The compensation for domestic work under article 1438 of the Civil Code has become a topic of debate in recent weeks as a result of several media rulings that highlight the value of this tool among citizens.
The truth is that this is not a new option for divorcing or separating couples.
However, it is important to know about it, especially in the case of couples in a separation of property regime in which one of the parties devotes his or her time to the care of the family, generating, therefore, little or no income of his or her own. In order for you to know better how the compensation for domestic work works, in this article we analyze the most recent judgment issued by the Supreme Court on this economic compensation, clarifying its requirements and limits. Specifically, it analyzes a case in which the ex-husband requested to subtract from this compensation certain expenses assumed by him during the period of the economic regime of the marriage.
The answer of the Supreme Court has been negative, keeping the amount in favor of his ex-wife intact.
If you need help in shaping your partnership, setting agreements in anticipation of a breakup or marital contracts, or in the face of a separation or divorce, contact our team of family lawyers in Barcelona and Madrid..
Keys to compensation for domestic work
Compensation for domestic work is a benefit to which individuals are entitled in the event of divorce or separation provided that:
- A separation of property regime was maintained during the marriage.
- One of the parties shall devote himself/herself exclusively to housework and childcare during all or part of the marriage.
It is important to clarify that this compensation is independent of the economic capacity of the party requesting it and of the economic situation in which he/she is left as a result of the breakup (for these cases there is a so-called “compensatory benefit”). compensatory benefit).
It is simply a matter of compensating the time dedicated to the care of the home free of charge during the marriage.
To understand it better we can go to article 1438 of the Civil Code, where it is regulated:
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
In addition, you should know that the compensation for domestic work is compatible with the compensatory benefit, so it is possible to request and receive both, as long as the requirements are met in both cases.
One way to understand the scope and reason for this compensation is to think that, in case of separation of property regime, if one part of the couple does not generate any income by devoting themselves to the household, in case of rupture, there will not be a 50/50 property distribution, as it happens in a community property regime, since the patrimony of each part generated during the marriage will have a privative character.
In addition, the party dedicated to the household will have renounced to his or her professional development in whole or in part.
Compensation for domestic work and ordinary expenses of the marriage: Can they be deducted?
Based on this definition, we now turn to the decision handed down by the Supreme Court. It analyzes the possibility of subtracting from the compensation for housework the ordinary expenses carried out by the husband during the marriage and for the exclusive benefit of his wife, something that the Court denies.
Thus, according to the Supreme Court, the Civil Code is clear when it tells us that the work “for the house” will be computed as a contribution to the expenses and, in addition, will entitle to obtain a compensation that the judge will indicate, in the absence of agreement, at the extinction of the separation regime. Specifically, the sentence analyzes the following expenses claimed by the ex-husband:
- Mortgage. In the case of the mortgage of the ex-wife’s home, the Supreme Court understands that it is not possible to deduct these contributions from the mortgage payment, “both because the amounts of the payments were moderate in view of the difference in the economic resources of both spouses and because they were payments related to the family home, with the provision of which by the [la exmujer] satisfied the family’s need for housing and avoided a greater expense”. The sentence also recalls that the ex-husband was obliged to contribute to the burdens of the family, and this in proportion to his economic resources (…)”.
- Household insurance, dental expenses and the purchase of a mattress. For the Court, these expenses “(…) not only form part of the ordinary needs corresponding to a time when the economic regime had not been dissolved, but the appellant himself alleged in his claim that they had been met out of his company; with respect to other amounts, even if they were his own transfers of money, they were intended for household expenses, such as the one he made before leaving the family home”.
- Car. The possibility of subtracting the expense for the purchase of a utility vehicle is also not allowed, since it would again be an asset acquired to meet family needs.
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