The Family Code will be made available to the people of Cuba for its ratification in a referendum next Sunday, September 25, as was reported in the recently concluded National Assembly of People’s Power in the work session on July 22 last. This is the text that results after the popular consultation stage is completed and responds to the mandate established in the Eleventh Transitory Provision of the Constitution of the Republic of Cuba proclaimed on April 10, 2019, which orders the highest legislative body to order the start of the process that concluded on April 30 and the final step that is yet to come.
The new proposal of the family substantive text has as background Law No. 1289 of February 14, 1975, Family Code, modified in several of its precepts, essentially by Law No. 51, of July 15, 1985, of the Registry of Civil Status and Decree-Law No. 76 of January 20, 1984. Aware of the changes, needs, expectations and realities of the contemporary Cuban family, the 2019 Constitution of the Republic introduced a series of principles that have radically transformed the traditional criterion that of this important social group has prevailed for too long and of its rights as an institution, as well as those that correspond to each of its members, based on the value-principle of dignity that it enshrines as the essence of the rights of the person, which is nothing more than to say that the person has a value in itself, independent of any circumstance or internal or external quality; and it is particularly linked to the free development of the personality and the protection of family life without biases of inequality, all principles also enshrined in the constitutional text.
The recognition of the equality of all people before the law implies the same protection in the enjoyment of rights, freedoms and opportunities, without any discrimination due to any personal condition or circumstance that implies a distinction harmful to human dignity. Transferred to the family level, it means, among many manifestations, the right of all people to marry and found a family, to organize it in the way that their convictions dictate, to access all the institutions that are protected in the family space, to Balanced use of time that allows them to fully develop without domestic and care overloads and co-responsibility in the tasks of caring for the children and those that the rest of the members need in the different stages of their lives.
The right to free development of the personality protects the option that each person chooses the construction of their life project, that they decide the meaning of their own existence, according to their values, ideas, expectations and tastes. Taken to the level of the family, it supports the abolition of the requirement of heterosexuality to access figures protected by law such as marriage, de facto affective unions, adoption or motherhood and fatherhood through the use of assisted reproduction techniques; justifies the presence of divorces without requiring the need to air a reason for guilt, but rather that the will of the person is sufficient when they no longer wish to remain linked to their spouse, and the possibility of agreeing on the economic life of the couple, for only mention some examples of the concrete expression of that principle.
The Constitution dedicates the Third Chapter of Title V to the Families in its articles from 81 to 89. This location in the system of the First Law is not accidental nor is it meaningless; The protection of the family must be seen from the vision of protection of rights. The legal norm dedicated to its protection cannot be less. The approval of a Family Code in Cuba becomes an urgent need, felt and dreamed of by many based on regulations conceived with a deep ethical sense, with a vocation for plurality and inclusion, erected from affection, on the basis of respect to the difference and visibility of the most vulnerable sectors in the family order.
The project seeks to guarantee the rights of all people, regardless of the structure or form of organization they have opted for when forming a family, so that values such as mutual respect, loyalty, solidarity, assistance reciprocal, as well as the affection between its members so that the family does not cease to be a moral entity, of a plural nature that has a single objective: make those who compose it happy. It is about designing a normative body tailored to the Cuban society of these times.
The text that will finally be taken to a referendum is divided into 11 titles, 474 articles, 5 transitory provisions and 44 final provisions, and its main aspects are consolidated, namely:
-Affection and solidarity are reinforced as the platforms and axes on which family relationships revolve. The project looks at families as a union of people linked by an affective, psychological, sentimental bond that are forced to a communion of life, so that they support each other. Thus, affection wins and is established as a legal value.
-There is an intentional treatment of discrimination and violence in the family space, with palpable legal effects in each circumstance in which it occurs and the possibility of its being denounced by any person who has knowledge of these facts.
-It seeks to recognize and protect the rights of vulnerable sectors of society that have often gone unnoticed in the eyes of the legislator; people who in the family space could be in some circumstance that places them in any situation of disadvantage and that usually concentrates on children and adolescents, people who are victims of violence, older adults, or people with disabilities. In the last two cases, a special title is dedicated to their rights to family life, autonomous and independent, free of violence, to choose a place of residence, to an accessible environment, to self-regulation of future protection, to participation and inclusion. social and family, family communication and support respectful of their preferences is an achievement of the new standard that is proposed.
-The rights of older adults are recognized, with special mention to grandfathers and grandmothers, who have transmitted values, traditions, customs, have forged family identity and have been architects of the work of caring for the younger generations, as an expression of high values, of loyalty, of respect for those who have preceded us. It is a debt that family law settles with them.
-Girls, boys and adolescents are treated as subjects of rights, with the possibility of exercising them, either by themselves or through their fathers, mothers and guardians, but in any case, based on respect for their individuality, to their progressive development, as they are people in formation, which does nothing more than respect the postulates of the Convention on the Rights of the Child that Cuba has signed. This seeks to promote decision-making, the assumption of responsibilities, the exercise of their rights and the demand for duties to the extent that they can form their own judgment.
-Kinship is transformed, firstly, because the sources of filiation are also transformed and secondly because kinship by affinity is strengthened. To the affiliation by consanguinity and by adoption, we add the one that has as its source the use of an assisted reproduction technique and the one that has its origin in socio-affectiveness. Kinship by affinity will not only depend on marriage but also on de facto affective unions and the legal regime of related mothers/fathers/grandparents/sons/daughters is structured. (stepmothers and stepfathers)
-The exercise of the freedom of family members to agree on different situations is allowed: mothers and fathers to agree on the distribution of custody and care of their sons and daughters, which includes the possibility of sharing them in harmony with the principles of co-responsibility and co-parenting; to the spouses to agree on the economic regime of their marriage; to the members of the affective de facto union to organize their coexistence; people to agree on the solution of family conflicts outside the judicial space through mediation or conciliation; mothers and fathers to reach agreements in the order of the surnames that their daughters and sons will bear.
-The right/duty of communication is reinforced, not only between mothers and fathers with their minor sons and daughters, but it also reaches the entire family group with a special look at the mechanisms of its guarantee in people with disabilities.
-There is a transition from a system of authority to a system of responsibility in the relationship between mothers and fathers towards their children, which, far from being weakened, enhances and reinforces the powers of legal representation and administration of their children’s assets, their rights and the duty to have them with them, take care of them, offer them love, emotional stability, educate them without violence, respect their own characteristics taking into account their growth and gradual development.
-The economic value of work in the home and greater economic and patrimonial protection are reinforced for those who have dedicated themselves to domestic and care work.
Figures of protection and friendly support are developed with the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities such as de facto guardians, foster care, guardianship only for minors or voluntary food.
-Care is recognized as a right and family caregivers are named and recognized, based on the protection of their rights when they fully or partially assume responsibility for the care of another person who is part of their family. It is about achieving a balance, on the one hand, the right that every person has to care and, on the other hand, that of someone who, renouncing many of their personal and professional projects, dedicates themselves to the care of their relatives.
-It is worth noting the projected reform, still superficial, of the Civil Code that also reacts to two fundamental elements, which are not the only ones:
The transformation of the legal regime of legal capacity regulated in the Civil Code, consistent with the paradigms of effective participation, social and family inclusion, physical and cognitive accessibility.
Concrete responses to this scourge of family violence.
Finally, the look at families must be in the plural, from their denomination and this has a symbolic value in the language of the family legislator, respecting the language used by the constituent and the various family realities.
In the drafting of the proposed text, the discourse has been taken care of, not only in a rational sense from the inclusive but from the use of terminology in some institutions of family law, appropriate to the social changes that are proposed as a transmitter of values. . That is why expressions such as “patria potestad” convey to us the representation of a society with a typical patriarchal family model, which has been replaced today by an idea of a family in which equality prevails and emphasizes the responsibility with which the rights and duties established for the protection of the child must be exercised.
The important thing is to accompany the reference to their condition as a person and promote the replacement of these expressions, which aim more to emphasize immaturity or incapacity or diminution or deficiency, than in the potentiality of the person.
Likewise, views have been taken advantage of not only from Law but also from related sciences such as Psychology, Sociology, Medicine, Demography, Pedagogy, Statistics, among others, but not with a compassionate or merely tolerant vision of the new family models, but with a vocation for ecumenism that the constitutional plural exalts.
Between September 29 and October 15, 2021, the Specialized Consultation process was carried out and between the months of February and April of the current year, the Popular Consultation process was carried out. The results were announced by the National Electoral Council on May 15, 2022: more than 61.96% of the participants in the popular consultation expressed themselves in favor of the entire text.
The final text that will be submitted for the ratification of the Sovereign is the sum of all the criteria provided by specialists and by the people in the neighborhood assemblies and in the discussions in the workplaces, universities, and other student centers, analyzed exhaustively and punctually. and taken into account except those that cause a manifest inconsistency with the rights enshrined in the Constitution and the international treaties to which Cuba is a party.
These are, in essence, those that imply limiting the access of all people to all the institutions that the text protects with special emphasis on marriage, to constitute an affective de facto union, to the adoption or use of reproduction techniques assisted that violates the rights to found a family, whatever its form of organization and maternity and paternity; or to eliminate the positive notion of upbringing without violence, or the notion of the relationship of mothers and fathers with their children based on responsibility, or the references to the progressive autonomy of children and adolescents that contradicts the Convention of the Rights of the Child, its Observations and Recommendations.
A quick look at the main modifications incorporated allows us to summarize them in the following:
The WHEREAS are expanded as a text in which the reasons for which it is written are explained and the objectives it intends to achieve are explained based on the transformations that have occurred in the family and Cuban society that justify a change in the norm and exalt the role played by all in the conception of it.
The right to care and the effective protection that those who assume such a noble task deserve is expressly recognized, based on the recognition of care as the foundation for the development of humanity and the sustainability of societies, which implies its social valorization and its fair distribution. and allows promoting the implementation of positive action measures that guarantee the full enjoyment and its effective fulfillment and the real equality of opportunities and treatment.
The protection of children and adolescents is extended to exceptional and disaster situations: It is part of the action of the Cuban State that is only reinforced with the explicit recognition in the family norm. Recently, the guarantee of this right was verified as a result of the accident at the Hotel Saratoga in Havana; All the children had their health and education guaranteed immediately after the catastrophe.
The principle of the best interest of girls, boys and adolescents and their assessment guidelines are intertwined with the duties that assist them: their recognition as subjects of rights implies that they are also holders of duties. Especially respecting their relatives, participating and taking joint responsibility for the care of the home and the performance of domestic tasks according to their age and regardless of their gender.
Urgent protection against discrimination and violence is reinforced and the possibility of filing a complaint is extended to anyone who knows about these facts, beyond protection in the judicial sphere.
Clarity in the definition of solidarity gestation is improved, its distinction with the assumptions that generate multiparenthood, a term is established to start the process and the figure is further shielded.
Rules of personal content of the exercise of parental responsibility and those that link the consent of both holders of parental responsibility are outlined, for example, for departures from the national territory and its impact on the eventual abduction or retention of children and adolescents. .
The option of recording in a notarial deed the delegation of part of the exercise of parental responsibility and guardianship and care in favor of third parties is incorporated: if the agreements of the members of the families are respected and these do not undermine the interest above, the option of assuming these agreements by writing is enabled.
The Family Code is one of the most important norms for the social life of the nation. It breaks the traditional paradigms on which it has been based to build a more democratic Law, as well as supportive and responsible; extends its protective mantle to all people, by multiplying affections and adding rights.
It is, in short, a norm that responds to the principles and dictates of the Cuban Constitution of 2019 and, like it, is inclusive, pluralistic, insofar as it strengthens the meaning and search for fulfillment of the person, of their happiness. , from the recognition of dignity as the supreme value and foundation of the rest of the constitutional rights recognized in it.
(By: Dr. Ana María Álvarez Tabío. Posted in: Think Right)