The alimony in favor of the children is one of the most frequent measures in case of separation or divorce with children in common.
This consists of the obligation to pay a sum of money to contribute to the expenses of raising the common children, and is applied both in cases of single-parent custody (normally paid by the non-custodial parent) and in cases of shared custody (the child’s expenses such as school, clothes, etc. are divided according to the income of each parent, with each parent being responsible for the accommodation and maintenance during their periods of stay).
But, what happens with child support for adult children?
Until when and under what conditions can this obligation of the parents be maintained?
In this post we talk about it based on the most recent rulings issued by the Supreme Court on this point. If you have any doubts or need a lawyer for any family mattersor specifically about alimony, contact us without obligation.
Alimony for children of legal age: the Supreme Court’s guidelines
A good starting point to know the requirements that the Supreme Court demands in cases of alimony for adults is the judgment issued by this Court last December 2, 2015.
These are its key points:
- The Constitution establishes that there is a legal obligation on the part of the parents to provide maintenance to their children.
It is based on the principle of family solidarity, which appears in Article 39.1 and 3 of the Spanish Constitution.
Specifically, paragraph 1 states that “the public authorities shall ensure the social, economic and legal protection of families”, while paragraph 3 states that “parents must provide assistance of all kinds to children born in or out of wedlock, during their minority and in other cases where legally appropriate”. - It follows from this text that, once the child reaches the age of majority, the legal treatment will be different in terms of alimony.
According to the Supreme Court, while the children are minors, “more than a proper maintenance obligation, what exists are unavoidable duties inherent to filiation, which are unconditional from the outset”.
In the case of adult children, the courts will normally uphold this obligation as long as they live at home and lack resources.
Therefore, this obligation continues to exist, but the child’s lack of economic independence comes into play. - There are differences in the expenses to be covered depending on age: in the case of minor children, maintenance is provided according to “the economic circumstances and economic needs of the children at all times”, as stated in Article 93 of the Civil Code.
Only in case of situations of serious economic difficulty accredited by the parent may a “vital minimum” be established to cover the most essential expenses for the care and attention of the minor.
Also, in very exceptional cases, the judge may agree to suspend the obligation. - In the case of adults, maintenance must be proportional “to the wealth of the giver and the needs of the recipient”, as established in Article 146 of the Civil Code, being reduced only to the maintenance that is indispensable for sustenance, room, clothing and medical care, as stated in Article 142 of the Civil Code.
In situations of serious economic hardship of the parent, his obligation may cease “when the fortune of the person obliged to provide them has been reduced to the point of not being able to satisfy them without neglecting his own needs and those of his family (Article 152.2 of the Civil Code).
The case of ‘nini’ children or children with no relationship with their parents
However, times change and families today are very different from what they were as a general rule a few decades ago.
However, the Civil Code has not reflected these changes, so, for the time being, the Supreme Court has resorted to a reinterpretation of the law adapted to the new times to put certain limits to this apparent ‘perpetuity’ of alimony when children of legal age are not economically independent.
A very resounding judgment in this regard was the one issued last February 19, 2019, in which the door was opened to extinguish the alimony when there is a null personal relationship of the children with the feeding parent.
However, for this criterion to be applied, it is necessary to prove that the cause of this lack of relationship is attributable “mainly and relevantly” to the children.
In this ruling, the Supreme Court reaches a “flexible interpretation” of the law, “in accordance with the social reality, the cultural sign and the values of the moment in which they are produced” regarding the norms that regulate this aspect, “while waiting for the legislator to address the legislative reform for its positivization”.
Alimony in case of “total disaffection” and lack of school achievement
In the case analyzed in this judgment, the father of two children two of legal age initiated a proceeding for modification of measures against his ex-partner, requesting in the complaint the termination of child support for the two children for three reasons
the termination of the alimony of the two children for three reasons:
- Due to a decrease in their economic capacity
- Lack of achievement in the children’s studies
- For no personal relationship between the breadwinners and the breadwinner
In response, the lower court decision did not recognize the first two points, but it did consider it appropriate to terminate the alimony based on the “total detachment of the children from the father with whom they do not speak and whom they have not seen for years (10 and 8 years) without any interest in doing so”.
Specifically, said sentence valued a “null personal relationship” and the “absolute disaffection between the children and the father”, recalling that “although it is true that the absence of paternal-filial relations is not expressly contemplated as a reason set forth in art. 152 of the Civil Code or in any other precept for terminating the alimony obligation, it is no less true that the “circumstances” referred to in arts.
90 and 91 of the Civil Code and art. 775 of the Civil Procedure Law can be diverse and of different nature, without in any way constituting numerus clausus”. ” Having established the foregoing, the total detachment towards the father shown by the children, which they have unequivocally manifested when questioned as witnesses, must be taken as accredited”.
One of the sons, in particular, assured that he had not spoken to his father for 10 years and had not tried to contact him.
In addition, he commented that the head of studies at the university where he is studying told him that his father had requested information about his academic progress but that he, as an adult, did not allow them to provide any information.
On the other hand, the daughter stated that she had not seen her father for 8 years, proclaiming that she has no interest in seeing him again. This sentence also considered (contrary to the Supreme Court) that the factor of who is responsible for this lack of relationship “is irrelevant at this time, given their age of majority”.
However, the Supreme Court does consider that the lack of relationship must be attributed mainly to the children, an extreme that must be proven, in addition, during the judicial process.
In this specific case, the Court did not consider this to be proven, and therefore upheld the father.
However, is seated and validated by the Supreme the criterion maintained in the lower court’s decision regarding the possibility of terminating the pension in cases of detachment and lack of school/work performance on the part of the children of legal age.
The Supreme Court’s response: an invitation to the Legislator to renew the law
In its judgment, the Supreme Court takes the opportunity to make a request to the Legislator, and it does so on the basis of a comparison between the obligation to pay alimony, on the one hand, and inheritance law, on the other.
Thus, the judgment recalls that, among the initiatives that advocate the revision of inheritance law (and of the duties and rights between family members, including economic ones), “one of them is the one that tends to extend and modernize the legal cases of disinheritance of the legitimated persons, since modern family structures favor and even make situations in which the parents have lost contact with some or all of their children, not strange”. “Other times it is not so much the loss of contact, but rather relations between parent and child that are frankly bad”.
These tensions are not new, but today they may have increased, since there are often successive marriages, which entails successive family nuclei, with children from a previous link and others from a later one, with interests that are not always uniform”, assures the Court
.
In this line of thought, the Catalan Civil Code goes one step ahead, since it has introduced in art. 451-17 e ) a new cause of disinheritance consisting of the “manifest and continued absence of family relationship between the deceased and the legitimate, if it is for a cause exclusively attributable to the legitimate”. According to the Supreme Court,“in our Civil Code there has been no modification, and it has been traditional that the court, being the causes of disinheritance of a punitive nature, has interpreted and applied them in a restrictive manner”. However, an effort has also been made to adapt these causes to the current social reality.
In spite of this, the assessment of the concurrence and proof of the lack of a manifest lack of relationship must be interpreted in a “rigorous and restrictive” manner.
And it must be clear that this lack of relationship is attributable, “mainly and relevantly, to the child”.
Therefore, in this case, the Supreme Court considers that, “this lack of relationship is not attributable to the children, with the characterization of principal, relevant and intense, to which we have mentioned”, and that, “if the interpretation, as already reiterated, has to be restrictive and the proof rigorous, it cannot be appreciated that there is cause for the extinction of the alimony”.If you have any doubts or need a lawyer for any family matter, or specifically about alimony, please contact us without obligation.
