Spain, since Act 13/2005, of 1 July, which amended the right to marry, same-sex marriage (better known as gay marriage or lesbian marriage) has been permitted, and is equated with heterosexual marriages for all purposes, such as the inheritance rights of the widow or widower, the rights and obligations of marriage, the dissolution of the marriage, the right to adopt, the typical obligations of the marriage, etc., thus removing the discrimination suffered by the homosexual community in relation to the right to marry and moving towards equal treatment without taking a person’s sexual orientation into account.

Treating homosexual and heterosexual marriage in the same way also means that the capacity requirements for marrying and the prohibitions relating to marriage are the same as those that apply to a marriage between a man and a woman. Homosexuals can only marry in a civil ceremony. The Church only permits marriage between a man and a woman, so if you are gay or lesbian you can only have a civil marriage, never a Church marriage.

So the only difference between a heterosexual marriage and a same-sex marriage is in the way it can be celebrated, since the first can be either a civil or a religious wedding ceremony, but homosexuals can only have a civil wedding. The civil consequences are the same whether the marriage is between a man and a woman, or between two men or two women.

By enacting this Law, Spain became one of the first countries to recognise homosexuals’ right to marry.

One of the innovations of this Act that should be noted is that it permits adoption by homosexual spouses. Their rights and obligations in relation to their adopted children are the same as those of married couples of the opposite sex.

Spain was the third country in the world, after Belgium and the Netherlands, to allow a man to form his family as a father by adopting a child, and currently the Spanish Law covers adoption by couples whether they are officially married or unmarried, irrespective of their sexual orientation, provided they have the necessary qualities for adopting a child.

Portugal, in June 2010 became the eighth country to legalise marriage between two people of the same sex, although it excluded the right to adopt.

Since then, more than 1,500 marriages have been celebrated between persons of the same sex, according to the Portuguese National Institute of Statistics.

Individual adoption was previously open to everyone in Portugal, but the law of February 2010, which allows marriage between persons of the same sex, explicitly excluded the right of adoption in the case of homosexual couples.

The Portuguese Parliament opened the way for same-sex couples to legally adopt five years after homosexual marriage was approved in the country.

Divorce in Spain

The number of homosexual marriages in Spain is declining and they are becoming shorter. There is no need to look at other countries in the European Union to prove this. After twelve years of homosexual marriage in Spain, the statistics speak for themselves.

The procedure for homosexual couples to file for divorce in Spain is exactly the same as that for heterosexual couples with regard to the rights and obligations relating to children, provided they have been legally adopted by both spouses. In our experience as lawyers specialising in family law and being very familiar with divorces filed by homosexual couples, we recommend that the necessary preparations be taken in advance of a possible break-up, particularly if one of the spouses is not the biological father of the children, or they have not been legally adopted.

Clara Belzuz Fernández

Diretora do Departamento Direito da família e da Empresa familiar

Belzuz Abogados SLP

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