In April 2019, Almudena Millán and Luis Ocaña became a large family when their third child was born in common, a title that the Junta de Andalucía only recognized the father and children, but not the mother for not being united “in bond conjugal to the other ascendant ”, but to be a de facto couple -” a bond analogous to the conjugal one ”-. In these two years, both have gone through a judicial journey that led them to have a court of first instance agree with them, for the Ministry of Health and Family to appeal that ruling and to once again receive the support of the Superior Court of Justice of Andalusia (TSJA), which has ruled, in a judgment to which EL PAÍS has had access, that in Andalusia the legislation “makes it possible to equate both parents together for the sole purposes of declaration of a large family, whether they are united by conjugal bond or are a registered domestic partner ”.
“This is a very symbolic matter to be able to advance in equality and with a certain legal weight, since the TSJA is the maximum interpreter of Andalusian legislation,” says Ocaña, a lawyer by profession. “That the sentence serves to make our society a little more egalitarian is great,” he abounds, very satisfied by this ruling that, beyond the recognition of the protection granted by the Law of Large Families to de facto couples in Andalusia, recognizes that right to his wife who was the only one excluded from the granting of that title by the regional administration. “She is the only one who has given birth to the three,” he points out about Millán, who is a prosecutor.
In the sentence, dated May 17, the magistrates dismissed the appeal presented by the Ministry of Health and Family and concluded that the Administration “violated the legal order by limiting without just cause a subjective right to the actors”, alluding to their refusal to recognize both parents as a large family as they are a common-law couple. In its appeal to the TSJA, the Board has defended that the State Law for the Protection of Large Families of 2003 only recognizes as ancestors “the father, the mother or both together when there is a conjugal bond and, where appropriate, the spouse of one of them “and that” the will of the legislator “did not contemplate” any other affective relationship analogous to the conjugal one such as the situation of common-law couples. “
Millán and Ocaña have always claimed that the Andalusian Domestic Partnership Law establishes that “in matters not expressly regulated in this standard, domestic partners will be equated with marriage in the legal relationships that they may establish with the various public administrations of Andalusia. , with the limitations that may be imposed by the application of state regulations ”. The Board argues that jurisdiction over marriage rests with the state legislator.
The TSJA, however, maintains that “the silence in the Law for the Protection of Large Families in no way means that de facto couples are virtually excluded from the benefits that the Law provides for marital unions” and goes further to censure that the Family Council excluded only the mother from the protection of that title. “Such an interpretation seems to conflict with the principle of comprehensive protection of mothers, whatever their marital status, which is proclaimed in article 39.2 of the Constitution,” the sentence indicates.
This part has especially satisfied Millán and Ocaña because “it recognizes the role of the mother,” emphasizes the lawyer. The magistrates consider that the Board “is not right” when it limited the legal definition of ascendant, excluding Millán from the character of a large family, and concludes that “the State legislation on the protection of large families has accepted the autonomous regulations without any conflict. Andalusian on common-law couples, so that an integrative interpretation of both laws makes it possible to equate in the Andalusian autonomous community to the sole effects of declaration of a large family to both parents jointly, whether they are united by a conjugal bond or are registered domestic partners ”.
This ruling, like the previous one of the ordinary court that also agreed with Millán and Ocaña, is a pioneer in Andalusia and follows in the wake of other resolutions of higher courts of other Spanish communities that have ruled in favor of eliminating the discrimination established by law 2003. This norm was drafted by the PP and with the introduction of the existence of the conjugal bond for the recognition of a large family made in article 2, it was guaranteed to block the inclusion of homosexual couples through de facto unions. Since then, and despite the consensus among political parties to modify the text, no update has been made.
There are autonomous communities, such as the Catalan or the Basque, which have equated common-law couples to obtain the title of large family. Andalusia, which with 141,110 titles in force, it represents almost 20% of the total of those that exist in Spain (735,583), according to the latest data from the Ministry of Health, it does not. But this sentence, as Ocaña explains, could establish jurisprudence if the Board does not decide to appeal in cassation before the Supreme Court. “It is an extraordinary appeal and it could only succeed if there were any contradictory judgment, which there is not,” he says. The Spanish Federation of Large Families has been demanding a clear and unified criterion throughout Spain to avoid disparity.
For now, for Millán and Ocaña, this ruling by the Andalusian high court, in addition to assuming “a social and collective triumph” is the best birthday present for Elsa, their young daughter, after two years of legal battle against the regional administration. “She is the one who made us a large family,” says her father.