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Spain: Spanish Supreme Court clarifies parental childbirth benefits for single-parent families

The Spanish Supreme Court upheld the judgment under appeal, stating that the right to enjoy an additional 8 weeks would entail several consequences which would significantly interfere with the regulatory order, since (i) it would mean creating a new contributory benefit in favour of single-parent parents which would alter the configuration designed by the legislature (ii) furthermore, the legal regime of the contractual suspension due to the birth and care of a child in Article 48.4 of the ET would necessarily have to be modified. 4 of the ET, which would negatively affect the company, which would be obliged to endure a longer duration of the contractual suspension provided for in the law, which would affect its replacement or reorganisation plans, and would not exempt it from complying with its Social Security contribution obligations.

The Supreme Court considers that the recognition of the sole parent of a single-parent family of the childbirth and childcare benefit that would have corresponded to the other parent in cases in which that benefit has already been recognised is not a requirement deriving either from the EC, or from any EU regulation, or from any international agreement or treaty ratified by the EU, nor from any international agreement or treaty ratified by Spain and that, in any case, the solution to the conflict cannot be based on the need to take into account the interest of the child, not only because it is not the only one at stake, but also because there is no alleged infringement of a theoretical right of the child in single-parent families to be cared for on equal terms with respect to two-parent families.

In these cases, the benefit that corresponds to the other parent requires, as an inexcusable condition, that he or she be registered and registered with the Social Security and that a minimum period of deficiency be covered and, if not, it is not granted, so that the interest of the child, whose importance is not unknown and is considered of special relevance by the Chamber, cannot be the only decisive and determining factor. Nor is the interpretation with a gender perspective decisive for the resolution of the case, since there is no discrimination against women, but rather we are faced with a possible deficit of protection desired and consented to by the legislator, who, in terms of social protection, has not forgotten single-parent families, since in the special case in which a woman, in the event of childbirth, does not have sufficient minimum contribution, she is granted 42 calendar days of benefit which is increased by 14 additional days in cases of single-parent families (art. 182.3 b) LGSS). Provisions are added on non-contributory family benefits in cases of this type of family.

Key action point

This ruling is particularly relevant, as it finally settles the controversy that has existed in the Spanish legal scene in recent months, in which there have been different legal pronouncements by the High Courts of Justice of the different Autonomous Communities regarding the right to and enjoyment of parental leave by single-parent families. Thus, the Supreme Court unified doctrine and finally established that single-parent families are not entitled to the leave and benefits that would have corresponded to the other parent if they existed.

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