In cases of marital breakdown, there is a measure designed to compensate for the imbalance that the cessation of cohabitation creates in the standard of living of one of the spouses, compared to their standard of living during the marriage or cohabitation. This institution, established in Article 97 of the Civil Code, extends marital solidarity after the breakdown of cohabitation in order to balance, as equitably as possible, the economic situation of the spouse most financially disadvantaged by annulment, separation, or divorce, compared to their standard of living during the marriage.
The first step in granting compensatory spousal support is to determine whether or not an economic imbalance, as this is the fundamental requirement for establishing the amount of support. While it was previously believed that this imbalance was determined by comparing the economic capacity of each spouse and that the circumstances listed in Article 97 of the Civil Code only served to establish the amount, the Supreme Court ruling of January 19, 2010, has established as legal precedent that: "to determine the existence of an economic imbalance that gives rise to compensatory spousal support, the following must be taken into account, among other parameters: dedication to the family and collaboration with the other spouse's activities, the property regime governing the spouses' assets insofar as it will compensate for certain imbalances, and their financial situation prior to the marriage"Therefore, these are the prerequisites to consider when determining the existence of economic imbalance.
Determining the amount of compensatory spousal support is not a simple task, as, unlike child support, numerous factors are involved. It is not enough to know the income of the paying spouse and whether the receiving spouse receives income; rather, one must consider the years of marriage, the age and health of the requesting spouse, the existence and age of children, the education and employment prospects of the receiving spouse, and so on. Furthermore, as the Granada Provincial Court, Section 5, stated in its judgment of May 29, 2009: "For the calculation of compensatory spousal support, the amount received by the spouse must be reduced by the permanent and stable expenses he must bear, which may include child support payments, mortgage payments on the family home if there are minor children, rent, or other similar expenses he must cover." Given these circumstances, it will be difficult to offer criteria to guide us in setting the amount of alimony. However, some Provincial Courts have established limits for this alimony, meaning that it cannot exceed a certain percentage of the income received by the spouse obligated to pay it, ranging from 30% to 45%.
Unlike in other European countries, Spanish law does not have a mandatory scale that judges must follow when setting compensatory spousal support. Therefore, they can determine the specific amount according to their discretion, within the limits of the law.
In principle, it is not, or should not be, subject to a time limit ; rather, its duration depends on the length of the cohabitation and the beneficiary's ability to obtain sufficient income to maintain a standard of living similar to that enjoyed during the marriage. Thus, the beneficiary's employment does not, in principle, automatically lead to its termination. However, this pension is usually granted on a temporary basis and is very rarely set for a period exceeding five years or less than one year.
The pension payment can be made by determining a single amount (lump sum or by delivering certain goods), or by paying periodic amounts for a period (temporary benefit).
The amount of the pension can be modified by court order in cases where the beneficiary's financial situation improves or the financial situation of the person obligated to pay worsens. These same circumstances can also lead to its termination.
The compensatory allowance is extinguished, firstly, by the cessation of the cause that motivated the allowance, by the remarriage of the creditor spouse, by cohabitation with another person, by the death or declaration of death of the creditor spouse, by waiver of the right, by agreement between spouses, by substitution as provided in Article 99 of the Civil Code, and by the expiration of the statute of limitations for claiming accrued and unpaid allowances within a period of five years pursuant to Article 1966.3 of the Civil Code. The death of the debtor spouse is not a cause for the extinction of the allowance, as the obligation is transferred to their heirs, who must continue to pay it under the established terms.
Finally, when the person obligated to pay alimony fails to do so, this constitutes the crime of abandonment of family, as defined in Article 227 of the Penal Code. For non-payment of alimony to be considered a crime of abandonment of family, the first requirement is that the non-payment must have occurred when the obligated party has voluntarily ceased making payments for two consecutive months or four non-consecutive months.
Olga García Rozas
Civil Criminal Area
Àmbit Assesor
Do you have any questions about this topic?
Our team of expert advisors will help you resolve any issues related to our services.
Contact us now
A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
Latest entries from MGI Àmbit
(see all)
Related
