Act 25/2010, of 29 July, on the second book of the Civil

Code of Catalonia, on persons and family

PREAMBLE
I. PURPOSE
The purpose of this act is to adopt the second book of the Civil Code
of Catalonia on persons and family, and to set up another part of the
new private law system which is meant to complete the general Code.
Since the Generalitat of Catalonia regained legislative jurisdiction in
civil matters, the Parliament of Catalonia has done remarkable work
in the field of personal and family law. Initially, Act 13/1984, of 20
March, adapted the Compilation of the Civil Law of Catalonia to the
constitutional principles of legal equality of spouses and equal legal
status of children in and out of wedlock, while incorporating the
compiled text into the Catalan legal system. Shortly after, a phase of
adaptation of civil law to new family realities was initiated, which
combined the technique of special acts acts 7/1991, of 27 April, on
filiation; 37/1991, of 30 December, on measures for the protection of
minors deprived of parental care and on adoption; 39/1991, of 30
December, on guardianship and guardianship regimes; 12/1996, of
29 July, on parental authority, and 10/1996, of 29 July, on
maintenance obligations between relatives with the reform of the
Compilation of the Civil Law of Catalonia, by Act 8/1993, of 30
September, modifying the Compilation on property relations between
spouses. In this way a comprehensive body of legislation in the field
of civil law was set up: following the path set by Act 40/1991, of 30
December, on the Code of Succession mortis causa in the civil law of
Catalonia, said body of legislation was consolidated, through the
adoption of Act 9/1998, of 15 July, on the Family Code. However, for
1

various reasons, some institutions were kept out of the Family Code:
for example, stable partners unions, regulated by Act 10/1998, of 15
July.
However, Parliamentary legislative action in the field of personal and
family law was not limited to the Family Code. Other very significant
milestones were Act 8/1995, of 27 July, on the care and protection of
children and adolescents, and Act 1/2001, of 15 March, on family
mediation in Catalonia. Additionally, specific realities were addressed,
as in Act 19/1998, of 28 December, on situations of cohabitation for
mutual assistance, and issues specific to certain areas, such as Act
21/2000, of 29 December, on the right to information concerning the
health and autonomy of the patient, and clinical documentation.
Subsequently, Act 3/2005, of 8 April, modifying Act 9/1998, on the
Family Code, Act 10/1998, on stable partners unions, and Act
40/1991, on the Code of Succession by reason of death in the civil
law of Catalonia, regarding adoption and guardianship, eliminated the
differences in the possibility of joint adoption by same-sex couples.
In accordance with Article 3 of Act 29/2002, of 30 December, first Act
on the Civil Code of Catalonia, the second book was to include the
regulation of the natural persons, the matters covered by Act 9/1998
and the special acts in this field. This is why the Observatory for
Private Law of Catalonia (Observatori de Dret Privat de Catalunya)
began working, since its creation, on the tasks of reviewing,
harmonising and systematising family law, understood in a broad
sense, that is, covering the regulation of the natural persons.
Notwithstanding the provisions of Article 6 of Act 29/2002, personal
and family law was not integrated into the Civil Code by introducing
amendments through additions, deletions or rewording of current
regulations, pending a future recast in a new second book. It was
chosen, instead, to produce a complete alternative text, which avoids
the difficulties brought about by subsequent consolidation, and allows
2

to contextualise the many important developments introduced with

the adoption of the second book.
II. PRINCIPLES
Article 40 of the Statute of Autonomy of Catalonia provides that
public

authorities

shall

guarantee

legal,

economic

and

social

protection to the various types of family, as a basic structure and a

factor favouring social cohesion and as the primary unit of social
cohabitation. Said Statute provision also emphasises the protection
that the law should give to children, young people, disabled persons
and the elderly. Family is, indeed, the essential reference for citizens
and one of the few which mobilises general public support. In all
societies, it is one of the most highly valued spheres of life and it is of
great importance to family members.
It is the environment where interaction and solidarity between
generations take place, particularly during the upbringing and
education of children and young people. This book incorporates and
reinforces the principle of the best interests of the child regarding all
regimes and areas where the person or the property of the minors
may be affected by decisions made by others on their behalf. The
new regulation also provides criteria to better define this interest
depending on the circumstances of the case, especially when it is
necessary to establish how parental responsibilities over minor
children are to be exercised after the breakdown of the marriage or
stable partnership, but also regarding the exercise of parental
authority or guardianship.
Moreover, social changes mean that today family is rather understood
as an environment where communication and respect for the
individual wishes and aspirations of its members are important in
defining

their

development,

common
freedom

life
and

project.

That

autonomy

is

but

why

individual

also

individual

responsibility are emphasised. This concept of family also inspires all

3

the rights of the minor and the regulation of the relations between
parents and children under parental authority.
Regarding

the

interests

of

especially

vulnerable

groups,

and

notwithstanding the special protection needs based on age or physical

or mental disability, civil legislation should make it possible for all
people to develop their life projects and participate in social life with
equal rights and duties. That is why the new regulation emphasises
the natural capacity of the persons and the respect for their
autonomy in personal and family life, without ignoring that the
possibility of abuse calls for appropriate control mechanisms. In line
with this, two new regimes are included to protect and support the
autonomy of people who, for various reasons, may need protection:
on the one hand, assistance, conceived as a means of protection
available to people for whom, due to their psychophysical condition,
incapacity and the subsequent guardianship are often not possible
nor even desirable, and, on the other hand, the possibility of
establishing estate protection in order to meet their needs of people
with physical or mental disability or in a situation of dependency.
The second book takes account that Catalan society, like other
neighbouring societies, has evolved and that family characteristics
have changed substantially in relation to the immediately preceding
generation. Catalonia has gone through the demographic transition
and it is today an aging society with a large increase in the number of
single households, the result of an increased life expectancy, a rather
low fertility and increasing divorce rates. Furthermore, the man is no
longer the only household member who contributes to household
income, and in more and more families both men and women engage
in paid employment. The female employment rate has risen steadily
and is now close to the average for the most developed countries,
which also explains that the age at first marriage is over thirty years
for both women and men. As in other neighbouring countries, divorce
4

has become standard and has risen steadily in Catalonia. In the mideighties, divorce rates were still low, around 0.1 per thousand
inhabitants, but they have now reached around 2.1 per thousand
inhabitants. This increase in divorces has resulted in a significant
increase in families where only one parent lives together with the
children, as well as in blended families, that is, families formed by
one parent, his or her spouse or partner, the children of at least one
of them and, possibly, their common children, a situation which, until
now, had not been dealt with by any legislation, except for some
isolated rules on family expenses and adoption.
Finally, there is today a greater tolerance for forms of life and
personal fulfilment different from traditional ones. In an open society,
people's lifestyle choices and personal lives may not be dictated by a
prevailing pattern of life, as long as the option freely chosen poses no
harm to others. This principle is the basis of the second book
regarding the recognition of family forms. Thus, unlike the Family
Code, this book includes family relationships based on forms of
cohabitation other than marriage, such as families formed by single
parents with their descendants, cohabitation of stable partners and
the

relations

of

cohabitation

for

mutual assistance.

The

new

regulation also includes homoparental families, subject to the

differences imposed by nature.
III. STRUCTURE AND CONTENT
This act, of one article, adopts the second book of the Civil Code of
Catalonia, on persons and family, and contains nine additional
provisions, eight transitional provisions, one repealing provision and
five final provisions. It is based on the Family Code: it reorganises its
content, amends its technical errors and introduces a number of
innovations to adapt the legal system to the new social needs.
The second book of the Civil Code is divided into four titles: Title I
concerns the natural persons, Title II regulates the

personal
5

protection regimes, Title III deals with the family, and Title IV
regulates the other cohabitation relationships.
a) The natural persons
Chapter I of Title I, concerning legal personality and capacity, places
the natural persons at the core of civil law. For the purposes of
Catalan law, legal personality is acquired by birth, in line with the
provisions of Article 7 of the Convention on the Rights of the Child,
adopted by the General Assembly of the United Nations on 20
November 1989 and ratified by the Spanish State on 30 November
1990. As a matter of fact, this rule merely clarifies and develops what
is already apparent from Articles 196.1 and 254.2 of the Code of
Succession, which, regarding the capacity to inherit, imply that the
acquisition of personality occurs upon the birth of the conceived child.
It also makes explicit the principle, which already governed Catalan
inheritance law, laid down by Articles 9 and 143.2 of the Code of
Succession, among others, that the conceived child is considered to
have legal personality for all purposes favourable to him provided he
be born later. Concerning personal capacity, the second book
emphasises natural capacity as a basic criterion for the acquisition of
the capacity to act, in accordance with the provisions of the Civil
Code, which, combined with age, makes it possible to assess capacity
in a gradual way, without a strict division in stages over the life of the
person.
This chapter also establishes a rule on simultaneous death by stating
that, in order for the transmission of rights to occur, the beneficiary
of the succession or transmission must have survived the deceased at
least seventy-two hours. It seeks to eliminate the problems of proof
often arising from these situations. This rule also better respects the
will of the deceased who wanted to favour a specific person and not
the heirs of the latter.
Finally, this chapter contains provisions on the age of majority and
6

minority and a complete regulation of emancipation and of the legal

system concerning the acts of emancipated minors, which fills
existing gaps. In this field, it was chosen to repeal the intervention of
the

two

closest

relatives

to

supplement

the

capacity

of

the

emancipated minor in case of disagreement with or impossibility of

the person who should supplement the capacity, as this provision has
had no practical significance. For the same reason, the intervention of
two relatives regarding curatorship has been repealed.
Chapter II, concerning personal autonomy in the field of health,
incorporates the principles of Act 21/2000. The rather scattered
provisions of the Family Code regarding these principles in the
context of guardianship and de facto custody did not reflect them well
nor did they harmonise them. In this regard, the scope of the
entitlement to make decisions in place of the patient is clarified and
the court approval which had to be asked by the guardian or parents
to apply some medical treatments to the persons under their
guardianship or authority is removed when this is not required by
health legislation. This chapter is completed by rules concerning the
advance directive and the placement for reasons of mental disorder,
which remove the requirement that it had to be in a closed
institution.
b) Personal protection regimes
The distinction made by Article 3 of Act 29/2002, regarding the
content of the second book, between the natural persons and the
family, made it possible to emphasise the role of guardianship
regimes, as they are dealt with in an autonomous and independent
way, preventing them from being seen, in part, as a substitute for
family relations. Indeed, Title II of the second book groups together
the regimes protecting the adults who can not make decisions for
themselves and the protection of minors, particularly minors deprived
of parental care. Along with these regimes, this title includes the
7

regulation of assistance and estate protection for disabled and

dependent persons.
The main feature of Title II is that it incorporates a variety of
protection instruments, which aim to cover the whole range of
situations in which disabled persons may find themselves.
This Act maintains the traditional protection regimes related to
incapacity, but it also regulates other regimes which operate or may
eventually operate without a declaration of incapacity, as in many
cases the disabled persons or their families prefer not to request it.
This diversity of protection regimes is in line with the duty to respect
the rights, will and preferences of the persons, and with the principles
of proportionality and adaptability to the circumstances of the
protection measures, as advocated by the Convention on the Rights
of Persons with Disabilities, adopted in New York on 13 December
2006 and ratified by the Spanish State. In particular, the references
of the second book to incapacity and incapable persons must be
interpreted in accordance with this convention, in the sense least
restrictive for personal autonomy.
Chapter I of this title systematises provisions common to all
protection regimes and defines such regimes as a duty, under the
control of the judicial authority, which must be exercised in the
interest of the persons protected and according to their personality,
so that the decisions affecting them meet their aspirations and
expectations.
Regarding guardianship, Chapter II incorporates the regime of the
Family Code, but with some noteworthy developments. On the one
hand, in line with a further strengthening of personal autonomy
following the path set by Act 11/1996, of 29 July, modifying Act
39/1991,

of

30

December,

on

guardianship

and

guardianship

regimes, with the admission of the grant of guardianship made by

oneself, it increases the flexibility of the legal response to the
8

progressive loss of personal cognitive and volitional powers, by

recognising that, if a power of attorney has been granted in
anticipation of a situation of loss of capacity, the fact that this
circumstance is reached does not necessarily lead to the termination
of such power. That is, it allows the attorney-in-fact to continue to
care for the interests of the person who is unable to look after himself
or herself, without having to establish guardianship. That does
obviously

not

preclude

guardianship

from

being

eventually

established, in the interest of the protected person, and the judicial

authority can, if asked by the guardian, pronounce the termination of
the power of attorney. The declaration of incapacity and the formal
establishment of guardianship should not always be necessary, as
guardianship is defined as a protective measure, especially in
situations of lack of protection of incapable persons, when a serious
mental illness is added to the lack, inadequacy or impossibility of
family

support.

Similarly,

some

precautions

have

been

taken

regarding the execution of deeds containing the grant of guardianship

made by oneself, as it has too often been found that some deeds of
appointment of a guardian are executed just before applying for a
declaration of incapacity, which raises the suspicion that there may
be a manipulation of free will by the appointed person or, simply, that
the grantor was not fully capable. Therefore, on the one hand, the
grant of guardianship made by oneself is considered null and void if
the deed of grant was executed after the application for a proceeding
on capacity has been filed or after the Public Prosecution has taken
the initial procedural steps for such proceeding; and on the other
hand, the persons called upon by law to exercise guardianship or the
Public Prosecution are given standing to challenge the grant made by
the person concerned within one year prior to the start of the
proceeding on capacity.
This regulation also affects the ability to exercise guardianship
functions, and the grounds which excuse a person from guardianship
9

are adapted to the reality of the necessary and appropriate

specialisation of guardianship non-profit institutions dedicated to the
protection of incapable persons. Therefore, legal persons can be
excused from guardianship if they lack sufficient means to exercise
guardianship properly or if the personal circumstances of the ward
are alien to the purposes for which they were created. Finally, in line
with the unanimous criticism of legal practitioners, the regulation of
the submission of accounts during the exercise of a guardianship
function and upon termination thereof has also been reviewed, and
the holders of a guardianship function are accountable to the judicial
authority that ordered the guardianship.
Chapters

III

and

IV

respectively

deal

with

curatorship

and

guardianship ad litem. Although curatorship is conceived as a regime

where capacity is merely supplemented and the protected person acts
for himself or herself, the court order can, in cases of partial
incapacity, confer administrative powers to the curator, who may, if
necessary, act as a representative. That is why the obligation of
accountability, which is proper to the management of affairs of
others, is also included. Chapter IV retains the versatile and flexible
nature of guardianship ad litem based on its definition as a
guardianship regime which has a role in the adjustment of the other
protection regimes, including parental authority.
Chapter V defines more precisely de facto custody, which concerns
the care of minors deprived of parental care or of adults with a
ground

for

incapacity.

In

the

latter

case,

the

obligation

to

communicate de facto custody to the judicial authority is limited to

cases where the person is in a residential facility, subject to the
provisions of procedural law. Practice has shown that only in
exceptional and rather extreme cases do families decide to request
the declaration of incapacity of elderly persons suffering from senile
dementia or other illnesses that prevent them from deciding for
10

themselves. Moreover, when de facto custody is exercised over a

person under parental authority or guardianship, the judicial authority
may give the custodian guardianship functions, if this seems
appropriate in regard of the circumstances of the case, such as the
anticipated duration of custody or the needs of the person under
custody. The grant of guardianship functions suspends parental
authority or guardianship, and prevents the custodian from having to
request the deprivation of authority or the removal of guardianship
rights, which is a heavy burden, especially in a family context.
Along with the provision which allows not to establish guardianship if
a power of attorney was granted in anticipation of a loss of capacity,
changes regarding de facto custody are a reflection of the new model
of personal protection established by the second book. This model is
guided by the idea that incapacity is too drastic a remedy and that it
sometimes shows little respect for the natural capacity of the
protected person. It is for this very reason that Chapter VI includes a
new instrument of protection, assistance, aimed at the adult who
needs to care for his person or property because of a non-disabling
decrease in his physical or mental faculties. Personal protection is
thus not necessarily linked to cases of lack of capacity: it also
includes

instruments,

based

on

the

free

development

of

the

personality, which serve to protect persons in situations such as

aging, mental illness or disability. This instrument can also be very
useful for certain vulnerable groups for whom incapacity and the
implementation of a regime of guardianship or curatorship seem
disproportionate, such as persons affected by mild mental retardation
or other persons for whom, due to the kind of impairment they suffer,
traditional instruments are not appropriate to meet their needs. In
line with the guidelines of Recommendation R (99) 4, of the
Committee of Ministers of the Council of Europe, of 28 February
1999, and with the existing precedents in various neighbouring legal
systems, it was considered that this model of protection, parallel to
11

guardianship or curatorship, could be more appropriate. Moreover,

this trend also inspires the Convention on the Rights of Persons with
Disabilities.
Chapter VII incorporates into Catalan law the concept of protected
estate, whereby assets transferred gratuitously by a settlor, including
the proceeds thereof and assets acquired as a replacement thereof,
are allocated to meet the basic needs of a person affected by some
serious mental or physical disability or by an equally severe situation
of dependency. It has been evidenced that, despite the tax benefits
established by State law, few Catalan families have used this
instrument. That is why, consistently with the purpose of providing
estate protection to the beneficiary, the proposed regulation assigns
the protected estate to this purpose and is based on the idea that
said estate is not liable for the obligations of the beneficiary, of the
settlor or of any person who contributed thereto, but is rather solely
bound by the obligations entered into by the administrator to meet
the basic needs of the protected person. In addition to this concept, a
system of management of the protected estate and of supervision of
the activity of the administrator is designed and the first additional
provision also regulates the creation of the Registry of protected
estates.
To complete Title I, Chapter VIII, on the protection of minors
deprived of parental care, incorporates into the second book the civil
law aspects of Act 37/1991, of 30 December, on measures for the
protection of minors deprived of parental care and on adoption, and it
takes account of the new model of protection established by the
legislation relating to children and adolescents, where the declaration
of deprivation of parental care is reserved to severe cases, that is,
those where the child should be separated from his family. In this
field, the Civil Code of Catalonia regulates the protection of minors
deprived of parental care in parallel with the other personal
12

protection regimes, and refers to the legislation on children and

adolescents regarding the indicators on deprivation of parental care,
the protection measures, the procedure for the adoption and review
of such measures, the system of appeals and the grounds for
termination. Greater visibility is also given to the role of the foster
person or family, who exercises the custody and the parental
responsibilities of a personal nature regarding the child, with the
powers resulting therefrom, subject to the supervision, advice and
help of the responsible agency. In addition, pre-adoptive foster care,
as a trial period for adoption, is now regulated, together with
adoption, in Chapter V of Title III. This puts an end to the
discrimination, albeit only in terms of legislative technique, derived
from the fact that the regime of protection of minors deprived of
parental care, that is, those for whom there can not be an ordinary
guardianship because there is no one in their inner circle to exercise
it, was kept apart in a special act, outside of the symbolically most
emblematic regulation of Catalan civil law.
Although the exercise of this competence has been rather limited, the
public Administration remains entitled to require the deprivation of
parental authority and the regulation is complemented by a rule
stating that a just cause for deprivation is the fact that parents,
without sufficient justification, have failed to provide parental care to
their child or to comply with the schedule of personal relations for six
months, or the fact that minor or incapable children suffer illtreatment or sexual abuse.
c) The family
Title III maintains the system of the Family Code, except for the
significant addition, in its first provision, of other forms of family,
such as the stable partnership and the family formed by a single
parent and his or her descendants, together with the recognition that
households where non-common children live together are families,
13

without prejudice to the bonds of these children with their other

parent.
Chapter I regulates the general provisions on and the effects of
marriage, which is defined in line with the new regulatory framework
governing the right to marry, and it incorporates an explicit reference
to

the

duty

of

both

spouses

to

contribute

to

household

responsibilities, including the care for other dependent family

members living with them.
Indeed, the new regulatory framework of marriage, along with the
determination of filiation by a woman's consent to the application of
assisted reproduction techniques to her wife or female partner, and
the possibility of joint adoption by same-sex married couples or
stable partners, imply that the child may have two fathers or two
mothers. It was therefore necessary to harmonise language to
achieve greater gender neutrality. In line with this, most of the
references made to "husband" and "wife" [muller] are replaced by
"spouses", and "father" and "mother" are replaced by "parents",
which includes both natural and adoptive parents.
As for family expenses, the acquisition and improvement of the family
dwelling is excluded from such expenses, as these are investment
expenditures which must be

linked to

the

ownership of the

immovable property. As a matter of fact, the Family Code already

limited them to the share of value in use, but that was not consistent
with the fact that this obligation of contribution did not apply if the
dwelling was already owned by one spouse before marriage or if he
or she had acquired it for profit while married. Moreover, when
comparing

the

abovementioned

rule

on

contribution

with

the

regulation of the liability for the obligations entered into by reason of

family expenses, it did not seem consistent that the non-owner
spouse could be held jointly and severally liable for this obligation.
The

regulation

of

acquisitions

with

tontine

clause

remains
14

incorporated into family law. However, in line with the case law of the
High Court of Justice of Catalonia (Tribunal Superior de Justcia de
Catalunya), it is no longer limited to sales but it is rather extended to
all kinds of acquisitions for consideration and it is dissociated from
the matrimonial property regimes of separation of property or of
participation. That does obviously not preclude the possibility that,
within or outside of a family unit, other legal forms might be chosen
which are clearly related to it, but with a different scope and
regulation,

such

as

the

inheritance

pacts

and

the

specific

assignments.
Regarding the marriage contract, the generic reference done in the
Family Code to the agreements in anticipation of a marriage
breakdown

has

been

developed.

The

formal

and

substantive

requirements they need to comply with to be fully valid and effective

are laid down. These requirements include the possibility of adopting
them through a deed other than a marriage contract and a key role is
given to the notary who performs the deed, to ensure that the
agreements, particularly the agreement to waive rights, were
preceded by adequate information about the respective assets and
financial perspectives. In line with comparative precedents in this
field, the possibility is left to review the effectiveness of the
agreement if, at the time of intended performance thereof, it poses a
serious harm to either spouse and such spouse proves that changes
of circumstances have arisen that were unforeseen or could not
reasonably be foreseen at the time of execution of the agreement.
Likewise, limits are set to the contractual freedom of the parties
regarding the legal provisions where agreements may have more
impact,

as

for

the

compensatory

payment

and

the

financial

compensation by reason of work, and a distinction is drawn between

the agreements entered into in anticipation of a marriage breakdown
and those made when the marriage is already in crisis. It was also
considered appropriate to clarify that the exercise of the claims
15

included in the agreement in anticipation of a marriage breakdown

can become effective in the subsequent matrimonial proceedings,
without the need for any further declaration by the parties.
Finally, in line with the new regulation of succession agreements
included in the fourth book of the Civil Code of Catalonia, it was
chosen not to include, among others, the rules governing the
universal usufruct agreement, as these are based on a model of
contractual succession specific to a rural economy that has nothing to
do with present-day Catalan society. However, this regime may be
agreed upon by the parties if they wish so. Similarly, the complete
regulation of gifts contained in the fifth book made it possible to
simplify the provisions regarding gifts by reason of marriage,
although it was necessary to correct the inconsistency of maintaining
in that book a specific rule which referred to the regulation of gifts by
reason of marriage contained in the Family Code.
Chapter II, concerning matrimonial property regimes, maintains the
regime of separation of property as supplementary legal regime and
retains its defining characteristics, with some noteworthy changes. It
maintains the principle that property acquired for consideration
during marriage belongs to the owner spouse, which is traditionally
reinforced by a presumption of gift of the consideration if it can be
proven that this came from the property of the other spouse.
However, a new feature is that movable assets for family use, such
as vehicles, furniture, household appliances or other household items
have been excluded from this regime. For this type of assets, proof of
formal ownership alone, for example through purchase receipts, is
often not very meaningful and, therefore, given the family purpose of
these assets, it seems preferable to presume that these belong jointly
and equally to both spouses, without prejudice to the possibility of
rebutting this presumption by more conclusive evidence.
This chapter also regulates more thoroughly and appropriately the
16

financial compensation by reason of work carried out for the

household or for the other spouse, as a corrective to the unwelcome
effects

sometimes

produced

by

this

regime.

So

far,

the

implementation of the financial compensation by reason of work has

generated many problems mainly due to a lack of regulation, which
means that in practice it has become a rather unpredictable factor,
given the high degree of discretion of the judicial authority.
Legislative action was considered necessary to provide clearer
regulatory

guidelines

together

with

rules

clarifying

whether

compensation is to be paid and for which amount. Accordingly, the

new regulation no longer refers to compensation as an alternative
remedy against unjust enrichment, it dismisses the concept of
excessive contribution to family expenses implicit in the wording of
Article 41 of the Family Code, in force until the entry into force of this
Act, and it is simply based on the imbalance that occurs between the
financial situations of the spouses when one spouse performs a task
which generates no accrued gains and the other performs a task
which does. To this end, it suffices to establish that either spouse was
substantially more involved with household responsibilities than the
other. The type of work performed and the duration and intensity of
the

involvement

are

considered

to

calculate

the

amount

of

compensation, and limits are set to judicial discretion in assessing the

importance of these factors, as said amount is limited to one fourth of
the difference in the accrual of assets obtained by the spouses while
the

matrimonial

regime

was

in

force.

However,

higher

compensation can be granted if the creditor spouse can prove that

the impact of his or her work in the other spouse's accrual of assets
has

been

significantly

higher.

The

regulation

of

the

financial

compensation also clarifies the scope of the autonomy of the spouses

to enter into agreements on compensation, even in anticipation of a
marriage breakdown. A new feature is that the de facto assumption
also applies to cases of termination of the regime due to the death of
17

one spouse if the surviving spouse is entitled to compensation.

Regarding

the

other

property

regimes,

both

the

regime

of

participation in gains and the regime of community of property have

been reviewed to address the weaknesses which, in practice,
hampered their use as an alternative to the supplementary legal
regime.
Chapter III looks at the consequences of annulment of marriage,
divorce and legal separation and it begins with a specific regulation of
the interim measures which is more in line with the needs of Catalan
civil law. It also regulates for the first time the so-called amicable
separation agreements and it determines their validity and effects,
while stressing their binding nature, but also providing for a period of
revocation in order to ensure that agreements are taken freely.
Specifically, the spouse who did not have independent legal aid when
the agreement was taken may have it annulled within three months
following adoption or, at most, until the moment of the response to
the claim or, where appropriate, the counterclaim in the matrimonial
proceeding where its enforcement is sought. This possibility is
justified by the particular context in which the parties sign these
agreements. There are often serious imbalances in the information
available to each party, and agreements are reached in situations of
anxiety or stress which make it difficult to objectively assess the
terms agreed upon, where there is a high risk of exploitation or abuse
of one party by the other.
As for the responsibility of the parents towards the children upon
separation or divorce, two developments are noteworthy. The first
one is that any proposal of the parents in this field should be
incorporated into the judicial proceedings in the form of a parenting
plan, which is an instrument detailing how both parents propose to
exercise parental responsibilities and what their commitments are
regarding the custody, care and education of the children. Without
18

imposing a specific type of organisation, it encourages parents,

whether the proceeding is amicable or contested, to organise child
care in a responsible and autonomous manner when marriage breaks
down, by anticipating criteria to solve the major problems affecting
them. In line with this, it facilitates collaboration between the lawyers
of both parties and with independent psychologists, psychiatrists,
educators and social workers, to intervene on aspects related to
marriage breakdown before filing the application. This aims at
encouraging the adoption of specific agreements, the transparency
between both parties and the implementation of the commitments
made.
Another new feature is that this regulation departs from the general
principle that the breakdown of cohabitation between parents
automatically means that children should be separated from one
parent and left to the other one. Instead, this regulation introduces
as a rule that the annulment, divorce or separation does not alter the
responsibilities of the parents towards their children. Consequently,
after breakdown, these responsibilities remain shared and it is for the
judicial authority to determine, if there is no agreement on a
parenting plan or if this is not approved, how parental responsibilities,
and in particular the custody of the minor, should be exercised,
bearing in mind the joint nature of these responsibilities and the best
interests of the minor.
It is considered that, in general, co-parenting and the maintenance of
shared parental responsibilities materially reflect the child's interest
to maintain a stable relationship with both parents. Equal rights and
duties between parents eliminate the dynamics of winners and losers,
and promote collaboration in the affective, educational and financial
aspects. France, Italy and Belgium have recently adopted regulations
in this sense. However, this does not prevent the judicial authority
from deciding according to the circumstances of each case and
19

depending on the specific interest of the children. That is why the

second book provides a set of criteria which must be considered
together in order to determine custody schedules and how to exercise
them.
The message of the second book is to encourage forms of coparenting and the use of mediation as a tool to ensure the stability of
relations after the breakdown between the parents, and the natural
adaptation of the rules to changing circumstances, but it does not
forget that family relationships in our society still maintain a high
degree of sexism. It has also been considered that the role of the
mother is qualitatively more necessary for children than that of the
father when the family dynamics are built on traditional models, be it
a Catalan traditional model or that of other cultures which have
become part of the Catalan society. For this reason, the specific
bonds of the children with one of the parents and the dedication to
the children that the mother or father may have had before marriage
breakdown are stressed as criteria for determining individual custody.
More specifically, in line with Act 5/2008, of 24 April, on the right of
women to eradicate sexist violence, and bearing in mind the fight
against this violence, this regulation excludes from any involvement
in the custody the parent against whom there exists a final
judgement or grounded suspicion of domestic or sexist violence and it
explicitly establishes the supervision of personal relations in risk
situations.
Finally, based on the recognition of the privileged nature of the
relations between minors and their closest community, particularly
with their grandparents and siblings, a procedure is established to
ensure the effective application of the right of minor children to
maintain these personal relations in case of marital crisis.
With respect to the regulation of the compensatory allowance, the
outlines established in the Family Code remain unaltered, but, as the
20

possibility of payment in a lump sum is generalised, it is now called

compensatory payment. Indeed, many divorces involve marriages
with a very short average duration and relatively young people, so
that, in general, the loss suffered by both partners is similar, or
married life has not hopelessly jeopardised the financial opportunities
of any of them. This has not led, however, to fundamental changes in
the legal definition of compensatory payment. It has been considered
that the increased participation of women in the labour market has
not been paralleled, in practice, by a sharing of home and family
responsibilities between spouses and in many cases the occupational
or professional activity of one spouse is still subordinate to that of the
other spouse, to the extent that in certain educational and income
levels, it remains common for one spouse, typically the woman, to
exit the labour market upon marriage or when having children. Both
circumstances call for a recognition of the right to compensatory
payment related to the living standards that the spouses enjoyed
during marriage, in the understanding that preference is given to the
childrens maintenance right and that the amount of said payment
needs to be determined according to the criteria detailed by this
regulation. However, for cases in which the payment is done as an
allowance, the regulation stresses its essentially temporary nature,
unless exceptional circumstances make it advisable to grant it
indefinitely. In general, the waiver of the right to compensatory
payment, including that incorporated into premarital agreements, is
permitted within the framework set by the second book and subject
to the fact that the initial waiver may not end up compromising the
basic needs of the spouse who is entitled to such payment.
The rules on the award of the use of the family dwelling show
important developments. Despite awarding it preferably to the
custodial spouse, the need to assess the circumstances of the case is
emphasised. To this end, the Act provides that, upon request of the
person concerned, the award of the use of the family dwelling can be
21

excluded if this would be beneficial to a parent who has sufficient

resources to meet his or her needs and those of the children, or if the
parent who should assign such use can meet with sufficient
guarantee his or her obligations regarding child maintenance and the
compensatory payment awarded to the spouse, which should cover
his or her housing needs. Conversely, if the use of the family dwelling
is awarded to a spouse by reason of the custody of the children, but it
is foreseeable that the needs of this spouse shall continue after the
children attain majority, the use of the family dwelling can be
awarded from the beginning on this ground. In any case, the award
on grounds of needs is always temporary, without prejudice to the
extensions which may be requested as appropriate. This regulation
aims at limiting the excessive tendency in case law to give the award
a permanent nature to the detriment of the interests of the owner
spouse. This field is completed by the establishment of criteria for the
distribution of the obligations regarding the dwelling and for the
resolution of the case, very frequent in practice, where a close
relative has assigned an immovable property to be used by the
spouses as a dwelling. As reiterated in case law, those who occupy
the family dwelling in precarious conditions can not get a possessory
protection superior to that provided to the family by the person who
holds the precarious title. However, if possession derives from a
contract, the provisions thereof must be observed, without prejudice
to the possibility of subrogation provided for by tenancy legislation.
With regard to the consequences of annulment of marriage, divorce
and separation, the second book further develops the limited rules on
mediation laid down by Article 76.2 of the Family Code. It is based on
the general regulation of mediation made by general law, but special
features are defined for the institutions specific to personal and family
law especially regarding the confidentiality of mediation prior to filing
an application. It lays down that in any stage of matrimonial
proceedings the spouses may request to submit the disagreement to
22

mediation or that the judicial authority can refer them on its own
motion to an information session on mediation, without affecting the
voluntary nature thereof.
Chapter IV is dedicated to stable cohabitation partnerships and it fully
replaces Act 10/1998, hence ending the separate treatment given by
the Catalan legal system to stable partnerships. As is well known,
although

the

regulation

of

stable

partnerships

followed

parliamentary procedure parallel to that of the Family Code and was

adopted at the same plenary session, it was ultimately incorporated
into a special act. Moreover, with the adoption of State Act 13/2005,
of 1 July, amending the Civil Code concerning the right to marry, a
very substantial part of the objectives originally pursued by that
special act have become obsolete, because it is undeniable that one
of its main purposes was to give a legal status to couples who,
according to the state of the law before State Act 13/2005, were
excluded from access to marriage.
Unlike the Act on stable partnerships, the regulation of stable
cohabitation partnerships included in the second book no longer
provides any difference on grounds of sexual orientation of the
partners. It also extends the substantive scope of the legislation, by
including stable partners who are unable to marry because one of
them is still married to someone else. As this is essentially a
regulation aimed at solving the problems arising from the end of
cohabitation, unequal treatment is not justified. This regulation
further aims at avoiding that a significant number of couples according to some estimates, around 30% of heterosexual couples in
Catalonia and an unknown number of homosexual couples - remain
outside the scope of the regulation and that the consequences of
breakdown should be determined through vague case law.
While cohabitation lasts, stable partnerships are governed solely by
the agreements of the cohabitants, including, in line with the case law
23

of the High Court of Justice of Catalonia, the possibility of joint

acquisitions for consideration with tontine clause. However, the
protection against the disposal of the family dwelling, already
established by Act 10/1998, remains in force as a measure to protect
the family. New developments are the incorporation into the law of
the agreements in anticipation of the end of cohabitation, with
references to the limits established for married couples, and a
regulation of the award of the use of the family dwelling in the case
of a relationship breakdown. Finally, the fifth additional provision
states that legal disputes concerning the breakdown of stable
partnerships follow the same procedure as matrimonial proceedings.
The regulatory model of stable partnerships established by the
second book is the most appropriate one for the current Catalan
society. It is clear that a project of common life nowadays does not
necessarily start through marriage. Unlike other countries around
Catalonia, however, the incidence of non-marital cohabitation is
relatively low, and recent studies show that this cohabitation is seen
by young couples as quite different from marriage, based on
indicators such as duration, stability, fertility and the degree of
mutual commitment expressed through acts such as the sharing of
assets or similar goods. It is mostly seen as a trial marriage, be it
because the couple ultimately breaks down or because it leads to
marriage.

legal

status

for

stable

partnership

seems

thus

dispensable, and it would also be very difficult to reconcile with the

wide variety of forms of cohabitation. Obviously this does not
preclude that, when the breakdown of cohabitation entails that one of
the partners is in a situation of need because of its duration,
because children were born out of it or, in general, because of
decisions made by each of the cohabiting persons in the common
interest this person may obtain from the other partner the
resources necessary to rebuild his or her life. All this without
prejudice to the right to financial compensation by reason of work
24

carried out for the household or for the other partner, which arises
irrespective of the legal status of the cohabitation and which is due to
the fact that, in the common interest, one partner carried out a task
which generated accrued gains while the other carried out another
task which did not.
Chapter V, on filiation, covers both natural filiation and filiation by
adoption, which were regulated by separate titles in the Family Code.
As for natural filiation, this regulation incorporates the changes
regarding the filiation of children born as a result of assisted
reproduction which were introduced by Act 10/2008, of 10 July, on
the fourth book of the Civil Code of Catalonia, regarding successions,
which make it possible to establish the maternity of the woman who
consents

to

the

application

of

techniques

of

assisted

human

reproduction to her spouse or to the partner with whom she lives as a

stable partner. Obviously, maternity resulting from the mere consent
to the assisted reproduction of the spouse or partner is not, by
nature, a biological maternity but a purely legal relationship. But this
is nothing new in the Catalan legal system. It also occurs with the
paternity of the man, married or not, who consents to the assisted
reproduction of his spouse or partner. For this reason, it was not
thought appropriate to include a new legal category for this type of
filiation and it was chosen to assimilate it, in terms of legal
treatment, to the paternity of the man who consents to assisted
reproduction as in both cases the ground for the establishment of
filiation is consent, and not the biological relationship. The fact that
the maternity of the spouse or partner who consents to the assisted
reproduction of the future biological mother can be established
directly affects the means of establishing filiation: it was thus
necessary to add the consent to assisted reproduction to the list of
grounds to establish filiation. It was also considered necessary to
extend the challenge of the recognition to include this new ground,
25

which avoids having to implement by analogy the legislation on

assisted human reproduction techniques.
Finally, to dispel any doubt about the inapplicability in Catalonia of
the provisions of State Act 1/2000, of 7 January, on civil procedure,
which require, in the proceedings on filiation, to provide prima facie
evidence of the facts in support of the action, this regulation clearly
states that, under Catalan law, this evidence is not required for the
admissibility of the action, also in line with the case law of the High
Court of Justice of Catalonia, in the tradition of Catalan law.
With regard to filiation by adoption, the most substantial changes
occurred with the adoption of Act 3/2005, which enabled same-sex
couples to adopt. Subsequently, Act 10/2008 removed restrictions on
the creation of family ties between the adopted child and its
descendants and the family of the adopter. The second book
introduces systemic changes, as it was opted for a joint regulation of
adoption and pre-adoptive foster care, giving precedence to the
conception of foster care as a period of adaptation of the minor to the
person or the family who is to adopt it. As for the formalisation of
pre-adoptive foster care, references are made to the procedure
established
Furthermore,

by

the

this

legislation

regulation

on

children

explicitly

and

recognises

adolescents.
the

right

of

adoptees to know the information regarding their origin and, in line

with modern comparative law, adoptive parents have the obligation
to inform the adopted child about his or her adoption. To ensure
effectiveness thereof, a confidential mediation procedure is provided
for. Exceptionally, procedures are also established to allow the
adopted child, in his or her best interest, to maintain personal
relations with the family of origin.
Chapter VI concerns parental authority, which is part of the parental
responsibilities that parents bear as a result of filiation.
In this area, in line with the developments in other European legal
26

systems, provisions are included to meet the needs of so-called

blended or reconstructed families, that is, those families involving
couples with non-common dependent children. Until the entry into
force of the second book, the adoption of the child of a spouse or
partner, though not always possible, was the only way to allow the
spouse or partner of the biological parent to exercise parental
authority over the children of the latter, especially in case of death of
the other parent or if the other parent had neglected the child and
the current partner of the mother or father had become the paternal
or maternal reference of the child. The second book entitles said
partner to intervene in matters concerning relations with educators,
care for ordinary needs and other decisions that affect the minor and
in which he or she is often physically involved. In addition to being
entitled to perform, during the cohabitation, these actions of
everyday life in the interest of the child of the other spouse or
partner, this regulation provides for the possibility that, in case of
death of the parent who had exclusive custody, if the child is not
returned to the custody of the other parent, the judicial authority
may

exceptionally

award

custody

and

the

other

parental

responsibilities to the surviving spouse or partner, provided that this

is in the childs interests and that both the child and the other parent
have been heard.
Finally, in order to give a clear answer to the problems of violence in
family relations, the fact that minor children may have been direct or
indirect victims of sexist violence in their personal relations with their
parents is considered a just cause for the judicial authority to
suspend or withdraw the relations of the parents with their minor
children.
Chapter VII, on family maintenance obligations, retains the regulation
of the Family Code with few changes. Firstly, reference needs to be
made to the rule, aiming at protecting from and fighting against the
27

scourge of domestic and sexist violence, which allows to claim the

performance of the maintenance obligations due prior to the judicial
or extrajudicial claim, if these were not claimed for a reason
attributable to the person required to perform such obligations, which
happens frequently in cases of abuse of the person who should claim
them. Secondly, the inconsistent regulation on rights to maintenance
for siblings, descendants and ascendants is repealed, so that, based
on the principle of self-satisfaction of the own needs, it is made
explicit in general terms that the persons who are in need for a cause
attributable to themselves are not entitled to maintenance, while this
cause exists.
d) Other relations of cohabitation
Act 19/1998 regulated the cohabitation between collateral relatives or
between

people

merely

united

by

bonds

of

friendship

or

companionship who, though not forming a nuclear family, live in the

same dwelling and share the housework in a spirit of mutual
assistance and of durability. This Act is incorporated, with some
changes, into the second book, as a title IV. The first change is the
name of the institution, which is now called, in a more descriptive
way, relation of cohabitation for mutual assistance. In terms of
content, it was felt that it was unnecessary to maintain the right to
financial compensation by reason of work, which was based on a
strict parallelism with marriage and stable relationships, as this
situation will hardly arise, since the purpose of the relations of
cohabitation for mutual assistance is to resolve the specific difficulties
of the elderly. Likewise, the rule which allowed to assign the use of
the jointly owned dwelling to one of the co-owners, without any time
limit nor guidelines, has been repealed. This is a matter to be
resolved by the rules of the co-ownership.
Regarding the private care agreement governed by Act 22/2000, of
29 December, on private care for elderly people, although it is
28

somehow inspired by institutions of family law and its content is

based on concepts of kinship, it must be kept out of the second book,
as

it

is

contract

for

pecuniary

interest

which

involves

consideration, and it should, if this is deemed appropriate, be

integrated into the sixth book, on obligations and contracts.
IV. FINAL PART OF THE ACT
This

Act

includes

nine

additional

provisions,

concerning

the

establishment of the Registry of protected estates, measures to

reconcile work and family life directed at the staff of the Catalan
public administration who cohabit with a stable partner, special
procedures regarding property claims in matrimonial proceedings and
in the proceedings of liquidation and distribution of inheritance, the
procedures relating to the breakdown of stable partnership, the
expert opinions regarding the regulation of the exercise of parental
responsibility, the supervision of the schedule of personal relations,
the intervention of specialists as ancillary court staff in the control of
the protection regimes and the information about the parenting plan.
With respect to special procedures, this regulation aims at providing a
procedural remedy to lodge the claims of financial compensation by
reason of work and to encourage that all relevant documentation is
submitted in those proceedings. To this end, it lays down that the
judicial authority can incorporate into the proceedings all substantial
information contained in the files of other cases, pending or resolved,
between the parties. There are eight transitory provisions. These
provisions

deal

with

various

practical

consequences

of

the

replacement of the law predating the entry into force of the second
book. Of particular importance is the third transitory provision,
whereby parties may agree to review the measures adopted in
matrimonial proceedings in those areas where the new regulation
opens up new possibilities.
This Act replaces all the existing Catalan law on personal and family
29

matters and, properly harmonised and adapted to current social

needs, it incorporates it into the most emblematic text of Catalan civil
law.
The three final provisions amend certain provisions of the first, fourth
and fifth books of the Civil Code of Catalonia, in order to harmonise
their content with the criteria set by the second book. The fourth final
disposition concerns the references made by Act 21/2000 to the
Family Code, which must now be understood as referring to the
second book. A fifth provision establishes the entry into force of this
Act.
SOLE ARTICLE
The second book of the Civil Code of Catalonia is adopted, with the
following content:

SECOND BOOK. PERSONS AND FAMILY

TITLE I. NATURAL PERSONS
CHAPTER I. LEGAL PERSONALITY AND CAPACITY
ARTICLE 211-1. LEGAL PERSONALITY
1. Legal personality is inherent to natural persons from birth.
2. The conceived child is considered to have legal personality for all
purposes favourable to him provided he be born later.
3. Legal personality is extinguished by death.
ARTICLE 211-2. SIMULTANEOUS DEATH
Eligibility for succession or the transfer of rights in favour of a person,
when these depend upon whether such person survived another, are
only effective if such person lived at least seventy-two hours longer
than the predeceased.
ARTICLE 211-3. CAPACITY TO ACT

30

1. The capacity to act of the persons is based on their natural

capacity, in accordance with the provisions of this Code.
2. Full capacity to act is reached upon attaining majority.
3. The limitations on the capacity to act must be interpreted
restrictively, with regard to the natural capacity.
ARTICLE 211-4. MAJORITY
1. Majority is attained at the age of eighteen years.
2. The day of birth is considered as a whole to calculate age.
ARTICLE 211-5. MINORITY
The minor may, according to his age and natural capacity, perform
the following acts alone:
a) Those concerning personality rights, unless otherwise provided by
the laws governing such rights.
b) Those concerning goods or services which are proper to his age,
according to social practices.
c) Other acts permitted by law.
ARTICLE 211-6. MINORS BEST INTERESTS
1. The minors best interests are the guiding principle for any decision
affecting him.
2. The minor, according to his age and natural capacity and, in any
case, if twelve years of age or over, has the right to be informed and
heard before a decision is taken which directly affects his person or
property.
3. Any act of the legal representative involving any personal
performance of the minor requires the consent of the latter if he is
twelve years of age or over or if, although younger, he has enough
discernment.
ARTICLE 211-7. EMANCIPATION

31

1. The emancipated minor can perform the same legal acts as an

adult, provided his capacity is supplemented for the acts laid down by
Article 211-12.
2. The capacity of the emancipated minor is supplemented by the
assistance of his adult spouse in case of emancipation by marriage, of
his parents or, if he has none, of his curator.
ARTICLE 211-8. FORMS OF EMANCIPATION
1. Emancipation can occur:
a) By marriage.
b) By consent of the persons exercising parental authority or
guardianship.
c) By court order.
2. Emancipation is irrevocable and must be recorded in the Civil
Registry. Prior to recording, it produces no effect against third
parties.
ARTICLE 211-9. EMANCIPATION BY CONSENT
1. Emancipation by consent of the persons exercising parental
authority or guardianship requires that the minor be sixteen years or
over and consent thereto. If emancipation is by consent of the
guardian, it also requires court approval with a report by the Public
Prosecution.
2. Emancipation by consent is granted by public deed or by
appearance before the judicial authority in charge of the Civil
Registry. The notary must notify of his own motion the emancipation
to the Civil Registry.
ARTICLE 211-10. EMANCIPATION BY COURT ORDER
1. The judicial authority may grant emancipation, at the request of
the minor under sixteen years, if there are reasons which make it
impossible to live with the parents or guardian, or which seriously
32

impede the exercise of parental authority or guardianship.

2. The court order granting emancipation requires the preliminary
hearing of the persons exercising parental authority or guardianship
and a report of the Public Prosecution.
ARTICLE 211-11. INDEPENDENT LIVING OF THE MINOR
1. The minor over sixteen years of age is considered emancipated if
he lives in a financially independent manner from his parents or
guardian, with their consent. Such consent may be revoked.
2. In the case referred to in paragraph 1, the capacity of the minor
needs to be supplemented for the same acts than in the case of an
emancipated minor.
ARTICLE 211-12. ACTS REQUIRING THE CAPACITY TO BE SUPPLEMENTED
1. The capacity of the emancipated minor needs to be supplemented
to:
a) Perform the acts referred to in Article 236-27.1.
b) Accept the office of director of a company.
2. Supplemented capacity may not be granted in general, but it may
be granted for various acts, be they current or future, of the same
nature or relating to the same economic activity, by specifying their
circumstances and basic features.
3. Acts performed without supplemented capacity are voidable within
four years, at the request of the person who should have granted
such supplemented capacity in accordance with Article 211-7, and,
upon attaining majority, at the request of the person concerned.
4. Supplemented capacity concerning property and rights acquired by
way of gift or inheritance is not required if the donor or the deceased
expressly excluded it.
ARTICLE 211-13. FAILURE TO GRANT SUPPLEMENTED CAPACITY
Emancipated minors may apply for court approval to act alone in
33

cases of impossibility of or disagreement among the persons who

should grant the supplemented capacity, or if such capacity is not
granted without due cause.

CHAPTER II. PERSONAL AUTONOMY IN THE FIELD OF HEALTH

SECTION ONE. MEDICAL TREATMENTS
ARTICLE 212-1. RIGHT TO HEALTH INFORMATION
1. Any person has the right to receive truthful and understandable
information in a manner appropriate to his needs and to his requests
on the importance of any intervention in the field of his personal
health to help him make independent decisions, unless he has
expressed his desire not to be informed. This right is directly
enforceable in the courts.
2. The patient is the person entitled to the information and he has the
right to permit and authorise access to information concerning his
health, unless otherwise provided by law.
3. Any person has the right to the confidentiality of the data relating
to his health and to the non-recording of his personal health data
which are not strictly necessary.
4. If the person is in a physical or mental condition preventing him
from receiving or understanding information, such information should
be given, in the manner prescribed by health legislation, to the
person appointed in the advance directive, to his duly appointed
assistant, to his legal representative, to the person who exercises the
de facto custody, to family members or to persons connected to him,
as appropriate.
ARTICLE 212-2. INFORMED CONSENT
1. Persons over sixteen years of age and minors with sufficient
intellectual and emotional maturity to understand the importance of
an intervention to their health must give consent themselves, unless
34

otherwise provided by health legislation.

2. When a person is in a physical or mental condition preventing him
from looking after himself or making a decision, consent must be
obtained, in the manner prescribed by health legislation, from those
persons who must receive the information referred to in Article 2121.4.
3. The person concerned, or those who supplement his capacity,
may, in the interest of the person concerned, withdraw the consent
given.
4. If the persons called upon to give substitute consent refuse to do
so, the judicial authority may authorise the intervention at the
request of the attending medical practitioner and in the interest of
the person who is unable not consent.
ARTICLE 212-3. ADVANCE DIRECTIVE
1. Any adult person with full legal capacity can express in an advance
directive the instructions regarding the performance of medical acts
and treatments in case he may be in a situation where he can not
decide for himself. He can also appoint a substitute person to receive
information about his health and to decide on the performance of
such actions and treatments.
2. The advance directive may contain provisions concerning organ or
body donation and forms of burial or cremation.
3. The professionals who treat the grantor of an advance directive
must comply with the instructions expressed therein within the limits
laid down by health legislation.
4. The formalisation of the advance directive, the procedure for the
communication thereof to the health centre and the effects thereof
must comply with the provisions of the specific health legislation.
5. The advance directive can be revoked.
6. If the person executing an advance directive has also voluntarily
35

granted guardianship over himself in accordance with Article 222-4

and both acts contain designations or instructions incompatible with
each other, the later document prevails.

SECTION TWO. PLACEMENTS

ARTICLE 212-4. PLACEMENT
The placement of a person in a specialised institution by reason of
any mental disorder or disease which may affect the cognitive ability
requires prior court approval if, irrespective of his age, his situation
does not allow him to decide for himself.
ARTICLE 212-5. EMERGENCY PLACEMENT
1. No prior court approval is required in case of medical emergency
requiring immediate placement. This cause must be proven by a
medical practitioner and must be based on an immediate and serious
threat to the health of the patient or to the physical or mental
integrity of the patient or of other persons.
2. The director of the institution where the placement is made must
within twenty four hours inform thereof the judicial authority in
whose territorial jurisdiction the institution is located.
3. The judicial authority must approve or annul the placement,
according to procedural law, within seventy-two hours after receiving
the information.
4. The judicial authority, in the court order approving the placement,
must state the duration thereof, which can not exceed two months.
During said term, the director of the institution must report regularly
on the situation of the person placed, in order to review whether the
measure is still necessary. At the request of the director of the
institution, the judicial authority may decide, given the situation of
the person placed, that subsequent reports be issued at greater
intervals, not exceeding six months.
36

ARTICLE 212-6. CHANGE IN THE CIRCUMSTANCES OF THE VOLUNTARY PLACEMENT

If a person who consented to his own placement by reason of a
mental disorder is no longer able to decide on the continuing
placement because the clinical circumstances or the risk associated
with the disorder have changed significantly, the director of the
institution must inform thereof the judicial authority so that, where
appropriate, the latter may ratify the continuing placement, in
accordance with the provisions of Article 212-5.3.

SECTION THREE. DECISIONS ABOUT ONES OWN BODY

ARTICLE 212-7. DECISIONS ABOUT ONES OWN BODY
Free consent of the persons is essential in the issues which may
affect their dignity, integrity and physical and mental well-being,
particularly as to their own bodies and their reproductive and sexual
health.

TITLE II. PERSONAL PROTECTION REGIMES

CHAPTER I. COMMON PROVISIONS
ARTICLE 221-1. PROTECTIVE FUNCTION
The functions of protection of the minors, of the persons who can not
make decisions for themselves, if not under parental authority, and of
the persons who need assistance, must always be exercised in the
best interest of the persons assisted, in accordance with their
personality, and such functions are directed to the care of such
persons, to the administration or protection of their assets and
property interests and to the exercise of their rights.
ARTICLE 221-2. DUTY TO EXERCISE THE PROTECTIVE FUNCTION
1. The exercise of the protective function is a highly personal
obligation. The excuse from carrying out such function is only
supported in the cases referred to in Article 222-18.
37

2. The holders of the protective functions may only grant special

powers for specific acts or several acts of the same nature or relating
to the same economic activity.
ARTICLE 221-3. GRATUITOUS NATURE
The persons holding protective functions exercise them gratuitously,
except where remuneration is expressly provided for. However, they
are

entitled

to

reimbursement

of

expenses

incurred

and

compensation for damage by reason of said exercise, which are borne

by the property of the assisted person.
ARTICLE 221-4. DUTY TO INFORM AND TO HEAR THE ASSISTED PERSON
The holders of the protective functions must inform and hear the
assisted person in accordance with the provisions of Article 211-6 if it
is a minor and, if it is an adult, provided he has enough discernment.
ARTICLE 221-5. MEASURES OF CONTROL
1. The judicial authority, on its own motion or at the request of the
Public Prosecution, of the holders of the protective functions, of the
assisted person himself, or of persons called upon to exercise
guardianship under Article 222-10, may decide, at any time, the
measures necessary

to

control the

proper

functioning of the

protection regime, without prejudice to the control measures laid

down by the person concerned or by the parents of the minor or
incapable person.
2. The judicial authority, for the purposes of monitoring the progress
and living conditions of the persons and in respect of measures of
control

of

the

administration

of

property,

may

require

the

intervention of specialists, who have the consideration of ancillary

court staff.

CHAPTER II. GUARDIANSHIP

SECTION ONE. GENERAL PROVISIONS
38

ARTICLE 222-1. PERSONS WHO MUST BE PLACED UNDER GUARDIANSHIP

The following persons must be placed under guardianship:
a) Unemancipated minors who are not under parental authority.
b) Incapable persons, if so required by court order.
ARTICLE 222-2. POWER OF ATTORNEY IN ANTICIPATION OF A LOSS OF CAPACITY
1. Adults who, due to an illness or persistent physical or psychological
impairment, can not make decisions for themselves, need not be
placed under guardianship if, for this purpose, they have designated
by public deed an attorney-in-fact to care for their interests.
2. The principal may specify that the power of attorney shall become
effective upon execution thereof, or he may state the circumstances
whereby it shall becomes effective. In the first case, the subsequent
loss of capacity by the principal does not cause the termination of the
power. The principal may also lay down measures of control and the
grounds for the termination of such power.
3. When, in the interest of the protected person, guardianship is
established, the judicial authority may, at that time or thereafter, at
the request of the guardian, order the termination of the power of
attorney.
ARTICLE 222-3. FORMS OF GRANT OF GUARDIANSHIP
1. Guardianship is granted by:
a) Will or codicil.
b) Public deed.
c) Court order.
2. Guardianship of minors deprived of parental care is granted in the
manner prescribed by law and is governed by special regulation.

SECTION TWO. VOLUNTARY GRANT OF GUARDIANSHIP

ARTICLE 222-4. GRANT OF GUARDIANSHIP MADE BY ONESELF
39

1. Any person with full legal capacity may, for the case he should be
declared incapable, designate by public deed one or more persons for
the exercise of guardianship functions or exclude them therefrom. He
may also make arrangements concerning the functioning and the
content of the protection regime which may be appropriate, especially
regarding care for his person.
2. The execution of a later deed containing the grant of guardianship
revokes the previous deed in all matters which may have been
modified or may be inconsistent with the later deed.
3. Grants of guardianship made by oneself executed after the
application for a proceeding on capacity has been filed or after the
Public Prosecution has taken the initial procedural steps for such
proceeding are null and void.
ARTICLE 222-5. GUARDIANSHIP

GRANTED

BY

THE

HOLDERS

OF

PARENTAL

AUTHORITY

1. The holders of parental authority may establish guardianship over

their unemancipated minor children and, if they exercise the
extended or recovered parental authority, over their incapable adult
or emancipated children to the extent permitted by Article 222-4.1.
2. In the case referred to in paragraph 1, grant of guardianship may
be made by public deed, will or codicil, individually or jointly.
ARTICLE 222-6. CONCURRENT APPOINTMENTS OR EXCLUSIONS
In case of concurrent appointments or exclusions made by the
holders of parental authority, the will of that holder who exercised it
last

prevails,

without

prejudice,

where

appropriate,

to

the

effectiveness of the appointment made by the other holder of

parental authority of a special administrator of the property which
said holder may have transmitted by way of gift or inheritance to the
minor or incapable person.
ARTICLE 222-7. SUBSTITUTES
40

1. In the

acts of voluntary grant of guardianship

functions,

substitutes may be designated.

2. If several persons are designated as a substitute guardian and the
order of replacement is not specified, the one designated in the later
document prevails and, if there is more than one person, the one
designated first.
ARTICLE 222-8. RECORDING
1. The grant of guardianship by public deed in exercise of the powers
provided for in Articles 222-4 and 222-5 must be recorded in the
Registry of Inter Vivos Appointments of Guardians.
2. The notary who performs the deed must communicate it on his
own motion to the registry referred to in paragraph 1 in accordance
with its specific regulation.
3. The powers granted in anticipation of a situation of incapacity must
be recorded in the Registry of Inter Vivos Appointments of Guardians.
ARTICLE 222-9. APPOINTMENT
1. When guardianship is established, the judicial authority must
appoint the persons designated in the act of voluntary grant of
guardianship.
2.

Notwithstanding

the

provisions

of

paragraph

1,

given

the

circumstances of the case and at the request of the Public Prosecution

or of any of the persons called upon by law to exercise guardianship
in accordance with Article 222-10, the judicial authority may ignore
such designation in the following cases:
a) If there has been a change of the grounds which were explicitly or
presumably considered when establishing the act of voluntary grant
of guardianship.
b) If the act of voluntary grant of guardianship was done within the
year preceding the commencement of the proceeding on the capacity
of the protected person.
41

SECTION THREE. JUDICIAL GRANT OF GUARDIANSHIP

ARTICLE 222-10. ORDER OF THE GRANT OF GUARDIANSHIP
1. The judicial authority is competent to appoint a guardian if no one
is designated by an act of voluntary grant of guardianship, if said
designation is inappropriate or if the designated person declines such
appointment or ceases to carry out his duties for any reason.
2. In the case referred to in paragraph 1, the judicial authority
prefers, to exercise guardianship:
a) The spouse or stable partner of the incapable person, if they live
together.
b) The adult descendants of the incapable person.
c) The ascendants of the minor or incapable person, unless parental
authority has been extended or recovered.
d) In case of death of the parent of the minor or incapable person,
the spouse or stable partner of such parent, if he or she lives with the
person to be placed under guardianship.
e) The siblings of the minor or incapable person.
3. Notwithstanding the provisions of paragraph 2, if it deems it best
for the interests of the minor or incapable person, the judicial
authority may, by a duly reasoned decision, alter the established
order or choose the person who has acted as an assistant or as a de
facto custodian, those who volunteer to carry out these functions or
any other person.
4. If several persons are willing to exercise guardianship, the judicial
authority can refer them to an information session on family
mediation, in order to reach an agreement.
5. If no one in the family or community environment is willing to
exercise guardianship, the judicial authority must appoint public or
private non-profit legal persons capable of satisfactorily exercising

42

guardianship.
ARTICLE 222-11. GUARDIANSHIP OF SIBLINGS
Judicial grant of the guardianship of minor siblings should be assigned
to one person, unless circumstances justify a different decision.
ARTICLE 222-12. SEPARATION FROM ADMINISTRATION OF PROPERTY
1. When establishing guardianship, the judicial authority may
separate the guardianship of the person from the administration of
his property, appoint the holders of both functions and determine
their field of competence.
2. The judicial authority, on its own motion or at the request of the
guardian, of the Public Prosecution or of the ward, may appoint an
administrator of the property during the exercise of guardianship if
the property of the ward reaches considerable importance or if there
is another reason making it necessary.
ARTICLE 222-13. REMUNERATION
1. The person concerned or the holders of parental authority, in the
act of voluntary grant of guardianship, or the judicial authority, in the
decision approving the inventory, where appropriate, may determine
a remuneration for the guardian and, as the case may be, for the
administrator of the property, provided the property of the ward
permits it.
2. The judicial authority may change the amount of remuneration if it
is excessive or insufficient in view of the circumstances of the
guardianship, or if the property of the ward varies substantially.

SECTION FOUR. ESTABLISHMENT AND EXERCISE OF GUARDIANSHIP

ARTICLE 222-14. PERSONS

WHO

MUST

REQUEST

THE

ESTABLISHMENT

OF

GUARDIANSHIP

1. The persons referred to in Article 222-10 and the persons or

institutions who exercise custody over a minor or over a person who
43

has to be placed under guardianship must request establishment

thereof and are responsible for the damages caused to that person, if
they fail to do so.
2. The public entity competent for the protection of minors must
request the establishment of guardianship for the minors deprived of
parental care left under its care if there are persons capable of
exercising guardianship in the interest of the minors.
3. The Public Prosecution must request the establishment of
guardianship or the judicial authority must order it on its own motion
if they have knowledge that any person should be placed under
guardianship within the scope of their jurisdiction.
4. Any person who knows the situation referred to in paragraph 3
must inform the judicial authority or the Public Prosecution.
ARTICLE 222-15. ABILITY TO EXERCISE GUARDIANSHIP FUNCTIONS
Guardianship or administration of property can be held by natural
persons with full capacity to act in the absence of any of the following
grounds of inability:
a) Being deprived of or suspended from the exercise of parental
authority or custody by final court order or administrative ruling, or
having been previously so for a period of five years.
b) Having been removed from guardianship on a ground attributable
to said persons.
c) Serving a custodial sentence.
d) Being in a situation of declared bankruptcy and not having been
rehabilitated, unless guardianship does not include the administration
of property.
e) Having been convicted for any crime based on which it can be
assumed that guardianship would not be exercised properly.
f) Acting in a manner which might adversely affect the child's
44

education or the care of the disabled person.

g) Being in a situation of de facto impossibility to exercise a
guardianship function.
h) Having enmity with the person under guardianship, or having past
or present disputes or conflicts of interest with him.
i) Lacking any known means of subsistence.
ARTICLE 222-16. GUARDIANSHIP BY LEGAL PERSONS
1. Guardianship can be exercised by non-profit legal persons
dedicated to the protection of minor or disabled persons and which
comply with the legal requirements.
2. Legal persons must notify to the competent public entity the
appointment and cessation as guardians within fifteen days after the
occurrence thereof.
3. Legal persons must entrust welfare of the ward to one or more
professionals. None of the situations of inability established by Article
222-15 may apply to these persons.
ARTICLE 222-17. EXCLUSION DUE TO A CONFLICT OF INTEREST
1. Guardianship and administration of property, or the material
implementation of guardianship functions, may not be exercised by
private legal or natural persons that are in a situation of conflict of
interest with the protected person. In particular, such functions may
not be exercised by persons who, under a contractual relationship,
provide care services, be they residential services or services similar
in nature, to the protected person.
2. Notwithstanding the provisions of paragraph 1, under exceptional
circumstances due to the needs of the person under guardianship,
the judicial authority may allow the guardianship institutions to
provide care and residential services.
ARTICLE 222-18. EXCUSES FROM EXERCISING GUARDIANSHIP FUNCTIONS

45

1. The following grounds may be invoked to be excused from

exercising guardianship functions: age, disease, lack of relationship
with the person to be placed under guardianship, reasons arising
from the characteristics of the professional occupation of the
designated person, or any other ground which makes the exercise of
guardianship especially burdensome or which may affect it.
2. Legal persons can be excused from exercising guardianship
functions if they lack sufficient human and material resources to
properly exercise such functions or if the situation of the person to be
placed under guardianship does not conform to the purposes for
which said legal persons were created.
ARTICLE 222-19. CLAIM AND ACCEPTANCE OF THE EXCUSE
1. The excuse must be claimed within fifteen days from notice of the
appointment. If the excuse comes later, it must be claimed with the
utmost diligence.
2. The person who invokes excuse after having accepted the
guardianship function must exercise such function until the judicial
authority accepts the excuse.
3. The judicial authority, simultaneously with the acceptance of the
excuse, must appoint another person to exercise guardianship.
4. The acceptance of the excuse causes the loss of what was donated
or bequeathed in view of the appointment. If the excuse intervenes
subsequently, the judicial authority may order a total or partial loss
depending on the circumstances of the case.
ARTICLE 222-20. SECURITY
Prior to awarding a guardianship function, the judicial authority may
require the appointed person to provide a security. At any time and
for just cause, such security can be revoked or amended.
ARTICLE 222-21. INVENTORY
1. The guardian and, where applicable, the administrator of property
46

must make an inventory of the property of the ward, within two

months after taking up their duties. The judicial authority may extend
this period for just cause by up to two months.
2. The inventory must be formalised by the judicial authority or a
notary. In the latter case, the guardian and, if applicable, the
administrator of property must deposit a copy at the court which
established guardianship.
3. The Public Prosecution and the ward, if he has enough discernment
and, in any case, if he is a minor over twelve years of age, must be
summoned to the formalisation of the inventory.
4. The guardian and, where applicable, the administrator of property
must give access to the inventory to the ward if he has enough
discernment and, in any case, if he is a minor over twelve years of
age and the guardianship established is a guardianship of a minor.
ARTICLE 222-22. CONTENT OF THE INVENTORY
1. The inventory must describe in detail the assets, credits, charges
and debts which make up the property subject to guardianship,
including, where applicable, the assets whose administration has
been entrusted to a special administrator. If the guardianship or
administration includes any commercial organisation, the inventory
must also include its inventory and its latest annual accounts.
2. The guardian and, where applicable, the administrator of property
who fail to include in the inventory the claims which the protected
person may have against them must be removed from their function.
If the failure concerns a credit in favour of the guardian or
administrator, such credit is thereby understood to be waived.
ARTICLE 222-23. DEPOSIT OF SECURITIES AND VALUABLES
The guardian and, where applicable, the administrator of property
must deposit or keep in a safe place the securities, jewellery, works
of art and other valuables of the ward, and the court must be
47

informed thereof.
ARTICLE 222-24. EXPENSES
The expenses incurred for the inventory, the provision of a security
and the measures of control provided for in Article 221-5 are borne
by the property of the ward.
ARTICLE 222-25. NUMBER OF GUARDIANS
Guardianship is exercised by one person, except in the following
cases:
a) If the person concerned or the holders of parental authority have
appointed two persons to exercise this function.
b) If the guardian is a married person or a person living with a stable
partner and it is deemed appropriate that the spouse or partner
should also exercise such function.
ARTICLE 222-26. JOINT GUARDIANSHIP
Where there are two guardians, guardianship must be exercised in
the manner provided for at the time of establishment thereof. In the
absence of such provisions, both guardians must act jointly but either
may perform any act which, according to the circumstances, may be
regarded as normal to be performed by one guardian, and also acts
of urgent need.
ARTICLE 222-27. DISTRIBUTION

OF

FUNCTIONS

BETWEEN

GUARDIAN

AND

ADMINISTRATOR

Where there is an administrator of property, the guardian only deals

with the personal issues. The decisions concerning both the person
and the property must be taken jointly.
ARTICLE 222-28. DISAGREEMENTS
Disagreements

between

guardians

or

between

the

holders

of

guardianship and administration of property, if they must act jointly,

must be resolved judicially, in both cases without further appeal and
48

after

hearing

the

persons

concerned

and

the

person

under

guardianship, if he has enough discernment and, in any case, if he is

over twelve years of age and the guardianship established is a
guardianship of a minor.
ARTICLE 222-29. CONFLICT OF INTEREST
In case of a conflict of interest with the ward, where there are two
guardians or a guardian and an administrator of property, the person
concerned is replaced by the other. Where there is only one guardian
or where there is also a conflict of interest with the person who
should replace him, the judicial authority must appoint a guardian ad
litem.
ARTICLE 222-30. CESSATION

OF A GUARDIAN OR AN ADMINISTRATOR OF

PROPERTY

1. Where there are two guardians or a guardian and an administrator

of property and, for any reason, one ceases to carry out his duties,
the other should continue to exercise guardianship or administration,
unless expressly excluded, and he must inform the judicial authority
so that a substitute may be appointed.
2. The persons who must request the establishment of guardianship
must report the cessation of the guardian or administrator of property
to the judicial authority. The ward may also report it.
ARTICLE 222-31. ANNUAL ACCOUNTS
1. The guardian or, where applicable, the administrator must annually
submit the accounts of the guardianship within the first six months of
the following year. However, if the ward owns few assets, the judicial
authority may decide, after the first annual accounts were submitted,
and after hearing the ward if he has enough discernment and, in any
case, if he is over twelve years of age and the guardianship
established is a guardianship of a minor, that subsequent accounts
may be submitted at greater intervals, not exceeding three years.
49

2. The accounts referred to in paragraph 1 must be submitted to the

judicial authority which established the guardianship, with the
intervention of the Public Prosecution.
3. The annual submission of accounts consists of a detailed statement
of incomes and expenses, an inventory of the assets and liabilities of
the wards property at year-end with detailed changes compared to
previous year's inventory, together with supporting documents.
4. If the gross incomes of the ward exceed 100,000 euros per year or
if he receives incomes from allowances, pension plans or other
regular incomes for an overall amount above 7,500 euros per month,
the judicial authority may ask the guardian or the administrator of
the property to commission an independent audit supporting, if
appropriate, the annual accounts. This audit must detail the changes
compared to previous year's inventory and it must be accompanied
by supporting documents.
ARTICLE 222-32. REPORT ON PERSONAL CIRCUMSTANCES
When submitting the accounts, the guardian must provide detailed
information on the main changes which have affected the incapable
person under guardianship since the previous submission of accounts,
indicating his state of health, place of residence and personal and
family circumstances.
ARTICLE 222-33. GROUNDS FOR REMOVAL
1. The guardian and, where applicable, the administrator of property
should be removed from their duties if there arises a ground of
inability, if they fail to comply with their duties or if they act
negligently in the exercise thereof. The guardian may also be
removed from his duties if there are serious and continued problems
of cohabitation with the ward.
2. The judicial authority may order the removal of the guardian or
administrator on its own motion or at the request of the Public
50

Prosecution, of the ward, of the guardian or the administrator

regarding each other, or of the persons who must request the
establishment of guardianship.
3. Prior to deciding on the removal of the guardian or administrator,
the judicial authority must hear the person concerned, the person
who can request the removal and the ward, if he has enough
discernment and, in any case, if he is over twelve years of age and
the guardianship established is a guardianship of a minor.
ARTICLE 222-34. APPOINTMENT OF A NEW HOLDER OF A GUARDIANSHIP FUNCTION
1. The court order pronouncing the removal must include the
appointment of the person to replace the person removed. Pending
the issue of such order, a guardian ad litem must be appointed.
2. The judicial authority, depending on the circumstances of the case,
may

order

that

the

person

removed

from

guardianship

or

administration of property should lose, in whole or in part, what he

received in view of the appointment.

SECTION FIVE. CONTENT OF THE GUARDIANSHIP

ARTICLE 222-35. DUTY OF CARE AND OF MAINTENANCE
1. The guardian must care for the ward and provide for his
maintenance if the financial resources of the ward are not sufficient.
2. The administrator of property, if any, must provide financial
resources to the guardian in order to adequately fulfil his obligations.
In case of disagreement on this matter, the judicial authority must
resolve in accordance with the provisions of Article 222-28.
ARTICLE 222-36. RELATIONS BETWEEN GUARDIANS AND WARDS
1. The guardian must treat the ward with consideration and they
must respect each other.
2. The ward, if minor, must obey the guardian, who can discipline
him in a proportionate, reasonable and moderate manner, with full
51

respect for his dignity. The guardian can not impose humiliating
sanctions or sanctions which violate his rights. To this end, the
guardian may request assistance from the public authority.
ARTICLE 222-37. DUTY OF EDUCATION
1. The guardian has the duty to educate the ward and to provide a
comprehensive training, as appropriate to his age and personal
circumstances.
2. The guardian needs court approval to make decisions concerning
education if the ward is over twelve years of age and expresses an
intent contrary to that of the guardian.
3. Court approval is required to place the ward in a special education
facility or institution.
ARTICLE 222-38. DUTIES TO THE INCAPABLE PERSON
1. The guardian must ensure the moral and material welfare of the
incapable person and he must respect as much as possible his wishes
in accordance with his natural capacity.
2. The guardian must do whatever is necessary to help the ward
recover his capacity and integrate into society or, if that is not
possible, to prevent further deterioration and to mitigate the
consequences of incapacity.
ARTICLE 222-39. PLACE OF RESIDENCE AND DWELLING
1. The guardian may determine the place of residence of the ward.
2. The guardian must live with the protected minor. If there is
sufficient reason, the judicial authority, having previously heard the
ward, may authorise him to reside in a different place.
3. If the guardian is a legal person, it must inform the judicial
authority of the place of residence of the ward and of any subsequent
change of residence.
4. The dwelling of the ward is that of his guardian. If there is more
52

than one guardian and they have different addresses, the address of
the ward is that of the guardian with whom he lives, except if
provided otherwise at the time of the establishment of guardianship
or in any subsequent court decision.
ARTICLE 222-40. ADMINISTRATION OF ASSETS
1. In the exercise of their respective functions, the guardian, the
administrator of property or the attorney-in-fact pursuant to Article
222-2.1 must act with the diligence of a good administrator and are
responsible for the damage caused by their actions.
2. Claims for the liability referred to in paragraph 1 lapse within three
years from the final submission of accounts.
3. The fruits of the assets under administration belong to the ward.
He also owns the assets which he may acquire through his work.
ARTICLE 222-41. ASSETS SUBJECT TO SPECIAL ADMINISTRATION
1. The assets acquired by the ward by way of gift or inheritance are
subject to special administration if the donor or deceased specified
this and appointed the person to exercise such administration.
2. The appointment of a person for special administration is not
effective until the gift or inheritance has been accepted.
3. The holders of the special administration are subject to the rules
on guardianship regarding the ability, excuse and removal of
guardians and also on the administration and disposal of the assets
concerned and the responsibility of those who act as administrators of
property, if the donor or the deceased did not lay down other rules.
ARTICLE 222-42. ADMINISTRATION BY THE WARD
The protected minor who acquires assets through his work has, from
the age of sixteen years, the power to administer them, with the
assistance of his guardian in the cases referred to in Article 222-43.
ARTICLE 222-43. ACTS REQUIRING COURT APPROVAL

53

1. The guardian and the administrator of property need court

approval for the following acts:
a) To alienate immovable property, commercial establishments,
intellectual

or

industrial

property

rights

or

other

assets

of

extraordinary value as well as to encumber them or subrogate preexisting encumbrances unless the encumbrance or subrogation is
made to finance the acquisition of such assets.
b) To alienate real rights over the assets referred to in point a or to
waive them, with the exception of redemptions of emphyteusis.
c) To alienate or encumber securities or shares. No authorisation is
required, however, to alienate publicly traded shares for at least their
quoted market price, or to alienate pre-emption rights.
d) To waive claims on credits.
e) To renounce gifts, inheritances and bequests; to accept bequests
and conditional or onerous gifts.
f) To lend and borrow money, unless this is to finance the acquisition
of an asset.
g) To grant leases on immovable property for a period exceeding
fifteen years.
h) To act as a guarantor and to provide sureties regarding third party
obligations.
i) To become a partner in companies which do not limit the liability of
their partners, and to create, wind up, merge or divide these
companies.
j) To renounce, assent to or abandon claims, or to reach a settlement
on issues related to the assets or rights referred to in this paragraph.
k) To assign to third parties the claims that the ward may have
against the guardian or to acquire for consideration the claims of
third parties against the ward.
54

2. No court approval is required with respect to assets acquired by

way of gift or inheritance if the donor or the deceased expressly
excluded such approval.
3. The guardian and the administrator of property can not submit to
arbitration the issues related to the assets or rights referred to in
paragraph 1.
ARTICLE 222-44. COURT APPROVAL
1. Court approval is granted in the interest of the ward in case of duly
justified benefit or need, after hearing the Public Prosecution.
2. Court approval may not be granted in general. However, general
approval may be granted for various acts of the same nature or
relating to the same economic activity, be they current or future. In
all cases, the circumstances and basic features of said acts must be
specified.
3. The attorney-in-fact pursuant to Article 222-2.1 needs court
approval for the same acts than the guardian, unless the principal
expressly excluded it.
4. When the economic impact of the disposal or encumbrance to be
authorised exceeds 50,000 euros, the judicial authority may require
that the guardian provide a technical report prepared by a real estate
agent, an economist or an independent auditor or accountant,
depending on the nature of the act. Impartial professionals chosen
within predetermined registers or lists of professional organisations
have the consideration of independent professionals.
ARTICLE 222-45. DENIAL OF THE RENUNCIATION OF GRATUITOUS ACQUISITIONS
The denial of court approval for the renunciations referred to in
Article 222-43.1.e constitutes acceptance of the transfer. In case of
an inheritance, this is understood to mean acceptance under benefit
of inventory.
ARTICLE 222-46. ACTS

PERFORMED WITHOUT COURT APPROVAL BY THE GUARDIAN

55

OR THE ATTORNEY-IN-FACT SPECIALLY APPOINTED

1. Any act performed by the guardian, or by the administrator of

property, without court approval, where such approval is necessary,
is voidable at the request of the new guardian or, if there is none, of
the persons legally required to establish guardianship and of the ward
himself, in this last case within four years from the termination of
guardianship. Such act can also be challenged by the heirs of the
ward within four years from his death, or within the time remaining
before the end of this period if it started running before.
2. Any act of the attorney-in-fact appointed pursuant to Article 2222.1 which is performed without court approval is voidable at the
request of the guardian, upon establishment of the guardianship, or
at the request of the principal within four years from occurrence of
such act, if the ward has sufficient capacity, or from termination of
guardianship. Such act may also be challenged by the heirs of the
principal within four years from his death, or within the time
remaining before the end of this period if it started running before.
ARTICLE 222-47. LEGAL REPRESENTATION
1. The guardian and, where applicable, the administrator of property,
within

the

scope

of

their

respective

powers,

are

the

legal

representatives of the ward.

2. The following acts are excluded from legal representation:
a) Those relating to personality rights, unless otherwise provided by
the laws governing such rights.
b) Those which can be made by the ward according to his natural
capacity and, in case of guardianship of minors, those concerning
goods or services which are proper to his age, according to social
practices.
c) Those where there is a conflict of interest with the ward.
d) Those concerning assets excluded from the administration of the
56

guardianship or, where appropriate, of the administration of property,

in accordance with Articles 222-41 and 222-42.

SECTION SIX. TERMINATION

ARTICLE 222-48. GROUNDS FOR TERMINATION
1. Guardianship terminates on the following grounds:
a) Majority or emancipation. Majority does not cause the termination
of guardianship if previously the minor was incapable.
b) Adoption of the ward.
c) Court order annulling the declaration of incapacity, or modifying it
and replacing guardianship by curatorship.
d) Death or declaration of death or absence of the ward.
2. Upon termination of guardianship, the ward, the guardian or the
administrator of property, where applicable, must communicate the
fact causing such termination to the court where guardianship was
established. This act can also be performed by any other person
concerned.
ARTICLE 222-49. FINAL SUBMISSION OF ACCOUNTS
1. Upon termination of guardianship, the guardian or, where
applicable, the guardian and the administrator of property must
submit final accounts of the guardianship to the judicial authority
within six months after termination thereof. The judicial authority
may extend this period, for just cause, for a further period of three
months at most. This obligation is transferred to the heirs if the
obligor dies before the accounts were submitted, but in this case the
period is suspended between the death and the acceptance of the
inheritance.
2. The ward or, where applicable, his legal representative or his heirs
can require the submission of the accounts within three years from

57

the expiration of the period established by paragraph 1. Prescription

does not run while the ward and the guardian live together.
3. The expenses necessary to submit the accounts are borne by the
property of the ward.
ARTICLE 222-50. SUBMISSION OF ACCOUNTS DUE TO CESSATION IN OFFICE
1. When, prior to the termination of guardianship, the guardian or,
where applicable, the administrator of property, cease to exercise
their office, they must submit the accounts of their management to
the judicial authority which established guardianship, within the
period laid down by Article 222-49, which starts from the date of the
cessation.
2. When cessation occurs upon the death of the guardian or
administrator of property, it is for the heirs to submit the accounts
and the period runs from the date of acceptance of inheritance.
ARTICLE 222-51. APPROVAL OF ACCOUNTS
1. The judicial authority must approve or disapprove the accounts, be
they final or by reason of cessation, with the intervention of the
Public Prosecution and after hearing, where appropriate, the ward,
the guardian or the administrator of property. To this end, the judicial
authority can take all measures it deems appropriate.
2. Approval of the accounts does not preclude the actions regarding
each other available to the persons referred to in paragraph 1 by
reason of the guardianship.
ARTICLE 222-52. ACCRUAL OF INTEREST
1. The sums owed, pursuant to the submission of accounts, by the
ward or guardian or, where applicable, the administrator of property,
earn the legal interest.
2. If the resulting balance is in favour of those who exercised
guardianship functions, interest accrues from the time that the ward
is required payment, once the accounts have been approved and the
58

property delivered. If the resulting balance is against such persons,

interest accrues upon approval of the accounts.
ARTICLE 222-53. DISAPPROVAL OF THE ACCOUNTS
If approval of the accounts is denied, the judicial authority must
inform the Public Prosecution so that appropriate actions, including
liability actions, may be initiated, if necessary, and it can ask
guarantees to the persons who exercised the office of guardian or,
where applicable, of administrator of property, or to their heirs, in
order to protect the interest of the ward.

SECTION SEVEN. GUARDIANSHIP COUNCIL

ARTICLE 222-54. GUARDIANSHIP COUNCIL
Concerning guardianships granted by oneself or by the holders of the
parental authority under the provisions of Articles 222-4.1 and 2225.1,

the

exercise

guardianship

of

council,

guardianship
which

must

may
be

be

supervised

established

and

by
act

a
in

accordance with the following rules:

a) The guardianship council must consist of at least three members,
who are subject to the rules on ability to hold guardianship functions,
excuse from exercising such functions and removal of guardianship.
The judicial authority is competent to appoint the board members in
the act of establishment of the guardianship.
b) The guardianship council must act in accordance with the rules
established by the act of grant of guardianship or, in the absence
thereof, in accordance with the rules adopted by the council regarding
its functioning. Likewise, the council must ensure the proper exercise
of the guardianship and, to that end, its members must maintain a
regular relationship with the guardian or guardians. The council must
meet at least once a year to be informed of the situation of the ward
and so that the annual accounts of the guardianship may be
59

submitted thereto.
c) The council, if the act of grant of guardianship so establishes, can
be competent for the resolution of conflicts between guardians and to
authorise the acts referred to in Article 222-43.

CHAPTER III. CURATORSHIP

ARTICLE 223-1. CASES OF CURATORSHIP
The

following

persons

must,

if

necessary,

be

placed

under

curatorship:
a) The emancipated minors, if their parents have died or are unable
to exercise the care required by law, except for the case of the minor
emancipated by marriage to a fully capable person.
b) The incapable persons for whom the establishment of guardianship
has not been considered appropriate.
c) The prodigals.
ARTICLE 223-2. ESTABLISHMENT
1. The persons who must request the establishment of guardianship
must request, if necessary, the establishment of curatorship.
2. The judicial authority may order the establishment of curatorship,
although guardianship has been applied for, according to the
circumstances of the person concerned.
ARTICLE 223-3. PRE-EXISTING GUARDIANSHIP
When a person under guardianship must be placed under curatorship,
the curatorship must be exercised by his guardian or administrator of
property, unless the judicial authority decides otherwise.
ARTICLE 223-4. CONTENT
1. The

curator

does not represent the

person placed under

curatorship and he only supplements the capacity of such person,

subject to the provisions of Article 223-6.
60

2. If the curator refuses, without just cause, to provide assistance in

any act requiring it, the person placed under curatorship may apply
for court approval to act alone.
3. The court order declaring the prodigality or the relative incapacity
must determine the scope of the assistance by the curator. In any
case, such assistance is necessary for the acts referred to in Article
222-43 and for marriage contracts.
ARTICLE 223-5. CURATORSHIP OF EMANCIPATED MINORS
Curatorship of emancipated minors must only be established, at their
request, where the intervention of a curator is needed.
ARTICLE 223-6. CURATORSHIP OF INCAPABLE PERSONS
The declaration of incapacity can give the curator functions of
ordinary administration for certain aspects of the property of the
assisted person, without prejudice to the powers of such person to
perform by himself other acts of the same nature.
ARTICLE 223-7. CONFLICT OF INTEREST
When there is a conflict of interest between the person placed under
curatorship and the curator, or in case of impossibility, the judicial
authority must appoint a guardian ad litem.
ARTICLE 223-8. LACK OF SUPPLEMENTED CAPACITY
Acts done without the assistance of the curator, where this is
necessary, are voidable at the request of the curator, or of the person
placed under curatorship within four years from the termination of
curatorship.
ARTICLE 223-9. TERMINATION
Curatorship terminates on the following grounds:
a) Majority of the emancipated minor.
b) Marriage of the emancipated minor with a fully capable person.
c) Adoption of the person placed under curatorship.
61

d) Court order annulling the declaration of incapacity, or modifying it

and replacing curatorship by guardianship.
e) Death or declaration of death or absence of the person placed
under curatorship.
f) Court order annulling the declaration of prodigality.
ARTICLE 223-10. REGULATION
Curatorship is subject to the rules of guardianship when these are not
contrary to the specific regulation of curatorship, including those
relating to the submission of accounts if the curator exercises
functions of ordinary administration.

CHAPTER IV. GUARDIAN AD LITEM

ARTICLE 224-1. GUARDIAN AD LITEM
The judicial authority must appoint a guardian ad litem in the
following cases:
a) When there is a conflict of interest between the guardian and the
ward,

or

between the

curator

and the

person placed

under

curatorship.
b) When the circumstances of the person to be protected so require,
pending the establishment of guardianship.
c) Pending the establishment of curatorship for prodigal persons or
persons with relative incapacity.
d) Where, for any cause, the guardians or curators do not exercise
their functions, while this cause lasts or pending the appointment of
another person to exercise such functions.
e) In all other cases determined by law.
ARTICLE 224-2. APPOINTMENT
1. The judicial authority appoints a guardian ad litem, on its own
motion or at the request of the Public Prosecution, the guardian, the
62

curator, the minor himself or any person with a legitimate interest.

2. The judicial authority must appoint the person it deems most
appropriate, taking account of the circumstances motivating the
appointment.
ARTICLE 224-3. INTERVENTION
In cases of conflict of interest, the intervention of the guardian ad
litem is limited to the acts which motivated his appointment. If these
acts require court approval, this is understood to be implicitly given
by the appointment.
ARTICLE 224-4. NULLITY OF THE ACTS IN CASE OF A CONFLICT OF INTEREST
The acts performed by the guardian, the attorney-in-fact appointed
pursuant to Article 222-2.1 or the person under curatorship with the
assistance of the curator, are voidable in case of a conflict of interest,
if no guardian ad litem has been appointed, in accordance with the
provisions of Articles 222-46 and 223-8 on guardianship and
curatorship, respectively.
ARTICLE 224-5. REGULATION
1. The guardian ad litem is subject to the rules regarding the ability
to exercise the office of guardian, the excuses from exercising it, the
grounds for removal and, if appropriate, remuneration. The guardian
ad litem must account for his management, once completed, to the
judicial authority.
2. When the guardian ad litem, in accordance with the provisions of
Article 224-1, exercises guardianship functions, he is subject to the
rules on guardianship or curatorship, as the case may be.

CHAPTER V. DE FACTO CUSTODY

ARTICLE 225-1. DE FACTO CUSTODIAN
The de facto custodian is the natural or legal person who cares for a
minor or for a person with a ground for incapacity, if not under
63

parental authority or guardianship or if, although under parental

authority or guardianship, the holders of such functions do not
exercise them.
ARTICLE 225-2. OBLIGATION TO NOTIFY CUSTODY
1. The de facto custodian who temporarily hosts a minor who has
been deprived of the care of the persons obliged to care for him must
inform the public entity competent for the protection of minors or the
judicial authority within seventy-two hours from the beginning of the
custody.
2. In case of de facto custody of an adult with a ground for
incapacity, if this person is in a residential facility, the operator of the
residential facility must inform the judicial authority or the Public
Prosecution within the period specified by paragraph 1.
ARTICLE 225-3. FUNCTIONS OF THE DE FACTO CUSTODIAN
1. The de facto custodian must care for the person in custody and
must always act in his favour. If he exercises the administration of
his property, this must be limited to acts of ordinary administration.
2. Regarding de facto custody of persons under parental authority or
guardianship, the judicial authority may assign guardianship functions
to the custodian, at the request of said persons, if circumstances
make this appropriate. Guardianship functions are granted through a
non-contentious proceeding, with the hearing of the holders of the
parental authority or guardianship, whenever possible. This grant
causes the suspension of parental authority or guardianship.
ARTICLE 225-4. COMPENSATION
The de facto custodian is entitled to reimbursement of expenses and
to compensation for damages arising from custody, which must be
borne by the property of the protected person.
ARTICLE 225-5. TERMINATION
1. De facto custody is terminated by the extinction of the causes
64

which motivated it, by the declaration of deprivation of parental care

of the minor, by the appointment of a guardian ad litem or by the
establishment of the appropriate protection regime.
2. Upon termination of de facto custody, the judicial authority may
provide that the custodian must account for his management if this is
justified by the duration of the custody.

CHAPTER VI. ASSISTANCE

ARTICLE 226-1. APPOINTMENT OF AN ASSISTANT
1. The adult who requires assistance to care for his person or
property because of a non-disabling decrease in his physical or
mental powers, may, through a non-contentious proceeding, request
the judicial authority to appoint an assistant, in accordance with the
provisions of this chapter.
2. The judicial authority must respect the wishes of the person
requiring assistance regarding the appointment or exclusion of any
person to perform the function of assistance.
ARTICLE 226-2. CONTENT OF ASSISTANCE
1. In the decision of appointment, the judicial authority determines
the personal or property scope of the assistance and the interests the
assistant must protect.
2. Regarding personal issues, the assistant must ensure the welfare
of the assisted person, with full respect for his will and personal
choices. In particular, the assistant must receive the information and
give the consent referred to, respectively, in Articles 212-1 and 2122, if the assisted person can not decide for himself on the
performance of medical acts and treatment and he has not executed
an advance directive.
3. Regarding property issues, the assistant must intervene, together
with the assisted person, in the legal acts related to the functions of
65

assistance. At the request of the assisted person, the judicial

authority may also give the assistant functions of administration of
the property of the assisted person, without prejudice to the powers
of the latter to perform acts of this nature by himself.
ARTICLE 226-3. VOIDABILITY OF THE ACTS OF THE ASSISTED PERSON
The legal acts performed by the assisted person without the
intervention of the assistant, if this intervention is necessary, are
voidable at the request of the assistant or of the assisted person.
Likewise, they are voidable at the request of the guardian, if
guardianship is established, and of the heirs of the assisted person,
within four years from the establishment of guardianship or the death
of the assisted person.
ARTICLE 226-4. MODIFICATION OF ASSISTANCE
1. At the request of a party, including the assisted person, the judicial
authority must reduce or enlarge the scope of the functions of the
assistant if this is necessary in view of the circumstances.
2. If the assistant is aware of circumstances permitting the
termination of the assistance or the change in its scope, he must
inform the judicial authority.
ARTICLE 226-5. TERMINATION OF ASSISTANCE
1. Assistance terminates on the following grounds:
a) Death or declaration of death or absence of the assisted person.
b) Extinction of the circumstances which motivated assistance.
c) Declaration of incapacity of the assisted person.
2. In the case referred to in paragraph 1.b, the judicial authority,
upon application of a party, must specify the ground for the
termination of assistance and must annul the appointment of the
assistant.
ARTICLE 226-6. REGULATION
66

To the extent that these rules are consistent with the function of
assistance, the assistant is subject to the rules of this Code regarding
ability, excuse and removal of guardians, and also those relating to
the submission of accounts if the assistant also has functions of
ordinary administration of the property of the assisted person.
ARTICLE 226-7. PUBLICITY THROUGH REGISTRATION
1. Assistance, if not recorded in the Civil Registry, is not effective
against third parties.
2. The beginning of exercise of assistance functions must be recorded
in the Civil Registry of the domicile of the assisted person through
communication of the court decision.

CHAPTER VII. ESTATE PROTECTION FOR DISABLED OR DEPENDENT PERSONS

ARTICLE 227-1. BENEFICIARIES
1. Persons with a mental disability of 33 percent or more or with a
physical or sensory disability of 65 percent or more may be
beneficiaries of a regime of protected estate established under this
chapter. So may persons who are dependent on grade II or III, in
accordance with the applicable legislation.
2. The degree of disability or dependency is established through the
certificate issued by the competent administrative authority or by a
final court decision.
ARTICLE 227-2. PROTECTED ESTATE
1. A protected estate is settled when assets, including the proceeds
thereof and the assets acquired as a replacement thereof, are
gratuitously allocated by the settler to meet the basic needs of the
beneficiary. Said protected estate is identified by the name included
in the deed of settlement. It is an autonomous estate, without legal
personality, and the settlor, the administrator and the beneficiary do
not own it or have any other real right thereon.
67

2. A protected estate is not liable for the obligations of the

beneficiary, of the settlor or of the person who contributed assets.
However, contributions made to a protected estate after the date of a
fact or act giving rise to a claim do not prejudice the creditors of the
person who made such contributions, if other resources lack to satisfy
such claim, nor do said contributions prejudice forced heirs.
ARTICLE 227-3. SETTLEMENT
1. Any person, including the beneficiary, may settle a protected
estate. The settlement of a protected estate in the interest of a
person other than the settlor requires acceptance of the beneficiary
or, where applicable, of his legal representatives.
2. The settlement of a protected estate is formalised through a public
deed where the following details must be recorded:
a) The settlor and the beneficiaries, and also the circumstances of the
persons who authorise the settlement of the protected estate.
b) The expression of the will to settle a protected estate and to
allocate its assets to meet the basic needs of the beneficiaries.
c) The designation of the protected estate, as "protected estate in
favour of" followed by the name and surname of the beneficiary.
d) The description of the assets transferred and of the manner of
such transfer.
e) The persons appointed to administer the protected estate, who can
not be the beneficiaries.
f) The persons to whom they are accountable in case of a conflict of
interest.
3. The deed of settlement may include any other provision relating to
the protected estate, especially the rules of administration of the
assets comprised therein, the powers of disposal and administration
vested in the administrator and the guarantees that the administrator
must offer. It may also provide for the reallocation of the assets
68

remaining upon the termination of the protected estate in accordance

with Article 227-7.
4. Subsequent contributions to a protected estate must be formalised
in public deed and the administration thereof must be subject to the
provisions of the deed of settlement, without prejudice to the
provisions of Article 227-4.5 regarding amendments to the rules of
administration.
ARTICLE 227-4. ADMINISTRATION OF THE PROTECTED ESTATE
1. The protected estate is administered by the natural or legal person
designated in the deed of settlement. If this person is unable or
unwilling to accept, or if he ceases to exercise his function, the
judicial authority may be requested by any interested person or by
the

Public

Prosecution

to

appoint

another

administrator.

Administrators of protected estate are subject to the rules of this

Code regarding ability, excuse and removal of the guardian.
2. The settlor may be the administrator of the protected estate if he
is not also its beneficiary.
3. The administrator has the duty to preserve the assets comprised in
the estate, to maintain their productivity and to use them, directly or
through their proceeds, to meet the basic needs of the beneficiary.
4. The administrator has legal standing to defend the protected
estate in a legal proceeding and he may enter into obligations which
are borne by the estate with a view to fulfilling the purpose for which
it was settled.
5. If the deed of settlement is silent on the powers of disposal and
administration of the assets concerned, Articles 222-40 to 222-46 on
the

administration

of

the

assets

of

the

ward

apply

to

the

administrator of the protected estate.

6. If the rules of administration provided for in the deed of settlement
of the protected estate do not adequately serve their purpose, the
69

judicial authority may amend them at the request of any interested

person or of the Public Prosecution.
ARTICLE 227-5. MEASURES OF CONTROL OF THE ADMINISTRATION
1. At the time of the settlement of the protected estate, persons may
be appointed to supervise the administration thereof and appropriate
measures of control of the task of the administrator may be taken.
2. If the beneficiaries of the protected estate are minor or disabled
persons, the provisions of Article 221-5 should be implemented,
concerning the power of the judicial authority to order on its own
motion

any

measures

it

considers

necessary

for

the

proper

functioning of the administration of the protected estate.

ARTICLE 227-6. SUBMISSION OF ACCOUNTS
1. The administrator must submit the annual accounts to the
beneficiary or his legal representatives. Where appropriate, the
accounts must be submitted to the person designated for that
purpose in accordance with Article 227-3.2.f.
2. In addition to the provisions of paragraph 1, the accounts should
be submitted yearly to the persons specifically in charge of
supervising the administration of the protected estate and, if
expressly provided therefor in the deed of settlement, to the settlor
or his heirs.
3. The provisions of Articles 222-31 and 222-32 apply to the
submission of accounts, unless otherwise provided by the deed of
settlement of the protected estate.
ARTICLE 227-7. TERMINATION
1. The protected estate terminates on the following grounds:
a) Death or declaration of death of the beneficiary.
b) Loss of status of disabled or dependent person.
c) Waiver of all beneficiaries to their rights.
70

d) Expiry of the period of settlement or occurrence of any condition

subsequent set forth in the deed of settlement.
2. At the request of the settlor or his heirs, the judicial authority must
order the termination of the protected estate if the beneficiary is
guilty of ingratitude to the settlor, in accordance with the provisions
of Article 531-15.1.d on revocation of gifts.
3. The termination of the protected estate causes its liquidation,
which must be made by the persons designated by the deed of
settlement or, if there are none, by the administrator.
4. The termination of a protected estate due to the occurrence of one
the causes provided for in this Article entails the obligation for the
administrator to submit the final accounts of his administration to the
beneficiary or his heirs.
ARTICLE 227-8. REMAINDER
1. The person who liquidates the protected estate must reallocate the
remainder as provided for in the deed of settlement, which may
include the reversion of the assets to the settlor or his heirs.
2. If the deed of settlement does not establish the reallocation of the
assets or if such reallocation can not be met, the remainder must
revert to the settlor or his legal or testamentary heirs. Successions
escheated to the Generalitat must be assigned to a non-profit
organisation aiming at the protection of disabled or dependent
persons.
ARTICLE 227-9. PUBLICITY THROUGH REGISTRATION
1. The assets comprised in the protected estate may be recorded in
the Property Registry or in any other public registry for said estate
with the name contained in the deed of establishment in accordance
with Article 227-3.2.c.
2. The record of the assets comprised in the protected estate must
include the powers of the administrator, the grounds for termination
71

of the protected estate and the reallocation established for the

remainder.

CHAPTER VIII. PROTECTION OF MINORS DEPRIVED OF PARENTAL CARE

ARTICLE 228-1. MINORS DEPRIVED OF PARENTAL CARE
1. Minors deprived of parental care are those minors who de facto
lack the basic elements for the full development of their personality,
or who are subject to physical or mental ill-treatment or sexual
abuse, and who, in view of their effective protection, must be
separated from their nuclear family.
2. The competent public entity must take the necessary measures to
achieve effective protection of minors deprived of parental care, in
accordance with the provisions of this Code and of the legislation on
children and adolescents.
ARTICLE 228-2. DECLARATION OF DEPRIVATION OF PARENTAL CARE
The declaration of deprivation of parental care is governed by the
provisions of this Code and of the legislation on children and
adolescents regarding the indicators of deprivation of parental care,
procedure,

system

of

appeal

and review

due

to

changes

of

circumstances.
ARTICLE 228-3. EFFECTS

OF THE DECLARATION OF DEPRIVATION OF PARENTAL

CARE

1. The declaration of deprivation of parental care causes the

immediate assumption by the competent public entity of the functions
of guardianship over the minor, until guardianship is established
pursuant to the ordinary rules or until the minor is adopted or
returned to the person having parental authority or guardianship over
him, or until he is emancipated or attains majority. Such functions
include the same powers as the ordinary guardianship and are
subject to the provisions of Chapter II which do not conflict with the
72

specific regulation of this chapter or with the regulation governing the

public entity, in accordance with the legislation on children and
adolescents.
2. The assumption of guardianship functions causes the suspension of
parental authority or ordinary guardianship during the time of
application of the measure.
3. The competent public entity may request, if necessary, the
deprivation of parental authority or the removal of guardianship and
commence the pertinent criminal proceedings.
4. The suspension or deprivation of parental authority does not affect
the obligation of the parents or of the other relatives to do everything
necessary to assist the minors and to provide them maintenance in
the broadest sense.
ARTICLE 228-4. BIOGENETIC DATA
The competent public entity, when exercising guardianship functions
over minors deprived of parental care, may request the parents
biogenetic data, in the interest of his health.
ARTICLE 228-5. CHANGES OF CIRCUMSTANCES
Only in case of a substantial change in the circumstances which
motivated the declaration of deprivation of parental care may the
parents or guardians who have not been deprived of parental
authority or removed from ordinary guardianship apply for the
annulment of said declaration before the competent public entity,
within the time limit and in accordance with the requirements and
procedures established by the legislation on children and adolescents.
ARTICLE 228-6. CUSTODY BY THE PUBLIC ENTITY
1. The competent public entity assumes the care of the minors if
requested to do so by the parents or legal guardians due to serious
circumstances beyond their control which temporarily prevent them
from performing their functions of custody. Regarding applications for
73

protection measures, the provisions of the legislation on children and

adolescents must be complied with.
2. Custody does not affect the obligation of the parents or of the
other relatives to do everything necessary to assist the minors and to
provide them maintenance in the broadest sense.
ARTICLE 228-7. PROTECTION MEASURES
The measures for the protection of minors deprived of parental care,
the procedure to adopt and to review such measures, the system of
appeals and the grounds for termination are those established by the
legislation on children and adolescents.
ARTICLE 228-8. PERSONAL RELATIONS
The declaration of deprivation of parental care and the subsequent
implementation of a measure of protection may not impede the
personal relations of the minor with the members of his familiy,
unless it is in the minor's best interests to limit or exclude them.
ARTICLE 228-9. FOSTER

CARE AS A PROTECTIVE MEASURE FOR MINORS DEPRIVED

OF PARENTAL CARE

1. When a minor is deprived of parental care, the competent public

authority may order simple or permanent foster care as a protective
measure. The foster person or family must care for the minor, keep
him in their company, provide for his maintenance, educate him and
provide

him

comprehensive

training,

under

the

continuing

supervision, advice and assistance of the competent authority.

2. The foster person or family assumes the care and the regular
exercise of the personal guardianship functions over the minor, by
delegation of the competent administrative authority.
3. The procedure to formalise and review foster care, the system of
appeals and the grounds for termination are established by the
legislation on children and adolescents.

74

TITLE III. FAMILY

CHAPTER I. SCOPE OF THE INSTITUTION OF THE FAMILY
ARTICLE 231-1. HETEROGENEITY OF FAMILIES
1. Family enjoys the legal protection provided by the law, which
protects indiscriminately family relationships based on marriage or
stable cohabitation partnership and families formed by single parents
with their descendents.
2. The children of each parent who live in the same family unit,
following the formation of reconstituted families, are recognised as
members of the family, with the effects laid down by law. This
recognition does not alter the bonds to the other parent.

SECTION ONE. MARRIAGE: GENERAL PROVISIONS AND EFFECTS

ARTICLE 231-2. MARRIAGE
1. Marriage creates a legal relationship between two persons who
thereby share a common life where spouses must act in the interest
of the family and owe each other respect, loyalty, help and relief.
2. Spouses have the same rights and duties in marriage, especially
the care and attention for the other members of the family who
depend on and live with them, and they must share household
responsibilities.
ARTICLE 231-3. FAMILY DWELLING
1. The spouses mutually decide the family dwelling. To third parties,
it is presumed that the family dwelling is that where the spouses or
either of them and most of the family normally live.
2. In case of disagreement about the family dwelling, either spouse
may apply to the judicial authority, which must determine the
dwelling for the purposes of the law in the interests of the family.
ARTICLE 231-4. DIRECTION OF THE FAMILY
75

1. Both spouses direct the family by mutual agreement, taking

account of the interests of all its members.
2. In the interest of the family, either spouse may act alone to meet
the ordinary family needs and expenses, in accordance with the
usage and the living standards of the family, and the spouse who
performs the act is presumed to have the consent of the other.
3. Neither spouse may represent the other if representation has not
been granted, except in cases of emergency or impossibility for the
other spouse to give consent.
4. Rules on negotiorum gestio apply to the act made by one spouse
on behalf of the other.
ARTICLE 231-5. FAMILY EXPENSES
1. Family expenses are those which are necessary to maintain the
family, in accordance with the usage and the living standards of the
family, and in particular:
a) Maintenance expenses, in the broadest sense, according to the
definition given by this Code.
b) The ordinary expenses of upkeep, maintenance and repair of
houses or other assets used by the family.
c) Welfare, medical and health expenses.
2. The expenses referred to in Article 237-1 incurred for the
maintenance of the uncommon children who live with the spouses,
and the expenses resulting from other relatives living with them,
except, in both cases, if they are unnecessary, are family expenses.
3. The expenses resulting from the administration and defence of
private property, except those directly related to family maintenance,
are not family expenses, nor are those which are in the interest of
only one spouse.
ARTICLE 231-6. CONTRIBUTION TO FAMILY EXPENSES
76

1. The spouses must contribute to family expenses, in the manner

agreed upon between them, with the proceeds of their work or
property, in proportion to their revenues and, if these do no suffice,
in proportion to their property. The contribution to housework is a
form of contribution to family expenses. If some assets are especially
assigned to family expenses, their fruits and revenues should be used
preferentially to pay such expenses.
2. The children, common or not, while living with the family, must
contribute proportionally to these expenses in the manner prescribed
by Article 236-22.1.
3. Relatives living with the family must contribute, where appropriate,
to family expenses within their means and according to the expenses
they generate.
ARTICLE 231-7. DUTY OF MUTUAL INFORMATION
Spouses have a reciprocal obligation to properly inform each other of
their administration of the property regarding family expenses.
ARTICLE 231-8. LIABILITY FOR FAMILY EXPENSES
Both spouses are jointly liable to third parties for the obligations
entered into to meet the ordinary family needs and expenses in
accordance with the usage and the living standards of the family. For
other obligations, the liability is on the spouse who entered into
them.
ARTICLE 231-9. DISPOSAL OF THE FAMILY DWELLING
1. Irrespective of the applicable matrimonial property regime, the
owner spouse may not, without the consent of the other spouse,
perform any act of alienation, encumbrance or, in general, disposal of
his right on the family dwelling or on the ordinary furniture that could
impair their use, even if it is in undivided ownership. Such consent
may not be excluded by agreement or granted in general. In the
absence of consent, the judicial authority may authorise the act,
77

taking account of the interests of the family, or if there is another just

cause.
2. The act performed without the consent or authorisation provided
for in paragraph 1 is voidable, at the request of the other spouse, if
living in the same dwelling, within four years of having knowledge
thereof or from the time that the act is recorded in the Property
Registry.
3. The act remains effective if the purchaser acts in good faith and for
consideration and the owner stated that the property was not a
family dwelling, even though it was an inaccurate representation.
There is no good faith if the purchaser knew or could reasonably have
known at the time of the acquisition that it was a family dwelling. In
any case, the spouse who disposed thereof is liable for the damages
caused, in accordance with the applicable laws.

SECTION TWO. PROPERTY RELATIONS BETWEEN SPOUSES

SUBSECTION ONE. GENERAL PROVISIONS
ARTICLE 231-10. MATRIMONIAL PROPERTY REGIME
1. The matrimonial property regime is agreed for in the marriage
contract.
2. If there is no agreement or if the marriage contract is null and
void, the property regime is the separation of property.
ARTICLE 231-11. CONTRACTUAL FREEDOM
The spouses may transfer property and rights to each other in any
manner and perform all sorts of legal transactions. In case of a legal
challenge, it is for the spouses to prove that transmission was for
consideration.
ARTICLE 231-12. PRESUMPTION OF GIFT
1. When one spouse is declared bankrupt, assets acquired by the
other for consideration during the year preceding the declaration are
78

subject to the following regulation:

a) If the consideration for the acquisition came from the bankrupt
spouse, the consideration is presumed to be a gift.
b) Where the origin of the consideration can not be proven, half of
the consideration is presumed to be a gift.
2. The presumption in paragraph 1.b is rebutted if it is proven that at
the time of acquisition, the acquirer had sufficient incomes or
resources to perform it.
3. The presumptions established by this article do not apply if the
spouses were separated legally or de facto at the time of acquisition.
ARTICLE 231-13. JOINT ACCOUNTS
Where either spouse is declared bankrupt or where joint accounts are
seized to pay private debts of either spouse, the non-debtor spouse
may exclude from the bankruptcy estate or from the seized assets
the amounts which can be proven to belong to him.
ARTICLE 231-14. GIFTS OTHER THAN UNDER MARRIAGE CONTRACT
Gifts between spouses, when not made under marriage contract, are
revocable in the general cases of revocation of gifts, though, in case
of subsequent birth of children, they can only be revoked if these are
common children.

SUBSECTION TWO. ACQUISITIONS FOR CONSIDERATION WITH TONTINE CLAUSE

ARTICLE 231-15. RULES REGARDING ASSETS ACQUIRED WITH TONTINE CLAUSE
1. The spouses or future spouses who jointly acquire assets for
consideration may agree in the acquisition contract itself that, upon
the death of either spouse, the surviving spouse shall become the
sole owner of the entire assets.
2. While both spouses live, assets acquired with tontine clause are
subject to the following rules:
79

a) They may not be alienated or encumbered, except by agreement

of both spouses.
b) Neither spouse may transfer his rights over the assets to a third
party.
c) The assets must be maintained in indivisible co-ownership.
3. Regarding assets acquired with tontine clause, the acquisition of
the share of the predeceased must be added to the estate for the
value that such share had at the time of the death, for the purposes
of calculating the legitime and the widow allowance, and it must be
deducted therefrom by the same value. In case of renunciation, it is
understood that the renouncer never acquired the share of the
predeceased.
4. The tontine clause executed by future spouses expires if marriage
is not solemnised within one year.
ARTICLE 231-16. INCOMPATIBILITY WITH INHERITANCE PACT
The tontine clause becomes null and void if either acquiring spouse
previously executed a universal inheritance pact and said pact is
effective on the death of the executor thereof.
ARTICLE 231-17. SEIZURE AND BANKRUPTCY PROCEEDINGS
1. The creditor of either spouse may request the seizure of the share
of the debtor in the assets acquired with tontine clause. The seizure
must be notified to the spouse who is not a party to the dispute.
2. If bankruptcy is declared, the share of the bankrupt spouse
becomes part of the bankruptcy estate. The other spouse is entitled
to subtract this share from the bankruptcy estate by paying its value.
If the asset concerned is the family dwelling, said value is its current
purchase price according to the consumer price index specific to the
housing sector. For other assets, the value is that jointly agreed by
the spouse of the bankrupt person and the bankruptcy administrator
or, if there is none, that determined by the judicial authority after
80

hearing the parties and after receiving a report of an expert as it

deems relevant.
ARTICLE 231-18. TERMINATION
1. The tontine clause terminates upon:
a) Agreement by both spouses during marriage.
b) Annulment of marriage, legal or de facto separation, or divorce.
c) Award to a third party of half of the asset as a result of seizure or
bankruptcy proceedings.
2. The nullity and termination of the tontine clause entail that the
assets are held, in ordinary undivided co-ownership, by the spouses,
or by the surviving spouse and the heirs of the predeceased spouse,
or by the non-debtor spouse and the grantee of the share of the
debtor spouse.

SECTION THREE. MARRIAGE CONTRACTS

ARTICLE 231-19. CONTENT
1. The marriage contract may determine the matrimonial property
regime, and it may also be used to enter into succession agreements,
to make gifts and to stipulate the lawful terms and agreements
deemed useful, even in anticipation of a marriage breakdown.
2. Marriage contracts may be executed before or after marriage.
Those executed before marriage become effective only after the
solemnisation of marriage and they are void if marriage is not
solemnised within one year.
ARTICLE 231-20. AGREEMENTS IN ANTICIPATION OF A MARRIAGE BREAKDOWN
1. Agreements in anticipation of a marriage breakdown may be
entered into in the marriage contracts or in a public deed. Antenuptial agreements are only valid if executed thirty days at least prior
to the date of marriage.
81

2. The notary, prior to performing the deed referred to in paragraph

1, must inform separately each of the contracting parties on the
scope of the changes which the agreements are intended to introduce
with respect to the supplementary legal regime and he must warn
them of their reciprocal obligation to provide the information referred
to in paragraph 4.
3. Agreements waiving or limiting rights must be reciprocal and they
must clearly specify the rights limited or waived.
4. The spouse claiming enforcement of an agreement in anticipation
of a marriage breakdown has the burden of proving that the other
party had, at the time of its execution, sufficient information about
his assets, incomes and financial perspectives, if such information
was relevant in relation to the content of the agreement.
5. Agreements in anticipation of a breakdown which pose a serious
harm to any spouse at the time of their intended performance are
null and void if such spouse proves that important changes of
circumstances have arisen which were unforeseen or could not be
reasonably foreseen at the time of execution of the agreement.
ARTICLE 231-21. CAPACITY
Persons who can validly marry can enter into a marriage contract but,
where necessary, their capacity must be supplemented.
ARTICLE 231-22. FORM AND REGISTRATION
1. Marriage contracts and amendments thereto must be executed by
notarial deed.
2. Marriage contracts, amendments thereto and judicial decisions
affecting the matrimonial property regime are not enforceable against
third parties if not entered into the record of the marriage in the Civil
Registry and, if appropriate, in other public registries.
ARTICLE 231-23. AMENDMENT
1. Any amendment to or annulment of the marriage contract requires
82

the consent of all persons who executed it, or of their heirs, if the
amendment affects rights conferred by these persons.
2. Spouses may amend the matrimonial property regime without the
intervention of the other persons who executed the marriage
contract.
ARTICLE 231-24. ACQUIRED RIGHTS
The amendment of the matrimonial property regime does not affect
the rights acquired by third parties.
ARTICLE 231-25. GIFTS
Gifts made in marriage contracts are revocable only for failure to
perform the conditions.
ARTICLE 231-26. NULLITY

DUE TO ANNULMENT OF MARRIAGE, LEGAL SEPARATION

OR DIVORCE

The marriage contract is null and void in case of annulment of

marriage, legal separation or dissolution of marriage by divorce, but
the following acts remain effective:
a) Recognition of children made by either spouse.
b) Agreements made in anticipation of a marriage breakdown.
c) Succession agreements where required by this Code.
d) Agreements included in the marriage contract as a merely
documentary instrument.

SECTION

FOUR.

GIFTS

IN CONSIDERATION OF MARRIAGE AWARDED OUTSIDE

MARRIAGE CONTRACTS

ARTICLE 231-27. REGULATION

Gifts made by one spouse outside the marriage contract in favour of
the other in consideration of marriage and gifts made by other
persons for the same reason are governed by the general rules on
gifts, except as provided by this section.
83

ARTICLE 231-28. CONDITIONAL

AND ONEROUS GIFTS AND GIFTS OF ENCUMBERED

ASSETS

1. Gifts in consideration of marriage made outside the marriage

contract may be subject to conditions and charges.
2. If the asset given is subject to liens or encumbrances, the donor is
not bound to release the asset.
ARTICLE 231-29. REVOCATION
Gifts referred to in this section may be revoked on the following
grounds:
a) Failure to solemnise marriage within one year from the gift.
b) Annulment of marriage, if the donee acted in bad faith and the
donor is the spouse of the donee.
c) Failure to comply with conditions.
d) Ingratitude of the donee.

SECTION FIVE. FAMILY WIDOWHOOD RIGHTS

ARTICLE 231-30. RIGHT TO HOUSEHOLD ITEMS
1. The surviving spouse, if not separated legally or de facto, is
entitled to the ownership of the clothing, furniture and accessories
that make up the household items of the marital dwelling. Said assets
are not taken into account to calculate his share of the inherited
estate.
2. The right to household items does not include jewellery, artistic or
historical objects or other assets of the predeceased spouse which
have an extraordinary value in relation to the living standard of the
couple and to the estate of the deceased. Neither does it include the
furniture from the family if the predeceased spouse disposed thereof
by last will or testament in favour of others.
ARTICLE 231-31. WIDOWHOOD YEAR
84

1. During the year following the death of a spouse, the survivor

spouse who is not legally or de facto separated and who is not
universal usufructuary of the estate of the predeceased has the right
to continue using the marital dwelling and to receive maintenance
provided by the estate of the predeceased, in accordance with the
former living standard of the spouses and the importance of the
estate. This right is independent of the other rights which the
surviving spouse is entitled to following the death of the predeceased
spouse.
2. The surviving spouse loses the rights referred to in paragraph 1 if,
during the year following the death of the spouse, he remarries or
starts to cohabit with another person, or if he abandons or severely
neglects common children under his parental authority. In no case is
the

surviving

spouse

required

to

repay

the

amount

of

the

maintenance received.

CHAPTER II. MATRIMONIAL PROPERTY REGIMES

SECTION ONE. REGIME OF SEPARATION OF PROPERTY
ARTICLE 232-1. CONTENT
In the regime of separation of property, each spouse has the
property, enjoyment, administration and free disposal of all his assets
within the limits set by law.
ARTICLE 232-2. SEPARATE PROPERTY
In the regime of separation of property, the separate property of
each spouse is property owned by the spouse prior to marriage and
property acquired subsequently by the spouse in any manner.
ARTICLE 232-3. ACQUISITIONS FOR CONSIDERATION
1. Property acquired for consideration during marriage belongs to the
spouse who owns it. If it can be proven that the consideration was
paid with property or money of the other spouse, gift thereof is
85

presumed.
2. If the property acquired for consideration during marriage is
movable property of ordinary value for family use, it is presumed to
belong jointly and equally to both spouses. Such presumption is not
rebutted by proof of mere formal ownership.
ARTICLE 232-4. DUBIOUS OWNERSHIP
When it is doubtful to which spouse any property or right belongs, it
is presumed to belong jointly and equally to both spouses. However,
it is presumed that the movable property of either spouse without
extraordinary value which is directly used for the purposes of his
work belongs exclusively to such spouse.
ARTICLE 232-5. FINANCIAL COMPENSATION BY REASON OF WORK
1. In the regime of separation of property, if either spouse has
worked for the household substantially more than the other, such
spouse is entitled to financial compensation for this involvement if, at
the time of termination of the regime by separation, divorce,
annulment or death of either spouse or, as the case may be, of
effective end of cohabitation, the other spouse has accrued more
assets in accordance with the provisions of this section.
2. The spouse who worked for the other spouse without any or
sufficient remuneration is entitled to compensation on the terms set
forth by paragraph 1.
3. To determine the amount of financial compensation by reason of
work, account must be taken of the duration and intensity of such
involvement, of the length of the cohabitation, and, specifically, in
case of housework, of the fact that such work may have included the
upbringing of children or personal care for other family members
living with the spouses.
4. Financial compensation by reason of work is limited to one fourth
of the difference of accrual of assets between the spouses, calculated
86

in accordance with the rules established by Article 232-6. However, if

the creditor spouse proves that his contribution was significantly
higher, the judicial authority can increase this amount.
5. Upon termination of the regime of separation by death, the
surviving spouse may claim compensation by reason of work as a
personal right, if the rights assigned by the deceased, in the testate
succession or in anticipation of his death, or the rights assigned to
the surviving spouse in the intestate succession, do not cover the
amount which should accrue to said spouse.
ARTICLE 232-6. CALCULATION RULES
1. The accrual of assets of the spouses is calculated according to the
following rules:
a) The property of each spouse consist of the assets held upon
termination of the regime or, as the case may be, of effective end of
cohabitation, after deduction of liabilities and charges over the
assets.
b) The value of the property of each spouse must be accrued by the
value of the assets disposed of gratuitously, calculated at the time of
its transfer, excluding gifts made to common children and usual gifts
as well as the value of the damage caused by acts intentionally done
to harm the other spouse.
c) The value of the property of each spouse must be decreased by
the value of the assets that each spouse owned at the beginning of
the regime and that he still holds upon termination thereof, after
deduction of the charges over these assets, and also the value of the
assets acquired gratuitously while the regime was in force and the
compensation for personal damage, excluding loss of profits during
the time of cohabitation.
2. Assets assigned by the debtor spouse to the creditor spouse while
the regime was in force are charged against the compensation for the
87

value they have upon termination of the regime.

ARTICLE 232-7. AGREEMENTS ON COMPENSATION
In anticipation of a marriage breakdown or a dissolution of marriage
by death, it can be agreed to increase, reduce or exclude financial
compensation by reason of work in accordance with the provisions of
Article 231-20.
ARTICLE 232-8. PAYMENT OF COMPENSATION
1. Compensation must be paid in money, unless the parties agree
otherwise. However, for just cause and at the request of either party
or of the heirs of the debtor spouse, the judicial authority may order
payment to be made fully or partially in assets.
2. At the request of the debtor spouse or his heirs, the judicial
authority may defer payment of compensation or order it to be made
in instalments, with a maximum maturity of three years and accrual
of legal interest from the date of its admission. The judicial authority
may, in this case, order the creation, if necessary, of a mortgage,
according to the provisions of Article 569-36, or of other securities in
favour of the creditor spouse.
ARTICLE 232-9. ACTS TO THE DETRIMENT OF THE RIGHT TO COMPENSATION
1. If the property of the debtor spouse is not sufficient to meet the
financial compensation by reason of work, the creditor may apply for
the abatement or elimination of the gifts and the specific assignments
under succession agreement made by the debtor spouse while the
regime was in force, starting from the most recent one, following with
the next most recent one, and so on, in reverse order of date.
Abatement must be proportional if the date is the same or is
undetermined. The creditor may challenge acts for consideration
made by the debtor in fraud of his rights.
2. The actions referred to in paragraph 1 lapse four years after the
termination of the regime and are not applicable when the assets are
88

held by a third party who acquired them for consideration and in good
faith.
ARTICLE 232-10. COMPATIBILITY
The right to financial compensation by reason of work is compatible
with other economic rights held by the creditor spouse, and account
must be taken thereof to establish and, if necessary, modify these
rights.
ARTICLE 232-11. EXERCISE OF THE RIGHT TO COMPENSATION
1. In case of annulment of marriage, separation or divorce, financial
compensation by reason of work must be claimed in the proceeding
which causes the termination of the regime, and in case of
ecclesiastical decisions, in the proceeding to give effect to such
decisions in the civil order. As a preliminary issue, the marriage
judgment may rule on the regime in force if the parties question this
point.
2. Upon termination of the regime of separation by death, the claim
for compensation by reason of work lapses after three years of the
death of the spouse. However, if the surviving spouse brings a claim
under Article 233-14.2, compensation must be claimed in the same
proceeding.
ARTICLE 232-12. DIVISION

OF

PROPERTY

IN

ORDINARY

UNDIVIDED

CO-

OWNERSHIP

1. In separation, divorce or annulment proceedings and in those

proceedings seeking to give civil effect to ecclesiastical decisions,
either spouse can simultaneously bring the action of division of
common property in respect of assets hold in ordinary undivided coownership.
2. If several assets are in ordinary undivided co-ownership and one
spouse requests it, the judicial authority may consider such assets
together for the purpose of forming batches of assets and awarding
89

them.

SECTION TWO. REGIME OF PARTICIPATION IN GAINS

SUBSECTION ONE. GENERAL PROVISIONS
ARTICLE 232-13. CONTENT
1. The matrimonial property regime of participation in gains entitles
either spouse, upon termination of the regime, to participate in the
accrual of assets obtained by the other during the time this regime
was in force.
2. During marriage, each spouse has the property, enjoyment,
administration and free disposal of his assets, but with a duty to
properly inform the other of his administration of the property.
3. If there is no agreement and the provisions of this section can not
be applied, the regime of participation in gains is governed by the
rules of the regime of separation of property.
ARTICLE 232-14. INVENTORY
The public deed establishing the regime of participation in gains must
be accompanied by an inventory of the initial property of each
spouse, which must reference the assets, indicating their physical
condition, charges and obligations.
ARTICLE 232-15. AGREEMENTS ON THE SCOPE OF THE PARTICIPATION IN GAINS
1. Agreements assigning a participation in gains other than half the
accrual of assets are valid only if reciprocal and equal for either
spouse.
2. The nullity of the agreement entails a participation in gains equal
to half the accrual of assets.
ARTICLE 232-16. TERMINATION
1. The regime of participation in gains is terminated by:
a) Annulment or dissolution of marriage or legal separation.
90

b) Agreement of the spouses by marriage contract stipulating a

different regime.
2. The regime of participation in gains is terminated by court order,
at the request of either spouse,

when any of the following

circumstances arises:
a) De facto separation for a period exceeding six months.
b) Serious or repeated failure by the other spouse to observe the
duty to inform pursuant the provisions of Article 232-13.2.
c) Irregular administration of property or change which arises in the
other spouses personal circumstances or assets situation and which
seriously compromises the

interests of the

spouse requesting

termination.
ARTICLE 232-17. RETROACTIVE EFFECTS OF TERMINATION
If the regime of participation in gains is terminated by court order,
the effects of the termination thereof are retroactive from the date of
the application. At the request of either spouse or of their successors
in title, the judicial authority may give retroactive effects to the
termination from the date of the end of cohabitation.

SUBSECTION TWO. LIQUIDATION OF THE REGIME

ARTICLE 232-18. START OF THE LIQUIDATION
The regime of participation in gains, once terminated, must be
liquidated

to

set

the

participation

credit,

by

determining

the

difference between the final and initial property of each spouse.

ARTICLE 232-19. DETERMINATION OF FINAL PROPERTY
1. The final property of each spouse includes all the assets belonging
to each spouse upon termination of the regime in the physical
condition in which they are at that time, after deduction of liabilities
and charges over the assets, excluding assets acquired with tontine
clause.
91

2. The property calculated in accordance with the provisions of

paragraph 1 must be increased by:
a) The value of the assets disposed of gratuitously while the regime
was in force, taking account of their physical condition upon disposal,
with the exception of usual gifts and gifts done with the consent of
the other spouse.
b) The value of the assets disposed of for consideration while the
regime was in force in order to fraudulently reduce gains, taking
account of their physical condition upon disposal and regardless of
the price stated, and also the value of the liabilities or encumbrances
created fraudulently.
c)

The

value

of

the

assets

destroyed

or

damaged,

in

the

circumstances referred to in point b.

3. The assets are valued at the amount they are worth upon
termination of the regime. When assets were alienated, damaged or
destroyed, their value is that at the time of transmission, damage or
loss.
ARTICLE 232-20. DETERMINATION OF INITIAL PROPERTY
1. The initial property of each spouse includes all assets that
belonged to each spouse at the start of the regime, after deduction of
liabilities and charges over the assets. If the liabilities of the initial
property are greater than the assets, the negative value is recorded,
unless the parties agree otherwise.
2. The property calculated in accordance with the provisions of
paragraph 1 must be increased by:
a) The value of the assets acquired for profit while the regime was in
force, after deduction of the charges over the assets.
b) Compensation for personal damage, excluding the compensation
for loss of profits while the regime was in force.
3. The assets are valued at the amount they are worth upon
92

termination of the regime, taking account of their physical condition

at the beginning of the regime and, regarding assets acquired
gratuitously, their physical condition at the time of acquisition.
ARTICLE 232-21. DETERMINATION OF CREDIT
Failing agreement, the participation credit is determined according to
the following rules:
a) If only one spouse has accrued assets, calculated by the difference
between final and initial property, the other spouse or his heirs are
entitled to half the value of this accrual.
b) If both spouses have accrued assets, the spouse who has less, or
his heirs, are entitled to half the difference in value between his own
accrual and that of the other spouse.
c) If neither spouse has accrued assets, there is no participation
credit.

SUBSECTION THREE. PAYMENT OF PARTICIPATION CREDIT

ARTICLE 232-22. FORM OF PAYMENT
1. The participation credit must be paid in money, unless the parties
agree otherwise. However, for just cause and at the request of either
party or of their heirs, the judicial authority may order payment to be
made fully or partially in assets of the obligor.
2. If the regime is terminated by the death of one spouse and the
surviving spouse is entitled to a participation credit, he can request
the award of the family dwelling under full ownership or in usufruct.
If the value of the asset or of the right awarded exceeds the
participation credit, the beneficiary of the award must pay the
difference in money.
3. For just cause and at the request of the debtor spouse or his heirs,
the judicial authority may defer payment or order it to be made in
instalments with a maximum maturity of three years and accrual of
93

legal interest from the date of its admission. In this case, the judicial
authority may order the creation of securities in favour of the
creditor.
ARTICLE 232-23. RESTRAINT ORDER
The creditor or his heirs may apply for precautionary measures,
including the filing of a notice of seizure in public registries to ensure
payment of the participation credit pending the resolution of the
claim.
ARTICLE 232-24. ACTS TO THE PREJUDICE OF THE PARTICIPATION CREDIT
1. If the property of the debtor spouse is not sufficient to meet the
participation credit, the creditor may apply for the abatement or
elimination of the gifts and the specific assignments under succession
agreement made by the debtor spouse while the regime was in force
and until liquidation thereof, starting from the most recent one,
following with the next most recent one, and so on, in reverse order
of date. Abatement must be proportional if the date is the same or is
undetermined. The creditor may challenge acts for consideration
made by the debtor in fraud of his rights.
2. The actions referred to in paragraph 1 lapse four years after the
termination of the regime and are not applicable when the assets are
held by a third party who acquired them for consideration and in good
faith.

SECTION

THREE.

THE

ASSOCIATION

IN

PURCHASES

AND

IMPROVEMENTS

(ASSOCIACI A COMPRES I MILLORES)

ARTICLE 232-25. REGIME
1. The association in purchases and improvements, specific to the
Camp de Tarragona area and to other comarques, requires an
express agreement by marriage contract.
2. In all matters not covered by the agreement establishing the
94

regime or by this section, the association in purchases and

improvements is governed by the local custom of the comarca and, in
the absence thereof, by the provisions of the regime of participation
in gains, to the extent permitted by its specific nature.
3. Each spouse may be associated by the other to purchases and
improvements made during marriage. The association can also be
reciprocal or associate the spouses with their ascendants, regardless
of whether the latter have executed an inheritance pact in favour of
the former.
4. All assets which are acquired for consideration by any associate or
obtained for his professional activity or occupation, once the
association is established, have the consideration of purchases.
5. All increases in the value of the assets of any associate due to an
impensa utilis and a release from charges and encumbrances have
the consideration of improvements.
ARTICLE 232-26. ADMINISTRATION
1. The association in purchases and improvements is administered by
the associate designated in the marriage contract. In the absence of
designation, it is administered by all associates.
2. The sole administrator of the association may, if necessary,
without involving anyone else, dispose of the assets of the association
for consideration, but he may not have the association to stand
security, if not for the benefit of the family.
3. The individual debts of each associate only encumber their own
share.
ARTICLE 232-27. LIQUIDATION
The liquidation of the gains of each associate refers to the time of his
death or of the termination of the regime and can be done with
money or other assets of the association.

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SECTION FOUR. REGIME OF AGERMANAMENT OR PACTE DE MIG PER MIG

ARTICLE 232-28. REGIME
1. The regime of agermanament (twinning) or pacte de mig per mig
(agreement by half and half), specific to the law of Tortosa,
requires an express agreement by marriage contract.
2. In all matters not covered by the agreement establishing the
regime or by this section, the regime of agermanament is governed
by the local custom and, in the absence thereof, by the provisions of
the regime of community, to the extent permitted by its specific
nature.
3. The community includes all assets held by the spouses at the time
of marriage or at the time of agreement upon the regime of
agermanament, those acquired in any manner and gains or profits of
any kind while the regime is in force.
4. In the regime of agermanament, the administration of the
community is incumbent upon both spouses.
5. The liquidation of the regime of agermanament must assign the
assets comprised therein equally between the spouses or between
the surviving spouse and the heirs of the predeceased spouse.

SECTION FIVE. REGIME OF CONVINENA OR MITJA GUADANYERIA

ARTICLE 232-29. REGIME
1. The regime of convinena, or mitja guadanyeria ( agreement or
half accrual), an association specific to the Vall dAran, requires an
express agreement by marriage contract.
2. In all matters not covered by the agreement establishing the
regime or by this section, the custom of the Vall dAran and Chapter
X of the privilege of the Querimnia1 shall apply.

N.T: Traditional body of Law of the Vall dAran.

96

3. In addition to the provisions of paragraph 1, the regime of

convinena may also be established between parents and children,
and even among strangers, by agreeing that the assets earned and to
be earned shall remain in the community as long as the association
exists.
4. The spouses must contribute equally to pay the costs arising from
the regime and the administration of the household and gains and
accruals must be divided, upon dissolution of the regime, if there are
no children.

SECTION SIX. REGIME OF COMMUNITY OF PROPERTY

ARTICLE 232-30. CONTENT
In the regime of community of property, the gains obtained by either
spouse and the property which is given a common nature by the
spouses become common.
ARTICLE 232-31. COMMON PROPERTY
Common property includes:
a) Property which is given a common nature by the spouses at the
time of the agreement on the regime or thereafter.
b) The gains obtained from the professional activity or from the
occupation of either spouse.
c) The fruits and revenues of all assets, in the absence of an
agreement to the contrary.
d) Property acquired by real subrogation of other common property.
e) The gains obtained from gambling by either spouse.
ARTICLE 232-32. PRIVATE PROPERTY
Private property of each spouse includes:
a) Property belonging to each spouse prior to the beginning of the
regime if it is not given a common nature.
97

b) Property acquired by way of gift or inheritance.

c) Property acquired by real subrogation of other private property.
d) Compensation for personal damage, excluding compensation for
loss of profits while the regime is in force.
e) Assets for personal use without extraordinary value and the
instruments necessary for the occupation, even when the acquisition
was financed by reinvestment of common property.
ARTICLE 232-33. ADMINISTRATION AND DISPOSAL OF COMMON PROPERTY
1. Failing agreement, the administration and disposal of common
property is incumbent upon the spouses jointly, or upon either of
them with the consent of the other.
2. Either spouse may incur obligations to be borne by the community
and dispose of the common property to pay family expenses.
3. If one spouse exercises a professional or commercial activity using
common property with the consent of the other, such spouse can,
with respect to movable property assigned thereto, perform alone the
acts of administration and disposal arising from the normal exercise
of said activity.
4. In case of incapacity of one spouse or of impossibility of joint
administration, the judicial authority may grant the administration of
the community and the disposal of common property to one spouse
only. It may also allow one spouse to perform alone acts of disposal,
in the interest of the family or if there is another just cause, when the
other spouse does not consent.
ARTICLE 232-34. REGIME OF THE PRIVATE PROPERTY
1. Each spouse has the administration and free disposal of his private
property within the limits set by law.
2. Each spouse is liable for the debts incurred by him by reason of the
ownership and administration of private property. When private

98

property is not sufficient, the creditor may request the seizure of

common property. Such seizure must be notified to the other spouse,
who may require the dissolution of the community and that seizure
should only affect the share of the common property belonging to the
debtor spouse.
ARTICLE 232-35. LIABILITY FOR FAMILY EXPENSES
The common property and the property of the debtor spouse, jointly
and severally, and secondarily the property of the other spouse, are
liable for the debts incurred to meet family expenses.
ARTICLE 232-36. TERMINATION OF THE REGIME
1. The regime of community of property terminates on the following
grounds:
a) Annulment or dissolution of marriage or legal separation.
b) Agreement of the spouses by marriage contract stipulating a
different regime.
2. The regime of community of property is terminated by court order,
at the request of either spouse, when any of the following
circumstances arises:
a) De facto separation for a period exceeding six months.
b) Serious or repeated failure by the other spouse to observe the
duty to inform of his economic activities.
c) Irregular administration of property or change which arises in the
other spouses personal or circumstances or assets situation and
which seriously compromises the interests of the spouse requesting
termination.
d) Seizure of common property in the case of Article 232-34.2.
ARTICLE 232-37. DETERMINATION AND VALUATION OF PROPERTY
1. For the purposes of dividing the community, common property and
private property must be determined with reference to the time of
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dissolution.
2. Common property held at the time of the dissolution of the
community must be recorded for the value it has at the time of
liquidation thereof.
ARTICLE 232-38. DIVISION OF COMMON PROPERTY
1. Upon termination of the community, common property must be
equally divided between the spouses or between the surviving spouse
and the heirs of the predeceased spouse, unless otherwise agreed.
2. In the case covered by paragraph 1, when the marital dwelling and
its furnishings of ordinary use are common property, the surviving
spouse may ask to be awarded ownership thereof in payment of his
share. When the value thereof is greater than his share, the
beneficiary of the award must pay the difference in money.
3. When common property is divided, each spouse may recover the
assets which were his or her private property prior to the beginning
of the regime of community and which remain at the time of
termination, according to the initial state thereof. The other assets
and the improvements made in the assets transferred should be
included in the division of the community and, when the value of
those assets is greater than the value of the share, the beneficiary
must pay the difference in money.

CHAPTER III. EFFECTS

OF ANNULMENT OF MARRIAGE, DIVORCE AND LEGAL

SEPARATION

SECTION ONE. GENERAL PROVISIONS

ARTICLE 233-1. INTERIM MEASURES
1. The spouse seeking to apply or applying for separation, divorce or
annulment of marriage and the defendant spouse, when answering
the complaint, may request the judicial authority to adopt, in
accordance with procedures established by the procedural law, the
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following interim measures:

a) The determination of the forms of cohabitation of the children with
their parents and the forms of relation to the parent with whom they
do not cohabit. Exceptionally, the judicial authority may award
custody of the children to grandparents, other relatives, other
persons close to the children or, if there are none, to a suitable
institution,

which

may

be

given

guardianship

functions

with

suspension of parental authority.

b) The form of exercise of parental authority over children.
c) The establishment, where applicable, of a schedule of relations of
the children with the siblings who do not live in the same household.
d) The distribution of the duty of maintenance in favour of the
children and, where appropriate, the establishment of provisional
maintenance for one of the spouses.
e) The establishment of maintenance for adult or emancipated
children with no personal financial resources and living with either
parent, pursuant to the provisions of Article 237-1.
f) The award of the use of the family dwelling with its household
items or, alternatively, the adoption of measures ensuring the
housing needs of the spouses and the children. If the use of the
family dwelling is awarded to one spouse, the judicial authority must
establish the date on which the other spouse must leave the dwelling.
g) The regulation of the ownership and administration of the assets in
ordinary undivided co-ownership and of those assets which, pursuant
to the marriage contract or a public deed, are especially assigned to
family expenses and, in case of a regime of community, of the
common property.
h) The interim measures necessary to prevent wrongful removal or
retention of children, if the risk exists.
2. In case of domestic or sexist violence, the competent judicial
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authority must adopt, in addition to the measures imposed by

paragraph 1, the measures established by the specific legislation.
3. The judicial authority can order appropriate guarantees to ensure
compliance with interim measures.
4. The judicial authority, when ordering the final measures, may
review the agreements reached by the spouses regarding the content
of the interim measures.
5. The application for interim measures causes the withdrawal of all
consents and powers granted by either spouse to the other.
ARTICLE 233-2. FINAL MEASURES PROPOSED BY SEPARATION AGREEMENT
1. When the spouses jointly apply for divorce, legal separation or the
adoption or amendment of measures regulating the consequences of
the annulment of marriage, or when one spouse does so with the
consent of the other, the original petition must be accompanied by a
separation agreement.
2. When the spouses have common children under their parental
authority, the separation agreement must include:
a) A parenting plan in accordance with the provisions of Article 233-9.
b) Maintenance in favour of the children, to meet both their ordinary
and extraordinary needs, indicating its frequency, form of payment,
criteria for update and, where provided for, guarantees.
c) Where appropriate, the regulation of personal relations with
grandparents and siblings who do not live in the same dwelling.
3. In addition to the provisions of paragraph 2, the separation
agreement must also contain, where appropriate:
a) The compensatory payment awarded to one spouse, indicating its
form of payment and, where applicable, its duration, criteria for
update and guarantees.
b) The award or distribution of the use of the family dwelling with its
102

household items.
c) The financial compensation by reason of work.
d) The liquidation of the matrimonial property regime and the division
of the assets in ordinary undivided co-ownership.
4. In addition to the provisions of paragraphs 2 and 3, in the
separation agreement the spouses may also agree on maintenance in
favour of adult or emancipated children with no personal financial
resources.
ARTICLE 233-3. JUDICIAL APPROVAL OF THE AGREEMENTS
1. The agreements reached in a separation settlement must be
approved by the judicial authority, except for the provisions which are
contrary to the interests of minor children.
2. If approval of the agreements reached in a separation agreement
is denied, the judicial authority must state the provisions which must
be amended and must set a time limit therefor. If the spouses fail to
submit an amendment or if this is not approved, the judicial authority
must issue the appropriate decision.
3. The judgment must include the provisions of the settlement which
have been approved and the decision regarding the provisions which
were not approved. It may also contain measures necessary to
ensure effective implementation thereof.
ARTICLE 233-4. FINAL MEASURES GRANTED BY THE JUDICIAL AUTHORITY
1. If a spouse seeks annulment of marriage, divorce or legal
separation without consent of the other, or if the spouses fail to agree
on the content of the separation agreement, the judicial authority
must order appropriate final measures regarding the exercise of
parental responsibilities, including the duty of maintenance and,
where appropriate, the regulation of the personal relations with the
grandparents and siblings. Likewise, the judicial authority, at the
request of the spouse with whom the children cohabit, may grant
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maintenance in favour of adult or emancipated children taking

account of the provisions of Article 237-1, and it may order that such
maintenance should last until the children have or could reasonably
have their own income.
2. If either spouse so requests, the judicial authority must take
appropriate measures regarding the use of the family dwelling and its
household

items,

the

compensatory

payment,

the

financial

compensation by reason of work in case of a property regime of

separation of property, the liquidation of the matrimonial property
regime and the division of the common property or of the ordinary
undivided co-ownership.
ARTICLE 233-5. AGREEMENTS OUTSIDE THE SEPARATION AGREEMENT
1. The agreements in anticipation of a marriage breakdown executed
in accordance with Article 231-20 and those adopted after the
breakdown of cohabitation which are not part of a proposed
separation agreement are binding on the spouses. The action to
enforce such agreements may be combined to the action seeking
annulment, separation or divorce and it can be requested to integrate
them into the judgement. It can also be requested to integrate them
into the proceedings seeking interim measures so that they may be
included in the court order, where appropriate.
2. Agreements adopted after the breakdown of cohabitation without
independent legal aid for each spouse may be annulled at the request
of any spouse within three months from the date of their adoption
and no later than the date of the response to the claim or, where
appropriate, the counterclaim in the matrimonial proceeding where
enforcement of such agreements is sought.
3. Agreements regarding custody and personal relations with minor
children or maintenance in their favour are only effective if they
conform to their interests at the time enforcement is sought.
ARTICLE 233-6. FAMILY MEDIATION
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1. The spouses, in any stage of the matrimonial proceedings and in

any court or tribunal, may submit the differences to mediation and
try to reach an agreement in whole or in part, except in cases of
domestic or sexist violence.
2. The commencement of family mediation proceedings, prior to filing
the application or in any stage of the matrimonial proceedings, at the
initiative of the parties or by referral from lawyers or other
professionals, is subject to the principles of voluntariness and
confidentiality. Withdrawal from such proceedings may not harm the
litigants who participated therein.
3. The judicial authority can refer the spouses to an information
session on mediation, if it considers, from the circumstances of the
case, that an agreement can be reached.
4. The parties may jointly agree to request the suspension of the
proceedings during mediation. The communication to the judicial
authority of the withdrawal of any party or of the agreement reached
in mediation lifts the suspension of the proceedings.
5. Agreements reached in mediation, once incorporated into the
proceedings, must be submitted to the judicial authority for approval
on the same terms as provided by Article 233-3 for the separation
agreement.
6. Agreements reached in mediation regarding the exercise of
parental responsibility are deemed suitable for the minors interest.
The lack of approval by the judicial authority must be based on
criteria of public policy and on the minors interest.
ARTICLE 233-7. AMENDMENT OF MEASURES
1. The measures issued in matrimonial proceedings may be modified
by a subsequent court order, if circumstances have changed
substantially at the time of the order.
2. The separation agreement or the judgment may determine in
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advance the relevant changes.

3. If the party requesting amendment to the measures provided for,
due to a substantial change in circumstances, attempted to reach an
extrajudicial settlement by commencing mediation proceedings, the
court order amending the measures may give them retroactive
effects

to

the

date

of

the

commencement

of

the

mediation

proceedings.

SECTION TWO. CARE OF THE CHILDREN

ARTICLE 233-8. PARENTAL RESPONSIBILITY
1. The annulment of marriage, divorce or legal separation does not
alter the responsibilities of the parents towards their children
pursuant to Article 236-17.1. Consequently, these responsibilities
retain their shared nature and, where possible, they must be
exercised jointly.
2. For the purposes of determining how parental responsibilities
should be exercised, the spouses must submit their proposed
parenting plan, with the content provided for by Article 233-9.
3. In the decision of the judicial authority regarding parental
responsibilities, the minor's interest must prevail.
ARTICLE 233-9. PARENTING PLAN
1. The parenting plan should specify the manner in which both
parents

exercise

parental

responsibilities.

It

must

include

the

commitments they make regarding the custody, care and education

of their children.
2. The proposed parenting plan must include:
a) The place or places where the children normally live. This must
include rules determining at all times which parent has custody.
b) The tasks falling under the responsibility of each parent regarding

106

the daily activities of the children.

c) The manner in which changes must be made regarding custody
and, where appropriate, how the costs involved should be shared.
d) The arrangements regarding the relation and communication with
the children during the periods when a parent does not have them
with him.
e) The arrangements regarding the stays of the children with each
parent during vacation periods and dates especially important to the
children, their parents or their family.
f) The type of education and, where appropriate, the extracurricular,
educational and recreational activities.
g) The manner of complying with the obligation to share all
information regarding the education, health and welfare of the
children.
h) The manner of making decisions regarding changes of address and
other issues of importance to the children.
3. The proposed parenting plan may provide for the possibility of
resorting to family mediation in order to resolve disputes arising from
the implementation of the plan, or of altering its contents in order to
adapt it to the varying needs at the different stages in the life of the
children.
ARTICLE 233-10. EXERCISE OF CUSTODY
1. Custody must be exercised in the manner agreed by the spouses in
the parenting plan, unless it is harmful to the children.
2. The judicial authority, if there is no agreement or if it is not
approved, must determine how custody shall be exercised, taking
account of the joint nature of parental responsibilities, in accordance
with Article 233-8.1. However, the judicial authority may direct that
the custody shall be exercised individually if this is more in
accordance with the childs interests.
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3. The form of exercise of custody does not alter the content of the
maintenance obligations towards common children, but account must
be taken of the time spent by the minors with each parent and of the
expenses directly paid by each parent.
4. The judicial authority may exceptionally award custody to
grandparents, other relatives, other persons close to the children or,
if there is none, to a suitable institution, which may be given
guardianship functions with suspension of parental authority.
ARTICLE 233-11. CRITERIA

FOR DETERMINING THE REGULATION AND EXERCISE OF

CUSTODY

1. To determine the regulation and exercise of custody, account must

be taken of the proposed parenting plan and, in particular, of the
following weighted criteria and circumstances:
a) The emotional bond between the children and each parent, and the
relations with the other persons living in the respective homes.
b) The ability of the parents to ensure the welfare of the children and
the possibility to give them a suitable environment, according to their
age.
c) The attitude of each parent to cooperate with each other to ensure
maximum stability to the children, particularly to adequately ensure
the relations of the children with both parents.
d) The time devoted by each parent to the care of the children before
the breakdown and the tasks which were effectively exercised by
them to ensure the welfare of the children.
e) The opinion expressed by the children.
f) The agreements in anticipation of the breakdown or those entered
into outside the separation agreement before commencing the
proceedings.
g) The location of the homes of the parents and the schedules and
activities for children and parents.
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2.

The

award

of

custody

can

not

separate

siblings,

unless

circumstances so require.
3. In the interest of the children, custody can not be awarded to the
parent against whom a final judgment has been pronounced for acts
of domestic or sexist violence suffered directly or indirectly, actually
or potentially, by the children. In the interest of the children, custody
can also not be awarded to the parent while there is a grounded
suspicion that such parent may have committed acts of domestic or
sexist violence suffered directly or indirectly by the children.
ARTICLE 233-12. PERSONAL RELATIONS WITH GRANDPARENTS AND SIBLINGS
1. If the spouses propose an arrangement regulating the personal
relations of the children with their grandparents and adult siblings
who do not live in the same household, the judicial authority can
approve it, after hearing the parties concerned and provided they
consent.
2. The persons who have been awarded personal relations with the
children are entitled to claim implementation thereof.
ARTICLE 233-13. SUPERVISION OF PERSONAL RELATIONS IN RISK SITUATIONS
1. The judicial authority may, for justified reasons, adopt measures to
ensure that the personal relations of the minor with the non-custodial
parent or with the grandparents, siblings or other persons close to
him are exercised in conditions where the safety and emotional
stability of the minor is ensured.
2. If there is a danger or a social risk, the supervision of the relation
may be entrusted to the network of social services or to a Family
Meeting Point (punt de trobada familiar).

SECTION THREE. COMPENSATORY PAYMENT

ARTICLE 233-14. COMPENSATORY PAYMENT
1. The spouse whose economic situation is more affected, as a result
109

of the breakdown of cohabitation, has the right during the first

matrimonial proceedings to claim a compensatory payment not
exceeding the living standards enjoyed during marriage or what the
obligor

spouse

can

sustain,

taking

account

of

the

right

to

maintenance of the children, which prevails. In case of annulment of

marriage, the bona fide spouse is entitled to such compensatory
payment, in the same circumstances.
2. If either spouse dies before one year of the de facto separation,
the other spouse may, within three months from the date of the
death, claim to the heirs his right to compensatory payment. The
same rule applies if the marriage proceedings end by reason of the
death of the obligor spouse.
ARTICLE 233-15. DETERMINATION OF THE COMPENSATORY PAYMENT
The judicial authority, for the purpose of determining the amount and
duration of the compensatory payment, should assess in particular:
a) The financial situation of the spouses, taking account, where
applicable, of the financial compensation by reason of work or of the
awards expected as a result of the liquidation of the matrimonial
property regime.
b) The performance of family tasks and the taking of other decisions
in the interest of the family during cohabitation, if this reduced the
ability of the spouse to earn income.
c) The foreseeable financial perspectives of the spouses, taking
account of their age and health conditions and the manner in which
the custody of the common children is awarded.
d) The duration of cohabitation.
e) The new family expenses of the debtor, where applicable.
ARTICLE 233-16. AGREEMENTS ON COMPENSATORY PAYMENT
1. In anticipation of a marriage breakdown, the form, amount,
duration and termination of the compensatory payment may be
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agreed upon in accordance with Article 231-20.

2. Waiver agreements not included in a proposed separation
agreement are null and void to the extent that they compromise the
ability to meet the basic needs of the creditor spouse.
ARTICLE 233-17. FORM OF PAYMENT
1. The compensatory payment can be awarded in the form of a lump
sum, whether in assets or in money, or as an allowance. In case of
disagreement, the judicial authority must issue a decision on the form
of payment according to the circumstances of the case and,
especially, the composition of the assets and financial resources of
the debtor spouse.
2. When payment is awarded in the form of a lump sum, the judicial
authority, at the request of the debtor spouse, may defer payment or
order it to be made in instalments, with a maximum maturity of three
years and accrual of legal interest from the date of its admission.
3. When payment is awarded in the form of an allowance, it must be
paid in money in monthly advanced instalments. At the request of a
party, guarantees may be constituted and objective criteria may be
provided for regarding the automatic adjustment of the allowance.
4. Compensatory payment in the form of an allowance is awarded for
a limited period, unless exceptional circumstances justify the award
of an indefinite allowance.
ARTICLE 233-18. MODIFICATION OF THE COMPENSATORY PAYMENT
1. The compensatory payment awarded in the form of an allowance
may only be modified to reduce its amount if the financial situation of
the beneficiary improves or if the financial situation of the debtor
worsens.
2. To determine the financial capacity of the debtor, account must be
taken of his new family expenses and preference must be given to
the right of all his children to maintenance.
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ARTICLE 233-19. TERMINATION OF THE RIGHT TO COMPENSATORY PAYMENT

1. The right to compensatory payment awarded in the form of an
allowance terminates on the following grounds:
a) Improvement of the financial situation of the creditor, if this
improvement ceases to justify the payment, or worsening of the
financial situation of the obligor, if this worsening justifies the
termination of the right.
b) Marriage of the creditor or his marital cohabitation with another
person.
c) Death of the creditor.
d) Expiry of the period for which it was established.
2. The right to compensatory payment awarded in the form of an
allowance is not terminated by the death of the obligor, but the
creditor or the debtor's heirs may apply for replacement by the
payment of a lump sum, taking into account the amount and, where
applicable, the duration of the allowance, and also the liquid assets
inherited upon the death of the debtor.

SECTION FOUR. AWARD OR DISTRIBUTION OF THE USE OF THE FAMILY DWELLING

ARTICLE 233-20. AWARD OR DISTRIBUTION OF THE USE OF THE FAMILY DWELLING
1. The spouses may agree to award the use of the family dwelling
with its household items to one of them, as a settlement, to the
extent necessary, for the maintenance of the common children living
with the beneficiary of the use or for the compensatory payment to
said beneficiary. The spouses may also agree to distribute the use of
the dwelling into specific periods.
2. If there is no agreement or if it is not approved, the judicial
authority must award the use of the family dwelling, preferably, to
the parent having custody of the common children while custody
lasts.
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3. Notwithstanding the provisions of paragraph 2, the judicial

authority must award the use of the family dwelling to the spouse
most in need in the following cases:
a) When the custody of the children is shared or distributed between
the parents.
b) When the spouses have no children or when these are adults.
c) Where, although the use of the dwelling is awarded by reason of
the custody of the children, it is foreseeable that the need of the
spouse shall continue once the children have attained majority.
4. Exceptionally, even where there are minor children, the judicial
authority may award the use of the family dwelling to the noncustodial spouse if such spouse is most in needs and the custodial
spouse has sufficient resources to meet his housing needs and those
of the children.
5. The award of the use of the dwelling to one spouse, in the cases
referred to in paragraphs 3 and 4, must be temporary and may be
extended, also temporarily, should the circumstances remain which
motivated it. Such extension must be requested, at the latest, six
months before the expiry of the period, under the procedure
governing the amendment of final measures.
6. The judicial authority may award the use of other residences in
place of the family dwelling if they are suitable to meet the housing
needs of the spouse and children.
7. The award of the use of the dwelling, if owned in whole or in part
by the spouse who is not the beneficiary, must be reckoned as a
contribution in kind when determining maintenance obligations
towards the children and, where applicable be, the compensatory
payment earned by the other spouse.
ARTICLE 233-21. EXCLUSION

OF AND LIMITS TO THE AWARD OF THE USE OF THE

DWELLING

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1. The judicial authority, at the request of either spouse, may exclude

the award of the use of the family dwelling in any of the following
cases:
a) When the spouse who would be the beneficiary of the use by
reason of the custody of the children has sufficient resources to meet
his housing needs and those of the children.
b) When the spouse who should transfer the use can meet with
sufficient guarantee his obligations regarding child maintenance and,
where appropriate, the compensatory payment awarded to the other
spouse, the amount of which should cover the housing needs of the
latter.
2. When the spouses hold the dwelling under a title other than
ownership, the effects of the judicial award of the use of the dwelling
are limited by the provisions of the title of ownership, in accordance
with the law. When the spouses hold the family dwelling on
sufferance of a third, the judicial decision awarding the use of the
dwelling ceases to produce effects when return of the dwelling is
claimed. In this case, in accordance with the provisions of Article
233-7.2, the judgment may order the adjustment of the relevant
obligations regarding maintenance or compensatory payment.
3. The agreements in anticipation of a marriage breakdown can
provide for the award or distribution of the use of the dwelling and
the forms of such use. Agreements harming the childs interests and
agreements outside the separation agreement which compromise the
possibilities of meeting the basic needs of the spouse entitled to such
use are null and void.
ARTICLE 233-22. PUBLICITY OF THE RIGHT TO USE THE DWELLING
The right to use the family dwelling awarded to a spouse can be
recorded or, if it has been awarded as an interim measure,
provisionally noted in the Property Registry.

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ARTICLE 233-23. OBLIGATIONS IN RESPECT OF THE DWELLING

1. In case of award or distribution of the use of the dwelling,
obligations entered into to acquire or improve it, including insurance
related to that purpose, must be paid according to the provisions of
the deed of establishment.
2. The ordinary expenses of upkeep, maintenance and repair of the
dwelling, including community charges and supplies, and annual
taxes and rates are borne by the spouse with right of use.
ARTICLE 233-24. TERMINATION OF RIGHT OF USE
1. The right of use terminates on the grounds agreed between the
spouses and, if awarded by reason of the custody of the children,
when custody ends.
2. The right of use, if temporarily awarded by reason of the needs of
the spouse, terminates on the following grounds:
a) Improvement of the financial situation of the spouse with right of
use or worsening of the financial situation of the other spouse, if this
justifies termination.
b) Marriage of the spouse with right of use or marital cohabitation
with another person.
c) Death of the spouse with right of use.
d) Expiry of the period for which it was established or, where
applicable, of its extension.
3. Upon termination of the right of use, the owner spouse can regain
possession of the dwelling in accordance with the judgment which
awarded the right of use or the final decision on the duration or
termination of such right, and he may request, where applicable, to
cancel the registration of the right of use.
ARTICLE 233-25. DISPOSAL OF THE DWELLING SUBJECT TO RIGHT OF USE
The owner or holder of real rights on the family dwelling can dispose
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thereof without the consent of the spouse having the right of use and
without court approval, without prejudice to the right of use.

CHAPTER IV. STABLE COHABITATION PARTNERSHIPS

SECTION ONE. GENERAL PROVISIONS
ARTICLE 234-1. STABLE PARTNERS
Two persons cohabiting and sharing a common life similar to
marriage are considered stable partners in any of the following cases:
a) When cohabitation lasts longer than two consecutive years.
b) When they have a common child during cohabitation.
c) When the relationship is formalised in a public deed.
ARTICLE 234-2. PERSONAL REQUIREMENTS
The following persons can not establish a stable partnership:
a) Unemancipated minors.
b) Relatives in the direct line, or in the collateral line up to the second
degree.
c) Married persons who are not de facto separated.
d) Persons cohabiting as a couple with a third person.
ARTICLE 234-3. REGULATION OF PARTNERSHIP DURING COHABITATION
1. Stable partnerships are governed solely by the agreements made
by the cohabitants while cohabitation lasts.
2. Regarding the disposal of the family dwelling, the provisions of
Article 231-9 apply.
3. Stable partners may acquire property jointly with tontine clause. In
this case, Articles 231-15 to 231-18, on acquisitions for consideration
with tontine clause, apply.

SECTION TWO. TERMINATION OF STABLE PARTNERSHIP

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ARTICLE 234-4. GROUNDS FOR TERMINATION

1. The stable partnership terminates on the following grounds:
a) End of cohabitation with breakdown of common life.
b) Death or declaration of death of either partner.
c) Marriage of either partner.
d) Joint agreement between the partners formalised in public deed.
e) Willingness of either partner notified to the other in an irrefutable
manner.
2. The termination of the partnership causes the withdrawal of all
consents and powers granted by either partner in favour of the other.
ARTICLE 234-5. AGREEMENTS IN ANTICIPATION OF THE END OF COHABITATION
In anticipation of the end of cohabitation, partners may agree in a
public deed the effects of the termination of the stable partnership.
These agreements are subject to Article 231-20.
ARTICLE 234-6. AGREEMENTS REACHED AFTER THE END OF COHABITATION
1. After the end of cohabitation, partners may agree the effects of the
termination of the partnership.
2. In case of agreements reached after the end of cohabitation, both
partners, by mutual agreement, or one partner, with the consent of
the other, may submit for approval by the judicial authority a
proposed

separation

agreement

including

all

the

effects

of

termination on the common children and between the partners.

3. Articles 233-4 and 233-5 respectively apply to the agreements
included in a proposed separation agreement and to the agreements
reached outside the separation agreement.

SECTION THREE. EFFECTS OF THE TERMINATION OF THE STABLE PARTNERSHIP

ARTICLE 234-7. EXERCISE OF CHILD CUSTODY AND PERSONAL RELATIONS

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Regarding the exercise of child custody and personal relations,

Articles 233-8 to 233-13 apply to stable partnerships.
ARTICLE 234-8. AWARD OR DISTRIBUTION OF USE OF THE FAMILY DWELLING
1. The stable partners may agree to award the use of the family
dwelling with its household items to one of them, as a settlement, to
the extent necessary, for the maintenance of the common children
living with the beneficiary of the use or, where appropriate, for the
compensatory payment to said beneficiary.
2. If there is no agreement or if this is not approved, and if the
partners have common children, the judicial authority may award the
use of the family dwelling, taking account of the circumstances of the
case and according to the following rules:
a) Preferably, to the partner having custody of the children while
custody lasts.
b) If custody of the children is shared or distributed between both
partners, to the partner who most needs it.
3. The award or distribution of the use of the dwelling, if owned in
whole or in part by the partner who is not the beneficiary, must be
taken

into

account

when

determining

maintenance

obligations

towards the children and, where applicable, maintenance earned by

the other partner.
4. The award or distribution of the use of the dwelling is governed by
the provisions of Article 233-20.6 and 7 and Articles 233-21 to 23325.
ARTICLE 234-9. FINANCIAL COMPENSATION BY REASON OF WORK
1. When either partner has worked for the household substantially
more than the other or has worked for the other partner without any
or sufficient remuneration, such partner is entitled to financial
compensation for this involvement if, at the end of cohabitation, the
other partner has accrued more assets, according to the provisions of
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Article 232-6.
2. The provisions of Articles 232-5 to 232-10 apply to financial
compensation by reason of work.
ARTICLE 234-10. MAINTENANCE
1. When the stable partnership terminates during the lifetime of the
partners, either partner may claim maintenance from the other, if
such maintenance is needed to properly care for his living, in any of
the following cases:
a) When cohabitation has diminished the ability of the applicant to
earn income.
b) When the applicant has the custody of common children in
circumstances where his ability to earn an income is diminished.
2. Agreements to waive maintenance are null and void to the extent
that they compromise the ability of the partner entitled thereto to
meet his basic needs, unless such agreements are incorporated into a
proposed settlement pursuant to Article 234-6.
3. If either partner dies within one year from the termination of the
partnership, the other partner may, within three months following the
death, claim from the heirs his right to maintenance. The same rule
applies if the proceedings to claim maintenance end by reason of the
death of the obligor partner.
ARTICLE 234-11. PAYMENT OF MAINTENANCE
1. Maintenance may be awarded in the form of a lump sum or as an
allowance.
2. Failing agreement, the judicial authority decides on the form of
payment in accordance with the provisions of Article 233-17.
3. Maintenance in the form of an allowance is temporary, with a
maximum of three annual instalments, unless maintenance is based
on the reduced ability of the creditor to earn an income resulting from

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the custody of common children. In this case, maintenance may be

awarded for the duration of the custody.
4. Maintenance in the form of an allowance may be modified under
the terms of Article 233-18.
ARTICLE 234-12. TERMINATION

OF MAINTENANCE AWARDED IN THE FORM OF AN

ALLOWANCE

Maintenance in the form of an allowance terminates in accordance

with the provisions of Article 233-19.
ARTICLE 234-13. EXERCISE OF RIGHTS
The rights to financial compensation by reason of work and to
maintenance must be claimed within one year from the termination of
the stable partnership and, where applicable, in the proceedings
determining the other effects of the termination of the stable
partnership.
ARTICLE 234-14. EFFECTS OF TERMINATION BY DEATH
Upon termination of the stable partnership by the death of either
partner, the

surviving

partner

is entitled, in addition to

the

compensation by reason of work which may be applicable pursuant to

Article 232-5.5, to the family widowhood rights provided for in
Articles 231-30 and 231-31.

CHAPTER V. FILIATION
SECTION ONE. GENERAL PROVISIONS
ARTICLE 235-1. FORMS OF FILIATION
Filiation can be natural or through adoption.
ARTICLE 235-2. EFFECTS OF FILIATION
1. Any filiation produces the same civil effects, without prejudice to
the specific effects of filiation by adoption.
2. Filiation determines parental authority, surnames, maintenance
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and inheritance rights and entails the assumption of parental

responsibilities towards the minor children together with the other
effects specified by law.
3. The father and mother can jointly decide the order of the
surnames when registering the birth or adoption of their first child.
The children, when attaining majority or upon emancipation, may
alter the order of the surnames.

SECTION TWO. NATURAL FILIATION

SUBSECTION ONE. GENERAL PROVISIONS ON THE ESTABLISHMENT OF FILIATION
ARTICLE 235-3. ESTABLISHMENT
Natural filiation, as to the mother, results from birth; as to the father
and the mother, it may be established by recognition, by consent to
the application of assisted reproduction techniques to the woman, by
registration or by judgment; and, only as to the father, by marriage
to the mother.
ARTICLE 235-4. LEGAL TIME OF CONCEPTION
The legal time of conception includes the first one hundred twenty
days of pregnancy, which is presumed to last at most three hundred
days, unless conclusive evidence shows that pregnancy lasted more
than three hundred days.

SUBSECTION TWO. ESTABLISHMENT OF MARITAL FILIATION

ARTICLE 235-5. MARITAL PATERNITY
1. The husband is presumed to be the father of the children born
after marriage and within three hundred days of the legal or de facto
separation of the spouses or the annulment or dissolution of
marriage.
2. Children born more than three hundred days after the legal or de
facto separation of the spouses are marital children if it is proven that
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they were born as a result of sexual intercourse between the

spouses. The same rule applies in case of annulment or dissolution of
the marriage if it is proven that intercourse took place before such
annulment or dissolution was effective.
3. If the mother remarries within three hundred days of the
dissolution or annulment, the children born after such marriage are
presumed to be children of her second husband.
ARTICLE 235-6. CONCEPTION BEFORE MARRIAGE
1. If the child is born within one hundred eighty days after marriage,
the husband may annul the establishment of filiation arising from
Article 235-5 by declaring that paternity is unknown. This declaration
must be done in an authentic act and it must be recorded in the Civil
Registry within six months after birth.
2. The declaration of unknown filiation is null and void in the following
cases:
a) If the husband knew of the pregnancy before marriage, unless the
declaration referred to in paragraph 1 was done with the consent of
the wife.
b) If the husband admitted paternity in any manner.
c) If the mother proves intercourse with her husband during the legal
time of conception.
ARTICLE 235-7. BIRTH BEFORE MARRIAGE
1. Common children born before the marriage of their father and
mother have, from the date of marriage, the status of marital
children if filiation is established by law.
2. The challenge of the filiation referred to in paragraph 1 is governed
by the rules of non-marital filiation.
ARTICLE 235-8. ASSISTED REPRODUCTION OF MARRIED WOMEN
1. Children born as a result of the application of assisted reproduction
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techniques to the wife, carried out with the express consent of her
spouse formalised in a document drawn up in an authorised centre or
in a public deed, are marital children of the spouse who gave
consent.
2. In case of artificial insemination performed after the death of the
husband and with his gametes, the newborn is his child if the
following conditions are met:
a) The express will of the husband regarding assisted reproduction
after his death must have been conclusively recorded.
b) It must be limited to a single case, including multiple births.
c) The assisted reproduction process must begin within 270 days
from the death of the husband. The judicial authority may extend this
period for just cause and for a maximum of 90 days.

SUBSECTION THREE. ESTABLISHMENT OF NON-MARITAL FILIATION

ARTICLE 235-9. ESTABLISHMENT
1. Non-marital filiation can be established by:
a) Recognition in a will or codicil, in a public deed or before the
person in charge of the Civil Registry.
b) Order issued in a case conducted in accordance with the laws on
the Civil Registry.
c) Final judgment in a civil or criminal proceeding.
d) As to the mother, in the manner established by the laws on the
Civil Registry regarding registration.
2. In the recognition made in a will or public deed or before the
person in charge of the Civil Registry, the identity of the other parent
can not be expressed if it has not already been legally established.
This rule does not apply in case of recognition of the unborn
conceived child carried out in a will or public deed.
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ARTICLE 235-10. PRESUMPTIONS OF PATERNITY

1. The father of the non-marital child is presumed to be:
a) The man with whom the mother lived during the legal time of
conception.
b) The man with whom the mother had sexual intercourse during the
time of conception.
c) The man who has acknowledged paternity, tacitly or in a manner
different from that established under Article 235-9.
2. The presumptions referred to in paragraph 1 can be rebutted with
evidence of any kind during the relevant proceedings.
ARTICLE 235-11. CAPACITY TO RECOGNISE PATERNITY OR MATERNITY
1. Males over fourteen years of age have the capacity to recognise
paternity. The mother has the capacity to recognise maternity when it
is established that she has given birth, irrespective of her age. In
both cases, they must have natural capacity.
2. For the recognition made by unemancipated or incapable minors to
be valid, court approval is required, after hearing the Public
Prosecution.
ARTICLE 235-12. REQUIREMENTS

FOR THE RECOGNITION OF PATERNITY OR

MATERNITY

1. The recognition of a non-marital child who is an adult or an

emancipated minor is effective only with his express or implied
consent.
2. The father and mother can request the court to declare nonmarital paternity or maternity although the child has denied the
consent referred to in paragraph 1. The favourable judgment must
establish the filiation with no further effect, unless the reason behind
the delay in recognition is evidenced.
3. Recognition of a minor or incapable person which is not performed
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within the time allowed for registration of birth requires court

approval to be effective, after hearing the Public Prosecution, the
legal representative of the minor and, if known, the other parent. The
denial of court approval does not preclude the claim of filiation in
accordance with the provisions of paragraph 2 and to the same
extent.
4. Recognition of a deceased child is only effective if he leaves
descendants and those of the nearest degree consent thereto. If the
descendants are minor or incapable persons, court approval is
required, after hearing the Public Prosecution. The denial of consent
or court approval does not preclude the claim of filiation in
accordance with the provisions of paragraph 2 and to the same
extent.
ARTICLE 235-13. ASSISTED REPRODUCTION OF WOMEN
1. Children born as a result of the application of assisted reproduction
techniques to their mother are the children of the man or woman who
has given express consent thereto in a document drawn up in an
authorised centre or in a public deed.
2. In case of assisted reproduction performed after the death of the
man who cohabited with the mother, the newborn is considered to be
his child if the conditions laid down by article 235-8.2 are met
mutatis mutandis.
ARTICLE 235-14. LIMITED EFFECTIVENESS
1. The effects of the declaration of filiation are limited to the mere
establishment of the filiation, at the request of the adult or
emancipated children, or of the legal representative of the minor or
incapable children, in the following cases:
a) If the parent has been convicted by final judgment in a criminal
proceeding because of the relationships which led to filiation.
b) If the claimed filiation has been declared by court with the
125

opposition of the defendant parent.

c) If recognition was done in bad faith or with abuse of rights.
2. The establishment of filiation in the cases referred to in paragraph
1 produces no civil effect for the parent, who always remains obliged
to care for the child and to provide maintenance.

SUBSECTION FOUR. COMMON RULES ON ACTIONS FOR FILIATION

ARTICLE 235-15. EVIDENCE
1. To bring an action for filiation, prima facie evidence is not required.
2. In filiation proceedings, evidence of all kinds is admitted, without
prejudice to the provisions of Article 235-28.2.
ARTICLE 235-16. PERSONS INVOLVED IN THE PROCEEDINGS
1. In any filiation proceeding, the defendants must be the persons
whose paternity, maternity or filiation is claimed or is established by
law.
2. In case of death of the person who should be sued in an action for
filiation, the action must be directed against his heirs.
3. In actions for filiation, the judicial authority may appoint a
guardian ad litem if the child should take action through a legal
representative and this is justified by his interest.
ARTICLE 235-17. INTERIM MEASURES IN FILIATION PROCEEDINGS
While the action claiming or challenging filiation lasts, the judicial
authority may take appropriate protection measures regarding the
person and property of the minor or incapable child and, in case of a
claim of filiation, it may also order temporary maintenance in favour
of the child.
ARTICLE 235-18. SEXUAL INTERCOURSE OF THE MOTHER WITH OTHER MEN
1. Evidence of sexual intercourse of the mother with a man other
than the defendant during the legal time of conception is not
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sufficient to rebut the presumption of paternity.

2. If the exception of the sexual intercourse of the mother with men
other than the defendant is raised during the proceedings, such men
can be called, at the request of the party entitled to claim paternity,
to intervene in the proceedings as a defendant.
3. If, pursuant to the provisions of paragraph 2, several men are
sued, the man whose paternity is most likely must be declared father.
ARTICLE 235-19. CONFLICTING FILIATION
1. The establishment of filiation has no effect while there is another
conflicting filiation.
2. No filiation can be claimed which conflicts with another filiation
established by a final judgment.

SUBSECTION FIVE. CLAIM OF FILIATION

ARTICLE 235-20. MARITAL FILIATION
1. The father, the mother and the children, directly or through their
legal representatives, where applicable, may bring, throughout life,
an action claiming marital filiation. The action brought by the children
may be continued by their descendants or heirs.
2. The descendants or heirs of the children can bring an action
claiming marital filiation, within the time remaining to reach the limit
of two years from the date of discovery of the evidence substantiating
the claim.
3. If the child deceases less than four years after attaining majority
or after recovering full capacity, the descendants or heirs of the child
can bring or continue the action claiming marital filiation, within the
time remaining before the end of such period, if it exceeds the term
of two years established by paragraph 2.
ARTICLE 235-21. NON-MARITAL FILIATION

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1. Children, directly or through their legal representatives, where

applicable, may bring, throughout life, an action claiming non-marital
filiation. In the cases of Article 235-20.2 and 3, the descendants or
heirs of the children may bring or continue the action, within the time
remaining before the end of the applicable period.
2. The father and the mother may bring, throughout life, the action
claiming non-marital paternity or maternity, in their own name and
interest, if they can not recognise the child or if recognition was null
and void due to the lack of consent by the children or to the lack of
court approval.
ARTICLE 235-22. JOINDER OF CLAIMS
The action claiming filiation can be joined to the action challenging
the conflicting filiation. In this case, the challenge of filiation is
ancillary to the claim of filiation and it can only be upheld if the claim
of filiation is upheld, unless the applicant has legal standing to bring
the action challenging filiation and this action has not expired.

SUBSECTION SIX. CHALLENGE OF FILIATION

ARTICLE 235-23. CHALLENGE OF MARITAL PATERNITY BY THE HUSBAND
1. The husband may bring the action challenging marital paternity
within two years from the date of discovery of the childs birth or of
the evidence substantiating the challenge.
2. The action challenging marital paternity is transmitted to the
children or descendants and to the heirs of the husband if he dies
after bringing the action or before the end of the periods set by
paragraph 1. In these cases, any of them can bring such action within
the time remaining before the end of said periods.
3. If the husband dies without discovering the birth or the evidence
substantiating the action, the period of two years is counted from the
date of their discovery by the person entitled to challenge paternity.
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ARTICLE 235-24. CHALLENGE OF MARITAL PATERNITY BY THE MOTHER

The mother, in her own name or in the interest and on behalf of the
child, if minor or incapable, may challenge marital paternity within
two years from the date of the childs birth or the discovery of the
evidence substantiating the challenge.
ARTICLE 235-25. CHALLENGE OF MARITAL PATERNITY BY THE CHILD
The child may bring the action challenging marital paternity within
two years from the attainment of majority, the recovery of full
capacity

or

the

discovery

of

the

evidence

substantiating

the

challenge.
ARTICLE 235-26. CHALLENGE OF NON-MARITAL PATERNITY
1. The father, the mother and the children, directly or through their
legal representative, may bring an action challenging non-marital
paternity within two years from the establishment of such paternity
or, as the case may be, from the moment when this establishment is
discovered or new evidence arises which contradicts paternity.
2. As to the child, the action expires two years after attaining
majority, recovering full capacity or after new evidence arises which
contradicts filiation. During the minority or incapacity of the child, the
mother may bring this action, in accordance with the provisions of
Article 235-24.
ARTICLE 235-27. CHALLENGE OF THE RECOGNITION OF PATERNITY
1. The action challenging the recognition of paternity made without
capacity or by error, violence, intimidation or deceit, must be brought
by the person who performed this recognition and by his legal
representatives.
2. The action for nullity due to the lack of capacity expires two years
after attaining majority or recovering full capacity. In case of a defect
of consent, the action expires two years after the recognition of
paternity, in case of error, and, in the other cases, after the end of
129

the defect. The children, descendants and heirs of the person who
recognised paternity can continue the action for nullity, or bring it, if
the person who recognised paternity dies within the term of two
years, during the time remaining before the end of this period.
3. The provisions of paragraphs 1 and 2 also apply to the consent to
the application of assisted reproduction techniques to the woman.
4. The recognition of paternity made by fraudulent evasion of the law
is null and void. The action for nullity is not time-barred, and may be
brought by the Public Prosecution or by any other person with a direct
and legitimate interest.
ARTICLE 235-28. EVIDENCE IN THE CHALLENGE OF PATERNITY
1. For any action challenging marital and non-marital paternity to be
successful, it must be conclusively evidenced that the alleged father
is not the parent of the person whose filiation is challenged.
2. When filiation arises from the application of assisted reproduction
techniques to the mother, the action challenging filiation can not be
upheld if the person whose paternity or maternity is challenged
consented to assisted reproduction in accordance with Articles 235-8
and 235-13, or, in any case, if such person is the biological parent of
the child.
ARTICLE 235-29. CHALLENGE OF MATERNITY
1. Children, directly or through their legal representatives, may bring,
throughout life, an action challenging maternity if they prove that the
declaration of birth is false or that the identity of the child is
incorrect. The mother may also bring such action within two years
from the discovery of the evidence substantiating the challenge.
2. The action challenging filiation is transmitted to the children or
descendants and to the heirs of the mother if she dies after bringing
the action or before the end of the periods set by paragraph 1. In
these cases, any of them can bring such action within the time
130

remaining before the end of said periods.

3. If the mother dies without discovering the evidence which could
substantiate an action, the term of two years is counted from the
date when the person entitled to challenge the maternity discovers
such evidence.

SECTION THREE. FILIATION BY ADOPTION

SUBSECTION ONE. CONDITIONS FOR ADOPTION
ARTICLE 235-30. PERSONAL REQUIREMENTS TO ADOPT
1. To adopt, the following requirements must be met:
a) Having full legal capacity.
b) Being over twenty-five years of age, except in case of adoption of
the child of the spouse or stable partner or of orphaned relatives, and
being at least fourteen years older than the adoptee.
2. The adoption by more than one person is only allowed in the case
of spouses or stable partners. In these cases, it suffices that one of
the adoptive parents be over twenty-five years of age.
ARTICLE 235-31. PROHIBITIONS TO ADOPT
1. Persons who have been suspended from or deprived of parental
authority or who have been removed from a guardianship function,
while in this situation, can not adopt.
2. The following persons can not be adopted:
a) The descendants of the adopter.
b) The siblings of the adopter.
c) The collateral relatives up to the second degree of affinity for the
duration of the marriage which causes this relationship.
ARTICLE 235-32. ADOPTION OF MINORS
1. Minors deprived of parental care in pre-adoptive foster care can be

131

adopted. The following minors can also be adopted:

a) The children of the spouse or stable partner of the adopter. In
these cases, adoption is possible if filiation is not established by law
regarding the other parent, or if the other parent is deceased,
deprived or liable to be deprived of parental authority, or has given
his assent.
b) The orphans who are relatives of the adopter up to the fourth
degree of consanguinity or affinity.
c) Persons under the guardianship of the prospective adopter, after
approval of the final accounts of guardianship.
2. Minors deprived of parental care placed in foster care can be
adopted by their foster parents, if circumstances have changed and it
is no longer possible to return the minors to their family, due to the
occurrence of some of the circumstances of pre-adoptive foster care
or of some other circumstances which make return impossible.
3. Adoption can be granted, irrespective of the death of one or more
adopters, if consent to adoption was given before a judicial authority
or in a will, a codicil or a public deed.
4. In case of death of the individual adopter or, regarding joint
adoptions, of both adopters, a new procedure can be initiated for the
adoption of the person who was in the process of being adopted.
ARTICLE 235-33. ADOPTION OF ADULTS
Emancipated or adult persons may only be adopted if they have lived
continuously with the adopter before attaining the age of fourteen
years or if they have been in pre-adoptive foster care, at least six
months immediately before attaining majority or emancipation, and
they must have lived continuously with the foster parent.

SUBSECTION TWO. PRE-ADOPTIVE FOSTER CARE

ARTICLE 235-34. PROCEDURE OF PRE-ADOPTIVE FOSTER CARE
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1. The competent public entity must decide pre-adoptive foster care,

as a first stage prior to adoption, in the following cases:
a) If the minor can not be returned to his family of origin and it is in
his best interest to fully integrate into another family through
adoption.
b) If the parents or guardians so request to the competent public
entity and renounce the rights and duties inherent to their condition.
2. For the purposes of the provisions of paragraph 1, the return of
the minor to his biological family is understood to be impossible if it
requires going through a period which may cause

a greater

psychosocial impairment to the evolutionary development of the

minor.
3. Once pre-adoptive foster care has been granted, the visits and
relations of the minor with his biological family must be suspended,
to facilitate integration into the foster family, if this is in the childs
interest.
4. The foster persons have the duty to care for the minor, keep him
in their company, provide for his maintenance, educate him and
provide him comprehensive training. To this end, they fully assume
parental responsibilities and the powers resulting therefrom. These
functions should be exercised under the supervision of the competent
entity, which must provide the necessary assistance.
ARTICLE 235-35. FOSTER CARE DECISION
Pre-adoptive foster care must be granted by a decision of the
responsible public entity within the time limit and in accordance with
the requirements and procedures established by the legislation on
children and adolescents.
ARTICLE 235-36. TERMINATION OF PRE-ADOPTIVE FOSTER CARE
1. Pre-adoptive foster care terminates on the following grounds:
a) Adoption of the person placed in foster care.
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b) Death, incapacity or unwillingness of the foster persons.

c) Request of the person placed in foster care, if twelve years of age
or over.
d) Decision of the competent public entity based on an unfavourable
monitoring report.
2. Termination of foster care on the grounds referred to in paragraph
1.b, c and d entails the adoption of the protection measures which
best suit the childs interest.
ARTICLE 235-37. DATA CONFIDENTIALITY
The persons involved in the establishment of pre-adoptive foster care
or adoption, whether or not in service in the responsible public entity
or in collaborating institutions, are bound to secrecy regarding the
information obtained and the filiation details of the foster or adoptive
persons, and must especially avoid that the family of origin knows the
foster or adoptive family.
ARTICLE 235-38. PROPOSAL FOR ADOPTION
1. To

initiate

the

adoption process, prior

proposal

from the

responsible public entity is required, except in the cases referred to in

Article 235-32.1. a, b and c and Article 235-33.
2. The proposal for adoption must include the following information,
properly supported:
a) The rationale supporting the adequacy of the person or persons
who want to adopt taking account of their personal, social, family and
financial situation and of their educational skills.
b) The last address, if known, of the parents, guardians or custodians
of the adoptee.

SUBSECTION THREE. ESTABLISHMENT OF THE ADOPTION

ARTICLE 235-39. ESTABLISHMENT BY COURT ORDER
134

Adoption must be established by reasoned court order in accordance

with the provisions of this section, taking account of the interests of
the adoptee.
ARTICLE 235-40. CONSENT TO ADOPTION
The adopters and the adoptee, if twelve years of age or over, must
consent to the adoption before a judicial authority.
ARTICLE 235-41. ASSENT TO ADOPTION
1. The following persons must assent to adoption, if not unable to do
so:
a) The spouse of the adopter, except in case of legal or de facto
separation, or the stable partner of the adopter.
b) The parents of the adoptee, unless legally deprived or liable to be
deprived of parental authority, or, in case of pre-adoptive foster care,
unless the court order granting foster care has become final.
2. The assent must be given before the judicial authority. The mother
can not give it until six weeks have elapsed following the birth.
3. The assent of the parents can not refer to a specific person, except
in exceptional cases justified by a reasonable cause.
ARTICLE 235-42. EXISTENCE

OF A GROUND FOR DEPRIVATION OF PARENTAL

AUTHORITY

1. The existence of a ground for deprivation of parental authority,

regarding one parent or both, referred to in Article 235-41.1.b, must
be assessed in the adoption process itself, in a reasoned decision.
2. The judicial authority, after suspending the procedure, must inform
the persons liable to be deprived of parental authority of the effects
of the court decision and it must give them the period deemed
necessary, not inferior to twenty days, to appear before the court and
to claim what they consider most appropriate in defence of their
right, under the verbal proceedings rules.

135

ARTICLE 235-43. PERSONS WHO MUST BE HEARD

The following persons must be heard by the judicial authority in the
adoption proceeding:
a) The parents of adult or emancipated minors and the persons
whose assent is not required, except those who are deprived of
parental authority.
b) The guardians, curators or de facto custodians of the adoptee.
c) The adopted child younger than twelve years of age, if he has
enough discernment.
d) The children of the adopters, if these children and the adopters live
together, and where appropriate the children of the adoptee, if it is
possible and if they have enough discernment.

SUBSECTION FOUR. INTERNATIONAL ADOPTION AND FOSTER CARE

ARTICLE 235-44. INTERNATIONAL ADOPTION OF MINORS
1. The international adoption and foster care must respect the
principles of the conventions on the fundamental rights of children,
the treaty rules and the rules of private international law which are
applicable.
2. In international adoption and foster care, the following principles
must be ensured:
a) A competent authority must be involved.
b) The principle of subsidiarity of international adoption must be
respected.
c) Adoption or foster care must be in the interest of the minor.
d) The adoption of the minor must be possible.
e) The required consents must be given freely, without consideration,
with knowledge of the consequences and effects arising therefrom,
especially, in the case of adoption, with regard to the final severing of
136

all legal ties with the family of origin.

f) Adoption or foster care may not entail an undue material benefit
for the persons in charge of the minor or for anyone else.
g) The minor must be heard, if he has enough discernment.
3. Procedures to adopt minors may not be initiated in countries
suffering from a military conflict or a natural disaster.
4. Regarding minors from countries where there exists no adoption or
any

other

equivalent

institution,

the

judicial

authority

may

exceptionally order the establishment of adoption in situations similar

to foster care or guardianship, established abroad with a purpose of
permanent

protection.

Essential

requirements

are

that

the

establishment of the adoption must be necessary in the minors

interest, that the rules of private international law must allow it and
that the competent public entity of the place of residence of the
family must issue the certificate of suitability regarding the person or
persons to whom the child has been entrusted and who request the
adoption.
ARTICLE 235-45. HANDLING OF THE ADOPTION PROCESS BY THE PUBLIC ENTITY
1. The competent public entity must only arrange adoptions of
children from countries that ensure sufficient respect for the
principles and norms of international adoption and the necessary
intervention of its administrative and judicial authorities.
2. To ensure full respect for the rights of the minors, in case of
international adoptions, the competent public entity:
a) Takes measures to prevent undue profits and practices contrary to
the interests of the minor.
b) Collects and keeps information on the adoptees and their origin
and ensure access thereto if permitted by law.
c) Facilitates and monitors the adoption procedures.

137

d) Advises on the adoption and, where necessary and to the extent

permitted by law, monitors the adoptions, if required by the country
of origin of the prospective adoptee.
e) Selects the prospective adoptive individuals and families by
assessing their suitability in accordance with the criteria and
processes which best ensure the success of the adoption process.
f) Determines the profile of the minor in accordance with that of the
adoptive person or family to facilitate the adaptation of the minor and
the success of adoption.
ARTICLE 235-46. FUNCTIONS OF INTERMEDIATION
The functions of intermediation for international adoption can only be
exercised by the competent public entity of the Generalitat. However,
the Generalitat may accredit partner organisations to exercise these
functions under the terms and in compliance with the requirements
established by regulation. In any event, these organisations must be
legally constituted non-profit organisations, aiming at protecting
children and at upholding the best interests of the child above any
other, according to the applicable rules of international law. They are
subject to the guidelines, inspection and control of the responsible
public entity.

SUBSECTION FIVE. SPECIFIC EFFECTS OF FILIATION BY ADOPTION

ARTICLE 235-47. SPECIFIC EFFECTS OF ADOPTION
1. Adoption creates family ties between the adopter and his family
and the adoptee and his descendants, and produces the same effects
as natural filiation.
2. Adoption severs family ties between the adopted child and his
family of origin, except in the cases referred to in Article 235-32.1. a
and b, where family ties are maintained with the family of the
replaced parent or parents.
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3. The ties between the adoptee and his family of origin are
maintained only in cases provided by law and, especially, regarding
impediments to marry and in cases where succession rights are
maintained.
4. The judicial authority, on a proposal from the responsible public
entity or the Public Prosecution, may exceptionally maintain the
personal relations of the adoptee with his family of origin in the
situations referred to in Article 235-44.4 or if there are emotional ties
which, if broken, would severely harm the interests of the minor.
ARTICLE 235-48. SURNAMES OF THE ADOPTEE
1. The person who is jointly adopted by two persons takes the
surnames of the adopters in the order given to their first common
child or, if there is none, in the order they agree or which is provided
by law. If the adopters are of the same sex and have no common
child and fail to agree the order of the surnames, the judicial
authority must decide it during the adoption process.
2. The person who is adopted by one person takes the surnames of
the adopter, except in the case referred to in Article 235-32.1. a,
where the adoptee retains the name of the parent of origin and the
rules of paragraph 1 apply. However, the parent of origin and the
adoptive parent may jointly request that the adoptee retain the two
surnames of origin as a single surname, joined by a hyphen with the
surname of the surviving parent in the first place. In this case, the
adoptee must carry this surname along with the surname of the
adopter. To carry out this union, the parent of origin replaced by the
adoption must be deceased and the adoptee must consent thereto, if
he has attained twelve years of age.
3. The order of the surnames of the person adopted by a single
person can be reversed at his request at the time of adoption. The
order established for the first child applies to the subsequent children.
4. The adult or emancipated adoptee can retain the surnames of
139

origin upon request at the time of adoption.

5. In the cases of choice of surnames or of request to invert or keep
surnames referred to in this article, the court order establishing
adoption must expressly determine the surnames of the adoptee.
ARTICLE 235-49. RIGHT TO INFORMATION ABOUT ONES ORIGIN
1. The adoptee is entitled to be informed about his origin.
2. The adoptee, after attaining majority or emancipation, may carry
out the actions aiming at establishing the identity of his biological
parents, which does not affect filiation by adoption.
3. The public administrations must provide to the adoptee, at his
request, the data available regarding his biological filiation. To this
end, a confidential procedure of mediation must be initiated, prior to
disclosure, whereby both the adoptee and his biological father and
mother must be informed of their respective family and social
situations and of the attitude expressed by the other party regarding
a possible meeting.
4. The adoptee, in the interest of his health, or his adoptive parents,
if he is a minor, may request biogenetic data from his biological
parents.
5. The rights conferred by paragraphs 2 and 3 must be exercised
without prejudice to the duty of confidentiality of the procedure.
ARTICLE 235-50. OBLIGATION TO INFORM THE ADOPTED CHILD ABOUT ADOPTION
The adoptive parents must inform the child about his adoption, once
he has sufficient maturity or, at the latest, when he attains twelve
years of age, unless this information is contrary to the interests of the
minor.

SUBSECTION SIX. TERMINATION

ARTICLE 235-51. IRREVOCABILITY AND CHALLENGE

140

1. Adoption is irrevocable.
2. The judicial authority may decide the termination of adoption in
the interests of the adoptee in the following cases:
a) If the parents were not duly involved in the adoption process for a
reason not attributable to them and they challenge the adoption
within two years after its establishment.
b) If the legal requirements for the review of final judgments are
met.
ARTICLE 235-52. EFFECTS OF TERMINATION
1. The termination of the adoption causes the restoration of the
natural filiation. The judicial authority may limit the restoration of
filiation to the parent who brought the action.
2. Previous property consequences of the adoption remain unaltered.

CHAPTER VI. PARENTAL AUTHORITY

SECTION ONE. GENERAL PROVISIONS
ARTICLE 236-1. HOLDERS OF PARENTAL AUTHORITY
Parents, in order to fulfil parental responsibilities, have parental
authority over their unemancipated minor children. Parental authority
can also be extended or recovered to be exercised over incapable
adult children.
ARTICLE 236-2. EXERCISE OF PARENTAL AUTHORITY
Parents can not be excused from exercising parental authority.
Bearing in mind the general interest of the family, they exercise it
personally in the interests of their children, according to their
personality and with a view to promoting their full development.
ARTICLE 236-3. JUDICIAL INTERVENTION
1. The judicial authority may, in any proceeding, take the measures
necessary to prevent any personal or financial damage to children
141

under parental authority. To this end, it may limit the powers of the
parents, require the provision of guarantees and even appoint a
judicial administrator.
2. The judicial authority may adopt the measures referred to in
paragraph 1 on its own motion or at the request of the children
themselves, of the parents, even when these do not hold parental
authority, of other relatives of the children up to the fourth degree of
consanguinity or to the second degree of affinity and of the Public
Prosecution.
ARTICLE 236-4. PERSONAL RELATIONS
1. Children and parents, even when the latter do not exercise
parental authority, have the right to have personal relations, unless
the first have been adopted, or unless otherwise provided by the law
or a court or administrative order, in the case of minors deprived of
parental care.
2. Children have the right to have personal relations with their
grandparents, siblings and the other persons close to them, and all
these persons also have the right to have personal relations with the
children. Parents should facilitate these relations and can only
prevent them if there is a just cause.
3. The claim of enforcement of the rights referred to in this Article, if
not

brought

in

matrimonial

proceedings,

must

be

conducted

according to the special procedure on the custody of minors. The

judicial authority may, in any case, take the measures necessary to
ensure the effectiveness of these personal relations.
ARTICLE 236-5. DENIAL,

SUSPENSION

AND

MODIFICATION

OF

PERSONAL

RELATIONS

1. The judicial authority may deny or suspend the right of the parents
or of the other persons referred to in Article 236-4.2 to have personal
relations with the children, and it may also modify the procedure for
142

the exercise thereof, if said persons fail to fulfil their obligations or if

the relation may harm the interests of the children or if there is
another just cause. There is a just cause if the children suffer sexual
abuse or physical or mental ill-treatment, or are directly or indirectly
victims of domestic or sexist violence.
2. The competent public entity may determine how personal relations
with minors deprived of parental care can be exercised and it may
also suspend them if it is in the minors interest.
ARTICLE 236-6. DEPRIVATION OF PARENTAL AUTHORITY
1. Parents can be deprived of parental authority in case of serious or
repeated failure to fulfil their obligations. There is a serious failure to
fulfil parental obligations if the minor or incapable child suffers sexual
abuse or physical or mental ill-treatment, or if he is directly or
indirectly a victim of domestic or sexist violence.
2. There is a ground for deprivation of parental authority over a
minor deprived of parental care if the parents, without sufficient
cause, show no interest in the minor or fail to comply with the
regulation of the personal relations for a period of six months.
3. Deprivation of parental authority must be pronounced in a civil or
criminal proceeding and it becomes effective when the judgement is
final, without prejudice to the possibility of ordering interim measures
suspending the exercise thereof.
4. Deprivation of parental authority may be requested by the persons
referred to in Article 236-3.2 and, in case of minors deprived of
parental care, by the competent public entity.
5. If requested in the application, ordinary guardianship can be
established in the proceedings of deprivation of parental authority,
after hearing the persons obliged by law to request establishment
thereof.
6. Deprivation of parental authority does not exempt the parents
143

from fulfilling the obligation to do everything necessary to assist the

children or to provide them maintenance in the broadest sense.
ARTICLE 236-7. RECOVERY OF PARENTAL AUTHORITY
The judicial authority must, if the interests of the children so require,
order the recovery of parental authority or, where applicable, of the
exercise thereof, if the ground for deprivation has ceased to exist.

SECTION TWO. EXERCISE OF PARENTAL AUTHORITY

ARTICLE 236-8. JOINT EXERCISE OF PARENTAL AUTHORITY
1. Parental authority over children is exercised jointly by the parents,
unless another form of exercise is agreed between them or unless
otherwise provided by the laws or by the judicial authority.
2. The following rules apply to the joint exercise of parental
authority:
a) In the acts of ordinary administration and regarding bona fide third
parties, each parent is presumed to be acting with the consent of the
other.
b) For the acts of extraordinary administration, parents must act
together or, when acting individually, they must act with the express
consent of the other parent. Acts of extraordinary administration are
those requiring court approval.
c) For acts of urgent need or which, according to social practices or
family circumstances, are usually performed by one person alone,
either parent without distinction can act.
ARTICLE 236-9. EXERCISE

OF PARENTAL AUTHORITY WITH DISTRIBUTION OF

FUNCTIONS OR INDIVIDUALLY WITH THE CONSENT OF THE OTHER PARENT

1. Parents may agree that one of them shall exercise parental

authority with the consent of the other or that they shall both
exercise it with a distribution of functions.

144

2. For the purposes of the provisions of paragraph 1, parents may

grant general or special powers of attorney, which can be revoked at
any time. General powers of attorney must be granted in a public
deed and must be revoked by notarial notice.
ARTICLE 236-10. EXCLUSIVE EXERCISE OF PARENTAL AUTHORITY
Parental authority is exercised exclusively by one parent in cases of
impossibility, absence or incapacity of the other parent, unless
otherwise provided by the judgment declaring incapacity, and when
the judicial authority so provides in the interest of the children.
ARTICLE 236-11. EXERCISE

OF PARENTAL AUTHORITY IN CASE OF SEPARATE LIFE

OF THE PARENTS

1. When parents live separately, they can agree to maintain the joint
exercise of parental authority, to delegate its exercise to one of them
or to distribute its functions as established by Article 236-9.1.
2. Parents may submit the agreements referred to in paragraph 1,
and

also

the

agreed

parenting

plan,

to

court

approval.

The

agreements must be approved provided they are not harmful to the

children, taking account, to the extent applicable, of the criteria for
the award of custody set out in Article 233-11. The agreements are
binding upon approval.
3. Delegation or distribution agreements, when not incorporated into
a separation agreement approved by court, must be formalised in a
public deed and may be revoked at any time by notarial notice.
4. In case of disagreement on the exercise of parental authority,
either parent can bring the case before the judicial authority, which
must rule after hearing the other parent and the children if they are
twelve years of age or over or if, although younger, they have
enough discernment.
5. Custody is the responsibility of the parent with whom children are
at all times, whether they ordinarily reside with him, de facto or de
145

jure, or whether they are in his company as a result of the regulation

of personal relations which has been established.
6.

The

parent

exercising

parental

authority,

unless

otherwise

provided by the judicial authority, needs the express or implied

consent of the other parent to decide on the type of education of the
children, to change their address if this sets them apart from their
usual

environment

and

to

perform

acts

of

extraordinary

administration of their assets. It is understood that consent is implied

if, within thirty days from the duly attested notification made in order
to obtain such consent, the parent not exercising parental authority
has not expressed his disagreement as provided for by Article 23613.
ARTICLE 236-12. DUTY TO INFORM
1. When the exercise of parental authority has been granted to one
parent or distributed between both, the parent exercising it must
immediately inform the other of any important event regarding the
care of the child and the administration of his property and,
ordinarily, at least every three months.
2. The parent who has the child in his company has the same duty to
inform referred to in paragraph 1 regarding events occurred during
the exercise of personal relations.
ARTICLE 236-13. DISAGREEMENTS
1. In case of occasional disagreement in the exercise of parental
authority, the judicial authority, at the request of either parent, must
give one of them the power to decide.
2. If disagreements are repeated or if the joint exercise of parental
authority is seriously affected by any reason whatsoever, the judicial
authority may grant all or part of the exercise of parental authority
separately to the parents, or it may temporarily distribute these
functions between both parents for a maximum period of two years.
146

3. In the proceedings arising from disagreements in the exercise of

parental authority, parents may submit disagreements to mediation.
The judicial authority can also refer them to an information session
for the same purpose.
ARTICLE 236-14. POWERS OF THE SPOUSE OR STABLE PARTNER OF THE PARENT
1. The spouse or stable partner of the parent who has custody of the
child at all times has the right to participate in the decision-making
process on matters concerning his daily life.
2. In case of disagreement between the parent and the spouse or
stable partner of the parent, the will of the parent prevails.
3. In case of an imminent risk to the child, the spouse or stable
partner of the parent who has custody of the child can take the
measures necessary for the welfare of the child, and he must
immediately inform his spouse or stable partner, who must inform
the other parent.
ARTICLE 236-15. AWARD

OF CUSTODY OF THE CHILD IN CASE OF DEATH OF THE

SPOUSE OR STABLE PARTNER

1. In case of death of the parent who had been awarded the exclusive
custody of the child, the other parent regains custody.
2. The judicial authority, having examined the report of the Public
Prosecution, can exceptionally award custody and the other parental
responsibilities to the spouse or stable partner of the deceased parent
if the child's interests so require and if the following conditions are
met:
a) The spouse or cohabiting stable partner of the deceased parent
must have lived with the minor.
b) The other parent and the child must be heard in accordance with
the provisions of Article 211-6.2.
3. The spouse or cohabiting stable partner of the deceased parent
who is not entitled to be awarded custody in accordance with
147

paragraph 2 may, if the child's interests so require, request the

judicial authority to establish a regulation of personal relations, if he
lived with the child for the last two years.
ARTICLE 236-16. MINOR PARENTS
1. To exercise parental authority, the minor father and mother need
the assistance of their respective parents or of their parent exercising
parental authority or, if there is none, of their guardian or curator.
2 The assistance referred to in paragraph 1 is not required in the
following cases:
a) When the minor parent is married to an adult and the children are
common.
b) When the minor parent is emancipated and is sixteen years of age
or over.
3. In case of disagreement between the persons who must give
assistance or between them and the minor with parental authority, or
in case of impossibility to provide assistance, judicial authorisation is
required.

SECTION THREE. CONTENT OF PARENTAL AUTHORITY

ARTICLE 236-17. RELATIONS BETWEEN PARENTS AND CHILDREN
1. Parents, by virtue of their parental responsibilities, must care for
their children, provide them maintenance in the broadest sense, live
with them, educate them and provide them comprehensive training.
Parents also have the duty to administer the property of their children
and to represent them.
2. Parents determine the place or places where their children reside,
which may be a place other than the family dwelling if there are
sufficient reasons.
3. Parents and children must respect each other. The children, while

148

under parental authority, must obey their parents, unless the latter
try to impose shameful or criminal behaviour.
4. Parents can discipline the children under their parental authority in
a proportionate, reasonable and moderate manner, with full respect
for their dignity.
5. For the purposes of the provisions of paragraphs 3 and 4, parents
may exceptionally request the assistance and intervention of the
public authorities.
ARTICLE 236-18. LEGAL REPRESENTATION
1. The exercise of parental authority over children involves their legal
representation.
2. The following acts are excluded from the legal representation of
children:
a) Those relating to personality rights, unless otherwise provided by
the laws governing such rights.
b) Those concerning goods or services which are proper to the age of
the children, according to social practices, and, in case of extended or
recovered parental authority, those which may be performed by the
child in accordance with his natural capacity.
c) Those where a conflict of interest exists between both parents or
between the parent exercising parental authority and the children.
d) Those relating to assets excluded from administration by parents.
ARTICLE 236-19. PERSONAL PERFORMANCE
Any act involving any personal performance of the child requires the
consent of the latter if he is twelve years of age or over or if,
although younger, he has enough discernment.
ARTICLE 236-20. CONFLICT OF INTEREST
When in any matter there is a conflict of interest between children
and parents, and both parents exercise parental authority, the child is
149

represented by the parent with whom there is no conflict of interest.

If such conflict is with both parents or with the parent exercising
parental authority, a guardian ad litem must be appointed pursuant
to the provisions of Article 224-1.
ARTICLE 236-21. ADMINISTRATION OF PROPERTY
1. The parents who exercise parental authority must administer the
property

of

the

children

with

due

diligence

and

as

good

administrator, according to the nature and characteristics of the

property.
2. The fruits and revenues generated by the assets and rights of the
children, and also the profits derived from their own work and the
assets or rights generated thereby, belong to the children.
ARTICLE 236-22. CONTRIBUTION OF CHILDREN TO FAMILY EXPENSES
1. Children have a duty to make a proportional contribution to family
expenses while living with the family, with the incomes derived from
their work, with the revenues generated by their assets and rights
and through their work in the interest of the family, provided that this
duty is not contrary to equity.
2. Parents can spend the fruits of the assets and rights under their
administration to meet family expenses in an appropriate proportion.
3. If some assets and rights of the children are not administered by
the parents, the administrator thereof must turn over to the parents,
or to the parent exercising parental authority, in an appropriate
proportion, the fruits and revenues from said assets and rights. Fruits
from assets and rights assigned specifically to the education or
training of the child are excepted therefrom, and only the share of
these fruits exceeding the education or training needs of the child
must be turned over or, if parents have no other means of living, the
share determined in equity by the judicial authority.
ARTICLE 236-23. EXERCISE OF ADMINISTRATION
150

1. In the administration of the assets and rights of their children,

parents are exempted from making an inventory and are responsible
for the damages caused by fraud or negligence to the interests they
administer.
2.

Parents

are

not

entitled

to

remuneration

by

reason

of

administration, but they are entitled to compensation, to be borne by

the administered property if compensation can not be obtained
otherwise, for any costs and damages caused by administration, if
not attributable to fraud or negligence.
ARTICLE 236-24. SUBMISSION OF ACCOUNTS
1. At the end of administration, parents must return the administered
property. Restitution costs are borne by the administered property.
2. Parents must submit the accounts of their administration upon
termination thereof at the request of the child and, as the case may
be, of his legal representative. In this case, the accounts must be
submitted within six months from the date of the request. The judicial
authority may extend such period, for just cause, for a further period
of three months.
3. The action to enforce the obligation provided for in paragraph 2
lapses after three years.
ARTICLE 236-25. ASSETS EXCLUDED FROM ADMINISTRATION
In addition to the case of the judicial administration provided for in
Article 236-3.1, the following assets and rights are excluded from
administration by parents:
a) Those acquired by the child by way of gift or inheritance if the
donor or the deceased explicitly specified it, in which case it must be
strictly adhered to such specifications regarding the administration of
these assets and the allocation of their fruits.
b) Those acquired by way of inheritance, if one parent or both have
been justly disinherited or have been declared unworthy of inheriting.
151

c) Those acquired by the child, if sixteen years of age or over,

through a profit-generating work.
ARTICLE 236-26. SPECIAL ADMINISTRATION
1. The assets and rights referred to in Article 236-25 must be subject
to special administration by a person designated by the donor or
deceased. In the absence of designation, they must be administered
by the parent who was not excluded, where applicable, or, ultimately,
by a person appointed by the judicial authority for that purpose.
2. Children who acquire assets through their work have, if sixteen
years of age or over, the power to administer them with the
assistance of their parents in the cases referred to in Article 236-27.
ARTICLE 236-27. ACTS REQUIRING COURT APPROVAL
1. The parents or, where applicable, the special administrator require
court approval, concerning assets or rights of the children, to perform
the following acts:
a) To alienate immovable property, commercial establishments,
intellectual

or

industrial

property

rights

or

other

assets

of

extraordinary value as well as to encumber them or subrogate preexisting encumbrances unless the encumbrance or subrogation is
made to finance the acquisition of such assets.
b) To alienate real rights over the assets referred to in point a or to
waive them, with the exception of redemptions of emphyteusis.
c) To alienate or encumber securities or shares. No authorisation is
required, however, to alienate publicly traded shares for at least their
quoted market price, or to alienate pre-emption rights.
d) To waive claims on credits.
e) To renounce gifts, inheritances and bequests; to accept bequests
and conditional or onerous gifts.
f) To lend and borrow money, unless this is to finance the acquisition

152

of an asset.
g) To grant leases on immovable property for a period exceeding
fifteen years.
h) To act as a guarantor and to provide sureties regarding third party
obligations.
i) To become a partner in companies which do not limit the liability of
their partners, and to create, wind up, merge or divide these
companies.
j) To renounce, assent to or abandon claims, or to reach a settlement
on issues related to the assets or rights referred to in this paragraph.
2. No court approval is required concerning assets acquired by way of
gift or inheritance if the donor or the deceased expressly excluded
such approval.
ARTICLE 236-28. COURT APPROVAL
1. Court approval is granted in the interest of the children in case of
duly justified benefit or need, after hearing the Public Prosecution.
2. Court approval may not be granted in general. However, general
approval may be granted for various acts of the same nature or
relating to the same economic activity, be they current or future. In
all cases, the circumstances and basic features of said acts must be
specified.
ARTICLE 236-29. DENIAL OF THE RENUNCIATION OF GRATUITOUS ACQUISITIONS
The denial of court approval for the renunciations referred to in
Article 236-27.1.e constitutes acceptance of the transfer.
ARTICLE 236-30. ALTERNATIVE AUTHORISATIONS
Court approval may be replaced by the consent to the act, granted in
a public deed:
a) By the child, if sixteen years of age or over.
b) By the two closest relatives of the child, in the manner prescribed
153

by Article 424-6.1.a.
ARTICLE 236-31. LACK OF AUTHORISATION
1. The acts specified by Article 236-27 are voidable if they have been
performed without court approval or without the requirements of
Article 236-30.
2. The action to challenge the acts specified by Article 236-27 lapses
four years after the time when the children have attained majority,
have been emancipated, or have recovered capacity by court order.

SECTION FOUR. TERMINATION OF PARENTAL AUTHORITY

ARTICLE 236-32. GROUNDS FOR TERMINATION
Without prejudice to the provisions of Article 236-6, parental
authority terminates on the following grounds:
a) Death or declaration of death of both parents or of the children.
b) Adoption of the children, unless adopted by the spouse or stable
partner of the parent.
c) Emancipation or majority of the children.
d) Declaration of absence of the parents or children.

SECTION FIVE. EXTENSION AND RECOVERY OF PARENTAL AUTHORITY

ARTICLE 236-33. EXTENSION
The judicial declaration of incapacity of the unemancipated minor
children causes the extension of parental authority when they attain
majority, under the terms of said declaration.
ARTICLE 236-34. RECOVERY
1. The judicial declaration of incapacity of adult or emancipated
children causes the recovery of parental authority under the terms of
said declaration.

154

2. Notwithstanding the provisions of paragraph 1, parental authority

shall not be recovered if the incapable himself designated a guardian
or curator, in accordance with the provisions of this Code, or if
guardianship or curatorship must be exercised by the spouse, the
stable partner or the adult descendants of the incapable person.
ARTICLE 236-35. ESTABLISHMENT OF GUARDIANSHIP OR CURATORSHIP
The judicial authority, notwithstanding the provisions of Articles 23633 and 236-34, taking account of the age and personal and social
circumstances of the parents, the degree of impairment of the
incapable child and his personal relations, can deny the extension or
recovery of parental authority and order the establishment of
guardianship or curatorship.
ARTICLE 236-36. TERMINATION
1. The extended or recovered parental authority terminates on the
following grounds:
a) Those established by Article 236-32, subject to the provisions of
Article 236-6.
b) Judicial declaration of cessation of incapacity of the child.
c) Subsequent establishment of guardianship exercised by the
spouse, the stable partner or the descendants.
d) Marriage of the incapable with an adult capable person.
e) Application of the persons exercising the extended parental
authority, granted by court order, if their personal and social
circumstances and the degree of impairment of the incapable child
prevent them from properly exercising their duties.
2. If incapacity still exists when the extended or recovered parental
authority

terminates,

guardianship

or

curatorship

must

be

established.

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CHAPTER VII. FAMILY MAINTENANCE

ARTICLE 237-1. CONTENT
Maintenance means all that is indispensable for the maintenance,
housing, clothing and medical care of the person maintained, as well
as the costs of education if such person is a minor, and the costs to
continue education after attaining majority, if education was not
interrupted before for a cause not attributable to the person
maintained,

and

provided

he

maintains

proper

academic

performance. Maintenance also includes funeral expenses, if not

otherwise covered.
ARTICLE 237-2. OBLIGORS
1. Spouses, descendants, ascendants and siblings are liable to
provide maintenance.
2. The duties of care between spouses and between parents and
children are covered by the specific regulation governing them and,
subsidiarily, by the provisions of this chapter.
3. Adult non-disabled siblings are only entitled to the maintenance
needed for a living.
ARTICLE 237-3. EXEMPTION FROM LIABILITY TO PROVIDE MAINTENANCE
Persons

recognised

as

disabled

are

exempt

from

providing

maintenance to their relatives, unless their possibilities exceed their

expected future needs, taking account of their degree of disability.
ARTICLE 237-4. RIGHT TO CLAIM MAINTENANCE
Maintenance may only be claimed by the person needing it or, where
applicable, by his legal representative and by the public or private
institution housing him, provided the needs arise from a cause not
attributable to such person and while the cause exists.
ARTICLE 237-5. ENTITLEMENT TO MAINTENANCE
1. Entitlement to maintenance arises from the moment it is needed,
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but it can not be claimed for the period prior to the date of the
judicial or extrajudicial claim.
2. Maintenance for minor children may be requested for the period
prior to the judicial or extrajudicial claim, up to a maximum of one
year, if the claim was not brought for a reason attributable to the
person liable to provide maintenance.
ARTICLE 237-6. HIERARCHY OF CLAIMS
1. The claim for maintenance, where necessary and when several
persons are liable, must be made in the following order:
First. To the spouse.
Second. To the descendants, according to the order of proximity in
the degree of kinship.
Third. To the ascendants, according to the order of proximity in the
degree of kinship.
Fourth. To the siblings.
2. If the resources and possibilities of the persons primarily liable to
provide maintenance are not sufficient, maintenance can be claimed,
to the extent necessary, from the persons liable to a lesser degree.
ARTICLE 237-7. PLURALITY OF OBLIGORS
1. Liability to provide maintenance, where there is more than one
obligor, must be distributed among the obligors according to their
financial resources and possibilities. However, exceptionally, taking
account of the circumstances, the judicial authority may impose to
one obligor the obligation to provide all maintenance for the time
needed. Such obligor may claim to any other obligor the share for
which the latter is liable, with legal interest.
2. When the obligation ends or the amount of maintenance due by
any obligor is lowered, the amount due by the other obligors is
increased to the extent provided for in paragraph 1.

157

ARTICLE 237-8. PLURALITY OF CLAIMS

If two or more persons claim maintenance to the same obligor and
the latter lacks sufficient means to meet all the claims, the hierarchy
established by Article 237-6 must be followed, unless the claimants
are the spouse and a child under parental authority of the obligor. In
this case, the children must be given preference.
ARTICLE 237-9. AMOUNT
1. The amount of maintenance is determined in proportion to the
needs of the person maintained and the financial resources and
possibilities of the obligor or obligors. The parties, by mutual
agreement, or the judicial authority may lay the basis for the annual
update of the amount of maintenance in accordance to the changes in
the consumer price index or a similar index, without prejudice to the
possibility of determining other additional bases for the update.
2. The person maintained must notify the obligor the changes in
circumstances which result in the reduction or elimination of
maintenance as soon as these occur.
ARTICLE 237-10. COMPLIANCE WITH THE OBLIGATION
1. Maintenance obligations must be met in money, in monthly
advanced instalments. If the maintenance obligee dies, his heirs need
not repay the allowance for the month in which death occurred.
2. The maintenance obligor may choose to meet maintenance by
hosting and maintaining at his home the person entitled to receive
maintenance, unless the latter opposes for a reasonable cause or if
cohabitation is impossible. If there are several obligors and more
than one is willing to host the obligee, the judge must decide which
obligor shall host the obligee after hearing the person maintained and
the various obligors. If the obligee has full legal capacity and more
than one person is willing to host him, the wishes of the obligee are
given preference.
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3. The judicial authority, taking account of the circumstances, can

take

the

measures necessary

to

ensure

compliance

with the

obligation to provide maintenance, if the obligor repeatedly failed to

perform a payment.
ARTICLE 237-11. PROVISION OF MAINTENANCE BY THIRD PARTIES
1. The public or private institution or any other person providing
maintenance, when the obligor fails to do so, may claim from the
latter or his heirs the allowances for the current year and the
previous year, with legal interest, and it is automatically subrogated,
up to the amount indicated, to the rights that the person maintained
has against the obligor, unless it is established that maintenance was
provided benevolently and with no intention to claim it back.
2. At the request of the public or private institution or of the persons
that provide maintenance when the obligor fails to do so, or at the
request of the Public Prosecution, the judicial authority can take
appropriate measures to ensure reimbursement of advances. It can
also take appropriate measures to ensure future maintenance
payments, after hearing the person maintained and the obligors.
ARTICLE 237-12. CHARACTERISTICS OF THE RIGHT TO MAINTENANCE
1. The right to maintenance can not be waived, transferred and
seized, and it can not be offset by the credit which the obligor, where
appropriate, may have against the person maintained.
2. The person maintained may offset, waive, and compound
allowance

arrears

subsequent

to

the

date

of

his

judicial

or

extrajudicial claim, and he may also transfer, in any manner, the

right to claim them, all without prejudice to the right of recourse
recognised by Article 237-11.1.
ARTICLE 237-13. TERMINATION
1. The maintenance obligation terminates on the following grounds:
a) Death of the person maintained or of the obligor or obligors.
159

b) Divorce and annulment of marriage.

c) Reduction in the income and property of the obligors, whereby the
obligation can not be fulfilled without neglecting their own needs and
the rights of the persons with preferential right to maintenance.
d) Improvement of the living conditions of the person maintained,
whereby maintenance ceases to be necessary.
e) The fact for the person maintained, even if not a forced heir, to be
liable to be disinherited under Article 451-17.
f) Deprivation of parental authority over the obligor, if the person
maintained is one of the parents.
2. The grounds referred to in paragraph 1.e have no effect in case of
pardon by the obligor or reconciliation between the parties.
ARTICLE 237-14. SUBSIDIARITY
The provisions of this chapter apply subsidiarily to the maintenance
obligations provided for in a will or codicil, to those entered into by
agreement and to legal maintenance obligations subject to specific
regulations, concerning any matter not established by the wills,
codicils and agreements or the relevant regulation.

TITLE IV. RELATIONS OF COHABITATION FOR MUTUAL ASSISTANCE

ARTICLE 240-1. LEGAL STATUS
Two or more persons with the same main residence who share the
common expenses or the housework, or both, without consideration
and with a commitment to persistence and mutual assistance, are
considered as having a relation of cohabitation for mutual assistance,
governed by the agreements they have entered into or, in the
absence thereof, as established by this title.
ARTICLE 240-2. PERSONAL REQUIREMENTS
1. Relations of cohabitation for mutual assistance can be formed by
160

adult persons with ties of kinship in the collateral line of any degree
and by those who simply have ties of friendship or companionship,
provided they are not married or they do not cohabit with a stable
partner.
2. The maximum number of cohabiting persons, if not relatives, is
four.
ARTICLE 240-3. ESTABLISHMENT
Relations of cohabitation for mutual assistance can be established by
a public deed, which confers them full effectiveness, or after two
years of cohabitation.
ARTICLE 240-4. AGREEMENTS
1. Cohabitants can validly regulate, with freedom of form, their
personal and property relations, and their respective rights and
obligations during cohabitation, provided that such agreements do
not harm third parties. In particular, they can stipulate that the
contribution to common expenses shall be equal or unequal, and
even that the housework and the financial burden shall be borne
entirely by one of the cohabitants.
2. In anticipation of a breakdown, the cohabitants may stipulate the
effects of the termination of the relation of cohabitation for mutual
assistance.
ARTICLE 240-5. TERMINATION OF RELATIONS OF COHABITATION
1. Relations of cohabitation terminate on the following grounds:
a) Agreement of all cohabitants.
b) Unilateral will of one member.
c) Death of one of the cohabitants.
d) The grounds agreed upon by the cohabitants.
2. If the relation of cohabitation was established between more than
two persons, such relation is not terminated by the unilateral will,
161

marriage, establishment of stable partnership or death of any of the

cohabitants if the other members continue to cohabit, without
prejudice to the possibility of amending, to the extent considered
appropriate, the agreements regulating cohabitation.
3. The termination of the relation of cohabitation annuls the powers
of attorney granted by any cohabitant to the others. Similarly, the
powers of attorney granted by one member to any other member or
granted to him are null once he ceases cohabitation.
ARTICLE 240-6. EFFECTS

OF

THE

TERMINATION

OF

THE

RELATION

OF

COHABITATION ON THE DWELLING

1. If the termination of the relation of cohabitation occurs during the

lifetime of all cohabitants, those who do not own the dwelling must
leave it within three months.
2. If the termination of the relation of cohabitation is caused by the
death of the owner of the dwelling, cohabitants may remain there for
six months, unless otherwise agreed.
3. If the deceased was a tenant of the dwelling, cohabitants are
entitled to subrogation to the rights of the tenant for a period of one
year, or for the time remaining to the expiry of the contract, if
shorter. To this end, cohabitants must notify it to the landlord, within
three months from the death of the tenant.
ARTICLE 240-7. PERIODIC ALLOWANCE IN CASE OF DEATH
1. Upon termination of cohabitation by the death of one of the
cohabitants, the surviving cohabitant or cohabitants which were
wholly or partly maintained by the predeceased during the year prior
to the death and have no sufficient financial resources to support
themselves, are entitled to maintenance, to be borne by the heirs of
the predeceased, for a maximum period of three years.
2. To determine the amount and duration of the periodic allowance
upon the death of one of the cohabitants, account must be taken of
162

the following:
a) The cost of maintenance.
b) The period during which the surviving cohabitant or cohabitants
were maintained.
c) The estate of the deceased.
3. Capitalisation of the periodic allowance in case of death at the legal
interest rate may not exceed half the value of the estate if the heirs
are descendants, ascendants or collateral relatives up to the second
degree of consanguinity of the deceased. If the heirs are minor or
disabled, the limit is one fifth of the value of the estate.
4. No right to periodic allowance in case of death arises if so agreed
by the parties at the time of the establishment of the relation of
cohabitation, and such right terminates if during the prescribed
period the beneficiary marries or starts living maritally with another
person or obtains maintenance from persons liable to provide it.
5. The right to periodic allowance in case of death must be claimed
within one year from the termination of the relation of cohabitation.

ADDITIONAL PROVISIONS
FIRST ADDITIONAL PROVISION. REGISTRY OF PROTECTED ESTATES
1. A Registry of protected estates is established, attached to the
department responsible for civil law through the management body
competent in this matter.
2. The following information must be recorded in the Registry of
protected estates:
a) Deeds of settlement of protected estates and amendments thereto.
b) Deeds of transfer of assets to protected estates established and
recorded in the Registry.
c) Changes of administrator of protected estates recorded in the
163

Registry.
d) Temporary or permanent measures taken by the judicial authority
regarding the administration of protected estates recorded in the
Registry.
3. The organisation, functioning and publicity of the Registry of
protected estates shall be determined by regulation.
SECOND ADDITIONAL PROVISION. MEASURES TO RECONCILE WORK AND FAMILY LIFE
DIRECTED AT THE STAFF OF THE

CATALAN

PUBLIC ADMINISTRATION WHO COHABIT

WITH A STABLE PARTNER

1. Measures to reconcile work and family life applicable to the Catalan

public administration and provided by law for cohabitants refer to
stable partnerships, regulated by Article 234-1 of the Civil Code.
2. The existence of a stable partnership can be proven by the public
deed referred to in Article 234-1.c of the Civil Code or by an affidavit
showing continuous cohabitation for two years or for a shorter period
if, after starting to cohabit, the cohabitants had a common child.
THIRD

ADDITIONAL PROVISION.

SPECIAL

PROCEDURES REGARDING CLAIMS FOR

LIQUIDATION OF PROPERTY REGIME MADE IN MATRIMONIAL PROCEEDINGS

1. In matrimonial proceedings, the following rules must be applied to

determine compensation by reason of work, and also ownership of
assets,

if

this

is

necessary

to

determine

the

entitlement

to

compensation and the amount thereof:

a) The claim or, where applicable, the counterclaim must be
accompanied by a draft inventory including ones own assets and the
assets of the other spouse, with an indication of their value, and the
amount of liabilities, and also available documents relating to
property. At the request of the counterclaimant, the judicial authority
may, stating the reasons therefor, extend by a non-renewable period
of ten days the period to file a response to the claim, so that the
counterclaimant may prepare the draft inventory.
164

b) If the parties are unable to access important information to

substantiate their claims, they may request the judicial authority,
before the hearing, to obtain such information by using the means
available.
2.

To

determine

matrimonial

the

property

participation
regime

credit

of

or

community,

to

liquidate

the

the

procedure

established by Articles 806 to 811 of State Act 1/2000, of 7 January,

of civil procedure, must be followed. This procedure must also be
applied to divide assets in ordinary undivided co-ownership in the
case referred to in Article 232-12.2.
FOURTH

ADDITIONAL PROVISION.

SPECIAL

PROCEDURES REGARDING FINANCIAL

AND MATRIMONIAL CLAIMS MADE IN PROCEEDINGS OF LIQUIDATION AND DIVISION

OF INHERITANCE

1. In case of dissolution of marriage by death, the surviving spouse

may bring an action of division of common property for the assets
owned in ordinary undivided co-ownership and request to determine
the financial compensation by reason of work, in accordance with the
procedure laid down by Articles 782 to 789 of State Act 1/2000,
except regarding compensation, which is regulated by Article 23211.2 of the Civil Code.
2. The agreement reached or the judgement delivered in the
proceedings of division of inheritance must include the determination,
liquidation and division of the assets owned by the spouses in
undivided co-ownership during marriage, and, where appropriate, the
financial compensation by reason of work, established as a debt to
the surviving spouse to be borne by the heirs.
FIFTH

ADDITIONAL PROVISION.

PROCEDURE

FOR THE BREAKDOWN OF STABLE

PARTNERSHIPS

1. Legal proceedings relating to the breakdown of stable partnerships

are conducted, concerning all aspects not expressly regulated by the
Civil Code, in accordance with the provisions of State Act 1/2000
165

regarding matrimonial proceedings. In these proceedings, the parties

may submit disagreements to mediation and the judicial authority can
refer them to an information session on mediation, in accordance
with the provisions of Article 233-6 of the Civil Code.
2. Claims substantiated on the provisions of Articles 234-7 to 234-14
of the Civil Code must be joined in a single proceeding. In this
proceeding, any partner may bring the action for the division of
common property regarding the assets in ordinary undivided coownership. If several assets are in ordinary undivided co-ownership
and a partner so requests, the judicial authority may consider such
assets together for the purpose of forming batches of assets and
awarding them.
SIXTH ADDITIONAL PROVISION. EXPERT OPINIONS REGARDING THE REGULATION OF
THE EXERCISE OF PARENTAL RESPONSIBILITY

1. Expert opinions regarding the regulation of the exercise of parental

responsibility primarily aim at identifying or assessing the existence
in the child, or in any parent or family member living with him, of a
mental illness or an abnormal behaviour affecting, impairing or
interfering in family relations, for the purpose of determining the
regulation of custody and personal relations. They can also aim at
adequately understanding the existing system of personal relations in
the family or the new family units where the child must integrate, and
the monitoring measures to be taken to ensure the right of the
children to maintain normal relations with their parents.
2. Opinions regarding the regulation of the exercise of parental
responsibility presented in the proceedings by the parties are
equivalent to those made by the technical team of judicial support or
by professionals appointed in its place by the judge, provided the
expert was appointed by a professional association or an organisation
recognised by the Administration based on a census of specialists so
as to ensure objectivity, impartiality and technical expertise.
166

3. If the means of evidence adduced by the parties regarding the

regulation of custody, including shared custody, and personal
relations are not sufficiently conclusive, the court may provide that a
court expert shall prepare a report. The expert must be appointed
from among specialists of the technical teams of judicial support, the
forensic medicine clinic or the appropriate professional association if
the public advisory services do not exist or can not perform this
function.
4. The specialists who are members of the technical teams providing
support to the courts or those who are designated in their place are
ancillary court staff. The authorities and the public and private
institutions, and the professionals who intervened previously with the
family, have a duty to cooperate with them. If the cooperation
requested relates to matters protected by professional secrecy, by
the right to privacy or by the rules on personal data, an explicit ruling
of the court is required.
SEVENTH

ADDITIONAL PROVISION.

SUPERVISION

NETWORK OF SOCIAL SERVICES OR THE

OF PERSONAL RELATIONS BY THE

FAMILY MEETING POINT

1. According to Act 12/2007, of 11 October, on social services, the

judicial authority may entrust the supervision of the regulation of
personal relations to the social services network, if there is a danger
or a social risk, for the purpose of monitoring the family situation.
2. The judicial authority, when deciding the intervention of a Family
Meeting Point as established by Article 233-13 of the Civil Code, must
specify the type of intervention. Supervision may include control of
the deliveries and collections of the child, monitoring of the relation
within the centre, assistance to facilitate the relation or any other
form of intervention which may be appropriate.
3. The managers of the Family Meeting Point must submit to the
judicial authority a monitoring report every three months or,
irrespective of this time limit, whenever necessary. They must
167

propose to modify the type of intervention if they consider that the

circumstances so require and they must also propose to the court to
lift the measure if they understand that the relation which is ensured
may be detrimental to the child.
4. Where there is no risk of violence, abuse or ill-treatment, the
managers of the Family Meeting Point may propose to the judicial
authority, when the parental relation is strengthened, to refer the
case to an information session on family mediation.
5. The court may delegate to the technical service of judicial support
the monitoring of the measures taken regarding the compliance with
the regulation of personal relations and its supervision.
EIGHTH

ADDITIONAL PROVISION.

INTERVENTION

OF SPECIALISTS AS ANCILLARY

COURT STAFF IN THE CONTROL OF THE PROTECTION REGIMES

For the purposes of the provisions of Article 221-5 of the Civil Code,
the judicial authority may request the intervention of specialists in
psychology, psychiatry, paediatrics, geriatrics, family medicine, work
or social education. The judicial authority may also request the
intervention

of

real

estate

agents,

economists,

auditors

or

accountants to conduct the monitoring and control of the economic

management entrusted to the holders of guardianship functions and,
specifically, to examine the appropriateness of any act of disposal and
encumbrance of the assets and rights of the protected persons.
NINTH ADDITIONAL PROVISION. INFORMATION ABOUT THE PARENTING PLAN
The Department of Justice, in collaboration with the professional
associations, must disseminate information on the parenting plan and
facilitate the development of model parenting plans suited to the
different stages of the life of children.

TRANSITORY PROVISIONS
FIRST TRANSITORY PROVISION. GUARDIANSHIP REGIMES
168

1. The protection regimes established prior to the entry into force of

this law are subject to the provisions of the Civil Code, regarding their
effects and the exercise of guardianship functions. The persons
exercising guardianship functions stay in charge if not subject to
inability under the provisions of the Civil Code. Supervisory guardians
appointed under Act 39/1991, of 30 December, on guardianship and
guardianship regimes, which continued in office under the fifth
transitory provision of Act 9/1998, of 15 July, on the Family Code,
cease to exercise their functions, without prejudice to the possibility
for the judicial authority to take the measures necessary to protect
the ward or his property.
2. The powers in anticipation of a situation of incapacity granted
under supplementary State act, prior to the entry into force of this
Act, are subject, regarding their effectiveness and exercise, to the
provisions of the Civil Code.
3. The procedures to appoint the holders of guardianship functions
and those seeking to obtain court approval to perform certain acts
must be conducted in accordance with the regulations previously in
force if they started prior to the entry into force of this Act, but, in
case of a grant of guardianship made by oneself, the judicial
authority may ignore the designation if the conditions referred to in
Article 222-9 of the Civil Code are met.
4. Guardianship councils established prior to the entry into force of
this Act remain governed by Act 9/1998.
SECOND TRANSITORY PROVISION. EFFECTS OF MARRIAGE
1. The provisions of Chapters I and II of Title III of the second book
of the Civil Code apply to marriages contracted and subsisting at the
time of entry into force of this Act, without prejudice to the provisions
of the third transitory provision regarding matrimonial proceedings
commenced earlier and with effects already pronounced by court
order.
169

2. Matrimonial property regimes and other acts agreed upon in

marriage contracts which have been entered into in accordance with
the legislation predating the entry into force of this Act have effects in
accordance with said legislation. Agreements in anticipation of a
marriage breakdown executed prior to the entry into force of this Act
remain valid, provided they meet the requirements established by the
legislation applicable at the time of execution. If the content of an
agreement

was

contrary

to

said

legislation,

such

content

is

nevertheless effective if valid under the provisions of the Civil Code.

3. The dowries, tenutes, aixovars and cabalatges, esponsalicis or
escreixos, the tantundem, the agreements of equal property and
profits and other similar rights2 established prior to the entry into
force of this Act remain governed by the recast text of the
Compilation of the Civil Law of Catalonia, adopted by Legislative
Decree 1/1984, of 19 July.
THIRD

TRANSITORY PROVISION.

EFFECTS

OF ANNULMENT OF MARRIAGE, DIVORCE

AND LEGAL SEPARATION

1. In matrimonial proceedings commenced prior to the entry into

force of this Act, the regulation in force at the time of commencement
applies. However, if both parties agree and express such agreement
at the proper stage in the proceedings, interim and final measures
may be taken and, where appropriate, the common property may be
liquidated under the provisions of the Civil Code.
2. The effects of the annulment of marriage, divorce or legal
separation pronounced under the legislation predating the entry into
force of this Act are maintained, without prejudice to the possibility of
modifying the measures if changes of circumstances have arisen in
accordance with the rules in force at the time of their adoption. These
effects continue without prejudice to the implementation of the Civil
Code in the matrimonial proceedings which may be commenced
2

N.T. : Stipulations of marriage contracts under traditional Catalan civil law.

170

between the same spouses after the entry into force of this Act.
3. Notwithstanding the provisions of paragraph 2, at the request of a
party, it may be decided to review the measures taken in relation to
the care and custody of common children or the regulation of
personal relations, the replacement of the compensatory allowance
previously granted by the transfer of a lump sum in assets or in
money, and the replacement of the judicial award of the use of the
family dwelling by a monetary payment in accordance with the
provisions of Articles 233-10, 233-17 and 233-21 of Civil Code. The
review must be conducted according to the procedure established for
the amendment of final measures.
FOURTH TRANSITORY PROVISION. STABLE COHABITATION PARTNERSHIP
1. The period of cohabitation between persons of the same or
different sex elapsed before the entry into force of this Act must be
taken into account for the purposes of calculating the period of two
years set out in Article 234-1.a of the Civil Code.
2. The provisions of Chapter IV of Title III of the second book of the
Civil Code apply to stable partnerships which, prior to the entry into
force of this book, were governed by Act 10/1998, of 15 July, on
stable partners unions.
3. Agreements between cohabitants adopted under the legislation
predating the entry into force of this Act produce effects in
accordance with said legislation. Agreements executed in anticipation
of a breakdown prior to the entry into force of this Act remain valid,
provided they meet the requirements established by the legislation in
force at the time of their adoption. If the content of an agreement
was contrary to said legislation, such content is nevertheless effective
if valid under the provisions of the Civil Code.
4. In the proceedings for the recognition of the effects of the
termination of a stable partnership commenced before the entry into
force of this Act, the regulation in force at the time of commencement
171

is applicable. However, if both parties agree and express such

agreement at the proper stage in the proceedings, interim and final
measures may be taken and, if appropriate, their common property
may be liquidated under the provisions of the Civil Code.
5. The effects of the termination of the stable partnership determined
under the legislation predating the entry into force of this Act are
maintained, without prejudice to the possibility of modifying the
measures adopted in case of changes of circumstances. However, at
the request of a party, it may be decided to review the measures
taken in relation to the care and custody of common children or the
regulation of personal relations, the replacement of the judicial award
of the use of the family dwelling by a monetary payment, and the
replacement of the compensatory allowance previously granted by
the transfer of a lump sum in assets or in money in accordance with
the provisions of Articles 234-7, 234-8 and 234-11 of Civil Code. The
review must be conducted according to the procedure established for
the amendment of final measures.
FIFTH TRANSITORY PROVISION. FILIATION
1. The provisions of Chapter IV of Title III of the second book of the
Civil Code have retroactive effects, regardless of the date of
establishment of filiation.
2. Actions for filiation arising under the legislation predating the entry
into force of this Act must comply with the time limits set by said
legislation, unless the time limit set by the Civil Code is longer. The
legal regulation and the transferability must be governed by the
legislation most favourable to the child or to the persons with legal
standing to bring such action.
3. Final decisions regarding filiation issued under the legislation
predating the entry into force of this Act shall not preclude any new
action substantiated on a provision of the Civil Code or on a fact or
evidence only admissible thereunder.
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SIXTH TRANSITORY PROVISION. ADOPTION

1. Adoptions under Act 37/1991, of 30 December, on measures for
the protection of minors deprived of parental care and on adoption,
and full adoptions established before said Act have the effects given
to adoption by the second book of the Civil Code.
2. Simple or less than full adoptions remain in existence with the
effects recognised by the legislation predating Act 37/1991. The
adoption of those persons previously subject to simple adoption may
be promoted, if the requirements of the second book of the Civil Code
are met, and in accordance with its terms, irrespective of the fact
that there has been no pre-adoptive foster care.
3. Adoption proceedings pending before the courts at the time of
entry into force of this Act must be conducted in accordance with the
previous legislation.
SEVENTH TRANSITORY PROVISION. PARENTAL AUTHORITY
The time limit set by Article 236-6.2 of the Civil Code, when claimed
as a ground for deprivation of parental authority, must be counted
from the entry into force of this Act, without prejudice to the
possibility of demonstrating the existence of a ground for deprivation
of parental authority through any other means.
EIGHTH

TRANSITORY PROVISION.

RELATIONS

OF COHABITATION FOR MUTUAL

ASSISTANCE

Relations

of

cohabitation

for

mutual

assistance

established

in

accordance with Act 19/1998, of 28 December, on situations of

cohabitation for mutual assistance, have the effects provided by Title
IV of the second book of the Civil Code, without prejudice to the
validity of the agreements regulating cohabitation entered into under
said Act 19/1998.

REPEALING PROVISION
173

The following acts are repealed:

a) Act 9/1998, of 15 July, on the Family Code.
b) Act 10/1998, of 15 July, on stable partners unions.
c) Act 19/1998, of 28 December, on situations of cohabitation for
mutual assistance.

FINAL PROVISIONS
FIRST

FINAL PROVISION.

AMENDMENTS

TO THE FIRST BOOK OF THE

CIVIL CODE

OF

CATALONIA
1. Article 121-16.a of the Civil Code is amended to read as follows:
a) In the claims made by minor or incapable persons, until they
have legal representation or until they have appointed an attorney-infact, in accordance with the provisions of Article 222-2.1, within the
scope of his functions.
2. Article 121-16.c of the Civil Code is amended to read as follows:
c) In the claims between stable partners, while cohabitation lasts.
3. A letter f is added to Article 121-16 of the Civil Code, which reads
as follows:
In the claims between the protected person and the attorney-infact, in accordance with the provisions of Article 222-2.1, within the
scope of his functions.
SECOND

FINAL PROVISION.

AMENDMENTS

TO THE FOURTH BOOK OF THE

CIVIL

CODE OF CATALONIA
1. Articles 412-3 and 412-5 of the Civil Code are amended, whereby
the term "stable union" is replaced by the term "stable partnership".
2. Articles 421-11, 422-13, 423-9, 424-1, 424-5, 424-10, 425-12,
431-2, 431-17, 441-2, 442-1, 442-2, 442-3, 442-4, 442-5, 442-6,
442-7, 451-16, 451-17, 451-26, 452-1, 452-2, 452-3, 452-4, 452-5,
452-6 and 463-2 of the Civil Code and the heading of section two of
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Chapter II of Title IV of fourth book of the Civil Code are amended,

whereby the term "stable partners union" is replaced by the term
"stable partnership".
3. Article 422-13 of the Civil Code is amended, whereby the term
"union" is replaced by "stable partnership".
4. Article 461-9.1 of the Civil Code is amended to read as follows:
1. Inheritance can be accepted and renounced by persons with
capacity to act. To renounce, emancipated minors and the persons
placed in curatorship must be assisted by the persons supplementing
their capacity.
THIRD

FINAL PROVISION.

AMENDMENTS

TO THE FIFTH BOOK OF THE

CIVIL CODE

OF

CATALONIA
1. Article 531-9.4 of the Civil Code is amended to read as follows:
4. Gifts by reason of marriage and between spouses, and gifts by
reason of death are governed, respectively, by the provisions of the
second and the fourth books.
2. Article 531-15.1.d of the Civil Code is amended to read as follows:
d) The ingratitude of the donees. The grounds for ingratitude are
acts punishable under criminal law committed by the donee against
the person or the property of the donor, his children, his spouse or
the other member of the stable partnership, and also, in general, any
behaviour with relation to said persons which is not socially
accepted.
3. Article 531-15.2 of the Civil Code is amended to read as follows:
2. Onerous gifts are revocable only in case of failure to comply with
charges.
4. Article 531-19.1 of the Civil Code is amended to read as follows:
1. The donor may establish, at a term or conditionally, that the
assets revert to the donor, his spouse, stable partner or heirs. The
175

reversion that depends on the mere will of the donors is understood

to be conditional.
5. Article 531-19.6 of the Civil Code is amended to read as follows:
6. Reversions established in favour of the donor, his spouse, stable
partner or heirs are governed, in all matters not covered by in this
article, by Article 431-27, and reversions in favour of third parties, by
the provisions relating to trusts.
6. Article 531-20.3 of the Civil Code is amended to read as follows:
3. Exercise of the power to dispose, if conditional upon the state of
need of the donor, his family or stable partner, or upon the
authorisation or consent of certain persons, must comply with what is
established in relation to these cases regarding the usufruct with
power to dispose.
7. Article 531-21.2 of the Civil Code is amended to read as follows:
2. Gifts made with encumbrances, charges or conditions to persons
under parental authority or placed in guardianship or in another
protection regime must be accepted with the intervention or
assistance of the persons determined by the second book.
8. Article 531-26.1.b and c of the Civil Code is amended to read as
follows:
b) Against the spouse or stable partner, while cohabitation lasts.
c)

Between

the

persons

bound

by

parental

authority

or

guardianship regime, or between the assisted person and the

attorney-in-fact, in accordance with the provisions of Article 222-2.1,
within the scope of his functions.
9. Article 552-11.6 of the Civil Code is amended to read as follows:
6. In the proceedings of separation, divorce or annulment of
marriage, the ordinary communities existing between the spouses
can be divided by considering as one single division the whole or part
176

of the assets subject to this regime, in accordance with Article 23212. The same principle applies in case of de facto separation or
breakdown of stable partnership.
10. Article 561-14.1 of the Civil Code is amended to read as follows:
1. A life usufruct granted jointly and simultaneously to spouses,
cohabiting stable partners or children or siblings of the grantor does
not terminate, unless otherwise provided by the deed of grant, until
the death of all beneficiaries, so that the share or the right of the
predeceased

beneficiaries

proportionally

increases

that

of

the

surviving beneficiaries.
11. Article 562-4.2 of the Civil Code is amended to read as follows:
2. Foreclosure of the asset causes the termination of the rights of
use and habitation if the beneficiaries thereof consented to the
establishment of the mortgage, without prejudice to the provisions of
Articles 233-19 to 233-24 and 234-8 concerning the family dwelling.
12. Article 565-16.c of the Civil Code is amended to read as follows:
c) In the awards of the estate upon dissolution of matrimonial
communities of property, of ordinary undivided communities between
spouses or cohabiting stable partners or by substitutive assignment
of annuity, in cases of divorce, separation or annulment of marriage
and termination of stable partnership.
13. Article 569-29.2 of the Civil Code is amended to read as follows:
2. Minor and incapable persons can only establish a mortgage if they
comply with the requirements set by this Code and the other acts
regarding the disposal and encumbrance of their assets.
14. Article 569-30 of the Civil Code is amended to read as follows:
Article 569-30
Mortgage established by spouses
Mortgages established on assets acquired with tontine clause or on
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common assets in matrimonial property regimes of community

require the consent of both spouses, unless there is an agreement or
provision expressly allowing one spouse to unilaterally dispose of the
common immovable property.
15. Article 569-31 of the Civil Code is amended to read as follows:
Article 569-31
Mortgage on the family or common dwelling
1. In mortgages established by one spouse or cohabiting stable
partner on rights or interests in the family dwelling, the other spouse
or cohabiting partner who is not the owner thereof must consent
thereto. In the absence of such consent, the owner spouse or
cohabiting partner may seek court approval, pursuant to Article 2318.
2. The spouse or the cohabiting stable partner who mortgages a
dwelling, if this is not a family or common dwelling, must expressly
state so in the deed of establishment of the mortgage. Challenge by
the other spouse or cohabiting partner, in case of a false or
misleading statement by the mortgagor, can not harm bona fide
mortgagees.
16. The heading and paragraph 1 of Article 569-32 of the Civil Code
are amended to read as follows:
Article 569-32
Mortgage of universal usufruct
1.

The

universal

usufruct

referred

to

in

Article

442-4

is

mortgageable.
17. The heading and paragraphs 1 and 7 of Article 569-36 of the Civil
Code are amended to read as follows:
Article 569-36
Mortgage in guarantee of compensatory benefits in the form of an
178

allowance
1. Spouses entitled to receive maintenance or a compensatory
benefit in the form of an allowance in case of annulment of marriage,
divorce or legal separation, may request to guarantee payment
thereof by means of a mortgage on the assets of the debtor
spouses.
7. In case of death of the person liable to pay the allowance, the
provisions of Article 233-18.2 apply.
18. Article 569-37 of the Civil Code is amended to read as follows:
Article 569-37
Mortgage in guarantee of maintenance
Among the measures necessary to ensure the obligation to provide
maintenance to relatives entitled thereto in accordance with the
provisions of this Code and at their request, the judicial authority can
require the obligor to establish a mortgage in guarantee of the
obligation, which remains subject to the provisions of Article 569-36
in all matters not contrary to the specific nature of the right to
maintenance.
FOURTH FINAL PROVISION. REFERENCES IN ACT 21/2000
From the entry into force of this Act, references to the Family Code
by Article 7 of Act 21/2000, of 29 December, on the rights to
information concerning the health and autonomy of the patient, and
clinical documentation, must be understood to refer to the provisions
of article 212-22 of the Civil Code regarding informed consent.
FIFTH FINAL PROVISION. ENTRY INTO FORCE
This Act comes into force on 1 January 2011.

179