SPOUSAL MAINTENANCE IN SPAIN
The Spousal maintenance is a monetary allowance paid by one of the ex- spouses to the other, when separation or divorce takes place, so long some requirements are met.
The “reason being” of the spousal maintenance, is not to equalize assets of the parties after separation, but to compensate whoever is more damaged after the break-up (According to the Judgement number 162/2009 of the Supreme Court, of 10 March).
The nature and requirements of the spousal maintenance are outlined in article 97 of the Civil Code and must not be mistaken with other allowances, such as alimony or compensatory damages, regulated in article 1438 of the Civil Code.
CRITERIA FOR ESTABLISHING THE SPOUSAL MAINTENANCE IN SPAIN
First, it must be recalled that a spousal maintenance must be expressly requested by whoever considers separation or divorce causes him/her financial loss. Therefore, it means that it will not be granted ex officio by the judge.
As previously stated, article 97 of the Civil Code establishes a series of requirements that judges usually take into consideration, for the establishment or not of a spousal maintenance.
These criteria are «numerus apertus» and, therefore, the judge may consider other circumstances, depending on the case.
Some of these criteria are:
– The agreements reached by the ex-spouses
– Age and state of health
– The professional qualifications and the likelihood of finding a job
– Past and future dedication to the family
The above-mentioned circumstances are not of equal importance in determining whether there is an imbalance for either spouse or, if there is, what the appropriate amount of the pension should be.
This is established in the Supreme Court ruling of 19 January 2010, when it states: «The compensatory pension is intended to prevent the damage caused by cohabitation from falling exclusively on one of the spouses and for this purpose it will be necessary to take into consideration what has occurred during the marital life, and basically, the dedication to the family and the collaboration with the activities of the other spouse; the property regime to which the spouses have been subject insofar as it is going to compensate certain imbalances, and even their situation prior to the marriage in order to be able to determine whether this has produced an imbalance that generates possibilities of compensation. »
In short, the spousal maintenance is not a compensatory mechanism (Judgement of the Supreme Court number 562/2009, of 17 July), nor is it a mechanism to balance the assets of both spouses (Judgement of the Supreme Court 96/2019, of 14 February).
CALCULATION OF THE SPOUSAL MAINTENANCE IN SPAIN
There are no established scales in our legislation to determine the amount of the spousal maintenance, given that each divorce or separation involves different circumstances.
The criteria established in article 97 of the Civil Code are used by the courts to calculate the amount of the allowance, although the amount can also be established on amicable basis.
The spousal maintenance may consist of a certain and determined amount or a percentage of the income of the person obliged to pay it.
TYPES OF ALIMONY ACCORDING TO THEIR PERIODICITY:
– Temporary: Spousal maintenance is granted for a limited period of time, usually until it is considered the ex- spouse will recover financially after divorce or separation takes place.
– Indefinite: an allowance is established indefinitely and is not subject to any conditions.
Article 97 also allows the allowance to be settled in lump sum, the article 99 complements it by providing that it is possible to replace the judicially determined spousal maintenance by an annuity or the usufruct of certain assets.
MODIFICATION AND TERMINATION OF THE SPOUSAL MAINTENANCE IN SPAIN
The spousal maintenance fixed by a court decision may be modified if the circumstances of the parties change, either because the financial capacity of the person liable to pay decreases or if the financial capacity of the person receiving the maintenance allowance improves (Article 100 of the Civil Code).
In these cases, a reduction of the amount may be requested, or the amount established as indefinite may be limited in time.
If a spousal maintenance was established voluntarily, it may also be modified by mutual agreement, according to Article 100 of the Civil Code.
It is rather interesting the fact that a spousal maintenance is not extinguished by the death of the person obliged to payment. In this regard, heirs can request its reduction or cancellation if the estate is unable to meet the needs of the debt or if it affects his rights in the reserved portion of the estate.
Lastly, article 101 of the Civil Code relates to the reasons why the spousal maintenance can be extinguished for a variety of reasons, other than by death of the obliged to payment:
– Remarriage or cohabitation with another person by the beneficiary spouse.
– By cessation of the cause that gave rise to it.
– At the end of the time established in the agreement or in the judgement.
If you are in a process of separation or divorce in Spain, and you consider that you are entitled to a spousal maintenance, do not hesitate to contact us by e-mail frebollos@kaplanlegal.es, as professional guidance is essential in these cases.