This week we would like to address a subject that often generates confusion and is a frequent matter of consultation in our office: the right of the spouses to receive a divorce maintenance or alimony in cases of separation or divorce. The so-called “compensatory pension” of art. 97 of the Spanish Civil Code. In today’s article we will explain the most important aspects of this alimony: when can it be claimed, how it is calculated, its duration, etc.
What does this compensation consist of?.
The alimony is regulated in art. 97 of the Spanish Civil Code:
“The spouse to whom the separation or divorce produces an economic imbalance in relation to the position of the other, which implies a worsening in his or her previous situation in the marriage, shall be entitled to compensation that may consist of a temporary or indefinite pension, or in a single benefit, as determined in the regulatory agreement or in the judgment.”
In other words, the purpose of the divorce maintenance or alimony is to “compensate” the spouse whose financial situation, when compared to the situation during the marriage, has worsened because of the divorce. So that the negative consequences of the divorce do not fall exclusively on the weaker spouse. This alimony must not be confused with the compensation foreseen in art. 1438 of the Civil Code or with the child support.
Main features of the Alimony.
It can be of a temporary nature or fixed for an indefinite period. It can also be agreed as a one-off allowance. That is, as a one-time payment. It can be agreed by mutual agreement between the spouses (in the regulatory agreement) or, if there is no agreement, by the judge (in the divorce proceedings).
It is very important to underline that this measure is not automatically decreed by the judge. The judge will only decide whether alimony is due or nor, if requested at the beginning of the proceedings. If not, it will not be possible to request the alimony afterwards.
How is this divorce maintenance or alimony calculated?.
Article 97 of the Civil Code sets out a series of guiding criteria to be followed by the judge when setting the amount:
“In the absence of agreement between the spouses, the judge, in a judgment, shall determine its amount taking into account the following circumstances:
1. The agreements reached by the spouses.
2. Age and state of health.
3. The professional qualification and the probabilities of access to a job.
4. Past and future dedication to the family.
5. The collaboration with his or her work in the commercial, industrial, or professional activities of the other spouse.
6. Duration of the marriage and of the conjugal cohabitation.
7. The possible loss of a pension right.
8. Wealth and financial means and the needs of one and the other spouse.
9. Any other relevant circumstance”.
Can this compensation be extinguished or modified once it has been approved?.
Yes. Article 100 of the Spanish Civil Code allows alimony to be modified or terminated under several circumstances. The spouse receiving the pension having improved his or her situation. The person obliged to pay it worsening his or her financial situation. If the beneficiary remarries or lives maritally with another person. Etc.
Does the alimony also apply to unmarried partners?.
No. According to the case law of the Spanish Supreme Court, registered unions or de facto couples who break off their relationship cannot request the compensation of art. 97.
Divorce maintenance or alimony is one of the most controversial issues in divorce and separation proceedings. Its amount, periodicity, possible modifications and/or termination, etc. At White-Baos Lawyers we are experts in Family Law, please do not hesitate to contact us. We will study your case and offer expert advice on the subject.
The information provided in this article is not intended to be legal advice, but merely conveys information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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