The case we are analyzing today is particularly interesting, since two basic rights come into play in case of divorce or separation with compensatory pension in favor of one of the parties.
This is a case in which the ex-husband receives an income that is, due to its amount, almost totally unattachable according to article 607 of the Civil Procedure Law. This prevents, in practice, the execution of the sentence that recognizes his ex-wife’s right to receive a compensatory pension of a certain amount.
Faced with this situation, the Provincial Court of A Coruña has recently raised a question of unconstitutionality, on which our Constitutional Court will rule later.
We will tell you the details of the case: we would love to know your opinion.
The details of the case: ex-husband’s retirement pension and ex-wife’s no income
In this case there is a debate about a divorced couple, where the ex-wife is entitled to receive a compensatory pension.
The ex-husband receives a retirement pension in the amount of 1439.40 euros per month with 14 payments per year.
For this reason, in execution of the separation judgment, the Court of First Instance No. 3 of A Coruña agreed to request the National Social Security Institute to withhold the amount of 428.51 euros per month, as a compensatory pension in favor of his ex-wife.
The ex-husband filed an appeal claiming that the seizure limits set forth in article 607 of the LEC should be respected.
This article explains that the unattachability of salaries or pensions is not absolute and has certain limits, such as the fact of having to pay some type of alimony.
However, the compensatory pension does not have this nature and, as the defense of the ex-husband explains, it is reiterated jurisprudence that indicates so. This appeal was dismissed, subsequently reaching the Provincial Court, which now raises the question of unconstitutionality.
In this case, the ex-wife does not receive any income.
Unattachability of salary vs. compensatory pension
Indeed, the nature of the compensatory pension is well defined both legally and in case law.
The Provincial Court does not doubt that, in this case, we are not talking about alimony. Therefore, in principle, according to the current wording of article 607 of the LEC, the ex-husband’s alimony would be protected.
The problem is that, according to this criterion, the right of your ex-wife, recognized in a final judgment, would be absolutely violated, since she would not be able to collect practically any amount from her ex-husband.
This, in practice, means almost no income for the affected party.
In this case it is considered proven that:
- The lack of contributions prevents the wife from accessing a contributory retirement pension.
- The wife devoted herself to the family, including raising the children of the marriage.
- The wife is not in a position to fully access the labor market, due to her age, state of health and lack of professional qualifications and pension, as the husband enjoys.
For this reason, the Provincial Court questions the constitutionality of Article 607.
- The Supreme Court itself has made it clear that alimony tends to cover needs related to subsistence, while compensatory alimony is strictly reparatory in nature to compensate for the imbalance in the economic position of one of the spouses caused by the separation or divorce.
In this case, the aim is to prevent the breakup or cessation of conjugal life from leading to a decrease in the standard of living actually enjoyed by one of the spouses during the course of the relationship. - However, the Provincial Court recalls that, on occasions, the courts have recognized a maintenance function in the compensatory pension when it is the sole or principal means of subsistence of the recipient.
- In fact, a non-literal interpretation of the provision has even been postulated which, without considering the situation of the beneficiary, allows it to be extended “to fractioned and periodic benefits established in a matrimonial lawsuit, either under the specific denomination of alimony or as compensatory pension”.
- This position argues that “all these forms of economic benefits come to cover food needs that cannot be ignored and that have a perfect fit in the precept”.
Possible gender discrimination: the majority of compensatory pensions are in favor of women
The Provincial Court goes further and assures that “it is evident that, in most cases, the creditor of the compensatory pension after a separation or divorce sentence is the one who has the right to receive it. woman.”
In the very legal design of the circumstances of Article 97, the role that has traditionally been attributed to women in marriage, the sacrifice of their possibilities of professional or labor promotion for the benefit of the home, the children and the family, thus favoring the husband to reach or consolidate a position that, after the breakup of the cohabitation, will in many cases entail for the woman a deterioration of her economic position in contrast to that which her spouse retains, in relation to that which they both enjoyed during the marriage.
In short, if the general rule of unattachability of Article 607 has “undeniable constitutional basis”, because “it is reasonable and consistent (…)”, this intangibility “serves in this case a different and unjustifiable purpose, that is, it allows neutralizing the effectiveness of a right recognized to one of the spouses to alleviate the imbalance of their position compared to that of the other”, says the Court.
Moreover, “although the compensatory pension does not aim to equalize assets, it is undoubtedly an institution that The purpose of the agreement is to recognize a specific situation of inequality between the spouses, generated during the marital cohabitation by reason of the circumstances that characterized it, and that particularly affects one of them when the rupture occurs by reason of separation or divorce”. Therefore, “a legal rule that has the effect of neutralizing the effectiveness of the compensatory pension recognized to one of the spouses, iniquitously favoring the one who has been judicially condemned to share with the other the benefits of his position after the breakup of cohabitation, turns out to be also contrary to the fundamental right to equality before the Law”.
It is pertinent to recall here, once again, the sociological circumstances that are at the origin of the institution of the compensatory pension (…), because the result of the application of Article 607 LEC is, in this context, that of the consecration of an unjustifiable indirect discrimination based on sex.
The rule is particularly detrimental to women, because it is normally women – in many cases without resources of their own, with few or no possibilities of access to employment – who are the creditors of the compensatory pension for imbalance against their spouse or ex-spouse; and it does so by subtracting or annulling the effectiveness of a right that has been judicially recognized precisely because of the specific inequality in which the imbalance consists.
The approach imposed by the principle of the transversality of the gender perspective reveals that the result to which the application of the legal rule in question leads is also unacceptable from the consideration of the fundamental right to equality without discrimination.
For all these reasons, the Court questions the constitutionality of Article 607 of the Civil Procedure Law in its projection on the enforcement or the precautionary assurance of the right to receive a compensatory pension for imbalance, judicially recognized in a divorce or separation judgment in favor of one of the spouses against the other.
We consider that the legal rule is, in the aforementioned circumstances, contrary to the right to effective judicial protection of Article 24 of the Constitution, which encompasses the right to have final judicial decisions enforced (Art. 24. 1, 117. 3 and 118 of the Constitution), and also contrary to the fundamental right to equality before the law, without discrimination based on sex (Article 14 of the Constitution), because it indirectly discriminates against women, who are particularly harmed by denying or reducing the effectiveness of the compensatory right that serves to alleviate the imbalance that they endure, after the termination of the cohabitation, due to the role that they have assumed in the distribution of tasks inherent to the traditional family structure.
If you need help in any case related to the recognition of your right to any benefit derived from the rupture of your couple’s relationship, please contact our team of family lawyers..
