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At first glance, the terms "Judicial Therapy" or "ruling and Therapy" might appear to be an oxymoron, a combination within a single syntactic structure of two words or expressions with opposing meanings that together produce a new sense. Yet, over recent years, we have been witnessing how these two concepts, far from being contradictory, are in fact entirely complementary. Courts are increasingly issuing rulings which, beyond setting out a series of divorce-related measures, refer the parties to a therapeutic process as a means of resolving the underlying conflict. This approach goes beyond the strictly legal dimension, taking a step forward in addressing the difficulties that the divorce proceedings themselves have brought to light with regard to the day-to-day management of co-parenting.
In many cases, the parties arrive at trial after a lengthy process of negotiation and/or mediation, having been unable to resolve their differences through those channels. The court perceives the exhaustion of the parties and absorbs their hostility and lack of mutual understanding, ultimately issuing a decision that, as noted, goes beyond what is strictly legal, and refers the parties to a therapeutic process supervised by the court itself, and therefore mandatory in nature. This measure forms an integral part of the operative provisions of the court's decision and is, accordingly, binding on both parties. In a similar spirit, courts are in some cases also ordering that the parties be referred to a support and advice service through what is known as a Parenting Coordinator, who assists them in managing their co-parenting relationship.
All of this is taking place within a new social context in which divorce applications are rising overall. A survey recently published by Spain's General Council of the Judiciary (Consejo General del Poder Judicial) found that, across Spain, between July and September 2014 there were approximately 27,000 more divorce applications than in the same period in 2013.
In Catalonia specifically, since the entry into force of Law 25/2010, of 29 July, approving Book II of the Catalan Civil Code, there has been a clear and sustained increase in claims seeking shared custody, whether brought by way of modification of existing measures, divorce proceedings, or the dissolution of a stable partnership.
It is clear that the current legal framework governing shared custody has led to a rise in contested proceedings, particularly since the entry into force of legislation that promotes shared custody as the preferred, or priority, arrangement, as is the case under Catalan law.
At the same time, the growing number of applications for shared custody has made it necessary to genuinely clarify concepts that were previously assumed to be well understood, yet in practice have been applied with considerable confusion, generating litigation. We are now seeing judgments that are increasingly detailed and explanatory, going beyond purely legal analysis to translate family law concepts into practical reality. Terms such as parental responsibility and custody, which have long been misunderstood, are being reconsidered in an effort to move away from the winner-loser dynamic that tends to emerge in adversarial proceedings. Courts are helping parties understand that a parent with sole custody does not hold greater authority or power than a parent with a visitation arrangement, and that custody, whether sole or shared, relates, strictly speaking, only to the physical residence and day-to-day care of the children.
In essence, we are witnessing an effort to put into practice what Catalan law already enshrines: namely, that separation or divorce does not alter the responsibilities that parents hold towards their children, since those responsibilities retain their shared character after the breakdown of the relationship, a reflection of the child's overriding interest in maintaining a continuous and stable relationship with both parents.
It is within this context that family law is increasingly incorporating elements from other disciplines, to the point where terms such as therapy, Parenting Coordinator, and psychological support now appear directly in court orders and are therefore binding on the parties. This reflects a growing recognition that family law disputes extend beyond purely legal matters and increasingly require the involvement of other resources as a necessary complement to the resolution of both the legal and the family conflict at hand.
It is therefore essential to provide institutions and legal practitioners with sufficient resources to ensure that this new reality translates into a genuine and effective presence of new tools that complement and integrate Family Law, so that court orders can be enforced in their true terms, and their substance is not undermined by a lack of adequate therapy centres or trained professionals capable of acting as Parenting Coordinators.
