In the BOE of March 22, Organic Law 2/2022, of March 21, was published to improve the protection of orphans who are victims of gender violence. Its preamble informs about the situation of this group, worthy of protection and, also, difficult to define: there are no official statistics of orphans caused by this violent motive over eighteen years of age. It is recognized and expressed that, since 2013, more than three hundred minors have been left in such a situation as a result of crimes of gender violence.
The Observatory against Domestic and Gender Violence corrects this statistic. Based on a report published in 2020, of the 1,083 cases of femicide between 2003 and December 31, 2020, gender-based violence left a total of 1,653 orphaned children, of which 825 were minors.
The rule aims to protect orphans from the psychological and emotional impact caused by the loss of the mother figure. The effect of the violent environment and “the social stigma, which in many cases pushes those who have suffered them to hide the crimes for fear of being identified as the daughters and sons of a murderer” is also valued. This sometimes affects to “the ability to overcome, as far as possible, its psychological and emotional consequences and achieve full vital development”.
It should be noted that, since July 2015 (Law to modify the protection system for children and adolescents), the children of women victims of gender-based violence who died as a result of the assault acquire the status of “victims”.
The new organic law, within the framework of the State Pact against Gender Violence (which specifically includes in its Axis 4 the provision of “measures to intensify the assistance and protection of minors”), responds to the need to overcome obstacles regulations detected in various areas of action.
The reform focuses on procedural aspects of various kinds, understanding that, surely, there will be other matters susceptible to regulation. According to María Ángeles Carmona, president of the Observatory against Domestic and Gender Violence, “orphans, sons and daughters of victims of gender violence, are always the most vulnerable in our society and the State has the obligation to protect them. This is established in the Istanbul Convention and in the State Pact against sexist violence”.
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A normative modification was necessary: “the agreed measures imply the implementation of some of the mandates of the State Pact, which allow alleviating a series of difficulties that these minors encountered and that needed a legislative reform that now comes into force. ”, adds Carmona.
Comprehensive orphan protection
Lucía Avilés is a titular magistrate of the Criminal Court number 2 of Mataró (Barcelona). A few months ago, she asked the Ministry of Justice to include the so-called “economic violence” (repeated non-payment of pensions) as a type of sexist violence when this circumstance can be deduced from the context. She is also in favor of streamlining mechanisms so that orphans who are victims of gender violence can change their surnames in order to avoid stigma. Regarding the latest reform, she emphasizes its economic relevance: “the reparation of victims is the least explored of the State’s obligations in the face of gender violence. Organic Law 2/2022 advances along these lines and consolidates the economic protection of orphaned sons and daughters, in the event of intimate femicide, by establishing mechanisms to protect family assets, procedurally separating it from the decisions of the surviving spouse. The shielding of compensation for civil liability derived from crime is also guaranteed, by freeing them from tax burdens, and orphan pensions are improved.
Avilés recalls the regulatory path of recent years to alleviate the precarious situation of the group: “the organic law is based on the recognition made by the legislator of the sons and daughters of women who are victims of gender violence as well as ‘victims of gender violence ‘, and ensures greater economic independence, eliminating procedural, tax or social inertia that may be a burden on their recovery process.”
Economic measures
The legislator warns that the previous regulations did not clarify what should be the procedure applicable to the liquidation of the community property if the wife was a fatal victim of gender violence. Until now, the orphan has been prevented (except for the flexible criteria of some lower court judges) from accessing the civil procedure, strictly reserved for spouses.
Having ruled out the notarial route to fill this gap, it was necessary to avoid the delay in access to the liquidation of the mother’s matrimonial regime that occurs when the father (aggressor) does not want to agree to the distribution of the inheritance. In any case, there is a cause of incapacity due to “unworthiness” for the father to inherit, operable only from the moment of his conviction by final judgment. For the legislator, this measure was insufficient: it made no sense that the position of the orphan depended on the will of the person who caused the death of his mother.
The reform expressly attributes to the courts of violence against women jurisdiction in the civil order over the liquidation procedures requested by the heirs of the women victims of gender violence, and also of those who are urged against these heirs.
These courts will also have jurisdiction over the process of annulment, separation or divorce of parents. Likewise, the judicial body that heard about the dissolution of the matrimonial property regime, if any, will be competent.
The orphan is recognized as having the right to request the formation of an inventory of the maternal inheritance and, at the conclusion of this, to urge the liquidation to receive his mother’s share. He may also appear before the judge to reach an agreement or, failing that, appoint an accountant (that is, a third party in charge of determining the hereditary assets, valuing them and distributing them among those interested in the inheritance). If necessary, an expert will be appointed to carry out the usual dividing operations.
fiscal measures
Another interesting aspect of the new status of orphans who are victims of gender violence is the taxation of the compensation received as civil liability, and even of the assets and rights of the mothers’ inheritance. What is received in money is exempt from the payment of any tax, but the delivery in goods was subject to the tax on onerous property transfers. Due to the fact that, in the majority of cases, the payment of compensation is instrumented through adjudication in payment of assets of the surviving father (voluntarily or in execution of judicial auction), the economic burden that the tax supposes for the orphan can prevent absolutely the charge.
To compensate for this obstacle, a new tax benefit is introduced, consisting of exempting from the tax on property transfers and documented legal acts transfers of assets or rights for the benefit of children, minors or persons with disabilities subject to parental authority, guardianship or with measures of protection. support for the exercise of their legal capacity, carried out by women who died of violence against women.
It is also necessary to highlight the problem generated in practice by the transfer of the house or other real estate of the deceased mother. The economic burden that this implies for the acquirer can seriously affect the viability of the acquisition. For this reason, the rule incorporates a specific assumption of not being subject to the Tax on the Increase in Value of Urban Land (capital gains) in the event that the flat is part of the inheritance of a victim of gender violence.
Social Security Measures
The orphan’s pension for cases in which the deceased woman is not registered, or a situation assimilated to registration, or did not have sufficient contributions to generate the pension (incorporated into the system in 2019), has not reached all potential beneficiaries of the measure (as the explanatory statement of the organic law admits). Therefore, it was necessary to review some assumptions to guarantee access to a greater number of orphans, with special attention to those who are in a situation of poverty and greater vulnerability.
Articles 216 and following of the consolidated text of the General Social Security Law already recognized the right to a benefit for the children of the deceased as a result of violence against women, provided that they were in “circumstances comparable to absolute orphanhood”. ” and did not qualify for an orphan’s pension. The novelty is the suspension of the right (to a pension or benefit) in the event of adoption of these people when the income of the cohabitation unit in which they are integrated (that is, of the adopting family) exceeds 75% of the salary in an annual calculation. interprofessional minimum wage (SMI) in force, excluding the proportional part of the extraordinary payments.
In addition, the legal response is regulated when the crime was committed by an aggressor other than the parent: until now, as it was not an absolute orphan, the minor did not have access to the increase in the pension, in his case, nor to the benefit. It did not take into account that the surviving parent could be in a situation of economic vulnerability. This advised allowing the receipt of the pension as long as the former’s income did not exceed the established limit, suspending it in another case.
Thus, in these cases, the right to the orphan’s pension will be recognized with the corresponding increase or, where appropriate, the orphan’s benefit, when the income of the cohabitation unit in which they are integrated does not exceed the percentage of 75% of the SMI.
The protection adapts to the circumstances: it will be recovered when the income of the unit does not exceed the limits. The rule regulates the form and deadlines for requesting such recovery.
In any case, the new pension or benefit that could be generated if any of the adopters died would be incompatible with the pension or benefit that was being received: one of them must be chosen.
In addition, absolute orphanhood will be presumed if the family responsibility of the surviving parent has been abandoned and fostering or guardianship of the orphan has been granted in favor of third parties or relatives.
Finally, it should be noted that, from now on, the State passive class system (that is, the special Social Security regime applicable to state officials) will incorporate the same limits when the aggressor is different from the parent of the child or children. of the causer.
The organic law makes a final provision: the Government, before June 24, will promote an active dissemination campaign of the existence of the right to orphan’s benefit, addressed to society in general and to the organizations and departments that work in the field and gender violence in particular.
Future measures
María Ángeles Carmona adds a reflection: “calculating whether the measures are sufficient or not is always difficult, taking into account the psychological ordeal that the victims go through after suffering that scenario of terror and extreme vulnerability. All help seems little to cooperate in the comprehensive recovery of these minors in need of maximum protection.
For the future, Carmona concludes: “we must continue working to avoid homelessness and be able to eradicate the most serious crimes that disproportionately affect women, and in respect of which the mothers of minors are more vulnerable, as we have seen. in the studies of the Observatory”.