Divorces fall and shared custody increases, but Malaga courts are still full of family disputes

Divorces fall and shared custody increases, but Malaga courts are still full of family disputes

The break-ups of unmarried couples with children and the modification of measures continue to fuel family litigation in the province

Sunday, 11 February 2024, 08:31


Between January and September last year, 2,446 couples divorced in the province of Malaga, 10% fewer than in the same period of 2022. If we compare this figure with 2015, the drop is even more pronounced: 35%. The decrease in marriage break-ups has been the dominant trend over the last decade, with the exception of an upturn in 2021, that has bee attributed to the hangover from the pandemic. But what is the reason for this drop? Have the people of Malaga found the formula for marital happiness?

It only takes an attempt to make an appointment with a family lawyer to see that this is not the case. The explanation given by those who work in the courts will come as no surprise either: people are divorcing less because they are marrying less. The reduction in the marriage rate has been a constant since the arrival of democracy in Spain, but it has accelerated in the last twenty years.

It is enough to compare the marriage rate, which relates the number of marriages celebrated with the population of a territory: in 1977 there were 14 marriages per thousand inhabitants in Malaga, in 1996 it fell below 10 for the first time and in the last decade the rate has been around seven. The data for 2020 and 2021 must be put in quarantine - never better said - because they are conditioned by the pandemic. Nor are the 2022 figures reliable, because they reflect a rebound effect after those two years in which many couples postponed their marriages. And here is another piece of data: in 2017 the percentage of the Andalusian population that identified their marital status as "married" was over 56% and in 2022 this percentage had fallen to 51.6%.

José Luis Utrera is a magistrate of the Provincial Court of Malaga, but before that he was a family judge for many years. He has been an advocate for mediation in family disputes and is a founding member of the Plataforma Familia y Derecho, an organisation in favour of the specialisation of courts in family cases. In his opinion, the reduction in the number of divorces "must be seen in relation to the fact that nowadays there are more families being formed without marriage ties". "It would be interesting to know how many non-marital couples break up," he said. There are currently no statistics that allow this comparison to be made.

"Conflict is on the rise"

The coordinator of the family law section of the Malaga bar association, Roberto Ramón García, said that we should not be "fooled" by the fall in the number of divorces. "If the question is: is there more or less conflict in family relations, the answer is worrying because in recent years we have detected a notable increase in family conflict," said the expert, who put the rise at "20 or 25%". Malaga also has a high divorce rate: it is the eleventh Spanish province with the highest number of cases per thousand inhabitants.

When we talk about family legal cases or conflicts, what exactly are we talking about? In addition to divorces and separations (of the latter there are already very few: 95 between January and September in the province), family courts resolve other procedures, such as custody, guardianship and child support for children of unmarried couples or the modification of measures in divorce settlements. The purpose of the latter is to adapt details of settlements to the changing circumstances of those affected. The most frequent cases of modification of measures are the increase or reduction of maintenance, the change from individual custody to shared custody or vice versa, the extension of visiting arrangements, the termination of maintenance, the modification of the use of the family home or the termination of parental authority.

Conflicts related to the rules governing relations between ex-spouses are "only increasing", according to García. "Half of my work is taken up by these cases, which are not new break-ups, but old ones," he said. The statistics prove him right: in the first three quarters of 2023 the Malaga courts processed 1,395 proceedings for modification of measures, almost 9% more than in the same period of 2015.

Regarding the regulation of childcare for non-marital partners, between January and September of this year, 1,697 proceedings were registered in the province. The trend over the last decade is one of a gentle increase. The historical maximum was reached in 2021, due to the accumulation of cases postponed in 2020. In 2022 and 2023 the figures are more discreet.

38% of shared custody

If there is one piece of good news in the divorce statistics, it is the increase in shared custody, which according to the Supreme Court should be the preferred formula when there are young children involved. Malaga has always lagged behind the national average in the implementation of this egalitarian system of childcare. And it still is, although progress has been notable: in 2022, shared custody was applied to 38% of divorces signed in the province (the national average was 45.5%). The percentage has advanced more than ten points in just two years and has quadrupled in a decade. Not so long ago, in 2013, only one in ten divorced couples with children were governed by shared custody in Malaga.

Divorce by mutual agreement has also increased to become the norm. Eight out of every ten break-ups registered last year in Malaga were consensual. And this is an advance that Utrera puts in relation to the firm commitment of the family courts to mediation.

'Some judges are stuck in the past: they find it hard to award joint custody when it should be the first option'

According to the coordinator of the Family Law Section of the Malaga Bar Association, Roberto Ramón García, the increase in shared custody in Malaga over the last decade is thanks to "the sixth section of the Malaga Provincial Court, which is applying the Supreme Court's doctrine in an exemplary manner and granting shared custody in many cases in which it had been previously denied".

García said that shared custody, according to the Supreme and Provincial courts, should be "the first option" and "only should single parental custody be granted when it is proved that the shared regime would be against the interests of the child". This is what the specialist courts have been applying, but according to García this message has not been absorbed sufficiently by other courts. "Some are still stuck in the last century and seem reluctant to award shared custody; they tend to almost automatically grant custody to the mother," he said.

Magistrate José Luis Utrera was also pleased that shared custody was becoming the norm, something that he put down not only to the attitude of the courts, but also to the changes in gender roles. "Families see that it is a system that works in many cases," he added.

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