When facing a divorce or separation in Catalonia, one of the economic measures that raises the most doubts is the compensatory pension in Catalonia, which is governed by its own rules with respect to the Spanish Civil Code.
Although the meaning and reason for this concept is the same in both cases, it is necessary to analyze what it is and how the compensatory pension is calculated in Catalonia and in which cases it is possible to grant it to one of the spouses, thus distinguishing its peculiarities in the case of this autonomous community. What is the compensatory pension in Catalonia and how is it regulated?
What is the compensatory pension in Catalonia?
The compensatory pension in Catalonia refers to the amount 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. According to the Superior Court of Justice of Catalonia, it is an extension of the matrimonial solidarity after the breakup, and its goal is none other than to try to reach a balance between both spouses, improving the situation of the most disadvantaged.
It is, however, a pension that, although it can be for life in exceptional cases, is intended to be temporary . Its concession is related to the role that each spouse has played in the family economy.
A classic example is that of the spouse who stays at home to take care of the family and does not generate economic income, thus allowing the other party to develop his/her work to the detriment of his/her own.
The compensatory pension balances the balance in these cases.
The definition of compensatory pension in Catalonia is found in article 233-14 of the Civil Code of Catalonia:
1. The spouse whose financial situation, as a result of the breakdown of cohabitation, is most adversely affected is entitled to a compensatory allowance that does not exceed the standard of living enjoyed during the marriage or that which the spouse obliged to pay can maintain, taking into account the right to child support, which is a priority.
In case of nullity of the marriage, the spouse in good faith is entitled to the compensatory allowance, under the same circumstances.
2. The right to claim the compensatory benefit is lost if it is not requested in the first matrimonial proceeding or if it is not established in the first regulatory agreement.
If one of the spouses dies before one year has elapsed since the de facto separation, the other spouse, within three months of the death, may claim his or her right to the compensatory benefit from the heirs.
The same rule must be applied if the matrimonial proceedings are extinguished by the death of the spouse who should pay it.
How is the compensatory pension calculated in Catalonia?
The regulation on how the compensatory pension is calculated in Catalonia is found in article 233-15 of the Civil Code of Catalonia.
It stipulates that, “in order to fix the amount and duration of the compensatory allowance, it must be specially valued”:
a) The economic position of the spouses, taking into account, if applicable, the economic compensation for work or the foreseeable attributions derived from the liquidation of the matrimonial property regime.
b) The performance of family chores or other decisions made in the interest of the family during the cohabitation, if this has reduced the earning capacity of one of the spouses.
c) The foreseeable economic prospects of the spouses, taking into account their age and state of health and the way in which the custody of the common children is attributed.
d) The duration of the cohabitation.
e) The debtor’s new family expenses, if applicable.
In addition, the regulation expressly mentions the possibility of agreeing on the modality, amount, duration and extinction of the compensatory benefit (always within the legal limits) in anticipation of the breakdown of the marriage.
However, waiver agreements not incorporated into a regulatory agreement are not effective insofar as they compromise the possibility of meeting the basic needs of the creditor spouse.
As for the payment of the compensatory benefit, it can be attributed in the form of capital, either in goods or in money, or in the form of a pension.
In case of disagreement, the judicial authority must issue a decision on the mode of payment, taking into account the circumstances of the case and, in particular, the composition of the assets and the financial resources of the debtor spouse.
- When it is attributed in the form of capital, the judicial authority, at the request of the debtor spouse, may defer payment or order payment to be made in installments, with a maximum maturity of three years and accrual of legal interest as of the recognition.
- In case of attribution in the form of a pensionpension, it must be paid in cash and in advanced monthly installments. At the request of a party, guarantees may be established and objective and automatic criteria for updating the amount may be set.
In addition, the he compensatory benefit in the form of a pension is granted for a limited period of time, unless there are exceptional circumstances that justify fixing it for an indefinite period of time.
It is important to remember that the compensatory benefit fixed in the form of alimony can only be modified to reduce its amount if the economic situation of the person receiving it improves or worsens that of the person paying it. To determine the debtor’s economic capacity, his or her new family expenses must be taken into account and priority must be given to the right to maintenance for all his or her children. As for the extinction of the right to the compensatory benefit, the Civil Code of Catalonia stipulates the following causes:
a) Due to an improvement in the economic situation of the creditor, if such improvement no longer justifies the benefit, or due to a worsening of the economic situation of the obligor, if such worsening justifies the extinction of the right.
b) By marriage of the creditor or marital cohabitation with another person.
c) Upon the death of the creditor.
d) Due to the expiration of the term for which it was established.
Finally, the right to the compensatory benefit fixed in the form of a pension is not extinguished by the death of the obligor, although the creditor or the debtor’s heirs may request its replacement by the payment of a capital sum, taking into account the amount and, if applicable, the duration of the pension, as well as the liquid inherited assets at the time of the debtor’s death.
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