Family Law in Spain: Contractualisation or Individualisation?

Abstract

Contractualisation is widely considered one of the major trends in current Western Family Law. Regarding Spanish Law, this statement is correct in many Family Law aspects regarding substantial Law. But there is also a complementary, sometimes contradictory trend, towards the individualisation of Family Law, as an outcome of the legal changes introduced in Spanish Family Law in 2005: same-sex marriage (13/2005 Act) and divorce on demand (15/2005 Act). After these reforms, the will of the individuals plays an important, even decisive role, both in vertical and horizontal Family relationships: for instance, in the establishment of legal filiation links, not only in the well known cases of recognition of paternity or maternity, but also in filiation coming from the use of reproductive technologies; or in the dissolution of marriage through the divorce on demand, in which the sole will of only one of the spouses is enough to end the marriage, transforming marriage itself, from the legal point of view, from more than a contract to less than any contract.