What does the preliminary version of Cuba’s new Family Code say?

From Periodismo de Barrio

On September 15, 2021, the Ministry of Justice published on its website the Draft of the Family Code. In the round table held that same day, Minister of Justice Dr. Oscar Manuel Silvera Martínez explained that the current Family Code, approved on February 14, 1975, is no longer consistent with the diversity of families that exist in Cuban society, which merits legislation on family rights that is in line with the reality of the country and also establishes harmonious conflict resolution mechanisms that are quick and not bureaucratized.

[The Cuban website] Periodismo de Barrio answers several essential questions to understand the proposals that the preliminary project raises.

Who can constitute a family?

Article 81 of the Cuban Constitution, approved in February 2019, establishes that everyone has the right to found a family and that the State “recognizes and protects families, whatever their form of organization, as a fundamental cell of society and creates the conditions to guarantee that the achievement of its aims is fully favored.”

The text of the Draft, for its part, specifies in Article 1 that its rules are applicable to “all family relationships whatever the form of organization they adopt.”

That is, the document confers equal treatment to all families regardless of their form of organization, and does not establish a hierarchy of one type of family over another, as explained in the round table on [Sept. 15] by Dr. Leonardo Pérez Gallardo, associate professor of the Faculty of Law of the University of Havana.

What are the rights recognized in the document?

In addition to the right of everyone to establish a family, recognized by the Constitution, Article 4 of the Draft Bill highlights the right to family life; to full equality in filiation matters; respect in the family environment for the free development of personality, intimacy and life projects; as well as that girls, boys and adolescents are listened to according to their capacity and progressive autonomy.

The right to protection of maternity and paternity is also emphasized; to have a family life free of violence in any of its manifestations; to harmonious and close communication between family members; to self-determination and equal opportunities in family life for the elderly and people with disabilities; to education on reproduction and family planning; to a full development of sexual and reproductive health, in addition to a balanced use of time by women, which allows them a comprehensive development without domestic and care overloads.

Who can get married?

Article 61 of the Preliminary Draft specifies that marriage constitutes one of the forms of organization of families, and defines it as “the voluntarily arranged union of two persons with legal aptitude for it, in order to live together on the basis of affection and love.” This conceptualization constitutes one of the main changes with respect to the 1975 Code, which, in its Article 2, determined that the union could only be made between a man and a woman.

As in that Code, the current proposal maintains the age to formalize marriage at 18 years. However, in exceptional cases and with justified causes, those over 16 years of age may receive authorization to do so by the court.

On the contrary, those who find themselves in a situation that permanently or temporarily prevents them from expressing their consent are prohibited from marrying; and those who are already married or have an affective de facto union that has been notarized and registered in the registry.

Neither may relatives in direct ascending and descending line, siblings and other collateral relatives be married up to the third degree; the people who exercise powers of representation with those with disabilities who are their represented; or people adopted with their biological relatives, even if the legal bond between them has been broken.

Similarly, people who have been convicted in a criminal proceeding by final judgment as the perpetrator or accomplice of the intentional death of the spouse or affective partner will not be able to formalize marriage until the process has concluded.

What is an affective de facto union and how can it be constituted?

According to Article 171 of the Draft Bill, affective unions are made between two persons with legal aptitude to do so who share a life project in common, of a singular, stable, notorious nature and for at least two years. Likewise, they are constituted by the will of their members, regardless of their judicial recognition and their registration.

However, for it to have legal effect, the members of the union must be of legal age; not be linked by direct ascending or descending kinship ties, nor be siblings or collateral relatives up to the third degree; not be married, nor maintain another simultaneous union of this type instrumented by notarial or registered act; maintain a permanent affective life project in common for two years and behave towards third parties such as a couple with affective-family ties.

If these requirements are met, the parties to the affective union can attend a notary public to prove their relationship by means of a notary seal. In this case, they must determine the legal status that will govern the economic relations during the coexistence or life project in common, through a notarial public deed. Such statute may be modified by agreement of both parties at any time. The fact of registering the union does not create a new marital status.

What are the types of kinship recognized in the Draft Bill?

Article 28 of the text maintains that “kinship is the relationship between two people, which makes them members of the same family, whatever its source or the way it has been determined.” This produces certain legal effects, both permissive norms and prohibitions or obligations, depending on the proximity that exists.

The draft recognizes four types of kinship: by consanguinity, by adoption, by affinity and socio-affectiveness. In addition, it specifies that the spouses or members of affective domestic partners are not related to each other.

Kinship by consanguinity is established between people who are descended from one another and between those who are descendants of the same person, even in cases where their existence has occurred through the use of assisted reproductive techniques. Meanwhile, kinship by adoption is determined by the judicial resolution of the adoption process and has the same legal effects as kinship by consanguinity.

Kinship by affinity, in turn, occurs between a person and the blood relatives of his spouse or affective partner; and between a person and the spouses or domestic partner of her blood relatives.

Regarding socio-emotional kinship, Article 33 of the Draft Bill indicates that it is based on the will and behavior between people who are emotionally linked on the basis of a stable and sustained relationship over the time that may justify a filiation. It is exceptionally recognized by a competent court and has the same effects as blood kinship.

Among the legal effects derived from the existence of kinship are the maintenance obligation, the right to communicate, the prohibition to formalize marriage or establish affective unions, the hereditary vocation and others determined by the current legal system.

In the case of adopted persons, they have the right to know their biological identity and origin; to access the adoption file once they acquire full legal capacity; to be registered with the last name or surnames of the adopters; to be informed throughout the adoption process of the consequences of their adoption; as well as to be heard at all times, according to their age, degree of maturity, capacity and progressive autonomy.

Once it is judicially authorized, the adoption is full, indivisible and irrevocable, and creates kinship ties between the adoptees, adopters and their relatives equal to those existing between mothers, fathers, daughters and sons. This implies that it generates the same reciprocal legal duties, rights and effects.

What requirements must be met in order to adopt?

Article 250 of the Draft Bill establishes that to adopt it is necessary to have reached 25 years of age, be in full enjoyment of civil and political rights, and be able to meet the economic needs of the adoptee.

People who have been sanctioned for crimes related to gender or family violence, or that threaten the life, physical integrity and sexual freedom of people will not be able to adopt; those who have been deprived of parental responsibility for their sons or daughters for reasons that prevent the revocation of that decision; one of the spouses or affective domestic partners without the express consent of the other; or someone’s guardian as long as they do not legally cease their position and the final rendering of accounts for their management is judicially approved.

What actions are established in the Draft for cases of family violence?

Article 22 of the document explains that family violence involves an imbalance of power and encompasses gender-based violence and violence against children, adolescents, the elderly or persons with disabilities.

Manifestations of this type of violence are considered physical, mental, moral, sexual, economic and patrimonial abuse, both by action and by direct or indirect omission, in cases where the aggressors and victims are relatives or have had or maintain a relationship or coexistence. .

Victims of family violence or those who know of its existence can request urgent judicial protection before the competent court. The court must adopt precautionary measures to prevent direct or indirect victims from being affected in each specific situation.

At the same time, a multidisciplinary team is in charge of preparing a family dynamics report in order to determine the physical and psychological damage suffered by the victims, in addition to the degree of danger existing in the family environment.

In the norm, the reparation of damages and losses due to family violence includes the non-pecuniary damage suffered by the victims, and is determined based on the intensity and consequences of the actions. The aggressor must respond in accordance with the provisions of criminal law.

What are the proposed procedures for the resolution of family conflicts?

According to the Draft Bill, the decisions taken in litigation of a family nature must be reasonably founded and always comply with the legal principles and values ​​of Family Law.

Thus, in Article 11, the document establishes mediation as an alternative method for the harmonious solution of family conflicts. This is developed through an extrajudicial procedure, in which qualified professionals, without decision-making power, facilitate communication and help the parties to the conflict reach full or partial agreements.

Disagreements in which the interests of one party do not affect the public interest, there is no imbalance of power or violence in any of its manifestations may be subject to mediation.

Articles 15 and 16 establish two types of mediations: the one that takes place outside the judicial process and the one that derives from the realization of a judicial process. In the case of the first, the people in conflict go to mediation and, after the procedure is concluded, can implement the agreement reached by means of a notarial public deed or homologate it through the procedures established in the Code of Processes.

Regarding the mediation derived from the judicial process, this occurs at the initiative of one or all the parties, the legal representation, by opinion of a multidisciplinary team or the Ombudsman’s Office who proposes that the discrepancies found in any phase of a family process be resolved through this method. It can also occur at the suggestion of the Court, which requires the consent of the parties involved.

If minors or people in vulnerable situations participate in the mediation processes, the assistance of specialized professionals is required in the sessions where they are present.

When will the new Family Code be approved?

According to Silvera Martínez, the Draft Project is currently in a specialized consultation process, in which the criteria of a group of institutions, scientific societies and social organizations are collected in order to improve its content. Also, the population can issue their considerations through the email address: familia@minjus.gob.cu, authorized by the Ministry of Justice for this purpose.

“From the result of these analyzes, a new version of the Draft Bill will be drawn up, which will be submitted for approval by the deputies of the National Assembly of People’s Power in December of this year and which, in due course, will be published for the popular consultation process,” said the Minister in the round table.

During the popular consultation phase, Cubans will be able to make suggestions to modify, delete or add elements to the Draft Bill. Then, the new proposal must be voted on again in the Assembly, which will establish the date of the referendum, when the population will be able to decide whether the Family Code will be approved or not.

Olivia Marín Álvarez has a PhD in Social Sciences from the Autonomous Metropolitan University of Mexico City; a Master’s Degree in International Relations from the same University (2018). She graduated in Journalism from the Faculty of Communication of the University of Havana (2012).

Translation by Progreso Weekly.