The Efficiency Law of Justice Will Prolong Divorce Proceedings and Child Visitation Rights, Lawyers Warn

Family lawyers warn of an "even greater" delay that will occur in divorce proceedings or child visitation rights with the upcoming implementation of alternative dispute resolution methods (ADR), a mechanism outlined in the Efficiency Law of Justice. The introduction of this mandatory preliminary negotiation and the deadlines it entails will lead to even longer legal proceedings, "at least one to two months more," predicts the Spanish Association of Family Lawyers (Aeafa) in a statement released on Monday.

If this prior negotiation attempt is not demonstrated in cases of divorce or child visitation rights, legal claims cannot be filed "and, if done, they will be dismissed," states this body of lawyers, the largest among Spanish attorneys.

The new law, which came into effect in January, will implement ADR from April 3rd with the aim of reducing the number of cases reaching the courts through a preliminary negotiation between parties that allows for an out-of-court resolution of the conflict. The most common types of ADR are negotiation between lawyers, third-party mediation, conciliation, and collaborative law, but they are not widely implemented in our country.

In Spain, moreover, not all localities have courts specialized in Family, Childhood, and Capacity matters. "Aeafa has historically advocated for this specialization so that all citizens, regardless of where they live, can access quality justice," says the Association's secretary, Álvaro Iraizoz, who calls for "investment in material and human resources, with the creation of more judicial positions and more psychosocial teams to address family crises, as none of this has been addressed with the new law."

Lawyers warn that this law does not improve but rather worsens the situation: "In many cases, imposing ADR will be an obstacle to accessing the courts. This is concerning in Family matters involving minors, which are always delicate issues."

Iraizoz warns that the uniqueness of Family proceedings and the fact that children and adolescents are involved means that obstacles to accessing Justice entail risks. "There are numerous conflicts in this area regarding custody and visitation systems, owed support, or the use of the family home, in which delays in processing always bring very harmful consequences. Can you imagine the visitation rights with children or the payment of support being delayed even further? We are talking about issues that disrupt the lives of families and, above all, the children, who are the main victims in family conflicts," Iraizoz points out.

According to Aeafa, consulted judges interpret that some issues such as child custody, visitation rights, child support, and marital matters such as mutual agreement separation and divorce, the liquidation of the community property regime, or compensation for domestic work must be subject to this mandatory preliminary negotiation, as well as the division of inheritance or the contestation of wills.

Given "the confusion" generated by the implementation of the Efficiency Law and its possible effects, courts are receiving a "flood" of lawsuits to circumvent its effects, as judges and lawyers from across Spain have acknowledged to Aeafa. Family lawyers point out that the flood is caused by the ambiguity in the delimitation of matters since, in their opinion, the law does not specify "clearly which Family Law matters must be mandatorily subject to an ADR, leaving a wide margin of interpretation and potentially generating uncertainty for both legal professionals and citizens."

They also criticize that the lack of clear regulation can lead to diverse interpretations by different judicial bodies, "which generates legal uncertainty and hinders the uniform application of the law." They add that the application of ADR in the field of Family Law does not "adequately" develop the practical aspects of its implementation. In this regard, they refer to the difficulties that may arise in properly accrediting the attempt at prior negotiation activity before resorting to the judicial route, the calculation of the new and numerous deadlines provided for in the Law, and the duty of confidentiality regarding the information and documentation used in the negotiation process.