The evolution of family law: the legal challenges of the new family structures.

Family Law is the branch of Civil Law that has undergone the most development and changes since the promulgation of the Civil Codes that we know in the world since the XIX century. This is due to the fact that they have tried to respond to the profound social changes of the family.

Heirs of traditional, feudal societies, in which agriculture and religious presence were the ways of life, they reflected a family prospectus that was being built in the Western world since the Middle Ages. Existence of a marriage between a man and a woman (by the way leaving to Canon Law a series of regulations), with a main characteristic "indissolubility". The relations between the contracting parties were far from being egalitarian since the figure of the man (husband) is positioned as the true head of the family, and his power is consecrated in relation to the person and property of his wife and children, having as mission the procreation and the transmission of property through inheritance.

Today it is almost undeniable that the new family structures have given way to the recognition of families that are far from the traditional concept we all know, the mono-parental conception. We observe a profound change of paradigms in family relationships. Reconstituted families, single-parent families, homoparental families, adoptive, reconstituted or blended families, extended, transnational, polyamorous, foster or guardianship families, among others. The irruption of new forms such as DINKS and assisted reproduction are two examples of new family structures that reflect changes in contemporary social and family dynamics. Maternal and paternal roles are not necessarily linked to the gender of the parents or to gender-supporting bodies.

Discarding all discrimination, we position ourselves today in a different way before the question of homosexuality or the so-called egalitarian patentability or before its possibility of access to adoption. This, for example, cannot be limited to mere changes in the forms of parity and social coexistence. It is essential to analyze and visualize the impact they have on current legislations and how these are responding to the growing and accelerated transformation that these new conceptions of families demand from the States and their Courts of Justice.

In modern history, many of these have been social demands of associative groups that have already encountered the barriers of legal norms dictated in another era or that, because they are controversial, minority issues, do not always enjoy urgency and popularity on the agenda of the authorities. The modern regulation of filiation, the advent of divorce laws or egalitarian marriage are some examples.

These are profound transformations that are not exhausted with the enactment of new legal bodies, because these quickly seem insufficient since in short periods of time they become or have become outdated. A clear example is what has happened with inheritance law or filiation, which in the world has progressively given space to the recognition of civil unions or other forms of parenthood, designed in its legislative body for same-sex couples or not, enacted not so long ago but that have already been left to respond to family structures for example born from assisted fertilization or ovodonation, where the discussion is expanding every day regarding the right to know the identity of the donors, which evidently could have consequences in matters of filiation, alimony or inheritance.

It is not enough just to recognize these new family structures. The real challenge lies in betting on the development and advancement of legislation to confront these structures under the paradigm of universally recognized legal principles such as equality before the law.

In order to bet on a real recognition and development of these new family structures, we must investigate the suspicious categories that can lead us with bias to lean towards rather traditional conceptions that remind us of primitive excluding concepts, such as, for example, that in the case of a same-sex family breakdown, the mother who became pregnant has a greater closeness, ability and competence to hold the custody of the children.

Judges receive these new family orders and must, quite often, apply guiding principles rather than particular laws, using for example Constitutional supremacy in the absence of a specific text, ensuring the rights of children and adolescents, looking at their best interests in order to guarantee equity and respect for their rights.

The aim should be to create a more equitable and inclusive legal framework that reflects the realities of modern society. It cannot be exhausted with the production of laws that respond to social paternity and its recognition beyond ius sanguinis. The accelerated drop in the birth rate in the world and the technology ahead of us demand more accelerated but organic changes with unrestricted respect for the dignity of persons.

The greatest challenge? The limits. The family is the nucleus of society; any family in any society is the question to be resolved. We are ready to recognize family structures and filiation born of genetic manipulation, artificial intelligence or robotics. Surely included in our next discussions.

[1] acronym for ‘dual income no kids’

[2] covers various forms of support in family formation, including in vitro fertilisation, surrogacy and co-parenting

[3] In Spain, the legal distinction between children born in or out of wedlock was eliminated with the 1978 Constitution.

[4] Chile was the last Latin American country to legalise divorce in 2004.

[5] The first country to legalise same-sex marriage was the Netherlands, on 1 April 2001

[6] The Family Court of the city of Osorno, in Chile, ordered the Civil Registry to include on the birth certificate of an eight-year-old child, his mother and his two fathers, the foster father and the biological father.