Regime governing the regulation of parental responsibilities
Interest of minors
Regime pending judicial proceedings
RULING Nº 407/2010
27 of November of 2010
Given that the legislature felt that the interest of minors required it to establish a new regime to govern the regulation of parental responsibilities, there is no reasonable reason why this new regime should not apply to pending judicial proceedings. This means that subjecting the new regime to the criterion of whether or not a given case is pending on the date on which the said regime comes into force configures an arbitrary decision.
The Public Prosecutors’ Office was legally obliged to lodge this appeal, because the court of first instance refused to apply a norm contained in a Law, on the grounds of its unconstitutionality. Among other things, the Law made amendments to the Civil Code with regard to paternal authority, which was renamed ‘parental responsibilities’, and to the exercise of those responsibilities in the case of progenitors who are not married to one another and do not live under conditions analogous to those of spouses. The norm in question established a transitional regime under which the new provisions were not applicable to cases that were pending before the courts at the time.
The case before the court of first instance involved precisely the question of the regulation of the way in which parental responsibilities were to be exercised in a situation in which, while filiation had been established in relation to both progenitors, the latter were not living under conditions analogous to those of spouses. Under the new regime such a situation is subject to the provisions under which parental responsibilities are exercised jointly. In the case in question, this is the standard regime, under which both progenitors exercise parental responsibilities jointly in relation to particularly important matters, unless a court decides otherwise on duly substantiated grounds.
Under the earlier regime, in cases in which the progenitors were not married and did not cohabit in a de facto union, either they agreed that paternal authority should be exercised jointly, or, in the absence of such agreement, paternal authority pertained to the progenitor to whom custody of the minor was entrusted, with a presumption iuris tantum that custody would be awarded to the mother. In the latter situation, the progenitor who was not responsible for the exercise of paternal authority was given the power to supervise his/her child’s education and living conditions.
The court a quo held that the transitional norm under which the new regime governing the exercise of parental responsibilities did not immediately apply to cases that were currently pending before the courts was unconstitutional, because it was in breach of the principle of equality.
The transitional norm in question said that even after the new law came into force, cases that were currently pending before the courts continued to be subject to the regime contained in the old law. This transitional regime was a special regime, which was designed to waive application of the general regime set out in the Civil Code. Under the latter – at least with regard to the regulation of the exercise of parental responsibilities, which are what were at stake here – the principle is that when new laws directly affect the content of certain legal relations, they are applied immediately, in a way that is abstracted from the facts which gave rise to those relations. The court a quo considered that by requiring the continued application of the old regime, the new law was in breach of the constitutional principle of equality.
In the jurisprudence it has established over the years, the Constitutional Court has repeatedly said that the principle of equality does not operate diachronically, and that the Article of the Constitution which governs this principle is thus not generally applicable to phenomena involving the succession of laws. This jurisprudential guideline covers the norms contained in transitional law, inasmuch as the underlying principle is as valid for the general phenomenon of the succession of laws over time as it is with regard to the special condition of those norms whose specific function is to discipline the way in which that succession operates. Given that the power to change existing laws – and thus to create differences in the ways in which people are treated, by revoking old regimes and passing new ones – is a power that is inherent in the freedom pertaining to the legislator in a state based on the rule of law, which, in pursuit of its democratic mandate, possesses sufficient constitutional legitimacy to evaluate the legislative policy reasons that lead it to modify the existing legal order, the legislator’s competence to freely shape legislation must include not only the power to create new law and revoke old law, but also the power to decide how, in transitional periods, the scopes of application of laws that succeed one another in time are to be delimited.
This freedom to shape legislation, albeit substantial, is however subject to limits – particularly those derived from the principle of the state based on the rule of law, and from the values of legal security and the protection of trust which that principle contains.
But, besides being subject to the principle of trust, in certain circumstances transitional law can also be subordinated to the principle of the prohibition of arbitrariness that is derived from the constitutional principle of equality. Whenever there are unequal treatments for situations that are the same and synchronic, the way in which the point in time at which a norm becomes applicable can (at the time, or in the future) conflict with the principle of equality. The Court was thus obliged to ask itself whether the part of the norm before it that prevented the application of the regime governing the exercise of parental responsibilities to cases that were pending before the courts, in situations in which although filiation had been established with regard to both progenitors, the latter were not living in conditions analogous to those of spouses, was rendered unconstitutional by a breach of the principle of equality.
The raison d’être of the criterion (that the case in question was pending) that delimited the situations in which the old law continued to apply after the new law had come into force, could only lie in the presumption that the ordinary legislator felt the need to safeguard the parties’ expectations in relation to the law that was going to be applicable at the moment in time when they asked the courts to intervene – expectations that may have led them to pursue certain procedural strategies.
Having said this, while this reason is valid for divorce proceedings in the strict sense of the term – i.e. for cases whose object is solely the dissolution of the conjugal bond and the terms under which that dissolution is to occur (the regime governing which was also amended by the provisions of the Law that contained the norm before the Court) – it is not valid for cases where that which are at stake are not the spouses’ relations with one another, but the terms that will regulate the relations between children and progenitors. It is hard to talk about parties’ expectations or planned procedural strategies when what is at stake is the judicial regulation of the exercise of parental responsibilities. The only object of the process of regulating the exercise of parental responsibilities is the interest of the minor. This is a process whose objective is not to solve a conflict of available interests between the parties, but rather to decide about a substantive reality that presupposes making value judgements in the public interest which go far beyond subjective rights or available interests in divorce proceedings.
In passing the new law, the legislature was of the view that parental responsibilities must in principle always be exercised jointly, both while a marriage is in place and in the event of a divorce, the dissolution of a de facto union, or a case involving progenitors who are neither married nor living in a de facto union. It was by applying the paradigm of the joint exercise of parental responsibilities to every possible situation that the legislature implemented the constitutional principle which says that parents have the right and the duty to educate and maintain their children.
It was felt that the new regulatory paradigm would do a better job of fulfilling the fundamental duty of educating children than the old solution did. The change in the content of parents’ powers/duties with regard to their children that was brought about by the new Law was designed in accordance with the latter’s superior interests (or with the legislature’s idea of the best way to protect those interests), and not with the parents’ “interests” or “legal positions”.
From the moment at which the legislature decided that the minor’s interest is best served by the new regime, there is no reasonable reason why that new regime should not apply to cases pending before the courts. To make the unequal forms of treatment derived from the application of the old law and that of the new law dependent on the criterion of whether or not a case was currently pending would thus appear to be an arbitrary decision in the exact sense of the term.
The Ruling was the object of two dissenting opinions.
See Rulings nos. 34/86 (18-2-1986), 43/88 (25-2-1988), 309/93 (23-4-1993), 188/2009 (22-4-2009), and 153/2010 (14-4-2010).