Summary
Human society in different aspects of its organization or activity and the laws of its development are the object of study of many sciences, called humanitarian social sciences, in which the philosophical approach that is applied in the explanation of the sciences of social phenomena and the methodological basis of research. Law is the reflection of numerous social relations, of socio-economic formations inextricably linked to the superstructure; so that the law feeds on the society in question, while serving as an instrument of social transformation.It is in this sense that it is conceived as a complex and multi-dimensional phenomenon. However, within the Law System, Family Law has a highly social, ethical and moral burden, imposed by the kind of relationships that it regulates of a personal nature and gives it peculiar characteristics. It has the important mission of legally regulating most of the relationships that take place in the oldest human institution known as “the family”; that for others is a product of society and responds to the social economic structure that serves as its framework. Even though there are no doubts regarding the sentimental and social content of Family Law, there are differences among those who understand the matter about its exact location in the Law System, taking into account its traditional link with Civil Law or Private Law;which makes a more accurate solution to conflicts of a family nature impossible.
Introduction
In Cuba there is comprehensive legal protection for the family as part of the State's policy since the Triumph of the Revolution. However, even when we were a flag-bearer country in relation to the independence of Family Law from Civil Law, the same has not happened in relation to the implementation of family jurisdiction, and alternative methods effectively implemented in many countries of the world.
That is why, without attempting to exhaust the subject, an updated bibliographic material is provided on Family Law in its relationship with society, to be used in undergraduate and graduate teaching, as well as its use in legal practice.
Notes on the historical evolution of Family Law
The family is the oldest known human institution. However, its regulatory law takes place at a time in the development of humanity, after the emergence of the State, and acquires peculiar characteristics depending on the evolution experienced by the family in each social economic formation.
It should be noted that the family institution in its broad historical development has passed through the consanguineous family, typical of the advent of civilization that rested on the principle of uterine consanguinity; then the so-called Punalúa family and the syndiasmic family later, the latter giving way to patriarchal monogamy, in which the role of women is reduced to mother and servant in the family nucleus and where marriage and the family guaranteed the hereditary transmission and the legitimacy of paternity.
In Cuba, during the preludes of the colonizing stage, the concept that the metropolis had on family relations was imposed, so the legislation imported from Spain was applied at the beginning. In 1889, with the implementation of the Spanish Civil Code, extended to our country, a patriarchal system of Family Law was instituted that was fundamentally characterized by the practically perpetual submission of women to the dominion of men; the distinctions between legitimate and illegitimate children, the exaltation of religious marriage, and the existence of de facto unions or concubinage, not protected by law.
In 1918, civil marriage was established as the only form of marriage. Subsequently, the Constitution of 1940 and its complementary law, Law 9/50, on Civil Equalization of Women, assumed important achievements, which although they were reduced to the formal legal plane, from the point of view of Family Law set an important guideline in future regulations of family relationships. Among her significant contributions we find the absolute equality of the spouses, the recognition for equity issues of the cohabitation when the requirements of legal aptitude, uniqueness and stability exist, equality between legitimate or not children, among others; which gave a progressive character to Family Law at this time of the neocolony.
In the pre-revolutionary stage, the family was characterized in its generality by patriarchal monogamous schemes or models, in which the so-called marriages of convenience were gestated, the man continued at the head of the family as administrator of property and the family.
As of January 1, 1959, a process of great legislative, judicial, administrative, and social transformations was foreseen that were immediately guaranteeing the fulfillment of the fundamental Human Rights of all the people. The Revolution began to reverse unfair and discriminatory concepts for women and the so-called illegitimate family, inheritance inequalities, among others, that were part of the social and legal reality of the country and that immediately came into contradiction with the new principles that it postulated., recognizing the role of the family as the fundamental cell of society. These were the bases for the definitive break with the bourgeois regime and the promotion of new legal bodies.
It begins to radiate a new model of family life based on the reciprocal love of the spouses, overcoming the inequalities of rights and duties between the spouses and promoting the role of the family as a fundamental cell of society and valuarte in the formation of the young generations; where Family Law stands as a better and more humanitarian law.
From this moment on, fundamental laws were enacted that obeyed the change. An example of this is the promulgation of the Family Code on February 14, 1975 as a fundamental substantive norm in Family matters, which marked an important advance from the legal point of view during the first years of the Revolution, by breaking down the family matters of the old Spanish Civil Code. “For its time, in the decade of the seventies“ it was the third Family Code independent of the Civil Code of the Latin American Continent… it had the privilege of being the first of its kind that responded to a socialist society and a true social revolution. Its institutions, the universal institutions of Family Law,they were regulated with a truly progressive conception and were a point of reference for an advanced legal treatment for the Ibero-American context "
This new code embraced important transformations for Family Law and the relationships it protects, by instituting the family as a fundamental cell of society based on the strengthening of equal rights and duties between the sexes and children, of the bonds of mutual affection, help and respect between the members of the family nucleus; of the formation of values and ideology. In this way, an exclusive legal body was conceived for family institutions: marriage, divorce, parent-child relations, obligation to provide maintenance, adoption and guardianship.
Subsequently, other legal norms were issued that expanded the theoretical framework of the Family Code, such as the 1978 Child and Youth Code, which proclaimed a new morality in relation to the values that should govern family life, and highlights the obligation to the family with children and young people before society. Postulates that were previously endorsed in the Constitution of the Republic of 1976 that dedicates Chapter IV to the Family, highlighting it as the fundamental cell of society.
In the same sense of the protection of children, Decree-Law 64 of 1982 was enacted, on the system for the care of minors with conduct disorders, extracting it from the framework of substantive and procedural Criminal Law and Decree-Law 76 of 1984 on Adoption, Minors' Homes and Substitute Families and their complementary norms contained in Ministerial Resolution No. 48 of 1984, issued by the Minister of Education.
Also on this date, Law 51/85 of the Civil Status Registry comes into force, in order to cushion the successive transformations in Cuban society.
Throughout this stage a set of factors concurred such as the incorporation of women into work, their growing decision-making power in all areas of life, their self-determination in relation to the reproduction and enjoyment of their sexuality, which became a rethinking roles and substantially influenced the modification of the structure and functioning of families; giving rise to the increase of consensual unions, divorce and separations, the trend towards nuclear and single-parent families, rebuilt, and an overcrowding of the justice system.
In 1989 a new stage was introduced in Cuban families as a result of the fall of the socialist camp. A staunch period of economic crisis begins, together with the intensification of the economic blockade imposed on the island by the United States. The Government was forced to take measures, which had an impact on families and caused a rethinking of them, which began to face a period of deprivation, shortage of housing resources for their repair and maintenance, which influenced aspirations personal, in the formation of new family nuclei.
The traditional conception of the family that presumed stability and continuity as essential elements has become obsolete in the face of new forms and existing structures, so that it is not possible to assume a closed and unique concept of the family institution. New models or family styles have emerged.
Although the integral protection of the Family has been part of the State's policy since the Triumph of the Revolution and there is a wide range of normative provisions oriented to that end, in this way a new awakening of Family Law was imposed in Cuba. Regardless of the existing tradition in the matter of comprehensive protection of the family institution, it is necessary to modify and review already accepted norms, but which unquestionably have to be subject to the continuous changes imposed by the current family.
Current approaches to Family Law as a branch of Social Law.
Family Law as a regulatory legal support for almost all family relationships occupies a privileged and special place within each society, based on the very nature of the relationships it regulates. It constitutes "the sentimental part of the Law, in which the law merges its waters with the tenderness of feelings and with the principle of morality ".
However, there is no coherence in the doctrine in relation to the location of Family Law within the so-called Private Law or Public Law. Traditionally it had been placed within the first, but currently, taking into account the greater or lesser interest shown by the State in relation to family relationships, it has been tried to incorporate, in some cases as part of Public Law, or as a Autonomous branch, separate from Private Law and Public Law. In order to define the true location of this Law, it is necessary to point out some questions in relation to the distinction between these major branches into which the Law is divided, and which obeys different doctrinal criteria.
Public Law and Private Law is the distinction par excellence for the study of Law, which is otherwise difficult and obscure. Generally, this distinction is based on the intervention of the State, specifically on the object of regulation of the legal norms that it dictates.
According to Díez Picazo and Antonio Gullón in their work, Civil Law System, for a relationship to be of Public Law it is necessary for the subjects to assume a position of superiority compared to others who are in a situation of inferiority in which there is a situation of imperium, of authority or sovereignty; In Private Law relationships the subjects are in a situation of equality, of coordination… In Public Law the necessity dominates, the imperative while in Private Law the autonomy of the will dominates, it is the realm of the legal business, it is the Law of operative norms. - This criterion defends the premise of Family Law as Private Law.
The University of Bologna professor Antonio Cicu was one of the main defenders in relation to considering Family Law as an autonomous branch with respect to Civil Law and Public Law, pointing out that the protected interest in Family Law is a best interests, family interests. Of course, in the Legal System of no country the relationship established between the different branches of Law can be separated. Even when they are independent, they will have to be analyzed in their correlation with the rest.
For his part, Borda did not consider the family interest different from the individual interest of each member of the family group in particular, so he opposed the fact of assuming Family Law as an autonomous branch and for that purpose he reflected that if this right is considered as of public order, would allow an inappropriate state interference in the private family sphere.
For Castán Tobeñas “there is no doubt that Family Law is an integral part of Private Law since the Family today does not have the character of a corporation or public collective entity invested with imperium”… “notwithstanding the relative autonomy that can and should be granted to the Family Law within Private Law, it is not convenient to separate it from the other branches of the latter that make up Private Patrimonial Law, breaking the current scientific unit of Civil Law because family relationships, no matter how salient their definitive features are, are intimately linked with the individual relationships of a patrimonial nature ”.
Although in Private Law the subjects are in a situation of equality and coordination, as is the case in Family Law, the truth is that it is up to the State to ensure the protection of the family and consequently, to establish certain limits to the autonomy of the will; inasmuch as within the Family there may be abuse of family powers and harmful behaviors. “It is up to the law to determine the factual assumptions in which autonomy can act, for which certain solemnities or special requirements must be required that must be strictly fulfilled in order to guarantee the protection of fundamental rights, the best interests of the child and the family institution. "
That is why I share the criteria held by the prominent jurist Raúl Gómez Treto, who pointed out that “unlike the patrimonial nature of Civil, Economic and Labor Law, and the repressive nature of Criminal Law, Family Law is the that has a greater ethical burden… in it there is no sanction or penalty in the repressive sense, but a simple resolution or extinction, in avoidance of greater evils, of legal relationships that have lost their meaning or become detrimental to the parties, for any of them or for third parties, as in the case of divorce or deprivation of parental authority, of the custody and care of minors or disabled persons, of the limitation or deprivation of communication with them, etc.; All cases in which ethical and social reasons prevail over legal-patrimonial or repressive reasons.
For this reason, I consider that the distinction between these branches of Law does not mean a collapse or division for the integrity of the Legal System, but it does affect the way to study Family Law and specifically its application. In most of the Legal Orders in which Family Law is considered as a branch of Private Law, a position of procedural independence of this Law is not assumed even when we consider it a necessity. This view assumes that individual interests are above any other interest, the rule acts as a supplement to the individual will, giving greater importance to the autonomy of the will.
From the family legal point of view, this thesis could give rise to an inadequate substantive and procedural protection of Family Law since this Law is conceived within the wide range of Private Law relationships, it would not be valued, with a truly humanistic sense, personal relationships over patrimonial ones. The difference between the object of regulation of one branch and the other inspires differentiated treatments. This need is visible from the knowledge of the historical evolution that the Family has experienced, its regulatory law and the different trends that the modern world shows in this regard.
In Cuba, for example, there is a monistic System of Law for which this division is inconsequential since Family Law is considered as one more branch of the Legal System in close relationship with the others. Our Family Law does not assume a hierarchy of individual interest over social interests, but it is attributed the important mission of regulating the purposes of family legal institutions to which it prints values; stripping them of all patrimonial interest, and subordinating the will of individuals to these regulations. In this case, the latter are limited to the social interest pursued by the socialist model of the family, and which are outlined and protected by the State, since the family is the "fundamental cell of society". The State will outline a family scheme,that it must fulfill the social role that corresponds to it in the proper development of moral values and principles in the new generations. Hence, it can be considered as the branch of Law with the greatest social and spiritual burden and its contributions will be, to a large extent, contributions to the development of society.
It is important to note that Cuba, regardless of the fact that it was championed in terms of the segregation of Family Law from Civil Law in Latin America, maintained a passive position in relation to the treatment of family matters, processed in Civil Courts. However, this constituted an important premise for currently working on the establishment of Family Courts in pursuit of a better application of substantive law of this nature, thus strengthening the postulates that defend Family Law as an essentially branch of Law Social.
In this sense, I consider that the study and application of Family Law should be oriented towards a convergence of the interests of individuals and the state interest, thus rewarding it for its “… specific and unique character, perfectly differentiated from Civil Law and whose legal nature is based on ideological, political and ethical considerations and on the high social interests contained in the institutions he supervises… ”, which gives it very specific characteristics and suggests different regulations from those of the rest of the branches of Law regardless of its relationship with the themselves; without ignoring the need to support it in Civil Law, which is undoubtedly “the most technical of all Rights”.
Manifestations of Family Law today.
There is no doubt that the family is a social product and a reflection of the level of development reached by each social structure. In this sense, it is essential to constantly review the rules of law that regulate it, adapting them to each specific historical context. That is why contemporary Family Law faces, in the current circumstances, new matters, new approaches and greater challenges, everything that asserts its novelty within the Law System and in society.
Traditionally marriage had been the basis for the formation of a family, however, today it is not. The first is just one of the ways to get to the second, taking into account the modern trends experienced in relationships. Even when the propensity in the world is for the adoption of nuclear-type families (father, mother, children), it is possible to find different styles of family: unipersonal (of a single person), single-parent (of a single parent), assembled or reconstituted or "second marriages", parents raising children from their previous marriages, parents who work with mothers who are housewives, fathers and mothers both working outside, couples in consensual union with or without children, homosexual couples, extended families and transsexualism.Everything that has a direct impact on the development and evolution of the family in general and of the children in particular.
Trends have also become widespread, such as the regulation of matrimonial agreements as the ideal way to act in relation to the patrimonial regime of marriage, and to reinforce the autonomy of the will of the spouses from guaranteeing the freedom of each one of them for economic management of their own assets; the protection of the rights in the inheritance of the surviving spouse; the elimination of grounds to exercise divorce, although some legal systems recognize the need for compensation for possible damages caused by the breakdown of the marriage bond.
The behavior of parent-child relationships also undergoes different changes, which have an impact on the decisions of the States regarding the protection of the supreme interest of minors. A vivid example of this is the development achieved by science in the field of genetics that has given rise to assisted reproductive techniques. Today heterologous inseminations are achieved with semen from a person other than that of the mother's husband, in other cases "in vitro" inseminations and there is also human cloning. These facts induce a new thought in terms of solving from the Family Law the situations of conflict that in relation to the filiation bring about these transformations.
Also within the sphere of parent-child relations, new institutions have been incorporated into the international order, which show the need for new visions and approaches regarding the dynamics of guaranteeing the Superior Interest of children in relation to the exercise of parental authority, as these are the maximum involved. These trends include extended parental authority and excluded parental authority. In addition, since the approval of the Convention on the Rights of the Child, a doctrine has been created that outlines guidelines for the comprehensive protection of children, who are valued as subjects of law, without this meaning that their will and decisions must exceed those of their parents, but they must be taken into account, as the minor's right to be heard is also included.In relation to custody and care, the possibility of extending it to grandparents is envisaged, and renovating institutions such as shared custody and care are introduced.
Another challenge that modern Family Law must face is in the specific case of adoption in its different current manifestations such as: adoption by homosexual couples, adoption and trafficking of organs of boys and girls, adoption by blood relatives, intercountry adoption.
Another element to highlight is the family coding process, which is progressing considerably. To this is added the presence of new alternative approaches for the resolution of conflicts in family matters, which lead to raising the culture of dialogue and agreement between the litigating parties in a legal family relationship.
These manifestations are a reflection of the complexity with which family relationships are increasingly manifested, of the constant need to search for alternatives for their solution and the internationalization that this Law is experiencing throughout the world. It must be taken into account that “the lack of protection of rights in the smallest sphere of the family, which can foster dysfunctional families, affects society as a whole. There is no healthy society, if the family is not also healthy, as the elemental cell that belongs to society ”.
Independence of the rules of substantive and procedural Family Law.
Obviously, the idea of including Family Law as Private Law or Public Law has a direct impact on its application, as has already been assessed. This then results in the conception of the independence of substantive and procedural Family Law. For Álvarez Torres, Family Procedural Law is an eminently social right, designed to solve, with rationality, agility and promptness, conflicts that arise in the sphere of family relations; and that the values to which it is oriented are different from those of Civil Procedural Law, since fundamental values such as personal dignity, equality, family unity and the supreme interest of ensuring the proper development of the laws are at stake. family relationships,of minors and the elderly… "Contrary to the controversial nature of the civil process in general, Family Procedural Law is based on the predominance of the conciliatory role of the family judge."
For her part, Olga Mesa warns that: ”All over the world these matters are judged separately, because they have other characteristics, where people's feelings are at stake. They are not civil, administrative, or labor processes, but they have a completely different entity. In addition, they admit interdiscipline, not only the legal point of view, but also the psychologist, the sociologist, the pedagogue ”.
I share the criteria defended by the people mentioned above. Regardless of the fact that there may be similarity between the procedure that resolves the common litigation and the family one, a greater degree of knowledge and sensitivity is imposed on the latter; fundamentally given by the difference of the relations regulated by Civil Law and Family Law (property and personal relations respectively).
It is logical that the treatment cannot be the same if we take into account that family relationships give substantive family law a strong sentimental and affective burden, to be taken into account by Procedural Law, given the interrelation between both Rights. The family procedure is called to go beyond violent behavior as a way of solving family conflicts. It is a matter of making decisions within a framework of family cordiality in principle, and reserving the judicial route as the "last ratio.
In this sense, the so-called Conflict Resolution Methods, alternative to jurisdiction, are gaining momentum in order to recover the conciliatory function of the Family. It is first about adopting consensual solutions as a guarantee to regain the functionality of the family and communication, so important between people united for life by a bond of filiation.
Among these methods, the practice of Family Mediation for conflicts of this nature stands out, seen as a voluntary and extrajudicial process of conflict resolution between the members of a family, with the intervention of an impartial, neutral third party, without any power of decision. to facilitate, under a framework of confidentiality, a viable and stable agreement that responds to the interests and needs of the family nucleus and the Best Interest of the Child, supported by the sovereign will of the parties. It is therefore the ideal possibility of breaking with the jurisdiction's own winner-loser scheme, which also favors the self-regulation of individuals towards their own interests, within the limits established by the State in the rule of law,provided that this does not contravene the interests of minors or groups of the family as a social institution.
This mechanism has been embraced by different countries, and many have started the mediation process precisely because of family conflicts and giving the Best Interest of Children a special emphasis. Examples of Mediation can be found in Spain, Italy, Germany, the United States, Canada, Mexico, Chile; Argentina, Austria, Belgium, Great Britain; In many of them there are specific laws on family mediation and in other cases it is not specifically regulated, but rather references are made to certain procedural norms, as in France and England.
On the other hand, it will correspond to specialized Family Courts, at the end of the contest, to determine the positions of the contenders, and to adopt an effective judicial solution beyond the strictly technical, based on the precepts of material law, on affective, emotional and interest considerations of the family in general. It is clear that the separation of Family Law, in its different manifestations, and Civil Law, is a necessity.
In Cuba, there are no alternative methods of conflict resolution in the legal sphere; it is only possible to find formulas for conciliatory purposes within certain processes in the Civil Procedure Law, applicable to Family matters. Although it is valid to point out that from an extra-legal point of view, the FMC's Houses of Orientation to Women and the Family of the FMC carry out a successful plan to resolve conflicts of a family nature, whereby the implementation of a mediating practice would be advisable in the opinion of numerous jurists.
From the procedural point of view, Instruction 187 of the Governing Council of the Supreme Court on the creation of Family Courts is in force, now in the process of generalization in some municipalities of the country based on Instruction 26 also of the Governing Council of the Supreme Court, dated February 11, 2009. In this way, we are working towards the improvement and updating of the Substantive and Procedural Family Law.
Final thoughts
Family Law is the most humane of all Rights based on the social relations that it regulates of the “personal” type, which in turn determines its location in the Legal Orders outside the specific framework of Public Law and Private Law.
The current family dynamics as a result of socioeconomic transformations constitute an incentive in the constant transformation of Family Law and vice versa.
Family relations protected by Family Law, give it a strong ethical, moral, political and social content, which makes it a humanistic, specific and unique Law, all of which determines a substantive and procedural regulation and application different from rest of the branches of Law, as well as the need to implement mechanisms that, such as Mediation, contribute to the peaceful resolution of conflicts of a family nature. In Cuba, family matters occupy a preponderant place within society, for which reason we are working on the improvement of substantive and procedural rights of this nature, as well as on the future implementation of Mediation.
Bibliography
- AA.VV. Capital points of Family Law in its International dimension Editorial: Dykinson. Madrid. 1999.AA.VV. Dilemmas in marital separation and divorce lawsuits. Publisher: Dykinson. Madrid. 2000AA.VV. Minor children in a family crisis situation. Publisher: Dykinson. Madrid. 2002.AA.VV. Family processes Doubtful aspects: solutions and interpretations. Publisher: Dykinson. Madrid. 2003ADAMSON, PETER; WILLIAMS GLEN, For life. Editorial: Pueblo y Educación. Havana. 1992ALBALADEJO, MANUEL, Civil Law Course IV. Family right. Bosch bookstore. Barcelona.1982ÁLVAREZ SUÁREZ, MAYDA, "Family Law in Cuba and its impact on family relationships". Presentation at the IV International Conference on Family Law. Havana Cuba. May 2006ÁLVAREZ TORRES, OSVALDO M,"The Family Procedure in Cuba, an urgent need". In Cuban Journal of Law. No.18. July-December 2001ÁLVAREZ TORRES, OSVALDO M, "Necessity and Possibility of a Procedure and a Special Family Jurisdiction in Cuba". Paper presented at the IV International Conference on Family Law. Havana Cuba. May 2006ÁLVAREZ TORRES, OSVALDO M, “Constitutional Family Law; Family justice and an approach to the issue of her alleged dejudicialization ”. Paper presented to the II International Congress of Procedural Law. Havana Cuba. 2009ARÉS MUZIO, PATRICIA, Family Psychology, an approach to its study. Publisher: Félix Varela. Havana 2002ARÉS MUZIO, PATRICIA, Family and Coexistence. Publisher: Félix Varela. Havana. 2006COBO PLANA, JUAN JOSÉ, Compendium of Civil Jurisprudence.Family right. Volume VI. Publisher: Dykinson. Madrid. 1997. CONRADO GONZÁLEZ, YAUMARA, The Family Procedure, a challenge for the Cuban jurisdiction. Thesis to opt for the degree of specialist in Civil and Family Patrimonial Law. Las Villas-Cuba. November 2005 DIESTE COBO, JUAN MANUEL, “Family Courts in Cuba”. Paper presented at the III International Conference on Civil and Family Law. Havana. Cuba. 2004DIEZ PICASO, LUIS and GULLÓN ANTONIO, Civil Law System. Volume I. 4th edition. 1st reprint. Editorial Tecnos SA Madrid. 1982GARCÍA GARCÍA, LUCÍA, “Mediation: Prevention and Alternative to litigation in family conflicts”. Publisher: Dykinson. Madrid. 2003GARRIDO GÓMEZ, MARÍA ISABEL, The Social Policy of the Family in the European Union. Publisher: Dykinson. Madrid. 2000GÓMEZ TRETO, RAÚL,"Towards a new family code?" Cuban Journal of Law. No. 29. June 2007. Report of the Rapporteurship XII International Congress of Family Law. Cuban Journal of Law. No. 20. December 2002 LACRUZ BERDEJO, JOSÉ LUIS AND SANCHO REBULLEDA, FRANCISCO DE ASIS. Family Law I. 2nd edition. Bosch bookstore. Barcelona. 1974 LACRUZ BERDEJO, JOSÉ LUIS / SANCHO REBULLEDA / FRANCISCO DE ASIS, Elements of Civil Law IV. Family right. Publisher: Experimental Librería de Bosch. Barcelona. 1982 LACRUZ BERDEJO, JOSÉ LUIS and ALBALADEJO, MANUEL, Family Law. Bosch bookstore. Barcelona. 1993 MESA CASTILLO, OLGA, Family Law. Volume I. Editorial: Félix Varela. Havana. 2004. MESA CASTILLO, OLGA, "Family Law in Cuban Society". Presentation at the II Conference on Comparative Family Law MESA CASTILLO, OLGA,“Act convened by the Cuban Society of Civil and Family Law of the National Union of Jurists of Cuba and the Federation of Cuban Women on March 7, 2005 dedicated to commemorating the XXX Anniversary of the promulgation and entry into force of the Family Code of Cuba". Cuban Journal of Law. No. 25. June 2005 MESA CASTILLO, OLGA, “About the constitutional principle of the family as an essential nucleus”. Cuban Journal of Law. Num. 30. December 2007. PERAL COLLADO, DANIEL A., Family Law. Editorial: Pueblo y Educación. Havana. 1984PONTE ELGOTAS, DARÍO GERMAN, “Procedural Aspects in Family Matters. Family courts and special procedure. Access to Family Justice ”. Presentation at the IV International Conference on Family Law. Paraná. February 2006 TENREIRO, “Family Procedure in Cuba”.Workshop at the V Conference on Family Law. Havana Cuba. May 2009
Legislation
- Spanish Civil Code of 1888 Chile Civil Code. Updated from 2000, Civil Code of Argentina, Cuban Family Code of February 14, 1975 Constitution of the Republic of Cuba of February 24, 1976 Political Constitution of the Republic of Panama, Code of Children and Youth in Cuba of 1976, Family Code of Panama 1994 Constitution of the Argentine Nation 1994 Decree-Law 241/2006. Modification of the LPCAL in Cuba Instruction 187/2007 of the Governing Council of the TSP of Cuba Law 7/1977 Law of Civil, Administrative, Labor and Economic Procedure of Cuba
Websites
- http://derecho.laguia2000.com/derecho-de-familia/derecho-de-familia (Consulted May / 2009), (Consulted April / 2009) http://www.villaverde.com.ar/archivos/File/ publications / LNBA 2008-6 / LN-June-2008 (1).doc (Consulted May / 2009) Civil / 200202-155592511021145.html (Consulted May / 2009) Torres / Public Law and Private Law.doc (Consulted May / 2009) http://www.monografias.com/trabajos6/insu/insu.shtml?relacionadas (Consulted February / 2009) http://ccompartida.blogspot.com/ (Consulted February / 2009)
Footnotes:
- Cuba was the third country in Latin America to promulgate a Family Code, disaggregating the legal norms related to the family, from Civil Law. Mesa Castillo, Olga, “Act called by the Cuban Society of Civil and Family Law of the National Union of Jurists of Cuba and the Federation of Cuban Women on March 7, 2005 dedicated to commemorating the XXX Anniversary of the promulgation and entry into force of the Cuban Family Code ”. Cuban Journal of Law. Num. 25. June 2005. p.119 This Decree-Law modified the Family Code, so that it instituted full adoption. Guerra López, José, Cited by Mesa Castillo, Olga. Family right. Module 1. Editorial: Félix Varela. Havana Cuba. 2004. p.3 This last trend is defended by those who consider the existence of a third branch "Social Law",which is defended in modernity. Cited by Fingermann, Hilda, "Family Law" on the site tp: //derecho.laguia2000.com/derecho-de-familia/derecho-de-familia, (consulted on May 12, 2009) Cited by Soto Senra and Cabanes Espino, Ob. Cit., Ibídem. Report of the Rapporteur XII International Congress of Family Law. Cuban Journal of Law. No. 20. December 2002. p. 39.Gómez Treto, Raúl, "Towards a new family code?" Cuban Journal of Law. Num. 29. June 2007.p. 226.There are currently numerous Family Codes and draft Codes, which seek to regulate family relationships with a renovating, current approach; highlighting the essential role of the family in the modern world and taking into account that effective judicial protection is one of the challenges of contemporary society. However,It is necessary to underline that although giant steps have been taken in this regard, there are still different criteria around the independence of Family and Civil jurisdiction and of Family and Civil Substantive Law; although apparently the tendency to accept it, has found more recipients than detractors. The creation of Family Codes in numerous countries, mainly Latin American, such as: Bolivia, Costa Rica, Panama, El Salvador, Cuba, are an example of this. This idea is also outlined in relation to procedural law, which undoubtedly contributes to guaranteeing effective judicial protection.Mesa Castillo, Olga, Family Law. Module I. Editorial: Félix Varela. Havana-Cuba. 2004. p.26. Words delivered by Dr. Olga Mesa Castillo on the occasion of the Workshop on Family Courts in Havana, 2009.In this subtitle only some of the trends of modern Family Law are analyzed, based on the projection that the family shows in today's world. Stepfathers and stepmothers appear in this context. It refers to the incapable of legal age, It has been welcomed by countries such as Chile, Bolivia and El Salvador. With forced recognition, it is present in countries such as Spain and Bolivia. This principle has generated collision with traditional concepts of paternal and / or maternal authority. Linked to it we also find concepts such as progressive autonomy. Mesa Castillo, Olga, “Act convened by the Cuban Society of Civil and Family Law of the National Union of Jurists of Cuba and the Federation of Cuban Women on March 7, 2005 dedicated to commemorate the XXX Anniversary of the promulgation and enforcement of the Cuban Family Code ”.Cuban Journal of Law. No. 25. June 2005. p.121 Álvarez Torres, Osvaldo M., “The Family Procedure in Cuba, an urgent need”. Cuban Journal of Law. No.18. July-December 2001. p. 68.Mesa Castillo, Olga, “A Law in tune with the new times”. Interview conducted by Dora Pérez Sáez, on the website www.paolarosen.com.revista / com / revista / familiahtm. The author refers to a process as an achievement of phases of a phenomenon. In this case, it is given a systemic and unifying nature of all the phases to which the final result of the Mediation entails. The voluntariness is framed in two aspects: one is in relation to the agreements made by the parties, and another related position with the voluntary assumption of the parties to Mediation, which could well be suggested or recommended as well as optional.In this case the author refers to the substantive Family Law and the Adjective Family Law. There is a wide worldwide movement, especially in Latin America, that promotes the independent thesis between material and procedural Family Law and Civil Law. In terms of jurisdiction: Japan for example, since 1949 Family Courts have been created, being one of the pioneer countries in this regard; In Bolivia there is a Family Code of 1972 and by Law of Judicial Organization of 1972 the Family Courts were established; in Uruguay, a Procedural Code was created in 1989 and different specialized courts were created, including the Family one; In Panama, Law No. 3 of 1994 approved the Family Code and within the legal body itself, Book Four establishes one hundred and two articles,what is related to jurisdiction and procedures. In El Salvador there is a Family Code from 1994 and a Family Procedural Law from that same year. In Chile, Law No. 19,968 created Family Courts.
