In this post we comment on a new judgment that shows us how the rights of the person who gives up his or her professional career to take care of the family can be protected in case the economic regime of the marriage is that of separation of property.
The legal tools to achieve this are the compensation for domestic work, as well as the compensatory pension. This is a ruling issued by the Court of First Instance and Instruction No. 3 of Velez-Malaga, in which a woman is recognized the right to be compensated by her ex-husband with the exact amount of 204,624.86 euros as compensation for her work in the home and family care performed during the marriage, being in force the regime of separation of property.
The sentence, collected by Europa Press, thus recognizes the criterion of the woman, who requested the declaration of divorce and a set of measures, including compensation for housework, since during the duration of the marriage she developed “exclusively” all the household chores and care of the two daughters in common of the couple.
We tell you the details of this sentence that serves to illustrate a typical case in the family structures in Spain: if you have doubts or if you are facing a possible divorce, we will tell you about it. divorce or separation, contact our team of family lawyers in Barcelona and Madrid to know your options and rights.
Dedicating oneself to the care of the family, grounds for financial compensation in divorce
The lawsuit filed by the wife’s defense argued that, while she “was deprived of any possible career path due to her exclusive dedication to the home and family”, her husband, “throughout the years of marriage, accumulated and exponentially increased his private assets”, without this resulting in an increase in her assets.
This is precisely one of the economic traps of the separation of property regime when one of the parties does not generate income and the other does: the enrichment of the other occurs, to a greater or lesser extent, thanks to the support of the spouse who is in charge of the household, without the latter having to be financially rewarded from a legal point of view.
This is where tools such as compensation for domestic work come into play. Its legal anchor is found in Article 1438 of the Civil Code:
The spouses shall contribute to the support of the expenses of the marriage.
In the absence of agreement they will do it proportionally to their respective economic resources.
The work for the house will be computed as contribution to the burdens and will give right to obtain a compensation that the Judge will indicate, in the absence of agreement, to the extinction of the regime of separation. Article 1438 of the Civil Code
It is important to keep in mind that this compensation is compatible with the compensatory benefit (which we will see below), and that it has nothing to do with the economic capacity of the person requesting it, without it being necessary for the applicant to be in a state of need.
It is simply a fair compensation for the domestic work performed, which is usually valued taking into account the Minimum Interprofessional Wage (SMI) or the usual salary of a person working in the home.
As for the compensatory benefit (which can sometimes be granted for life): this is an economic consideration to which the spouse who has been disadvantaged by the breakup is entitled, and is given when there is an economic imbalance caused by the divorce or separation.
In a very schematic way, for a compensatory pension to be granted it is necessary that:
- There is an economic imbalance as a result of the marital breakdown.
- This imbalance implies a significant worsening of the economic situation of the affected spouse.
- The situation must be ratified either by means of a regulatory agreement or by means of a judicial resolution.
Therefore, the existence of this economic imbalance must be notified in the divorce process.
In the specific case we are commenting on, the amount of compensation for domestic work requested is established according to the SMI in force in each year elapsed from the beginning of the marriage until its end (specifically, from 1995 to 2020).
The judgment, which can be appealed, considers it proven that the woman, aged 48, has been dedicated to taking care of the home and her daughters, “with all that this implies, contributing punctually to the family business” and doing occasional cleaning work.
In addition, alimony is established and it is fixed that each spouse will be responsible for certain expenses of the home and for half of those that are generated in an extraordinary way.
A compensatory pension is also established for two years, which is considered “adequate” time for the woman to be able to enter the labor market.
Finally, the sentence does not consider it relevant that the husband compensated the wife with the transfer of part of the shares of a company, given that “There is no evidence whatsoever that such assignment was made in order to compensate in the event of the breakup of the spouses and in order to exclude the application of the provisions of article 1438 of the Civil Code”. As the women’s defense counsel points out, this is a judgment that recognizes the work of all women who support family responsibilities in the shadows and without generating income, allowing their partners to climb the economic ladder without being compensated for it..
Este tipo de medidas económicas logran equilibrar la balanza en caso de ruptura, haciendo a ambas partes partícipes del patrimonio generado durante el matrimonio.
Si tienes dudas o necesitas consultar acerca de tu situación concreta, ponte en contacto con nuestro equipo de abogadas de Familia.
