Las familias reconstituidaslas relaciones familiares entre el cónyuge del progenitor y el hijo menor no común

Abstract

One of the family patterns that take place in Spanish society is the so-called "stepfamily". This family pattern occurs where one parent, after initiating a new relationship, includes a child or children, result of a previous relationship, within his o her new family, a circumstance that may lead to different domestic relationships, such as those which take place among half-brothers, or among stepsisters. These families may be based on marriage or on cohabitation. This is not about a brand-new social phenomenon, but its number has grown in recent decades following the legal reforms undertaken on matrimonial matters and on matters of divorce. Since this family pattern is very common in practice it is necessary an analysis of the challenges that it implies and of its basic assumptions. A legal regulation of the domestic relationship between the stepparent and the stepchild is needed, given the growing caseload and the involvement of children in them. The convenience of a legal reform on Spanish common family law should be considered, and a comparative law study has a high value for this purpose. Certain issues arising from the domestic relationship between the stepparent and the minor stepchild who live together are analysed by means of this Thesis and we try to solve these issues in the field of family law. The problem to be solved by the law on which this doctoral thesis focuses is not that of assigning the parent's own functions to their spouse, whether or not they perform this role in practice, but simply regulating the relationships of the stepparent who lives with the stepchildren to make coexistence possible and, as it cannot be otherwise, to favor and protect the minor, whether the stepparent acts "socially" or not, like a mother or father. This research covers the consideration of that relationship and a number of suggestions for legal improvement of the personal and patrimonial features of the domestic relationship between the stepparent and the stepchildren and thus, a more adequate protection of the child in Spanish common family law, so that no minor is harmed or discriminated against due to their origin or family circumstances. The methodology used has been the documentary analysis (of the current Spanish legislation on the subject matter, case law and scientific doctrine), the concepts, the comparative method and exegesis. Not only legal bibliographic data and sources have been consulted, but also from other disciplines, such as sociology, demography or anthropology, for a more complete knowledge of the subject, since the family is a sociological phenomenon studied by multiple disciplines. Finally, the results of the research confirm the changing nature of the family and its plural nature, the primacy of the best interests of the minor and the importance of providing a legal-family regime to the existing relationships within reconstituted households, when necessary, and for that purpose a whole series of normative proposals is made that focus on certain aspects of the family relationship between the stepparent and the minor stepchild, which are the guardianship and care of the latter, the right of the minor to relate to the ex-spouse of his parent, the support of the stepchild and his contribution to the family burdens.