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- Title
ORDEN DE LOS APELLIDOS: AUTONOMÍA PRIVADA, INTERÉS SUPERIOR DEL MENOR Y NO DISCRIMINACIÓN POR RAZÓN DE SEXO.
- Authors
SUSANA QUICIOS MOLINA, M.
- Abstract
The imposition of the maternal surname and the paternal surname on children has become a complex issue when the legislator has understood that the preference of the paternal surname is a discriminatory option for women. The successive reforms of our legal system, in 1981, 1999 and 2011, have resorted to private autonomy and the best interests of the minor to resolve the problem, but the excessive vacatio legis of the Civil Registry Act of 22 July 2011 has led the courts of instance to continue resolving disputes between parents under a regulatory rule, little questioned, but probably illegal. The Supreme Court, however, appeals to the best interests of the minor since 2015 to prioritize the maternal surname when paternity is determined in a supervening manner. The Constitutional Court has not been sufficiently conclusive in its rulings, and has not expressly ruled on the violation of the principle of non-discrimination. The ruling of its Judgment of December 14, 2020 leads to the search for the interest of the minor above the will of the parents, expressed in the claim and the answer. The European Court of Human Rights, in its recent Judgment of 26 October 2021 (León Madrid v. Spain), has considered discriminatory the Spanish regulation that put the paternal surname first in the absence of agreement.
- Subjects
MADRID (Spain); LAW reform; CONSTITUTIONAL courts; LEGAL judgments; JUSTICE administration; PERSONAL names; EUROPEAN Court of Human Rights; MINORS
- Publication
Derecho Privado y Constitución, 2021, Issue 39, p249
- ISSN
1133-8768
- Publication type
Article
- DOI
10.18042/cepc/dpc.39.02