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Central American University - UCA  
  Number 406 | Mayo 2015



The Family Code is the final link in a project of social control

The recently approved Family Code went into effect on April 7. What are the fundamental aspects of this important new law? What are its “SWOTs” (strengths, weaknesses, opportunities, threats), to use the well-known analytical method for evaluating projects?.

Juanita Jiménez

We now have a Family Code for the first time in Nicaragua. The government and its institutions have woven together a media campaign that presents this code as a great novelty and a major advance, but even at first glance we can see that not much is new and there’s evident backpedaling. Nonetheless feminists and lawyers dedicated to defending women’s rights are studying it because it’s a broad-scope piece of legislation that establishes new regulations and will require changes in the procedures for protecting the rights and obligations deriving from family relations. While we still don’t have references for how such an ample set of regulations will be applied, I can offer some early insights from both a legal and political perspective to at least contextualize a code that will affect the entire population one way or another.

The history of the process in a nutshell

The objective of drawing up a family code was to harmonize all of the country’s preexisting laws related to the family. The code that has now been put into effect is the culmination of a long process initiated in 1994, when President Chamorro was still in office. Over that time, different social sectors have fought over it based on their particular interests, in which the bottom-line dispute was always between going forward or backward.

It was evident from the outset that some sectors were interested in pushing back some of the legal advances attained in the years of the revolution, ones I defend as very valuable. For example, the 1988 law that establishes divorce based on the unilateral desire of one party was a novel and revolutionary law that marked an important juridical advance regarding freedom and equality. Some have wanted to get rid of that law ever since, but without success.
The aspiration of the human rights defense movements participating in this debate, including feminism, was to ensure that the Code would guarantee rights for both females and males in the relations within society’s most micro-expression: the family. The women’s movement was one of the most active in avoiding the roll-back of our rights.

Before the revolution, all legislation referring to the family was included in the Civil Code. Traditional conceptions were modernized in the 1987 Constitution, eliminating examples of discrimination, such as differentiating between “legitimate” children and “illegitimate” ones, i.e. those born out of wedlock. The Constitution also recognized the family within a democratic framework, establishing that it must be based on relations of respect and recognition of the absolute equality of men and women. It further recognized the same rights for both matrimony and a stable de facto union, given that a free and consented union between two people is the majority situation in Nicaragua and is rooted in the customs of our original peoples. Other advances in that Constitution were aimed at recognizing equality between men and women in general and establishing the State’s obligation to eliminate discrimination. These are some of the constitutional norms that permit the sexual diversity community to demand that the current Family Code guarantee them the same rights it recognizes for heterosexual families.
Another innovation of the revolution was to regulate the child support that fathers and mothers are obliged to guarantee, both when the parents are together and in the case of divorce, separation or abandonment. The revolution also institutionalized an advance in regulating mother-father-child relations by abolishing the concept of “patria potestad,” which comes from Roman law and establishes the father as head and rector of the family in an authoritarian “father knows best” sort of way. The 1987 Constitution establishes shared responsibility by both parents in equal conditions.
A first draft of the Family Code was finally sent to the National Assembly in 2004, where the disputes continued unabated, delaying its approval time and again. The Code was taken back up in 2007, with the FSLN’s return to the executive branch, and was finally approved in October 2014.

A cure worse than the illness

But with the FSLN again in power, “the cure was worse for us than the illness.” Like many other colleagues, I confess I would have preferred that the Code had never been approved, thus avoiding what we now have.

The family is a social reality and the law’s goal is to regulate the relations of those who interact in the family sphere. Although a country’s legislation always reflects its culture, context, reality and political model, it can’t be beyond human rights. At a world level, the current trend is toward recognizing the human rights of all individuals and population groups, eliminating all discriminations and inequalities that have prevailed in our profoundly patriarchal and machista societies, which have always privileged men over women and imposed the model of a heterosexual couple. Now in the 21st century, we might have expected thinking more in line with this new trend from legislation such as our new Family Code, recognizing rights in the families that assume their multiple forms and diversities. Regrettably that hasn’t been the case.

The approved Code contains a mixture of interests. And in a context in which the regime is seeking to bring the entire juridical framework into line with its power project, we need to understand the Code as the final link of a chain of strategic political changes. This regime is profoundly authoritarian, controlling and arbitrary, stamping everything it does with a fundamentalist religious bias, and the Code fully reflects that mentality.

The final link in a perverse chain

To better understand the concerns awakened by the Family Code, it’s important to first recognize that we’re moving from a democratic regime under construction to a dictatorial regime characterized by constant violations of the Constitution and the institutional juridical framework. We’re also going through an accelerated process in which the political regime is adjusting that framework to the illegalities and illegitimacies it’s committing. This doesn’t refer only to the violation of the Constitution that led to Daniel Ortega’s presidential reelection. All changes made by the regime in the past two years [after the FSLN gained an absolute majority in the National Assembly] have been geared to concentrating power in the executive branch and adjusting the entire institutionality to the interests and ideology of the presidential family and the regime it represents. In an extremely short period of time, it unilaterally reformed the Military Code and National Police Law, passed a canal concession that established a state of exception within the State and substantially reformed the Constitution itself. Even Law 779 against violence toward women—a revolutionary piece of legislation we fought for over many years—was distorted almost immediately after being approved. The Family Code isn’t removed from this perverse process; it’s one of the final links in the chain.

If the amply consulted 1987 Constitution represented the social consensus of a large part of Nicaraguan society in that particular historical context, and the 1995 constitutional reforms—especially those that reduced the attributes of the executive branch—reflected the social consensus of the part of society that felt excluded during the revolution, the constitutional reforms of 2001, product of the Ortega-Alemán pact, didn’t represent any consensus; they responded to the interest of those two caudillos. Finally, the new constitutional reforms ratified last year broke with the entire social consensus we had known, the framework of rights we recognized and essential aspects of the constitutional framework, and have imposed a political and religious ideology on the country. Moreover, none of these reforms of the original 1987 Constitution were consulted with the population.

It’s no small thing that the reformed Constitution added “Christian values, socialist ideas and solidary practices” to the “principles of the Nicaraguan nation,” defined previously as freedom, justice, respect for human dignity, political and social pluralism, recognition of the different forms of property ownership, free international cooperation and respect for the free self-determination of peoples. Lest there be any failure to get the point, it also defined the current regime as Christian, socialist and solidary, which is a constitutional contradiction because there was no change to article 14, which establishes that “the State has no official religion.” According to that latest reform we are now living in a Christian nation, at least as those governing conceive Christianity.

The Family Cabinets are the lock
on that chain of social control

Considering this political context, the Family Code must be understood as a law that’s closing an accelerated cycle in which the powers that be have adjusted the juridical regime to their political project. There admittedly was an institutional need to draft a juridical framework about the family, but we’ve had family courts and family judges since 2004 and we’ve had a jurisdiction guaranteed by special laws for more than a decade. So while there was a genuine need to harmonize our juridical system with the rest of the region because Nicaragua was the only country that didn’t have a specialized Family Code, this regime’s political and ideological interest—the essence of which is to control everything—got mixed up with that.

That’s why the Family Code establishes “Cabinets of Family, Community and Life” even before defining the concept of family. As the government couldn’t include these structures in the constitutional reform given strong resistance from society and even the religious hierarchies, it decided to institutionalize them first in Decree 43-2014, which established the regulations that distorted Law 779 by creating Family and Community Councils. Now they have been definitively institutionalized in the Family Code in their own special chapter. The Code bestows legality on the Cabinets so they can act as a social control mechanism imposed by the constitutional reform and other reformed laws. They amount to a padlock that has been clicked shut.

Cabinets of Family, Community and Life is the new name for what were first called Councils of Citizen’s Power, then Cabinets of Citizen’s Power. Whatever their name or form, they have always been party or para-party structures that the government imposed, or at least tried to impose, on the communities. I say tried because in the majority of barrios or sectors they haven’t had much impact because most people don’t want to get involved after seeing their party skew. Having been institutionalized, however, they’ll begin to meddle more, above all in procedures related to the application of the Family Code, just as the Family Councils are already participating in and influencing decisions in cases of violence against women.

What will these Cabinets actually do?

By way of example, a family wishing to adopt will now need a moral endorsement from the Cabinets, which will be able to award or punish according to party criteria. This will only increase the influence-peddling and corruption we’re already seeing.
Article 32 of the Family Code says that “The Cabinets of the Family, Community and Life are organized with people, women, men, and young and elderly persons who live in a community in order to reflect and work together, promoting family values and unity; self-esteem and esteem; responsibility; rights and duties; communication; coexistence; understanding and community spirit so as to achieve consistency between what is, what is thought and what is done. The Cabinets of Family, Community and Life are inspired by Christian values, socialist ideals and solidary practices.”
The next article lays out their objectives: “a) to promote consideration, esteem, self-esteem and appreciation among those of us who live in and share a Community; b) to promote identify and the sense of belonging to a Community; c) to promote fraternal, responsible and jointly responsible coexistence among the people and families of a Community, establishing integral prevention measures that generate security and protection in the family; d) to improve our life and the life of the Community, procuring the common good united together; and e) to apply the model of Christian, socialist and solidary values that dignify and procure protagonism, capacities, responsibilities, duties and rights and more arenas of complementary participation and decision-making in all spheres of life.” Don’t they sound exactly like the First Lady’s daily messages in this happy country? Curiously, nowhere does the Code specify what that “community” is: whether it’s defined by a territory, specific activities, beliefs or affiliations…

Let’s think back to how Law 779 was distorted, because it’s closely related to what the Family Code is now promoting. Law 779 had no need for a regulatory law, but it was nonetheless regulated by the executive branch through two decrees last July. The most debated one was Decree 42-2014, which totally transformed the law, changing its objective. As a result, it went from being a law aimed at protecting women’s rights to one that protects family rights. The less discussed Decree 43-2014 is titled “Policy of State for the strengthening of the Nicaraguan family and prevention of violence.” That policy, which provides the framework for the State’s actions, makes clear the concept of a traditional family that the State will protect. This is where the Family Councils are established, aimed at maintaining the unity of the traditional family, an authoritarian one with no equality but often with violence and sexual abuse. The Councils are, in fact, the same as the Cabinets, and now both structures will be buttressed.

The Family Code establishes that the Cabinets will have departmental, municipal, neighborhood and district expressions. They have moved from being a para-party structure present in some communities to being an institutional structure with its own bureaucracy, surely with salaries that will come out of our taxes.

Same-sex families:
A paradox of the Family Code

Let’s now look at the conceptual aspect, which is where the Family Code reveals an enormous deficit. Article 37, which speaks of the “concept and make-up of the family,” states that we all have the right to have a family. Nonetheless, while the Code stipulates this fundamental human right, the form of establishing a family or couple is maliciously conditioned.

There are only two ways to establish a couple: by marriage or a stable de facto union, and the Code emphasizes that both are restricted to the union of a man and a woman. According to the Code, a family only exists if a couple exists and a couple only exists if there is a marriage or stable de facto union between heterosexuals.

We cannot accept the equivalence of family and couple, even as a standard, because families are all people who decide to group together, regardless of whether this involves a couple. All human beings have the right to establish a family and establishing a couple is the voluntary individual right of each person, whether heterosexual or homosexual. Nor can we accept that the law only refers to heterosexual couples.

Some would say this issue isn’t very important, but let’s look at this paradox and incongruence: as a great gift to the sexual diversity movement this government created the Ombudsperson’s Office for Sexual Diversity within the Human Rights Ombudsperson’s Office. But the Family Code doesn’t permit the head of that office, Samira Montiel, to make her same-sex partner or their daughter a beneficiary of her social security because, according to the Code, what they have freely formed isn’t a family or a marriage or even a de facto stable union. In reality she did create a family, but it’s guaranteed no rights. She makes her social security contributions but they won’t benefit either her partner or her daughter. This is just one simple concrete case of how the Code’s norms affect many people in a similar situation.

Some people seek to defend the Family Code by saying that gays and lesbians at least have the right to form a union or have a family, or try to justify the denial of their rights by arguing that the Code establishes the standard in line with what’s already in the Constitution. But that’s not true. The Constitution states that no one can be discriminated against for any reason, while the Code discriminates against non-heterosexual couples. To make matters worse, while the Constitution puts matrimony on the same level as a de facto union, the Family Code establishes different treatments in practice.

Matrimony vs. stable de facto union

The treatment given a stable de facto union is another serious step backward. The Constitution recognized the equal status of marriage and a stable de facto union. It was noted that this would then have to be regulated, but that never happened until now, in the Family Code. As with everything else in this regime, however, they also want to control de facto unions. The Family Code establishes that, just like marriage, a stable de facto union must be recognized and declared before a notary public and judicial authority.

This means that with the entering into effect of the Family Code no existing stable de facto union is legal, even if it’s legitimate. To make it legal the couple—which can only be a man and a woman, of course—must appear before a notary or judge declaring that condition and proving they have lived together stably for a minimum of two years. This must also be ratified by public knowledge in the community where they live. Will the State provide free notaries or judges to write up the public documents needed to become legally recognized?

What’s more, the law doesn’t recognize that couple until those two years have passed, so before that it is in a legal limbo, without recognized rights. It’s thus clear that a de facto union isn’t equivalent to marriage, since the rights and obligations of those who get married are recognized from the moment the marriage ceremony is concluded, while a couple in a de facto union must first have lived together for two years and be recognized by the community.
By the same token, if one member of the de facto union is separated from a former spouse but never legalized the divorce, that union will not be recognized even if they’ve lived together many years, because the Code establishes that the separation from the matrimony has to be legalized first. The Code thus complicates an institution whose recognition in parity with matrimony was included in the 1987 Constitution in a revolutionary and also realistic act. It’s evident that these new regulations discriminate and restrict rights because they affect the custody rights of any children of the union, the right to child support and the right to possessions… This example alone shows us that the Code is backpedaling on the constitutional concept of family. And that’s serious.

To that must be added the introduction in the recent constitutional reform of some perverse additions of an ideological stripe with respect to the family. These merit reflection in order to be aware of the harm they do to the citizenry. Here I’m repeating the idea of Ada Silva, of the Center for Constitutional Studies, when she invited us all to read articles 4, 50 and 70 of the reformed Constitution, which defines the person-family-community trinomial, establishing that citizenry is constituted in the family and the community. This is dangerous given the existing social control over people and has a marked political-ideological stamp because we all know that citizenry implies rights and their unrestricted exercise. We also know that in our societies, women and their children must often regrettably get away from the family and community in order to “break the silence,” seek justice and live a dignified life as citizens free of violence. The constitutional reforms and now the Family Code are marked by a traditional, discriminatory pro-family vision.

Harmonizing has meant going backward

There are few other new things in the Family Code. With the aim of harmonizing the previous legislation, its 674 articles include reaffirmation of the 1988 law on unilateral divorce; the procedures established in the family patrimony law, which dates all the way back to 1959; and what was established in the 1992 child support law, understood, as it was back then, to include not only support for food but also for medicines, clothing and education. The Code also establishes what is called “parental authority,” a term becoming famous in official propaganda as a substitute for the concept of “patria potestad,” abolished when the 1987 Constitution established equal rights between father and mother with respect to both their children and their possessions.

What has occurred, and this is worrying, is that in the process of harmonizing everything that already existed, the law has gone backward rather than forward, as we have seen in the concept of identifying family with an exclusively heterosexual married couple or de facto union. And the issue of possessions has been made just as complicated as the legalizing of a de facto union. Both in marriage and in de facto unions the Code establishes that the ownership of possessions must be declared, and if it’s not done they’re considered individual rather than common goods. Before now no one was obliged to declare this and it was established what goods were considered shared. Now the couple must declare at the outset if there’s a community or separation of goods, which is relevant for their distribution in case of divorce or separation. This can evidently jeopardize women, because goods are almost always in the name of the man or the children in Nicaragua’s prevailing machista culture.

The Code doesn’t reflect
the country’s reality…

The Family Code virtually makes the Ministry of the Family a super-ministry by linking it to the Family Cabinets, among its many other functions. The Code also creates the National Ombudsperson’s Office for the Family as a new institution representing the State. In legal terms this isn’t really an advance because the State must guarantee some type of representation, but it could become problematic if it isn’t regulated correctly, defining the specific cases in which the State is going to represent or intervene rather than leaving it to the government’s discretion.

The way the Code is drafted and approved doesn’t reflect the country’s reality. For one, it doesn’t acknowledge the different kinds of families we have. It reads as if it was drawn up fundamentally to recognize the rights of nuclear families, which aren’t even a majority. According to the latest survey available, which is from 2001, only 45.4% of the country’s families are nuclear (father, mother and children), with more than half of them (25.7%) found in urban areas. Extended families, whether with one parent or two but including other relatives or non-kinship members, follow close behind with 37.8% of the national total. But even if nuclear families were the majority, it would be discriminatory not to guarantee the same rights to all families
The Code also ignores the country’s migration situation. There’s no reference to what’s now known as “transnational families,” which are increasingly numerous due to the massive migration Nicaragua is continuing to experience. With one or both parents often going to Costa Rica, the United States or elsewhere in search of a living they can’t make at home, that absence creates vacuums with respect to “parental authority.” The rights derived from that authority are those the father and mother have over their children and possessions, and the law establishes that if they die those rights belong to the grandparents, but who has those rights when the parents are alive but outside of the country, having left the children with one or more grandparent? There’s obviously a legal limbo there.

Third, the Code doesn’t consider the reality of unemployment, which is also massive in our country. The Labor Code of Somoza’s times established child support as 50% of the salary in case of separation, divorce or abandonment of the children by one parent or the other. In the current Labor Code the percentage was left undefined, which implied the likelihood of both arbitrariness and advantages as a realistic percentage was to be established at the judge’s discretion when one of the spouses was demanding child support. But now the Family Code again establishes a specific percentage (50%) as a maximum, depending on the number of children. The official propaganda lauds this as a great new element… but in a country in which more than 70% of the working population is self-employed and doesn’t earn a reasonable or even fixed income, how does one demonstrate what 50% or any other percentage really is? We already know that almost all men irresponsibly seek to avoid paying child support and that it’s deeply rooted in the machista culture, but it’s also true that for a country in which 7 out of 10 people work in the informal sector and more than 2 million are in chronic poverty, that percentage isn’t realistic.

Propaganda vs. realism

As media propaganda is very important to this regime, one of the Code’s articles recognizes “single mothers” and says they’ll be protected, at least declaratively. But it doesn’t say a word about how. Something similar is found in the declarative articles the Code dedicates to third-age adults.

There’s also a lack of realism in the case of single-mother heads of household. How will their rights be guaranteed in practice? Through what procedures? Regarding their right to child support, for example, the law establishes that they must demonstrate who the father is with a DNA exam. That test, however, requires the man’s consent—which isn’t always easy to get—and costs nearly $200, which is an exorbitant amount for most people and must be paid for by the parent making the demand. The State can be very noble in “recognizing” rights, but if it doesn’t guarantee their exercise in practice, it’s nothing more than propaganda.

Much of the Code is dedicated to specialized jurisdiction in family processes. It refers to courts that already exist and that now have a specialized code. It’s an unquestionable advance that there’s now a specialized jurisdiction in some aspects, just as there is penal, labor and mercantile jurisdiction. The important thing, however, is to create not just a jurisdiction, but also the rights recognized in the regulations that jurisdiction works with. If the norm doesn’t protect and guarantee rights in line with Nicaragua’s reality, the jurisdiction will remain limited.

The discourse and propaganda around the Family Code, presenting it as progressive legislation that guarantees rights, is yet another of the current government´s efforts to falsify reality. This new law recognizes no greater rights than those already established in previous laws and even backpedals on some, ranging from the fundamental right to constitute a family to insufficient regulation of rights rooted in the realities of Nicaraguan society. If we accept that the law must be adjusted to a society’s real situation, this Code is far removed from ours. Moreover, it has a profound skew imposed by the current regime, which combined authoritarian political elements with conservative religious ones, intensifying discrimination and restricting rights in its desire to promote a Christian, socialist and solidary family model.
We’re thus faced with a legislation that’s not progressive or modern, but has rather reinforced the traditional family, one that’s not even real, not Nicaraguan and was certainly not the reference point for the presidential family itself. There are sufficient arguments to introduce suits of unconstitutionality against this Family Code because it restricts rights, promotes discrimination and imposes a family model that’s outside of Nicaraguan reality.

Juanita Jiménez is a lawyer, feminist and defender of women’s rights.

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