La modificación de medidas en la sociedad líquida

Abstract

This thesis tackles proceedings for the varying of terms in court orders based on the assertion that they are a privileged factor in Spanish family law in relation to society and its changes; the 1981 Divorce Law, its historical antecedents and its modifications are analysed from this perspective. The thesis also makes a quantitative analysis of judicial cases in family law and the role played within them by proceedings for the varying of terms. All of this is based on the premise of the liquid nature of society, in the sense coined by Zygmunt Bauman, and its effect on family relationships. From this, it is inferred that a divorce exists between regulation and legal proceedings on the one hand, and social reality on the other; this is asserted by analysing the regulatory and legislative responses (or lack thereof) to the social realities surrounding the family, characterised by their nature in connection with the liquid nature of society, and the manifestation of them in the form of relationships only founded on love and will, and, consequently, of limited duration overall, in a context of uncertainties, insecurities and permanent changes. Evidence is shown for the refractory nature of the regulatory system in the face of realities such as reconstituted family constellations or the consequences within the family unit of the lack of economic perspective, and with it the emergence of the precariat. It is also asserted that the aforementioned divorce between system and society has resulted in the consequence that, just as families are increasingly formed and broken up without legal recognition, their relationships are also adapted at their free will following the split, including when there are terms agreed in court, with the latent risk which this implies for the weakest party and, especially, for children, if there are any. In these liquid scenarios, family law rulings enter into decline, they are sometimes already obsolete when pronounced and this leads to questioning the certainty of law, especially when it derives directly from a code. Terms pronounced in court as permanent, in contrast to liquid reality, are merely innocuous rhetorical declarations. The current shape of proceedings for the varying of terms is in need of reform to bring it closer to the liquid reality of society, for which it is essential that the system stops understanding the terms as "definitive" and the varying of them only as exceptional; hence the proposal of lege ferenda, which is formulated on the premise that exceptionality does not mean the substantial change of circumstances to which the law alludes but, in any case of law, it is precisely the maintaining forever of the ratio decidenci which is the exception.

Date of Award	19 Nov 2018
Original language	Spanish
Supervisor	Judith Sole Resina (Director)