Family Policies: Spain (2014)

Introduction
Since the beginning of the 20th century, the Spanish government has provided various forms of support for families, including benefits for widows, wives, and dependent children and parents. Family allowances were introduced in 1926 (Royal Decree Act on Subsidies for Large Working Families, BOE-A-1926-6231), but were initially targeted at large working families with eight or more children. This allowance was not based on the ages of the children, but it was income-tested. In 1938 (Act for the Creation of the Compulsory Regime on Family Subsidies, BOE-A-1938-8202) similar benefits were extended to families with two or more dependent children who were living in the household and were under age 14. During the Franco dictatorship (1936-1975), family policies were focused on reinforcing the male breadwinner family. For example, a special allowance based the number of co-resident children (under the age of 23) was provided to encourage married women who were working to return to the household (Order on the Establishment of a Family Allowance Plus applicable to companies engaged in industry and commerce, BOE-A-1945-6602, 1945). A number of other benefits for traditional families were also offered, including marriage and fertility awards, allowances for non-working wives and dependent children and parents, and subsidies for widows and orphans. 

With the transition to democracy, the social policy priorities changed radically, and public support for families was drastically reduced, as the concept of “the family” was associated with the authoritarian regime, and was therefore discredited. At that time, the main priorities were establishing a universal pension system for the elderly and assistance for unemployed adults, while the cost of raising children was seen as a private matter. Thus, policies addressing the issue of work-family balance have only recently been developed. A lifetime allowance for widowed people irrespective of gender was established in 1981 (Act on the Regulation of Marriage in the Civil Code for the Causes of Nullity, Separation and Divorce, BOE-A-1981-16216); previously, widowhood pensions were awarded to women only. Benefits for widows and orphans were extended to cohabiting families in 2007. 

With the Act on Reconciling Work and Family Life (BOE-A-1999-21568), the Popular Party sought to promote work-family balance. But while the law protected the jobs of working parents who took leave to care for family members, it did not provide a family allowance. Thus, the cost of childrearing continues to be borne nearly exclusively by families. (Delgado et al., 2008)

This failure to provide support for families can be seen in two policy frameworks for the development of new laws. The ”Complete Plan to Support the Family, 2001-2004 ”, which was approved by the Popular Party ministerial cabinet on 8 November 2001, starts with an analysis of declining fertility in Spain, and includes measures designed to guarantee the principle of demographic continuity and to enable families to fulfil their fertility desires. This last objective was also at the core of the programme of Policies for Family Welfare, presented by the winning Socialist Party in its election manifesto of 2004. However, these family policies and programmes appear to have been more symbolic than real, and have had limited impact. Recent efforts to introduce more effective policies have been undermined by budget cuts. 

From 2010 onwards (a period in which the Popular Party has had an absolute majority in the parliament), family policies have been subject to drastic cuts. Institutions and government bodies created to promote gender equality have either been dismantled or downgraded. In many senses, some of the current interventions are simply revivals of old familistic practices, based on the premise that family life is a private sphere in which the state should not interfere. Most recently, on 14 April 2014, the government of the Popular Party published a working paper titled “New Complete Plan for the Support of the Family”, and presented it to NGOs for discussion.

 

Childcare provision
In Spain, childcare services have always been provided in the context of education. Thus, childcare services provided outside the realm of education are considered the responsibility of families. The Law of General Ordering of the Educational System (LOGSE) (BOE-A-1990-24172) encouraged public administrators to guarantee that sufficient places were provided for the first (ages 0-2) and second (age 3-5) cycles of education. Parental leave was supplemented by provisions in the 2006 Royal Decree-Law of the Second Cycle of Infant Education (BOE-A-2007-185), which lowered the school age to three years (with the pre-school years defined as ages 0-2). Early education is cost-free in state schools. Thus, childcare services were guaranteed for children ages 3-5, but services continued to be insufficient for children under age three. Indeed, childcare provision for children under age three has taken on a totally different pattern, as institutional support and public funding of childcare for children under age three has been considerably weaker. Compared to pre-school education for children ages 3-5, childcare services for children ages 0-2 are not as widely available, with access varying substantially by geographic area; and the role of private (for-profit) providers has been much greater. Since the start of the 21st century, some regions have largely outsourced their childcare services, which has led to a worsening of conditions for staff.

Childcare services in pre-primary schools are provided by both the public and the private sectors. The quality of state-provided childcare services is high in terms of staff qualifications and child-to-staff ratio, and parents pay a fraction of the real cost of these services. But as there are only a very limited number of slots available, the waiting lists for these services are long. Parents may find a slot in private childcare centre that is of satisfactory quality, but these centres are often too expensive for lower income groups, as public subsidies for private childcare services were eliminated due to budget cuts. Thus, many Spanish parents are forced to rely on informal care arrangements, especially for children ages 0-3. Grandmothers are among the main providers of non-parental childcare, and are often used to supplement formal care arrangements during school holidays (Baizán, 2009). This means that in practice there are inequalities in childcare provision, as families are forced to rely on family networks. Another important feature of the day care system is the high degree of regional variability, which is partly due to the fact that regions are responsible for social and educational services. For example, schooling for children ages 0-3 in the autonomous communities (regional-level governments) is irregular and unequal, with higher participation in the Basque Country, Catalonia, Aragon, and Madrid; and lower participation in areas of southern Spain. These regional variations may also be attributable to differences in the policies promoted by different regional or even local governments. The administrative spheres and levels of responsibility for childcare vary significantly by state, region (autonomous communities), and city; and may be assigned to different departments, such as education, social welfare, or social affairs. 

As working parents often face difficulties in finding care for school-age children, some schools now offer childcare services and activities in the early morning (from 7:30 am to 9:00 am) or after school. All of these services are administered by individual parents’ associations, and are privately paid. Thus, there is a great deal of diversity in the availability of care for school-age children in Spain, with the municipality size often playing a role. 

Most recently, public funding for childcare services has been drastically cut in Spain. In the 2012 budget, financing for childcare for children under the age of three was discontinued (León & Pavolini, 2014). The new education law approved in December 2013 (Organic Law for Quality Improvement of Education, BOE-A-2013-12886) no longer mentions services for children under age three as the first stage of early education. 

According to official registers, the childcare enrolment rates in Spain in 2011-12 for children under the compulsory education age were as follows: 10% for children under age one, 32% for one-year-olds, 50% for two-year-olds, 95% for three-year-olds, 97% for four-year-olds, and 98% for five-year-olds (INE, 2014).

 

Parental leave (including maternity protection) 
Spanish women were granted 16 weeks of fully paid maternity leave in 1989 (Act on the Extension of Maternity Leave, BOE-A-1989-5272) In 2007, this period was expanded to 18 weeks for mothers of babies with disabilities and twins (Act on Effective Equity Between Women and Men, BOE-A-2007-6115). Mothers are obliged to take at least six weeks’ leave following the birth, while the remaining 10 weeks can be taken by either the mother or the father. By using their entitlement to reduce their working hours, mothers can in practice extend their maternity leave by two to four weeks. Mothers, including those who are self-employed, are permitted to take leave part-time after the six weeks following the birth (Escobedo et al., 2014).

In 1995, the Act on the Regulations of Parent and Maternity Leave (BOE-A-1995-7242) defined maternity leave as a specific social security contingency, and thus distinguished it from the temporary inability to work. The law also clarified that the parents of adopted and foster children are entitled to take leave, and that fathers may take up to 10 weeks of the maternity leave period, provided there is no risk to the mother’s health.

Maternity leave is financed by social insurance contributions from employers and employees. As a general rule, employers pay 23.6% of gross earnings and employees pay 4.7%. In the social security system, this contribution is made for “common contingencies”, a category which includes parental leave, as well as pensions and sickness leave. (Escobedo et al., 2014).

All employed women are entitled to maternity leave. To be eligible, the mother must have been making social security contributions at the beginning of the leave (either working or receiving unemployment contributory benefits) or in the first year of the parental leave, and have contributed to social security at least 180 days in the previous seven years, or at least 360 days during her working life. There are, however, some exceptions for younger women: a mother under the age of 21 does not need to have made social security contributions, and a mother between ages 21 and 26 must have made at least 90 days of social security contribution in the previous seven years or 180 days during her working life. Non-eligible employees receive a flat-rate payment for 42 days after delivery (Escobedo et al., 2014). 

In terms of family policies, the Gender Equality Law (Act on Effective Equity between Women and Men, BOE-A-2007-6115, 3/2007) substantially improved parental and maternity leave, especially for the most vulnerable groups. It increased the length of paternity leave to 13 days (with a further extension of two days in the case of multiple births) at 100% of salary. This law established for the first time a parental leave which could only be taken by the father. The Spanish law on the extension of the duration of the paternity leave in cases of births, adoption, or fostering (BOE-A-2009-15958) extended the length of the paternity leave from two to four weeks, but successive general state budget laws have delayed the implementation of this measure, which has most recently been postponed until 1 January 2016. This is the fifth postponement, and further postponements are very likely given the austerity policies, as the measure will cost an estimated 200 million euros per year. 

Parents who take leave of up to three years are legally guaranteed the right to return to their place of work (Act on the Regulations of Parent and Maternity Leave, BOE-A-1995-7242, 4/1995), and employers are prohibited from dismissing women who take maternity leave (Act on Reconciling Work and Family Life, BOE-A-1999-21568, 39/1999). There are no limits on the number or the length of the periods of leave a parent can take until the child is three years old. However, employees on temporary contracts cannot take leave beyond their contract period, and unemployed and self-employed workers are not eligible for leave (Escobedo et al., 2014). Since 2001 (BOE-A-2001-13265, Of Urgent measures to reform the labour market in order to increase employment and improve its quality), workers with children who are hospitalised or born prematurely may also reduce their working week by a maximum of two hours, with a proportional reduction in salary. Since 2007, workers have been entitled to cut back their work schedules from one-eighth to one-half (per day, per week, or per month) to care for children under the age of eight, with a proportional cut in salary (and welfare contributions) (Act on Effective Equity between Women and Men, BOE-A-2007-6115, 3/2007). In 2013 (Royal Decree Law 16/2013, BOE-A-2013-13426) this age was extended to 12 (and was included as a modification of the Worker’s Statue Act, 8/1980).

 

Family allowances 
In the 1960s and the early 1970s, the Social Security Bases Act (1963) and regulations on the General Regime of Social Security updated and expanded existing benefits for employees and dependents (that is, economically dependent wives, children under age 16—modified to age 18 years in 1968—and disabled children). In 1985 (Order for the New Application and Development of Allowances on Family Protection within the General Regime of the Social Security) equal benefits were established for all working parents with dependent children. In 1998 the Act on Income Tax and other Tax Rules (BOE-A-1998-28472) introduced a personal and family minimum deduction (which was last updated in 2008, Act on State Budget for 2009, BOE-A-2008-20744) which took into account each taxpayer’s family burden, including co-resident children under the age of 25 (with a maximum annual salary) and disabled children (based on the degree of disability). 

Income tax regulations enacted since 2000 have included special benefits for large families, lone parents, low-income households, and disabled children (based on the degree of disability). At a regional level, further tax benefits have been provided for specific groups (MSSI, 2014: 52-55). Indeed, changes in the personal income tax have had the greatest impact on family units.

In 2002 (Partial Reform of Income Tax Act, BOE-A-2002-24711), an allowance of up to 1,200 euros yearly (either as a monthly cash payment of 100 euros or as an annual deduction for the full amount from income tax) was introduced for children under the age of three, but was only granted to working mothers who were paying social security taxes (and not to mothers on leave or not in paid work). The law also provided a subsidy to firms that employed women. The stated purpose of the law was “to compensate for the social and labour costs associated with maternity”. The next government added a third one-off payment of 2,500 euros for the birth or adoption of a child—the so-called “baby check”—to all workers, including the self-employed (Act on Income Tax Deduction for Childbirth or Adoption and Payment Support for Maternity or Adoption from the Social Security, BOE-A-2007-19745). This reform was repealed in 2010 with the Royal Decree-Act on Extraordinary Measures to Reduce the Public Deficit (BOE-A-2010-8228).

 

Marriage  
The Spanish Civil Code has changed little since 1889. Among the new provisions in this code were rules allowing civil as well as canonical marriage (art. 49) and separation—which, however, only suspended living together (art. 81). The code also clarified which rights should be vested in children (art. 29). The last change to the code was made by the Law 13/2005, which extended the right to marriage to partners of the same sex (see above).

Under this law, the minimum age of marriage was set at the legal age or at the age at which minors may be emancipated. The marriage age has changed over time: from 23 as of 14 August 1889, to 21 as of 14 August 1972, and to 18 as of 17 November 1978. The 1981 Civil Code reform also established 18 as the age of majority and the minimum marriage age, although marriage was permitted at age 14 with legal or family permission (Act on Regulation of Marriage in the Civil Code for the Causes of Nullity, Separation and Divorce, 30/1981). For the marriage of minors, the judge in the first instance may waive—with just cause and at the request of one of the parties—impediments relating to age for individuals older than age 14. The minor and his or her parents or carers must be heard in the proceeding to waive the age impediment. A subsequent waiver validates the marriage from the date of its performance, assuming neither party has applied to the court to have it declared null and void. The National Strategic Plan for Children and Adolescents 2013-2016 (approved by Resolution of the Council of Ministers on 5 April 2013) expressed the intention to raise the minimum legal age from 14 to 16 years in the near future. 

Modern regulations regarding marriage formation and dissolution were introduced in Spain during the Second Republic (1931-1939). However, during the dictatorship of General Franco (1939-1975), policies shifted towards the promotion of the traditional (Catholic) family. The Spanish Constitution in 1978 stated that civil marriage has the same status as religious marriage, and that marriage is based on the equality of the spouses regarding rights and obligations. Thus, marriage partners are expected to be fully autonomous but oriented towards the family’s common interests, and to have equal rights in relation to children born either in or out of wedlock. 

The Law 13/2005 amended the civil code to permit same-sex couples the right to marry (BOE-A-2005-11364). Same-sex couples thus have full legal rights, including the right to adoption and paternity. Same-sex married couples are also subject to the same requirements and responsibilities as opposite-sex married couples

To sum up, under current Spanish law, couples are entitled to marry, regardless of sex (art. 44, Civil Code). Marriage is not permitted without matrimonial consent, and any condition, term, or mode limiting consent will be disallowed (art. 45). Non-emancipated minors and persons who are already joined in marriage may not marry (art. 46). The following persons also may not marry each other: 1) direct relatives by consanguinity or adoption, 2) collateral relatives by consanguinity up to the third degree, 3) individuals who have been convicted of murdering or being an accomplice in the murder of a spouse (art. 47) (The Minister of Justice may, however, waive this impediment. Art 48).

 

Divorce
The right to divorce was introduced in Spain under the republican Divorce Act of 2 March 1932, but was eliminated after the Spanish civil war. From 1939 to 1981, the only way to terminate a marriage was through annulment. After the repeal of the Act of Divorce in 1939, annulments became increasingly common among those who could afford them, and the number of unregulated separations and unions was growing in Spain, especially during the transition to democracy, which brought about both social and political secularisation. It was therefore generally recognised that legislation on marital separation was needed, although there were political differences about what specific reforms should be implemented. Moreover, public opinion on divorce was divided in the years following the transition. Surveys indicated that the Spanish public shifted from expressing mild support for divorce in 1978 to expressing solid support in 1980, as the need for legal divorce was debated in the political realm. During this period, left-wing parties forced the national government to keep divorce on the political agenda, and pushed for more liberal reforms, including a mutual consent clause and restrictions on the powers of judges (Blofield, 2006). 

Eventually, divorce was reintroduced by Act 30/1981 (BOE-A-1981-16216) on 7 July 1981. From 1981 to 2005, spouses had to wait a year after marrying to begin separation proceedings, and another year after separation to begin divorce proceedings. The Act 15/2005 (BOE-A-2005-11864) of 8 July 2005 eliminated the requirement to provide legal grounds for divorce, and allowed either spouse to file for divorce without a previous judicial separation. A legal separation was still possible, but was optional. This act facilitated the divorce process, as a divorce could be granted even when it was unilaterally requested, and the minimum duration of a marriage prior to filing for divorce was shortened from one year to three months. Currently, couples who file the court application jointly may do so in a non-contentious court. 

In sum, regulations on divorce in Spain changed abruptly with the Act on the Regulation of the Civil Code and the Code of Civil Procedure relating to separation and divorce (BOE-A-2005-11864). Whereas previously the dissolution of a marriage involved a lengthy and complicated divorce procedure in which fault was assigned, after the passage of this law couples could obtain a no-fault divorce following a short procedure; the so-called "divorce express" (Alascio-Carrasco and Marín-García, 2011).

 

Cohabitation 
Consensual unions are not regulated at a national level under Spanish civil law. However, the Law 21/1987 of November 11 (BOE-A-1987-25627) modified the Spanish Civil Code on adoption and family fosterage, granting cohabiting couples the same right to adopt (additional disposition 3) as married couples ("a stable couple within a relation of affection similar to that of marriage"). Moreover, the reform of the National Social Security Law (BOE-A-2007-20910, 40/2007) specifically included cohabiting partners as new beneficiaries of widowhood allowances. 

Under this law, the widow/er of a common-law marriage is entitled to an allowance as long as he or she can prove the following: 1) that the death occurred after 01/01/2008; 2) that the de facto couple were registered in one of the specific registries of the autonomous community or the town council of the place where the couple lived, or that they had signed a public record that certifies their status as a couple a minimum of two years before the date of death of the originator; 3) that the couple were in a stable and obvious cohabitation arrangement at the time of death of the originator, for an uninterrupted period of no less than five years; ) that during the period of cohabitation neither member of the couple was legally unable to enter into marriage or had a marital tie with another person; and 5) the couple’s income during the calendar year prior to the death was not more than 50% of the amount of the surviving partner’s own income plus the income of the originator in the same period, or 25% in the event that there were no common children entitled to an orphan’s pension, or was, alternatively, less than 1.5 times the amount of the minimum wage in force at the time of death. This last income requirement must apply both at the time of the causal event and during the receipt of benefits. This limit increases by 0.5 times the amount of the minimum wage in force for each common child who is entitled to an orphan’s pension and living with the survivor. Finally, any earnings from work, capital gains and assets, according to the terms under which they are calculated for the recognition of the minimum pension supplements, are counted as income (Social Security, 2014). 

Thirteen of the 17 autonomous communities have laws on cohabitation: Catalonia (Law 10/1998, BOE-A-1998-20138), Aragón (Law 10/1999, BOE-A-1999-8874), Navarra (Law 6/2000, BOE-A-2002-4374), Madrid (Law 11/2001, BOE-A-2002-4374), Balearic Islands (Law 18/2001, BOE-A-2002-917), Asturias (Law 4/2002, BOE-A-2002-13017), Andalusia (Law 5/2002, BOE-A-2003-771), the Basque Country (Law 2/2003, BOE-A-2011-18545), Canary Islands (Law 5/2003, BOE-A-2003-7683), Extremadura (Law 5/2003, BOE-A-2003-9450), Cantabria (Law 1/2005, BOE-A-2005-9402), Galicia (Law 10/2007, BOE-A-2007-16610) and Valencia (Law 5/2012, BOE-A-2012-13776). Some of these communities only recognise registered partnerships, while others recognise the existence of a partnership based on evidence of marriage-like arrangements (such as the amount of time the couple lived together, and the presence of children born while living together). Nevertheless, just seven of those communities have authority in civil matters (Galicia, the Basque Country, Navarra, Aragon, Catalonia, the Balearic Islands, and Valencia). These communities have regulated paternity among unmarried couples, and the overall tendency has been to view cohabitation as equivalent to marriage. In fact, with exception for Aragon, in those seven autonomous communities a surviving partner and a surviving spouse now have equal status (Asua, 2014). 

Nevertheless, regional laws regarding unmarried partnerships have been affected by Constitutional Court Judgments 81/2013 (11 April) and 93/2013 (23 April), which called for a system of the explicit acceptance of the legal status of partners who wish to be considered as having the same rights as a married couple (Asua, 2014). Hence, according to Asua González, the recognition of the succession rights of the cohabiting partners is unconstitutional in the vast majority of cases (Asua, 2014). The regulation of cohabitation by the autonomous communities which lack authority in civil matters thus appears to be unconstitutional.

 

Authors – Contributors
Pau Miret-Gamundi
Centre for Demographic Studies, Barcelona

Rocío Treviño
Centre for Demographic Studies, Barcelona

Pilar Zueras
Centre for Demographic Studies, Barcelona

 

Bibliography