14 EWN 22 - 28 June 2023
euroweeklynews.com
FEATURE
Divorce maintenance or alimony under Art. 97 of the Civil Code. Separation and divorce. Economic imbalance. Family law. Expert legal advice. THIS week we would like to ad dress a subject that often gener ates confusion and is a frequent matter of consultation in our of fice: the right of the spouses to receive a divorce maintenance or alimony in cases of separa
tion or divorce. The socalled ‘compensatory pension’ of art. 97 of the Spanish Civil Code. In this article we explain the most important aspects of this alimo ny: when can it be claimed, how it is calculated, its duration, etc.
What does this compensa tion 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 rela tion 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 pen sion, or in a single benefit, as de termined in the regulatory agree ment or in the judgment.” In other words, the purpose of the divorce maintenance or al imony is to ‘compensate’ the spouse whose financial situation, when compared to the situation during the marriage, has wors ened because of the divorce. So that the negative consequences of the divorce do not fall exclu sively 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 na
ture or fixed for an indefinite pe riod. It can also be agreed as a oneoff allowance. That is, as a onetime payment. It can be agreed by mutual agreement be tween the spouses (in the regula tory agreement) or, if there is no agreement, by the judge (in the divorce proceedings). It is very important to under line that this measure is not auto matically 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 alimo ny afterwards. How is this divorce mainte nance 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 qualifica tion and the probabilities of ac cess to a job. 4. Past and future dedication to the family. 5. The collaboration with his or her work in the commercial, in dustrial, or professional activities of the other spouse. 6. Duration of the marriage and of the conjugal cohabitation. 7. The possible loss of a pen sion right. 8. Wealth and financial means and the needs of one and the other spouse. 9. Any other relevant circum stance.”
Carlos Baos (Lawyer) - White&Baos Tel: +34 966 426 185 info@white-baos.com White & Baos 2022 All Rights Reserved.
Can this compensation be ex tinguished 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 situa tion. The person obliged to pay it worsening his or her financial sit uation. If the beneficiary remar ries or lives maritally with anoth er 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 rela tionship cannot request the compensation of art. 97. Conclusions Divorce maintenance or al imony is one of the most contro versial issues in divorce and sepa ration proceedings. Its amount, periodicity, possible modifica tions and/or termination, etc. At WhiteBaos Lawyers we are experts in Family Law, please do not hesitate to contact us.
