I. FAMILY LAW: Spain regulates three models of couple's relationship:
1. MARRIAGE between persons of different or same sex: disciplined by spanish Civil Code, approved by Royal Decree of 24 July 1889. This Code has application in most of the Spanish territory, but 6 regions have their own civil legislation and in these the Spanish civil code has subsidiary application.
1.1 Spanish civil Code has application: Autonomous Communities of Andalusia, the Canary Islands, Cantabria, La Rioja, Castilla-La Mancha, Castilla y León, and the Autonomous Communities of Valencia, Extremadura, Madrid, Murcia, Asturias, as well as the autonomous cities of Ceuta and Melilla.
However, in Spain, there are some territories with their own foral or special civil law, whose conservation, modification or development empowers them to legislate in accordance with art. 149.1.8ª of the Constitution; and therefore they have their own regulation in some matters that affect family law. All of them establish the general civil law of the State (Civil Code) as a supplementary right, in the absence of an applicable law or foral custom.
1.2. Six regions has own civil law:
- Navarra: Law 1/1973 of 1 March 1973, approving the Compilation of the Civil Law of Navarre, modified by the Foral Law 5/1987, of 1 April, of Navarre.
- Baleares Islands: Legislative Decree 79/1990, of 6 September, approved the consolidated text of the compilation of the civil law of the Balearic Islands.
- Cataluña: Law 25/2010, of 29 July, of the second book of the Civil Code of Cataluña, relating to the person and the family.
- País Vasco: Law 5/2015, of 25 June, on Basque Civil Law and Law 7/2015, of 30 June, on family relations in the event of separation or rupture of the parents of the Basque Country.
- Galicia: Law 2/2006, of 14 June, on Galician civil law.
- Aragón: Legislative Decree 1/2011 of 22 March, of the Government of Aragon, approved, under the title "Code of the Foral Law of Aragon", the Revised Text of Aragonés Civil Laws. In this text, they are recast among others: Law 6/1999, of 26 March, on unmarried stable couples, Law 2/2003, of 12 February, on matrimonial property regime and widowhood, Law 13/2006, of 27 December, on personal rights, or Law 2/2010, of 26 May, on equality in family relations in the event of the parents breaking up.
2. CIVIL UNION between persons of the same or different sex: Spain has the particularity that there is NO law on de facto couples at state level. Thus, most of the Autonomous Communities, also those that do not have a foral or special civil law of their own, have regulated de facto couples from a perspective that is not strictly administrative.
Laws that define their concept based on alternative criteria -whether a certain period of cohabitation, the existence of common children, or the will to become such a couple accredited by different means valid in Law- and paying special attention to the economic, personal and family relationships of its members.
2.1 In Spain there are Communities that do not have their their own foral or special civil law, such as Valencia, Madrid, Asturias, Andalusia, the Canary Islands, Extremadura, Cantabria and Murcia, but which have regulated in autonomous laws for their region (autonomous community) the civil effects of the cessation of coexistence more uxorio:
- In the Community of VALENCIA, the first Law 1/2001, of 6 April, regulating de facto unions was repealed by Law 5/2012, of 15 October, of the Generalitat, of formalized de facto unions of the Comunitat Valenciana. However, the validity and application of Law 5/2012 was suspended, from 18 July 2013, until it was finally declared unconstitutional by Constitutional Court Decision 110/2016 of 9 June. (BOE-A-2016-6838). Likewise, article 1.1 and articles 2 and 6 to 14 were declared null and void, with the effects indicated in legal basis 10 of the aforementioned sentence.
- Law 11/2001, of 19 December, of the Community of MADRID, of the domestic partner. This law contemplated an economic regime of coexistence in defect of pact (article 4.2) that has been declared unconstitutional due to the lack of competence of this Autonomous Community in matters of civil legislation (Sentence of the Constitutional Court nº 81/2013, of April 11, 2013).
- Law 4/2002, of May 23, of ASTURIAS, of Stable Couples, whose art. 5 .1 establishes that the members of the stable couple will be able to regulate the personal and patrimonial relations derived from the coexistence, by means of public or private document, with the possibility of including economic compensations that agree for the case of dissolution of the couple, under the observance of the applicable legality.
- Law 5/2002, of 16 December, of ANDALUCÍA, of the domestic partner. This Law establishes, in the event of dissolution, that the members of the stable couple shall be jointly and severally liable to third parties for the obligations contracted for the expenses necessary for the maintenance of the house (article 12.4).
- Law 5/2003, of 6 March, of the CANARIAS, of the domestic partner. This Law determines the economic regime of cohabitation in the absence of an agreement between its members (article 7.3).
- Law 5/2003, of 20 March, of EXTREMADURA, of the domestic partner. This Law establishes its economic regime in the absence of a pact (article 6.2), recognises compensation, in the event of dissolution of the couple, in favour of that of its members who are in a situation of economic inequality (article 7), and regulates, for the same hypothesis, the guardianship and custody of the minors in foster care (article 8.2) and of the children (article 9).
- Law 1/2005, of 16 May, of CANTABRIA, regulating De facto couples. This law defines its economic regime in the absence of a pact (article 8.2), provides for compensation in favour of the cohabiting party in a situation of unequal assets when the couple ends (article 9), provides for the application of "the civil legislation in force on paternal and filial relations" to the "guardianship and custody of common children and the regime of visits, communication and stay" (article 10), and the same applies in respect of foster children (article 11.2).
- Law 7/2018, of 3 July, of the domestic partner in the Autonomous Community of the REGION OF MURCIA, provides in its Preamble that article 39 of the Constitution states that "the public authorities shall ensure the social, economic and legal protection of the family", where de facto couples are found understood as a new social model of the family.
2.2 Six regions in Spain has their own foral or special civil law which regulate the effects of the cessation of coexistence more uxorio:
- CATALUÑA: The first autonomous law was passed in 1998, "Law of Stable Couple Unions". They are currently regulated by Law 25/2010, of 29 July, of the second book of the Civil Code of Catalonia, relating to the person and the family. Specifically, in Chapter IV of Title III of this law, which reads "Stable cohabitation in a couple". Decree Law 3/2015, of 6 October, modifying Law 25/2010, creates the Registry of stable couples; and Order JUS/44/2017, of 28 March, approves the Regulations of the Registry of stable couples of Catalonia.
- NAVARRA: Foral Law 6/2000, of 3 July, for the Legal Equality of Stable Couples.
This Law determined its economic regime (articles 5.3 and 7) and contemplated a periodic pension or economic compensation for that of its members who were in a situation of patrimonial inequality on the occasion of the dissolution of the couple (articles 5.4 and 5.5): both provisions have been declared unconstitutional by Judgment of the Constitutional Court, no. 93/2013, of 23 April. In this case, not due to the lack of competence of the Comunidad Foral over the civil effects of this relationship, but in the violation of the personal freedom of the members of the couple (article 10.1 of the Constitution) which, according to the Court, occurs with the establishment of certain civil rules of necessary law, applicable in the absence of an agreement of its members, even if they have not shown their will to adhere to them.
- In the Community of GALICIA, the Third Additional Provision of Law 2/2006, of 14 June, relating to the Rules regulating civil law in Galicia, equates de facto marriage to marriage.
Shortly afterwards, Law 10/2007, of 28 June, reformed again the Third Additional Provision to reserve this equality for those couples registered in a specific Registry.
- In ARAGÓN, section 3 of chapter II of title II of the Code of Foral Law, approved by Decree 1/2011 of 22 March, which bears the heading "Effects of the rupture of the cohabitation of parents with dependent children", is applicable to any "family relations in cases of rupture of the cohabitation of parents with dependent children, including cases of separation, nullity and divorce and proceedings concerning guardianship and custody of minor children" (article 75.1).
- Law 18/2001, of December 19, of the BALEARES Island, of Stable Couples, whose art. 4 regulates that the members of the couple can validly regulate by any form admitted in law, oral or written, the personal and patrimonial relations derived from cohabitation, in addition to the economic compensations in the case of extinction of cohabitation, with the limit of the minimum rights established by this Law, which are inalienable until the moment they are required.
- Law 2/2003, of 7 May, of the PAÍS VASCO, regulating de facto couples. This Law establishes a supplementary economic regime, in default of agreement, to which its members "may adhere", in which a periodic pension or economic compensation is provided for that of its components that was in a situation of patrimonial inequality after the extinction of the couple (article 6).
3. Residual unregistered cohabiting partnerships still exist, even if not regulated.
II. SUCESSION LAW
On 17 August 2015 the EU Regulation 650/2012 of 4 July entered into full force, as did the European Regulation on Succession, a law of great practical importance, which will radically change the application of international law in the field of succession to the cause of death where there is an international element, such as, for example, that the deceased resided or had property in a State other than that of origin. In the case of Spain, the nationality of the deceased gives way to the place of habitual residence as the main criterion for determining the applicable law and, for the first time in our Law, there is a possibility of choosing the applicable law, limited to the national law itself.
The main legal source is the Civil Code approved by Royal Decree of 24 July 1889, and applies to the Autonomous Communities of Andalusia, the Canary Islands, Cantabria, Rioja, Castilla-La Mancha, Castilla y León, Valenciana, Extremadura, Madrid, Murcia, Asturias, as well as the autonomous cities of Ceuta and Melilla.
In Spain, there are some territories with their own special or foral civil law, whose conservation, modification or development empowers them to legislate in accordance with art. 149.1.8ª of the Constitution; and therefore they have their own regulation in some matters that affect inheritance law in six autonomous communities: Galicia, Basque Country, Navarre, Catalonia, Aragon and the Balearic Islands.
- CATALUÑA: Law 10/2008, of 10 July, of the fourth book of the Civil Code of Catalonia, relating to successions.
- ARAGÓN: Legislative Decree 1/2011, of 22 March, of the Government of Aragon, approving, under the title "Code of the Foral Law of Aragon", the Consolidated Text of Aragonese Civil Laws.
- BASQUE COUNTRY: País Vasco Law Act 5/2015, of 25 June.
- BALEARES ISLANDS: We must bear in mind the special regulations contained in Legislative Decree 79/1990, of 6 September, which approved the Consolidated Text of the Compilation of Civil Law of the Balearic Islands and the new wording of some articles given by Law 7/2017, of 3 August, which modifies the Compilation of Civil Law of the Balearic Islands.
- GALICIA: Law 2/2006, of 14 June, on Galician civil law.