Custody of unmarried children

The number of marriages in Spain has been declining for some time. There are many reasons for this, including the high cost of celebrations, the loss of the Church as an institution among young people and the perception that it is not necessary to get married to establish a commitment within the couple.

Evidently, this lower number of marriages is leading more and more couples to become parents without having formalised their relationship. But what happens to the custody of unmarried children if there is a separation? This is exactly what we are going to explain in this article.

Legal framework for separation with unmarried children

The Civil Procedure Act applies the same criteria in cases of separation with children born out of wedlock as if they are the fruits of marriage. In fact, the Judgment of 7 July 2004 of the Supreme Court clearly indicates that, with regard to the adoption of measures to be taken with respect to minor children, ‘the interests of the children shall always prevail, whose protection shall be entrusted to the judge in accordance with the provisions of Article 158 of the Civil Code’.

In this respect, Article 91 of the Civil Code is also important. Through it, the judge is obliged to approve the measures that are relevant in case there is no agreement between the members of the couple, regardless of whether they are united in marriage or not.

The legal process of separation with unmarried children

The procedure for assigning custody of minor children is practically the same if the couple is not married as it would be if they were married. In fact, it is necessary to go to court to sign an unmarried regulatory agreement that determines how the separation will be managed from that moment onwards. The only difference is that it will not be necessary to liquidate the community property, since it does not exist in this case.

In this sense, separation with children without being married or a common-law couple can be carried out in two ways. The first is by mutual agreement, which is always the most advisable of all. In this case, both partners present a joint proposal for a regulatory agreement without being married to the judge, who is responsible for verifying that it complies with the required precepts and for approving it by means of a sentence. The two can share a lawyer and solicitor, which significantly reduces the cost and time required for the procedure.

However, separation with children without marriage can also occur without agreement, in which case it will be necessary to resort to contentious proceedings. If this route is chosen, it will be the judge who will decide who has custody of the children in common, as well as the exercise of parental authority, alimony and the use of the family home, among many other important issues.

Who gets custody of the children without being married?

First of all, it should be said that the parents can agree or the judge can choose one of the following two types of custody:

• Shared custody: both parents take care of the minor children in equal shares, without this necessarily implying that they must spend half of the time with each other. The conditions will be set out in the regulatory agreement for shared custody without marriage.
• Single-parent custody: in this case, only one of the parents has custody of the child. For the other parent there will be a visiting arrangements and an obligation to pay maintenance.

However, if both parents do not agree on one of the two types of custody or the judge considers that the one they wish to maintain is unviable, he or she will take into account a series of factors to determine which is the most appropriate option:

• The age of the child: if the child is under three years of age, it is normally attributed exclusively to the mother. At least until the child is over that age. Judges tend to understand that until that time there is a special dependence of the child on the mother, especially if the child is still breastfeeding.
• Time availability: judges tend to give priority to the parent whose work responsibilities are more compatible with the child's schedule.
• Family environment: the presence of grandparents or aunts and uncles who can provide assistance in caring for the child is also an important factor in allocating custody of the child.
• History of violence or neglect of responsibilities.
• Economic possibilities: although the non-custodial parent has the obligation to pay child support, judges also prioritise those who have more economic possibilities to guarantee the child's welfare.

At this point, we believe we have made it clear that the problems of having a child without being married are not related to the allocation of custody, as the procedure is almost identical. In any case, if you still have any doubts, please contact us. A family lawyer from our law firm will be happy to advise you.