FUNDANEED.es
The BOE of 22 March published Organic Law 2/2022, of 21 March, on improving the protection of orphans who are victims of gender violence, which came into force the day after its publication.
This legislative reform carried out by this text aims to eliminate certain regulatory uncertainties and obstacles faced by orphans of gender violence, in order to alleviate, at least in part, the situation of extreme vulnerability resulting from their status as victims of gender violence, and thus contribute to creating the circumstances for them to develop a full life, in conditions of freedom and equality.
The uncertainty about the procedure applicable to the liquidation of the community property in cases of women who have died as victims of gender violence and, in particular, the impossibility in some cases of accessing the regime provided for in Articles 806 and following of Law 1/2000, of 7 January, on Civil Procedure, is damaging orphans who find themselves in this situation, as it is delaying their access to the liquidation of their mothers’ matrimonial property regime and, with this, to the determination of their inheritance, without the agreement of their mothers’ murderers, with the negative consequences that this can have for them.
For this reason, and in order to unify judicial pronouncements on the matter and avoid this uncertainty, it is necessary to reform the regime provided for in Articles 807 and following of Law 1/2000, of 7 January, on Civil Procedure to expressly regulate the legitimisation of the heirs of the deceased victim to urge the liquidation of the matrimonial property regime in accordance with the procedure contemplated therein.
The modification indicated in the previous section also makes it necessary to modify article 87 ter of Organic Law 6/1985, of 1 July, of the Judiciary to attribute to the Courts for Violence against Women the jurisdiction over the proceedings for the liquidation of the matrimonial property regime brought by the heirs who have died as a result of crimes of gender violence.
In accordance with Article 807 of Law 1 Law 1/2000, of 7 January, the jurisdiction to hear the liquidation procedure corresponds to “the Court of First Instance that is hearing or has heard the nullity, separation or divorce proceedings, or the one before which the proceedings on the dissolution of the matrimonial property regime are being or have been followed for any of the causes provided for in the civil legislation”.
In the case of crimes of gender violence, as the Court of Violence against Women has jurisdiction over the criminal proceedings and the heirs are victims of gender violence in accordance with article 1. 2 of Organic Law 1/2004, of 28 December, on Comprehensive Protection Measures against Gender Violence, the competent court to settle the liquidation of the matrimonial property regime of the deceased should be the Court of Violence against Women or the Court of First Instance and Instruction with jurisdiction over gender violence that is handling the criminal proceedings.
In this sense, according to Article 87 ter, paragraph 2, of Organic Law 6/1985 of 1 July 1985 on the Judiciary, if the woman had survived, the Courts for Violence against Women would have been competent to process the separation, divorce or annulment proceedings, as the case may be. Although, in principle, the procedure for the liquidation of the matrimonial property regime is not included in the catalogue of Article 87 ter, section 3, of Organic Law 6/1985, of 1 July, of the Judiciary, when a Court of Violence against Women is hearing or has heard the nullity, separation or divorce proceedings, the jurisdiction over the liquidation will also correspond to it, in application of Article 807 of Law 1 Law 1/2000, of 7 January, Civil Judgment. This is due to the link that the liquidation of the matrimonial property regime has with the cause and effects of the dissolution.
In cases of the death of the mother as a result of an act of gender violence, the cause of the dissolution is homicide or murder, which is settled in criminal proceedings, for which the Court for Violence against Women has exclusive jurisdiction. Therefore, when the heirs sue for the liquidation of the regime on behalf of their deceased mother as a result of acts of gender violence, jurisdiction should also be attributed to the Courts for Violence against Women.
Amendment of the LOPJ: a new letter h) is added to paragraph 2 of Article 87 ter of Organic Law 6/1985 of 1 July 1985 on the Judiciary, which shall read as follows:
“Article 87 ter.
h) Those concerning proceedings for the liquidation of the matrimonial property regime brought by the heirs of the female victim of gender violence, as well as those brought against these heirs”.
Modification of the Civil Procedure Act: articles 807, 808 and 810 are modified.
One. Article 807 will have the following wording:
“Article 807. Jurisdiction.
The Court of First Instance or Court of Violence against Women that is hearing, or has heard or has had jurisdiction to hear the nullity, separation or divorce proceedings, or the one before which the proceedings on the dissolution of the matrimonial property regime are being or have been followed for any of the causes provided for in civil legislation, shall have jurisdiction to hear the liquidation proceedings”.
Section 1 of Article 808 will have the following wording:
“Article 808. Inventory request.
Once the application for annulment, separation or divorce has been admitted, or the proceedings for the dissolution of the matrimonial property regime have been initiated, either of the spouses or their heirs may request the drawing up of an inventory”.
Three. Article 810 shall read as follows:
“Article 810. Settlement of the matrimonial property regime.
(1) Once the inventory has been completed and, where appropriate, once the decision declaring the matrimonial property regime dissolved has become final, either of the spouses or, in the event of death, their heirs may apply for its liquidation.
2. The application shall be accompanied by a proposal for liquidation, including the payment of compensation and reimbursements due to each spouse and the division of the remainder in the corresponding proportion, taking into account, in the formation of the lots, the preferences established by the applicable civil rules.
3. Once the application for liquidation has been admitted for processing, the Legal Adviser for the Administration of Justice shall, within a maximum period of ten days, set the date and time on which the spouses or, if they are deceased, their heirs shall appear before him/her for the purpose of reaching an agreement and, failing this, appoint an accountant and, where appropriate, experts, to carry out the divisional operations.
4. If, without just cause, either of the spouses or, if deceased, their heirs fail to appear on the appointed day, they shall be deemed to have agreed to the settlement proposal made by the spouse or, if deceased, by the heir who appeared. In this case, as well as when both spouses or, if deceased, their heirs have appeared and reached an agreement, this shall be recorded in the minutes and the act shall be deemed to be concluded, and the agreement shall be carried into effect in accordance with the provisions of the first two paragraphs of Article 788 of this Act.
5. If no agreement is reached between the spouses or, if they are deceased, their heirs on the liquidation of their matrimonial property regime, the appointment of an accountant and, where appropriate, experts, shall be carried out in accordance with the provisions of Article 784 of this Act, and the proceedings shall continue in accordance with the provisions of Articles 785 and following”.
Comments are closed.