Article 97 of the Spanish Civil Code provides that spousal support is a compensation that is awarded to the spouse to whom the separation or divorce will produce economic imbalance in relation to the position of the other spouse; or when separation or divorce will involve one spouse worsening situation in his previous marriage. This compensation consists of a temporary pension or indefinitely, or a single service, as determined by the regulatory agreement (if divorce or separation is by mutual agreement) or sentence (if contentious).
Spouses may also, by the regulatory agreement, mutually waive payment of alimony because none of them would cause the divorce or separation an economic imbalance. But if anyone asked for it and the other does not want recognize it, in the absence of an agreement between spouses concerning alimony, the court, in its judgment, determine the amount and the basis for updating, along with guarantees for their effectiveness, taking Consider the following circumstances: 1. The agreements had arrived spouses. 2. The age and health. 3. The professional qualifications and chances of access to employment. 4. The past and future dedication to the family. 5. Collaboration with their work in commercial, industrial or professional activities of the other spouse. 6. The duration of marriage and conjugal life. 7. The possible loss of pension rights. 8. The flow rate and the economic means and needs of each spouse. 9. Any other relevant circumstances.
The alimony judicially determined may at any time be replaced by the constitution of an annuity, or the enjoyment of certain goods or the delivery of capital goods or in cash, prior judicial approval (Article 99). But once fixed pension and updating databases in the judgment of separation or divorce, it may only be modified by substantial changes in the fortunes of either spouse (article 100). It does not exist in Spanish law to any scale required to be adjusted to the judge when determining alimony; it is at your discretion. The alimony should not be confused with the alimony.
The amount of alimony is updated every year according to the change in the Consumer Price Index (CPI) published by the National Statistics Institute. Alimony, being as a remedy, has a compensatory character; temporary, since the law does not give a life or permanent, with very few exceptions imbalance indefinite character.
Non-payment of alimony, like that of alimony, may lead to the commission of an offense of family abandonment, punished with imprisonment of three months to one year or a fine of 6-24 months.
It is important to note that the right to pension is extinguished by any of the following reasons: 1. The cessation of the cause that motivated; 2. getting the creditor remarries or to live in marriage with another person. But if they do not any of these reasons, the alimony is not extinguished by the death of the debtor, although his heirs may apply to the court for the reduction or withdrawal of the same, if the estate could not meet the needs of the alimony or it will affect their legitimate rights (Article 101). Waiving the establishment of the alimony definitely extinguish the right.
If the person entitled to alimony lives in marriage with another person, the marital cohabitation extinguished their right. What it is meant by marital cohabitation? The Provincial Court of Barcelona goes beyond a statement in which he declares that “social reality of the moment”, defined by marital cohabitation “all those in a romantic relationship with hints give some stability without live permanently and less in the same housing, “including cases of couples” in which inhabit each of the components of it, in their own home or in shared housing for only a few specific days, enjoy the elements affective feeling of exclusivity and emotional stability destined to continue “.
You can then extinguished the alimony, if it is shown that he or the holder thereof, has shared an emotional and sentimental relationship with a third party, with certain exclusivity and also this relationship must be permanent and stable, without requiring that they live at the same address.
The judge’s discretion to grant or not to grant spousal support and how much, or the criteria of the spouses to reach agreement on the pension regulator and the amount, are varied and depend on each specific marital status, which is unique and diverse. Depends on various factors such as the educational level wage and spouses, their socio-economic status, age of spouses, physical and mental health of both the length of the marriage, the contribution and dedication of each spouses during marriage in caring for children, household, other family members, etc.
Until recently, it was normal to be granted compensatory pension the woman because she usually was the one who was financially dependent on her husband. But times have changed, women are now present and a very active and enriching way in the workplace, politics, business, services, health, education, etc. The woman is beginning to reach its desired independence and fair and, for this reason, now is not surprising that sometimes is granted to men compensatory pension.
NOTE: The January 1, 2008 the new regulation of the right to a widow’s pension, which is recognized also entitled to this benefit, the survivor of a domestic partnership came into force. As for the widow’s pension in the case of divorced and legally separated people, this is contingent on the existence of a prior spousal support (Article 97 of the Spanish Civil Code), recognized in matrimonial process must be extinguished this compensatory pension the death of the deceased. In the case of annulment, the widow’s pension is conditional upon recognition of compensation regulated by article 98 of the Civil Code, provided they have not remarried.
This means that people who upon the death of their spouses or ex-spouses are not legally recognized and valid right to alimony, not entitled to receive survivor’s pension. This has been established with the Law 40/2007 of 4 December, on measures on Social Security, which has given a new wording of Article 174.2, on the right to the widow’s pension.