The chosen form of union should not be an obstacle to obtaining the rights that the legislation provides for the protection of the family.” This is the main argument that the judge of contentious-administrative nº 9 of Seville has used to rule against the decision of the Junta de Andalucía to deny the title of large family to the mother of three children—
When the parent was recognized— arguing that “the conjugal bond did not exist”, referred to in article 2.3 of Law 40/2003, on the Protection of Large Families.
In the ruling, which represents an advance in the recognition of the rights of common-law couples in Andalusia, in addition to making an interpretation of the legal and legal scope of the conjugal bond concept, the magistrate quotes a phrase from a 2001 speech by John Paul II in which he argued that “the very strength of the bond is based on the freely established union between man and woman.”
“It seems incredible that until 2020 no common-law couple with three children in Andalusia has received the large family card,” explains Luis Ocaña, the promoter of the complaint along with his partner, Almudena Millán.
“If this can be useful to other families who have not thought about claiming for fear of getting into lawsuits with the Board, we are happy,” says Ocaña, who is a lawyer (Millán is a prosecutor).
The sentence, to which this newspaper has had access and which was advanced by Diario de Sevilla , is dated December 22 and there is an appeal against it. “The logical thing would be for the Administration not to appeal,” says Ocaña.
The judge understands that the interpretation of the existence of a conjugal bond as a necessary requirement to access the granting of the large family title should not be restricted solely and exclusively to marriage between both parents, as the Andalusian Administration alleges.
“From the point of view of Civil Law, not only can there be a conjugal bond between spouses, but this bond exists between all the people who freely give consent for it to exist,” says the magistrate, who in this sense also refers to the extension of this link according to the perspective of Canon Law, quoting the words of John Paul II.
“The bond is born from consent, that is, from an act of will of the man and the woman, but that bond enhances a nature that exists between man and woman.
The ruling also affects the contradictions that can be derived from a literal reading of article 2.3 of the Law for the Protection of Large Families.
“The interpretation made by the Administration leads us to the absurdity that the title of large family is not granted to the mother who lives with the father and common children, and it is granted to the spouse who is not the mother of the children, but that she is married to the father ”.
The judge maintains, along these lines, that “it makes no sense whatsoever that the mother of the children who lives permanently with them and with their father is excluded from the title of large family, due to the fact that the legal business chosen by the parents to regulate their life together other than that of marriage ”.
This is precisely the case of Ocaña and Millán, a common-law couple since 2013, who had their third child in common on April 8, 2019. Fourteen days later they applied for the title of large family. The Junta de Andalucía only recognized this condition for the father and the children, but denied it to the mother.
The reason, “not to be united by a conjugal bond to the other ascendant”, but by a “bond analogous to the conjugal one.”
The judge also recalls that any interpretation of the law must be made in accordance with the Constitution and defends: “It is a notorious fact that the concept of family exceeds that formed by a man and a woman who form a marriage.
It was always like this, in our society and in any other, but it is also that now the different forms of coexistence are included in legal norms that regulate them and are socially accepted. Therefore, it makes no sense to deny help to the mother of the children due to the fact that she is not married to the father, having coexistence ”.
This ruling, a pioneer in Andalusia, follows in the wake of other resolutions from other Superior Courts of other Spanish communities that have ruled in favor of eliminating the discrimination established by the 2003 law.
Existence of the conjugal bond for the recognition of a large family made in article 2, it was guaranteed to block the inclusion of homosexual couples through de facto unions. Since then, and despite the consensus among political parties to modify the text, no update has been made.
There are autonomous communities such as the Catalan or the Basque that have equated common-law couples to obtain the title of large family. Andalusia, which with 141,110 titles in force, represents almost 20% of the total of those that exist in Spain (735,583), according to the latest data from the Ministry of Health, does not.
The Spanish Federation of Large Families has been demanding a clear and unified criterion throughout Spain to avoid disparity. “We do not claim for financial aid or discounts that come with it, which are almost residual, but for dignity”, concludes Ocaña.