Dear Sirs,
I have a 4 years old daughter with the man who was my partner until 2 months ago, when we broke the relation. He has left the home and refuses to cooperate financially with our daughter’s care and expenses. Can I legally claim against him to pay for some of our daughter’s expenses even if we are not married? Since when should he pay?
Dear reader,
Thank you for your query.
Yes, you are able to claim against your ex partner, for his and your daughter’s expenses, with independence to whether you are married to him or not. You can ask him to contribute with the costs of food, shelter, clothing, etc. for the under aged child living with you; this is known as maintenance payment (pensión de alimentos.).
You should start the Court procedure foreseen in article 748.4 of the Civil Procedures Law (Ley de Enjuiciamiento Civil) which refers to one parent claiming maintenance from the other on behalf of the under aged child. It is the Judge, who determines, through this procedure, the amount of maintenance to be paid by the father to the minor, the duration and form of payment and other features.
In reference to your question about when should the father start paying the maintenance, we must inform you that not all the Provincial Courts in Spain have followed the same criteria in this matter; however there are 2 main major positions:
1.- Some Courts and County Courts (Audiencias Provinciales) understand that these procedures are comparable to the dissolution of marriage by divorce and therefore should be interpreted according to article 89 of the Spanish Civil Code which states that the Decree (Court Order) will only be in effect from the time when its becomes definite (beyond appeal) (Sentencia Firme)
Therefore these Courts understand that only when a Court’s (beyond appeal) Decree exits should the maintenance be paid, and not during any previous time periods ( As long as no provisional or interim economic measures has been requested and approved during the court process).
2.- .- Other Courts and County Courts (Audiencias Provinciales) understand that the maintenance should be accrued from the time when the claim is filed.
These Judges understand that in these cases Article 142 and the following of the Spanish Civil Code which appear under the title MAINTENANCE BETWEEN FAMILY should also be applied, especially Article 148 which states that maintenance should be paid from the time the claim is interposed.
Either way; these different interpretations have been clarified and united by a recent Supreme Court Order (Civil Division Section 1) number 402/2011 of June 14th. which has set the following precedent: in those cases of maintenance claim for under aged children due to the crisis of a married or unmarried couple the rule contained in Article 148.1 CC must be applied; thus in case of a legal claim for maintenance, it should be paid by the parent debtor from the time of filing the claim.
Therefore and in light of the above, we understand that you should claim the minor’s maintenance from her father by the appropriate legal procedure, requesting from the Court that the father pays this maintenance from the moment the claim was filed.
Please remember that it is also possible, to request from the court to approve an interim economic measures to be paid during the procedure.
It is very important for you to start this legal process against your ex partner, without delay, if he continuously refused to contribute.
Should any reader find himself or herself in this situation or similar please do not hesitate to contact us and the appropriate advice will be provided.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
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