The cases related to Family Law and, specifically, with the consequences of a separation or divorce, usually generate a casuistry as varied as the judgments that exist on them.
It is natural considering that each situation is a world and is impregnated with small details that make it unique, so judges -and lawyers- strive to create customized solutions.
These, however, are always based on the same spirit or inspiring principle, although as society advances, so does the law and the judges’ interpretative criteria.
Today we analyze a case that, for many reasons, is an important novelty for families, and that has to do with the compensatory pension and the dependence of one of the parties of the couple on the salary she obtains as an employee of her ex-partner.
This ruling comes at a time when the debate about gender equality is hotter than ever.
In this case, it creates a legal position related to the economic imbalances resulting from marriage and how these are compensated in case of breakup.
Compensatory pension and dependence on the salary paid by the ex-husband
The first thing is to clarify that, when we speak of compensatory pension, we refer to the one that one of the spouses receives from the other in case the separation or divorce has produced a situation of economic imbalance in relation to the position of the other.
That is to say, that economically his or her situation has worsened with respect to the one he or she had during the marriage.
In this sense, the sentence that we are commenting today, issued by the Plenary of the First Chamber of the Supreme Court, admits that the salary of a family business -in this case, the ex-husband’s company- can be converted into a compensatory pension in case of marriage breakup, so that, in this case, the wife who is dismissed by her husband can maintain the same income.
This is, in particular, a judgment that refers to a case in which a woman filed a divorce suit against her husband -being an employee of the company owned by her partner-, requesting a compensatory pension of 500 euros per month in her favor.
She also requested that, in the event that she was dismissed or her salary in the company was reduced, her ex-husband should pay her the amount that she would no longer receive, until completing the amount she was receiving from him, i.e. 1,900 euros.
The husband’s criterion: not losing sight of the cause of the imbalance
The first judgment issued did not recognize the woman’s right to this right, but the one issued in the second instance by the Provincial Court of Madrid did.
Her ex-husband appealed in that case, pointing out the unfairness of, in his opinion, establishing a measure such as the one adopted -thought in the long term- without taking into account that the imbalance to be corrected with the compensatory pension is the one caused by the breakup of the marriage, and not the one caused by, for example, a hypothetical dismissal in the future.
Specifically, the defense of the husband criticizes that the sentence of the Provincial Court grants the wife “in a preventive or conditional way a compensatory pension for the future without economic quantification, due to a hypothetical loss of work in her husband’s company after the marriage breakup”.
It is also argued by the owner of the company that “it is true that the wife may become unemployed, but it is also true that she may find a new job, and that her husband’s company may also be affected by the economic crisis, placing him in a situation of unemployment. Undesirable but real situations that would force a rethinking of the marital situation under different conditions.”
“If this were to occur (…), the imbalance that could hypothetically occur would not take place as a result of the imbalance produced by the marital breakdown, but would be caused by the subsequent dismissal”, while “the imbalance that gives rise to the pension must exist at the time of separation or divorce and subsequent events cannot give rise to the birth of a pension that was not accredited when the marital crisis occurred”.
The husband’s defense continues to argue that, as of the rupture, “the patrimonies of one and the other spouse are disassociated, at the expense of what results from the liquidation of the conjugal society and, in its case, of the modification or extinction of the measures that could have been agreed at the time of the divorce. The rest supposes maintaining after the breakup an economic link between spouses different from that which the law authorizes, and, in short, to propitiate, in short, a sort of added problems and in no way desirable […]”
The Supreme Court’s criterion: to prevent a woman from being dependent on her ex-husband’s will
The Chamber considers, on the contrary, that, although in general the imbalance giving rise to the compensatory pension must exist at the time of the separation or divorce – and subsequent events cannot give rise to a pension whose origin is not proven when the marital crisis occurs -, “in a situation such as the one described here, where the wife’s only income comes from the work she currently performs in a company run by the husband, this doctrine must be mitigated”.
Thus, according to the Supreme Court, for the same reason that it is possible to make a prospective judgment of the future that foresees the end of the imbalance at a certain time, it is also possible in cases such as this one to make the reverse prospective judgment, that is, when the imbalance will begin to occur when the wife’s income may depend exclusively on the husband’s unilateral decision to make her source of income disappear.
Thus, the amount in which the imbalance is valued is, in reality, 1,900 euros per month; an amount that does not have to be paid at present by the obligor as an imbalance pension precisely because the wife receives it for her work, but it will have to be paid in full in the event that the current employment relationship ends, for reasons not attributable to her.
All this, the sentence concludes, without prejudice to the ever-present possibility of subsequent modification or termination of the measure due to alteration of the circumstances that are now taken into account. If you need help in a case related to Family Law, do not hesitate to contact us. We will be happy to help you.
