content: Parents legally represent their unemancipated minor children and manage their assets (heritage).
Item 24: Guardianship and Protective Measures
Incapacitation
Definition and Process: While adults generally have full capacity to act, persistent physical or mental illnesses preventing self-governance can lead to legal incapacitation. This must always be declared by a court of law.
Role of Medical Opinion: Any incapacitation process requires a medical expert’s (coroner’s) opinion confirming the individual’s inability to govern themselves. The ruling must specify the degree of incapacity.
Appointment of Representative: The court appoints a legal representative. In some cases, parental authority may be extended or rehabilitated.
Guardianship (Tutela)
Definition and Cause: Appointed by a court for individuals with severe conditions (e.g., a persistent vegetative state) preventing self-governance. The guardian, usually a relative, acts as the legal representative and substitutes for the incapacitated person in civil actions.
Role of the Guardian: The guardian represents the individual, although a court may authorize the incapacitated person to perform certain acts independently.
Example: A person left in a vegetative state after an accident might be assigned a guardian.
Conservatorship (Curatela)
Definition and Cause: Appointed by a court for individuals with milder conditions requiring assistance only for specific acts determined by the court ruling establishing the conservatorship (curatorship).
Role of the Conservator: The conservator assists the individual only in the acts specified by the court; the individual can perform all other acts independently. The conservator provides consent or assistance by co-signing relevant documents.
Example: A person with Down syndrome might be assigned a conservator to assist with significant financial transactions.
Judicial Defender (Defensor Judicial)
Role and Function: This is a protective body appointed by the court to act in specific, temporary situations.
Circumstances for Intervention:
- When there is a conflict of interest between the person under guardianship or conservatorship and their guardian or conservator.
- When the guardian or conservator temporarily fails to perform their duties.
De Facto Guardian (Guardador de Hecho)
Definition: This refers to a person who, without legal appointment, takes care of a minor or someone requiring protection. It is a factual situation recognized by law, not a position appointed by a court like the other protective bodies.
Distinction from Other Bodies: Unlike guardians, conservators, or judicial defenders, the de facto guardian does not require judicial appointment; their role arises from the actual circumstances of providing care.