The family law reform instituting the principle of joint parental authority: the pursuit of equality for all the parents independently of their legal status

ARTICLE

REAL, Avocats à la Cour

 

The parental authority reform was becoming essential due to the new forms of parenting and the necessity, repeatedly mentioned by the Constitutional Court, to put the parents on an equal footing and this regardless of their matrimonial status.

 

The legislator indeed observed that the legal provisions that existed prior to the law of 27 June 2018 did no longer reflect the reality of the Luxembourg society, since marriage is nowadays largely competing with other forms of unions. In addition, the former provisions of the Civil Code regarding parental authority has already been declared unconstitutional by a Constitutional Court’s judgement dated 26 March 1999.

 

The parental authority reform enshrines the general principle of joint parental authority (1). The legislator also ensured to regulate parental authority in cases of parental separations (2).

 

1. The principe of joint parental authority established as a general rule

 

The law of 27 June 2018 expressly introduced the principle that parents, regardless of whether they are being married or not, jointly exercise the parental authority in relation to their child. The very notion of parental authority has also been defined in the new Article 372 of the Civil Code as being a set of rights and duties aimed at meeting the child’s best interest.

 

The former rules applying to the allocation of parental authority considerably varied depending on the parents’ matrimonial status. Both parents indeed jointly exercised parental authority whenever the children were born during their marital union. Unless the parents made a joint declaration before the guardianship judge or a court decision ordering a joint parental authority, such parental authority could in accordance with Article 380 of the Civil Code only be exercised by the mother when the child was born out of wedlock, even if both parents had recognised the child.

 

The Constitutional Court declared the legal provisions to be contrary to Article 11(2) of the Constitution in the above-mentioned judgement.

 

The principle of joint parental authority operated by the new law nowadays requires both of the parents to consent to all usual and unusual acts relating to parental authority. A parent’s consent is however presumed when the other parent takes a decision, which is qualified as a usual act. Such presumption does yet only apply regarding usual acts. Indeed both parents’ consent must be given with regards to non-usual acts, so that a parent’s consent cannot be presumed in that case.

 

In case of disagreement between the parents regarding a decision that needs to be taken, a parent is free to refer the case to the family court judge who will have to rule on the case depending on the child’s best interests.

 

The corollary of the principle of shared parenthood consists in the fact that a parental separation shall in no way affect the principle of joint parental authority. The principle applies to parents, regardless of them being married, divorced, separated or in a registered partnership. The law has introduced a uniformed system concerning the execution of terms and conditions applying to parental authority.

 

In case of a parental separation, the child’s right to maintain a family link with both of his parents is recognised whereas each parent has the obligation to maintain personal links with the child. This rule applies not only to the parent with whom the child ordinarily resides but also to the other parent to whom the parental authority or the child’s habitual residence has not been granted.

 

2. Parental authority in case of parental separation

 

The new law wishes to promote the parties’ agreements especially in case of separation, this in line with the concept of joint parenthood. The parents may formalise their agreement regarding the terms and conditions of joint parental authority in a settlement, which can, at their demand, be accredited by the family court judge.

 

A major innovation now consists in the introduction in the Civil Code of a possibility of an alternating residence, allowing the residence of the child to be alternatively fixed at each of the parent’s residence. This innovation shall however only be limited to cases where both parents agree with such possibility.

 

The alternating residence does not require a strictly equal distribution of time that the child has to reside at each of the parent’s residence. It however supposes a certain geographic proximity between the parent’s respective residences as well as a good understanding between the former spouses, in the common child’s best interests.

 

If the exercise of a joint parental authority in cases of post-separation of spouses is the principle, the family court judge can however assign the exercise of such parental authority to only one of the parents when the child’s interests require to do so. The parent who does not or partially exercise such parental authority retains, in theory, a right of access and accommodation, except if serious reasons are opposed.

 

Regarding the exercise of the rights of access and accommodation, the legislator intended to dedicate a practice, which currently already exists, by which the rights of access can be exercised at a meeting place or in the presence of a third party but only if it respects the child’s best interest or when the child’s return suggests a danger.

 

Furthermore, in order to prevent international abductions of children or in cases of non-return of children following the exercise of a parent’s rights of access and accommodation, the legislator has introduced the possibility for the family court judge to order in exceptional circumstances, an inscription in the child’s passport mentioning that the child is prohibited from leaving the Grand-Duchy of Luxembourg’s territory without both of the parent’s consent.

 

The legislator also decided to expand the scope of people who are able to apply for rights of access, or even rights of accommodation to third parties who are not necessarily members of the child’s family.

 

Based on the parental authority reform, it must be pointed out that the parents are now put on an equal footing, and this regardless of their status with the primary goal of adapting the law to the evolution of society and in particular to the diversified forms which a family can nowadays take.