Divorce without the rupture

For the first time in Spain, a new piece of legislation establishes shared custody as the preferred option in separation and divorce cases in which parents cannot reach a prior agreement. The new law is not national in scope, as it was approved by the regional parliament of Aragon, but it is being interpreted as a sign of things to come for the country as a whole. The new rules aim to enable men and women to share responsibility for raising their children after a marital breakup, rather than the mother being automatically awarded custody, as has been happening in the overwhelming majority of cases.

Spain's Divorce Law was reformed in 2005 under a Socialist government, but it has very little in common with the legislation passed last month by Aragonese lawmakers. Interestingly, this bill was drafted by the Regionalist Aragonese Party (PAN) and supported by all political parties save for the United Left — the only political group that actually included shared custody in its 2008 electoral program of reforms.

As national legislation stands now, over 90 percent of separation or divorce cases end with the judge granting custody of the children to the mother, who also gets the use of the family home and the right to alimony until the children are grown up. What is truly new about the Aragonese law is that this "kidshome- alimony" combination is broken, and no longer awarded as a single package as it is now in most cases, which do not take specific family circumstances into account. Instead, Aragonese parents will have to sit down and negotiate shared custody regardless of who eventually gets to use the family home and who pays more for child support.

In other words, the priority is caring for the children and deciding how long each parent will spend with them. Later, both parties can figure out who pays for what and what happens with the house.

"Children are one thing, bricks are another, and these two should be clearly separated in divorce proceedings — but current legislation does not allow it," explains Isidro Niñerola, president of the Spanish Association of Family Lawyers. For years, family court judges have also been asking for a change to Article 96 of the Civil Code, which always leads to the custodial parent being granted the use of the family home.

"We had very clear ideas about it from the beginning, and the first thing we agreed to was to share custody of our children. Later we spent seven or eight months negotiating the liquidation of our assets, until we reached a deal there too," explains Belén Lagándara, 44, a mother of two children (12 and eight years old) who has shared custody since 2007. While the children-alimonyhome combo that emerges from most rulings seems initially beneficial to mothers, in the long run it can have a boomerang effect. When the kids reach legal age, the right to child support and use of the home come to an end. And if the mother gave up her career to take care of the children, she can suddenly find herself in a dire personal and economic situation. Hundreds of women in their fifties have ended up being evicted from the homes they thought they would always occupy when their ex-husbands requested the partition of the house. Official statistics show that many women sacrifice their careers to raise their children, which only underscores the need to pass legislation that truly favors equality at all levels.

The latest EPA working population survey for the first quarter of the year shows that there were 18,394,200 working individuals in Spain, of which 44.3 percent were women. Yet women make up around 94 percent of the people who leave the job market each year for family reasons. Similarly, 94.4 percent of leaves of absence for childrearing purposes in 2008 were requested by women.

Another telling figure is the number of maternity versus paternity leaves awarded in 2009: of the 340,512 leaves, 98.32 percent corresponded to mothers, not fathers. The same survey shows that in the first quarter of this year there were 317,700 individuals with part-time jobs who cared for children, adults with illnesses or disabilities and seniors. Of these caregivers, fully 96.54 percent were women.

What statistics clearly indicate, then, is a social tendency to burden women with the task of caring for children, the sick and the elderly.

"That is why the Aragon law is important, because it is a great leap forward for the rights of women but also for the rights of men, and especially for children, who are the most important part of the equation," explains Empar Pineda, a leading figure of Spain's feminist movement.

In fact, the preamble to the new Aragonese law talks about the significant social changes of the last few decades "as a result of women's incorporation into the workplace, a fact that has created new family relations that adapt better to the shared custody model than to the individual custody model." The text goes on to say that "while it is true that there is still a long way to go, this law aims to contribute to the sociological progress of men and women."

This new scenario requires a genuine involvement on the part of men in raising their own children. After a divorce, some fathers try to keep doing what they did before the breakup, but only a tiny minority gets shared custody. The courts, in this sense, tend to feed the views that men are not prepared to raise their children properly and that minors will always be better cared for by their mothers. Thus, the men turn into "visiting fathers" who see their kids two weekends out of the month.

The psychologist José Manuel Aguilar, author of the book Con mamá y con papá (or, With mom and with dad), is a strong supporter of shared custody as the best option for the children's emotional development. In his opinion, a child's emotional stability has nothing to do with having to haul a suitcase from one house to the other.

"Kids move from one place to another, fromone adult to another, without trouble. They establish links with their various caregivers: grandparents, babysitters, assistants, teachers and parents," he explains.

Other factors that are far bigger determinants for emotional maturity include the absence of one of their parents in their lives, which is precisely what happens in many cases when the man is relegated to a "visiting father" figure.

"They are my children, but I don’t own them, because they are also their father's children. We have the mutual obligation to educate them without renouncing our personal values; if it is already hard enough raising kids between two people, raising them on your own can be a killer," says Belén Lagándara.

"Many men discover what childrearing is really like when they have to do it on their own. Some appreciate it, some not so much, because they thought it was all just about kissing their kids goodnight," she adds. The Gordian knot of the question is the fact that both the Spanish and the Aragonese laws establish that judges will ultimately decide who gets custody of the children with the minors' welfare foremost in mind. And that is where there is ample room for interpretation.

Some feminist groups, who have entire teams of specialized divorce lawyers working for them, hold that the best place for children is by their mother's side. But José Manuel Aguilar, the psychologist, insists that children need both a father and a mother in their lives, and that it is adults who are separating, not the little ones.

Seville lawyer José Luis Sariego recently completed one of the few serious studies on divorce rulings in Spain. Sariego analyzed 400 cases between 1999 and 2000 at the family court and provincial court level, which he selected randomly across several regions. In 371 of the cases, the mother got custody. In the other cases, the father was awarded custody but only because the mother was deemed incapable of rearing her children due to mental problems or a drug or alcohol addiction. There was not a single case of shared custody in all the cases analyzed by Sariego.

That is despite the fact that, until the 2005 reform of the Civil Code, nothing prevented judges from awarding shared custody if the parents did not come to a previous agreement. The reform made this option more difficult, and it is now viewed as an "exceptional" measure to be taken only if the attorney agrees to it. Judges routinely keep denying shared custody, especially if it is the father who requests it.

For now, the Justice Ministry says it is not considering a new reform. Unofficially, the Equality Ministry wants to open a debate to reform the Civil Code again, although officially it is saying nothing. Catalonia is the next region after Aragon slated to legislate on this issue, although in a more ambiguous manner. Meanwhile, several Basque institutions and a few Andalusian municipalities have asked the government for shared-custody legislation that reflects the changing times.

"The family is one of the last remaining bastions of inequality in Spanish society," says Justo Sáez, president of the National Federation of Separated Mothers and Fathers.

So what form will the new kind of settlement take? Within the shared custody system, several models exist. In fact, the whole point is to stay away from automatic solutions, and instead to analyze specific family situations. Whether the final decision is arrived at by the parties or imposed by a judge, it is more akin to a tailored suit than a prêt-à-porter outfit. Under shared custody, parents can alternate caring for their kids on specific days of the week, during entire weeks, whole months, or even school years. Some of these options require that both parents live close to each other so that the children will remain in their habitual environment and stay in the same school. This also prevents the risk of one parent changing the children's school and home without taking the other parent’s situation into account.

As for child support, the father and the mother pay when the children are staying with them. The concept includes not just food but also school fees, clothing and health costs. Despite what many men think, under the shared custody program, the parent who makes more money will still pay more for child support.

The home is generally left to the parent who makes less money in order to facilitate his or her reincorporation into the job market, but there is usually a time limit on this usage. In other cases, both parties agree to sell the property straight away, which allows them to rebuild their lives without one of the partners suffocating the other with a deadline.

"An acquaintance told me I would be stupid not to take everything, but it seemed unfair to me that there should be a winner and a loser," says Belén Lagándara. Shortly before the separation, she and her then-husband had just bought an apartment together in Madrid. She could have obtained custody of the children and left him in the lurch by forcing him to pay for half of that property. But instead, she first agreed to shared custody of the children and later negotiated the liquidation of their mutual assets.

(Published by El País – June 1, 2010)