Steve McGrath

Maintenance Payments upon Divorce in Spain

Few areas of the law are as diverse as family law given that this particular area is a reflection of the diversity of the world's legal jurisdictions. In Spain, for example, the family as a social unit is given particular importance.

This can be seen in particular in areas such as laws relating to inheritance and also how a persons income tax can be considered either individually, as part of a married couple or as a member of a family. As a result the laws of Spain must be interpreted in this light. In particular, when considering family law and the impact of divorce. Recently the courts were given the opportunity to consider when alimony or maintenance payments should be considered necessary when a married couple divorce.

According to the legislation, alimony should be awarded where it is necessary to effect a re-balancing of the economic situation of both spouses as a result of the ending of the marriage.

However, according to the court, re-balancing does not have to mean equality between the estates of both spouses. The objective of this benefit is simply to place the disadvantaged spouse in the breakdown of the marriage, in the same situation regarding the use of, or the possibility of obtaining, resources for sustenance, as they had before the marriage ended.

Thus, it has been pointed out that alimony is not automatically granted upon separation or divorce, nor is it a mechanism for equalizing disparate incomes or estates. On the contrary, its purpose is to avoid, as inferred from relative quantifying measures included in the legislative provision, that the separation or dissolution of marriage by divorce might cause one of the spouses an imbalance that is deemed unfair on the basis of two comparative conditions:

1. The spouse alleging the imbalance must prove that they are in a worse economic situation (albeit temporarily) than they were before the dissolution of the marriage;

2. That same spouse must also show that they are in an inferior economic situation as compared to the other spouse.

Both conditions must be fulfilled and the absence of either prevents the right from arising. In any case, the court decided, it must be borne in mind that the majority of separations and divorces have a negative impact on the economy of both spouses and that it is arithmetically impossible to balance the situation of each one of them as compared to the period where they cohabited.

So, it is necessary to construe the doctrine as stating that re-balancing does not have to assume an equality between the estates of both spouses, but rather considers each of them independently in the economic position it merits according to the attitudes and skills of each spouse to generate economic resources.

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