The jurisprudence on child support is becoming increasingly richer and varied.
In recent months we have learned about several curious cases that help us in our daily work as lawyers, showing us an increasingly complete sample of assumptions that, today, occur in the relationship between parents and children in case of separation or divorce.
Such is the case of the sentence that we are commenting today, which opens the door to extinguish the alimony when there is a null personal relationship between the children and the parent who is the breadwinner . However, for this criterion to be applied , it is necessary to prove that the cause of this lack of relationship is attributable “in a principal and relevant way” to the children, which is not fulfilled in this case.
The Supreme Court, with a very interesting argumentation, thus carries out a “flexible interpretation in accordance with the social reality, the cultural sign and the values of the moment in which they are produced”regarding the norms that regulate this aspect,“while waiting for the legislator to address the legislative reform for its positivization”, as the sentence itself assures.
However, we remind you that, in Family Law matters, there are no universal solutions: it will be necessary to attend to each specific case in detail in order to design the best way to defend your interests. Consult us to know your possibilities and your rights and duties.
“Null personal relationship of the feeders with the feeder.”
In this case, the father of the two adults initiated a proceeding for the modification of measures against his ex-partner, requesting in the lawsuit thetermination of alimonyof the two children for three reasons: – Due to a decrease in economic capacity – Due to a lack of achievement in the children’s studies – For no personal relationship between the breadwinners and the breadwinner In response, the lower court did not recognize the first two points, but did consider it appropriate to extinguish the alimony on the basis of the “total detachment of the children from the father with whom they do not speak and whom they do not see, for years (10 and 8 years) without any interest in doing so”. Specifically, this judgment assessed a “no personal relationship” and “absolute disaffection between the children and the father”.The Court, recalling that “although it is true that the absence of paternal-child relationships is not expressly contemplated as a reason in art. 152 of the Civil Code or in any other precept for terminating the maintenance obligation, it is no less true that the ‘circumstances’ referred to in arts.
90 and 91 of the Civil Code and art. 775 of the Civil Procedure Law can be diverse and of different nature, without in any way constituting numerus clausus“. “Having established the foregoing, the total detachment towards the father shown by the children, which they have unequivocally manifested when questioned as witnesses, must be taken as accredited”. One of the sons, in particular, assured that he had not spoken to his father for 10 years and had not tried to contact him.
In addition, he commented that the head of studies at the university where he is studying told him that his father had requested information about his academic progress but that he, as an adult, did not allow them to provide any information.
On the other hand, the daughter affirmed that she had not seen her father for 8 years, stating that she has no interest in seeing him again. This sentence also considered (contrary to the Supreme Court) that the factor of who is responsible for the lack of relationship “is irrelevant at this time, given the age of majority of the latter”. Thus, “it must be borne in mind that, although parents have a moral obligation to their children to help them throughout their lives as they see fit, this duty is confined to the conscience and ethics of each person, being, in any case, reciprocal for ascendants and descendants the obligation to provide maintenance for each other”.
In short, according to the sentence of first instance, “The age of majority of the children and their manifest and continued rejection of their father can and must be qualified as an alteration of circumstances of real transcendence due to its repercussions in the personal sphere of those involved, being in addition a lasting situation and not a temporary or transitory one, which can be imputable to the maintenance providers, without this diminishing the responsibility of the father for his lack of abilities, and which has occurred after the moment in which the measure whose modification is sought was adopted”.
The criterion of the Provincial Court
For its part, the Provincial Court of Madrid, in response to the appeal filed by the ex-wife, decided to uphold the previous decisionIn the present case, given the age of majority of the children, given the lack of affective relationship, continued and consolidated over time between the non-custodial parent and the children; the refusal of the latter to relate with their father as they have shown, a free, willing and voluntary decision,” he argued as follows: “In the present case, given the age of majority of the children, given the lack of affective relationship, continued and consolidated over time between the non-custodial parent and the children; the refusal of the latter to relate with their father as they have shown, a free, willing and voluntary decision;all this must be considered as a substantial alteration and modification of the circumstances and of real repercussion to the personal sphere of those involved and of a permanent nature, which justifies that within the matrimonial proceeding the duty of contribution of the non-custodial parent is left without effect.The claim is based on article 91 in fine in relation to articles 93 and 152 of the Civil Code and can be extended to paragraph 4 of said article.
The Supreme Court’s answer: the lack of relationship must be mainly attributable to the children.
Finally,the Supreme Court upheld the appeal and maintained the father’s pension, on the grounds that, in order for the pension to be extinguished due to the absence of a relationship, it must be imputable principally to the children, which is not considered proven in this case. The ruling explains that, among the initiatives that advocate the revision of inheritance law (and of the duties and rights between family members, including economic ones), “one of them is the one that tends to extend and modernize the legal cases of disinheritance of the legitimated beneficiaries, since modern family structures are conducive to, and even not uncommon for, situations in which parents have lost contact with some or all of their children.”. “Other times it’s not so much the loss of contact, but downright bad parent-child relationships.”
“These tensions are not new, but today they may have increased, since there are often successive marriages, which entails successive family nuclei, with children from a previous link and others from a later one, with interests that are not always uniform,” the Court assures. In this line of thought, the Catalan Civil Code is one step ahead.451-17 e), since it has introduced in art. 451-17 e) a new cause of disinheritance consisting of the “manifest and continuous absence of family relationship between the deceased and the beneficiary, if it is due to a cause exclusively attributable to the beneficiary”. According to the Supreme Court, “in our Civil Code there has not been any modificationIt has been traditional for the court, since the causes of disinheritance are of a punitive nature, to interpret and apply them in a restrictive manner”. However, an effort has also been made to adapt these causes to the current social reality.
In spite of this, the assessment of the concurrence and proof of the lack of a manifest lack of relationship must be interpreted in a “rigorous and restrictive” manner.
And it must be clear that this lack of relationship is attributable, “mainly and relevantly, to the child”.
Precisely for this reason the Provincial Courts of Catalonia, “which do have an express provision that provides for this cause for termination of alimony, have rejected the termination when, having established the lack of a clear relationship, it was not proven that this circumstance was attributed solely and exclusively to the child who was the provider of alimony”. Therefore, in this case, the Supreme Court considers that “this lack of relationship is not attributable to the children, with the characterization of principal, relevant and intense, to which we have mentioned”, and that, “if the interpretation, as already reiterated, must be restrictive and the proof rigorous, it cannot be appreciated that there is a cause for termination of alimony”.
