Law 3/2012, 19 April, qualified for the modification of the qualified law of marriage.
Since the General Council at its session of 19 April 2012 has approved the following: law of modification of the qualified law of marriage.
Exhibition of illustrations and the procedure of provisional measures that article 63 of the qualified law of marriage of 30 June 1995, has been, in practice, little, the frequency with which runs: operating from the application to the adoption of these measures is almost as long as the main procedure. It can be said, therefore, that, in these cases, the provisional measures do not meet properly the function assigned to it, which can result in serious damage to the justiciable.
It is true that article 64 of the law allows the Mayor, in cases of necessity or urgency, adopt measures with virtually immediate, even unheard-of altera parte, but jurisdictional bodies have shown a prudence very understandable at the same time adopt measures without listening to one of the parties affected, and limited to truly exceptional cases, so that the procedure of article 64 does not serve to mitigate the weaknesses of the procedure of article 63.
Why has seemed necessary to regulate again the procedure of article 63, in order to make possible the rapid adoption of measures to regulate provisionally aspects such as the use of the marital home, the guardianship and custody of children, or the attribution of allotment, while processing the separation. This new procedure is guided by the principles of orality and immediacy, and main event a joint appearance of the parts in front of the Mayor.
This is an important innovation, which should allow a very substantial reduction of the period of adoption of provisional measures, on which it has wanted to give a great flexibility in order that the Mayor can protect with speed the interests that you need and avoid situations of helplessness.
Have found it appropriate to take advantage of this modification of the qualified law of marriage to provide small additions in some other of the precepts that govern the procedural aspects. So, is inserted into the article 51.1 a new element in the array of measures that can be adopted by the Mayor with the provisional character, specifically the prohibition to a spouse to come into contact with each other or with their own children. It introduces a new section in article 61 in order to foresee the possibility for the spouses to present a lawsuit together when it comes to mutual agreement procedures, such as I was doing in practice. Finally, you create two new additional provisions; the first aims to introduce a minimal regulation of the practice of the test, and in certain cases, while the second meets the objective of extending the procedure of provisional measures regulated by the law on the adoption of measures relating to the common children of people who are not linked to marriage or to a stable relationship as a couple.
With this order approves this law of modification of the qualified law of marriage, with the following content: Article 1 Amendment of article 51.1 modifies the article 51.1 of the qualified law of marriage, which is worded as follows: "1. The civil jurisdiction, at the request of the spouse who has formulated demand for annulment, separation or divorce , or who intends to formulate it, appreciating the necessity and the urgency of the case and taking into account the interests most family protection needs, you can have the provisional measures as it deems appropriate in connection with the separation of the spouses, with the attribution of the use of the family home and oït, the public prosecutor, with the guardianship and care of children and the regime of visits , with the contribution of the spouses in the loads of the marriage and the extraordinary expenses of the children, and the establishment of the pension for the children. The Court can also ban one of the spouses come into contact with each other or with their own children, in case of serious danger to their physical or psychological integrity. "
Article 2, introduction of a new section in the article 61 is inserted a new paragraph in article 61 of the qualified law of marriage, numbered 1A, and located between sections 1 and 2, with the following text: "1 bis. The procedure for the approval of the agreement referred to in the preceding paragraph begins either by means of a joint demand addressed to the Mayor, accompanied by the agreement and of the appropriate tests, or by a written set of spouses at any time within the framework of a contentious procedure, in which you are interested in the continuation of the process of mutual agreement, and with the agreement and appropriate tests. In particular, the parties must provide the documents that prove their nationality and residence, the celebration of marriage and filiation of common children, when applicable; must provide the documents which make it possible to assess the financial capacity of each one of them, the economic needs of dependent children, where appropriate, and any other circumstance you deem appropriate. "
Article 3 amendment to article 63 article 63 is modified of the qualified law of marriage, which is worded as follows: "Article 63 1. The spouse who intends to file a lawsuit of nullity, separation or divorce can be requested in advance the adoption of provisional measures referred to in article 51 by writing to the Council; This application also can be formulated in conjunction with the written demand. Any of the spouses can do likewise at any later time, during the main trial substantiation, before that judgment at the top.
2. If the application of provisional measures is presented before the lawsuit, assigned, to turn, to the Mayor that corresponds, which will also be competent to resolve on the main claim, if during the procedure of provisional measures or within the deadline provided for in article 51.2. If the application of provisional measures is presented in conjunction with the written demand, or subsequent to this demand, it is competent to resolve the mayor who knows the main cause.
3. Once we have received the request for provisional measures, the Mayor cited the spouses and, when there are minor children interested, the public prosecutor's Office, in a joint appearance with the exclusive object the adoption of these measures. The hearing must be held within ten working days following the date of the request, and the spouses have to attend accompanied by their lawyers and provided all the elements of proof of what you want to him and are at your disposal. In the event that any of the spouses, duly quoted, appears without lawyer, will be assisted by duty counsel.
In particular, the parties must provide the documents that prove their nationality and residence, the celebration of marriage and filiation of common children, whenever appropriate; must provide the documents which make it possible to assess the financial capacity of each one, the economic needs of dependent children, where appropriate, and any other circumstance you deem appropriate.
4. in the event of appearance, the Mayor invites the spouses to agree on the provisional measures to be adopted. This agreement is not binding on the respective claims of the parties in the main procedure of annulment, separation or divorce, nor for the decision to take the Court in relation to the definitive measures. If one of the parties, having been duly cited, fails to appear, you must proceed in the manner provided for in point 6 of this article.
5. If the spouses reach an agreement, the judge, after hearing the public prosecutor, where appropriate, you can approve it and, in this case, dictates a sentence in which solves the adoption of the measures. This sentence can be amended in the manner provided in section 7 of this article.
6. When the spouses do not reach an agreement, or an agreement to come is not approved by the Mayor, the Mayor needs to hear their allegations and those of the public prosecutor, where appropriate; you have to examine the evidence that contribute, and must be resolved by a sentence that dictates at the same time or within 5 working days. By exception, if the Mayor, ex officio or at the request of a party, consider coming from practice any proof that cannot be carried out in the same event, has pointed out a date to do so as soon as possible, but may, however, adopt certain measures with provisionalíssim character while not dictates the resolution. Once you have practiced the test, the Mayor moved to the parties for a period of five working days of the meeting conclusions, and resolves within five working days following by a summons.
7. The provisional measures taken remain without effect in the case envisaged by article 51.2, when they are replaced by the established by the sentence, or when you finish the main procedure to another form. While subsist largely, can be modified by batlle, in cases in which they have produced a significant change in the circumstances which were taken into account when adopting them. The procedure will be the same as described in this article. "
Article 4 introduction of a first additional provision is inserted into the qualified law of marriage a first additional provision with the following text: "first additional provision 1. In the joint demands of separation and divorce, the judge may admit as evidence the statements of witnesses that will provide in writing, if they are dated and signed in all the pages for the person who declares, with the mention of the manuscript "read and approved", and it is accompanied by a copy of a document of identity of the declarant.
2. The Mayor may also admit as evidence the statements of witnesses referred to in the preceding paragraph in the lawsuits, when you contribute with the sole purpose to prove the cause of separation or divorce, and the demands of provisional measures and to amend provisional measures. "
Article 5 a second additional provision is inserted into the qualified law of marriage a second additional provision with the following text: "second additional provision the measures provided for in articles 62 and 63 of this law can be adopted, at the request of a party, in relation to persons who are not married or prove a stable Union of a couple, and with their children. In this case, the resolution adopts the way of ruling. "
Repealing provision abolishes all rules or provisions of equal or lower rank that conflict with or versus offline the provisions of this law.
Final provision this law comes into force the day after the date of publication in the official bulletin of the Principality of Andorra.
Casa de la Vall, 19 April 2012 Vicenç Mateu Zamora Syndic General Us the co-princes the sancionem and promulguem and let's get the publication in the official bulletin of the Principality of Andorra.
Joan Enric Vives Sicília Nicolas Sarkozy President of the French Republic and the Bishop of Urgell Co-prince of Andorra Co-prince of Andorra