JUAN CARLOS I REY OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following law.

I

The relationship and coexistence of a couple, based on affection, is a genuine expression of human nature and constitutes a prominent channel for the development of the personality, which our Constitution establishes as one of the foundations. of political order and social peace. In line with this, a marked manifestation of this relationship, as is marriage, is to be collected by the Constitution, in its article 32, and considered, in terms of our constitutional jurisprudence, as a legal institution. of social relevance that allows to realize the common life of the couple.

This constitutional guarantee of marriage has as a consequence that the legislator will not be able to ignore the institution, nor to cease to regulate it in accordance with the higher values of the legal system, and with its character of the right of the person based on the Constitution. It will be the law that develops this right, within the margin of options opened by the Constitution, which, in every historical moment and according to its dominant values, will determine the required capacity to marry, as well as its content and legal status. The regulation of marriage in contemporary civil law has reflected the dominant models and values in European and Western societies. Its origin lies in the French Civil Code of 1804, of which the Spaniard of 1889 is undeniably responsible. In this context, marriage has been set up as an institution, but also as a legal relationship that has only been established between people of different sex; in fact, in such a sex difference one has traditionally found one the foundations of the institution's recognition for the right of the state and for canon law. Therefore, the codes of the last two centuries, reflecting the dominant mentality, did not require a ban, or even reference, on same-sex marriage, since the relationship between them in any way was considered to be place of a marriage legal relationship. However, it is not for the legislator to ignore the obvious: that society evolves in the way of shaping and recognizing the various models of coexistence, and that, therefore, the legislator can, even, act accordingly, and avoid any bankruptcy between the law and the securities of the company whose relations are to be regulated. In this sense, there is no doubt that the Spanish social reality of our time becomes much richer, plural and dynamic than the society in which the Civil Code of 1889 arises. Cohabitation as a couple of people of the same sex based on affectivity has been the object of recognition and growing social acceptance, and has overcome entrenched prejudices and stigmatizations. It is admitted today without difficulty that this coexistence in a couple is a means through which the personality of a wide number of people develops, living together through which they lend themselves to emotional and economic support, without more transcendence This is the case in a strict private relationship, given its, up to now, a lack of formal recognition for the law. This perception not only takes place in Spanish society, but also in wider areas, as reflected in the European Parliament Resolution of 8 February 1994, in which the European Commission is specifically asked to present a proposal for a recommendation for the purpose of ending the ban on marriage to same-sex couples, and to guarantee them the full rights and benefits of marriage.

II

History shows a long trajectory of discrimination based on sexual orientation, discrimination that the legislator has decided to remove. The establishment of a framework of personal fulfilment that allows those who freely adopt a sexual and affective option for persons of the same sex to develop their personality and their rights under conditions of equality We must not forget that the European Union is not a Member of the European Union.

Certainly, by entrusting the legislature with the normative configuration of marriage, the Constitution does not exclude in any way a regulation that delimits the relations of a couple in a different way from that which has existed until the time, regulation to accommodate new forms of affective relationship. But, moreover, the option reflected in this law has constitutional grounds that must be taken into account by the legislator. Thus, the promotion of the effective equality of citizens in the free development of their personality (Articles 9.2 and 10.1 of the Constitution), the preservation of freedom in the forms of coexistence is referred to (article 1.1 of the Constitution) and the establishment of a framework of real equality in the enjoyment of rights without discrimination on grounds of sex, opinion or any other personal or social condition (article 14 of the Constitution) are established values In the case of the European Parliament, the Commission is not in a position to citizen, in a free, pluralistic and open society. From this broad perspective, the regulation of the marriage that is now being established tries to give satisfaction to a palpable reality, whose changes the Spanish society has assumed with the contribution of the collectives that have been defending the full equal rights for all regardless of their sexual orientation, a reality that requires a framework that determines the rights and obligations of all those who formalize their partner relationships. In the context indicated, the law allows marriage to be celebrated between persons of the same or different sex, with full and equal rights and obligations whatever their composition. Consequently, the effects of the marriage, which are maintained in their integrity respecting the objective configuration of the institution, will be unique in all areas regardless of the sex of the contrayents; among others, both social rights and benefits such as the possibility of being a party to adoption procedures. In addition, there has been an essential terminological adaptation of the various articles of the Civil Code which refer to or bring cause of the marriage, as well as a series of rules of the same Code which contain explicit references to the sex of its members. First of all, references to the husband and wife have been replaced by the mention of the spouses or the consort. Under the new wording of Article 44 of the Civil Code, the legal acceptance of a spouse or consort shall be that of a person married to another, irrespective of whether they are of the same or different sex. However, the reference to the binomial formed by the husband and wife in Articles 116, 117 and 118 of the Code still exists, given that the factual assumptions referred to in these Articles can only be produced in the case of heterosexual marriages. On the other hand, and as a result of the additional provision of this law, all references to the marriage contained in our legal order must be understood to apply to the marriage of two persons of the same sex. The same as the one made up of two people of different sex.

Single item. Amendment of the Civil Code on the right to marry.

The Civil Code is modified in the following terms: One. A second paragraph is added to Article 44, with the following wording:

"Marriage shall have the same requirements and effects when both contracts are of the same or different sex."

Two. Article 66 is worded as follows:

" Article 66.

Spouses are equal in rights and duties. "

Three. Article 67 is worded as follows:

" Article 67.

Spouses must respect and help each other and act in the interests of the family. "

Four. The first paragraph of Article 154 is worded as follows:

"Unemancipated children are under the power of their parents."

Five. The first paragraph of Article 160 is worded as follows:

"Parents, even if they do not exercise parental rights, have the right to relate to their minor children, except with those adopted by another or in accordance with the provisions of the judicial resolution."

Six. Paragraph 2. of Article 164 is worded as follows:

" 2. The ones acquired by succession in which one or both of those who exercise the parental authority would have been justly disinherited or could not have inherited because of indignity, which will be administered by the person appointed by the the deceased and, failing and successively, by the other parent or by a specially appointed judicial administrator. '

Seven. Article 175 (4) is worded as follows:

" 4. No one can be adopted by more than one person unless the adoption is made jointly or successively by both spouses. The marriage concluded after the adoption allows the spouse to adopt the children of his consort. In the event of the death of the adopter, or where the adopter suffers the exclusion provided for in Article 179, a further adoption of the adopter is possible. "

Eight. Article 178 (2) is worded as follows:

" 2. By way of derogation, the legal links with the parent's family which, as the case may be, corresponds to: 1. Where the adopter is the son of the spouse of the adopter, even if the consort is deceased. 2. Where only one of the parents has been legally determined, provided that such an effect has been requested by the adopter, the adopter of 12 years of age and the parent whose link is to persist. "

Nine. The second paragraph of Article 637 is worded as follows:

"The donations made jointly to both spouses, among which that right will take place, are excepted from this provision, if the donor had not disposed otherwise."

Ten. Article 1,323 is worded as follows:

" Article 1,323.

Spouses may be transferred for any title, property and rights, and shall enter into each class of contracts. "

Once. Article 1,344 is worded as follows:

" Article 1,344.

By means of the ganancial society, the spouses are made common to the profits or profits obtained without distinction by any of them, which will be attributed to them in half by the dissolution of the latter. "

Twelve. Article 1,348 is worded as follows:

" Article 1,348.

Provided that one of the spouses is deprived of an amount or credit payable in a certain number of years, the sums to be collected in the instalments due during the marriage shall not be ganancial, but shall be estimated capital of one or other spouse, depending on who the credit belongs to. '

Thirteen. Article 1,351 is worded as follows:

" Article 1,351.

The proceeds obtained by either spouse in the game or from other causes that exempt from the restitution will belong to the ganancial society. "

Fourteen. Article 1.361 is worded as follows:

" Article 1.361.

The existing assets in the marriage are presumed to be ganancial as long as it is not proven that they belong to one of the two spouses. "

Fifteen. Article 1,365, paragraph 2, is worded as follows:

" 2. º In the ordinary exercise of the profession, art or trade or in the ordinary administration of the goods themselves. If one of the spouses is a trader, the provisions of the Trade Code shall apply. '

Sixteen. Article 1.404 is worded as follows:

" Article 1,404.

Made the deductions in the inventory flow that prefixed the above articles, the remnant shall constitute the having of the ganancial society, which shall be divided by half between the spouses or their respective heirs. "

seventeen. Article 1,458 is worded as follows:

" Article 1,458.

Spouses will be able to sell goods reciprocally. "

Additional disposition first. Application in the order.

The laws and regulations that contain any reference to marriage shall be construed as applicable regardless of the sex of their members.

Additional provision second. Amendment of the Law of 8 June 1957 on the Civil Registry.

One. Article 46 is worded as follows:

" Article 46.

The adoption, the judicial changes of capacity, the declarations of contest, absence or death, the facts concerning the nationality or the vicinity and, in general, the other inscribable for which it is not established In particular, the registration shall be made in another Section of the Register, and shall be entered in the margin of the corresponding birth registration. How many facts affect the fatherland authority, except for the death of the parents, shall be registered in the margin of the birth registration of the children. "

Two. Article 48 is worded as follows:

" Article 48.

Parental or maternal parentage shall consist of birth registration at the margin, by reference to the marriage registration of the parents or by registration of the recognition. "

Three. Article 53 is worded as follows:

" Article 53.

Persons are designated by their first and last names, corresponding to both parents, that the Law protects against all. "

Final disposition first. Competence title.

This law is issued under the exclusive jurisdiction of the State in matters of civil law recognized by Article 149.1.8. of the Spanish Constitution, without prejudice to the conservation, modification and development of the law. Autonomous Communities of civil, foral or special rights, where they exist and of the rules approved by them in the development of their competences in Civil Law.

Final disposition second. Entry into force.

This law shall enter into force on the day following that of its publication in the "Official Gazette of the State".

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this law.

Valencia, 1 July 2005.

JOHN CARLOS R.

The President of the Government, JOSÉ LUIS RODRÍGUEZ ZAPATERO