Since Spain’s system of law regarding parental responsibility is not uniform, it is
necessary to distinguish between the so called common civil law that is the Civil
Code regime and the law of Navarra, Aragon and Catalonia. However, there are no
marked differences among the regulations of parental responsibility in the different
Spanish subsystems of law.1 This national report will therefore only refer to
differences when relevant.
The Spanish CC uses the general concept of patria potesta’ (Art. 154 Spanish CC),
which embraces all issues mentioned in Principle 18 of the Council of Europe’s
White paper. This concept is also used in the laws of Navarra and Aragon, whereas
Catalan law speaks of the potestad del pare i la mar’ in order to stress that this potestas
or authority is usually jointly exercised by both father and mother.2
It is generally admitted that neither of these terms adequately reflects the contents
of the concept. When the Spanish CC was reformed in 1981 to adapt the regulation
of patria potestad to the 1978 Spanish Constitution (see Q 5), a change of terminology
was discussed. It was, however, finally decided to keep the term because it is
rooted in society, and was not contradictory with a profound change of the
concept.3
Patria potestad is not defined by the law. The Spanish Supreme Court has defined
Patria potestad as a function, established in the interests of children, whose contents
consist more of duties than rights (e.g. STS 31.12.1996). The contents of the concept
will be further developed under Q 7.
If parental responsibility is held by persons who are not parents, Spanish law uses
the concept of guardianship, or tutela, as a surrogate. For differences between patria
potestad and tutela see Q 31.