CONSULTATION:
Dear Sirs,
According to my divorce Decree issued some time ago I have to pay my ex wife a 450€ monthly compensatory pension, maintenance. However my wife has been living for over a year with her new partner. Should I keep paying the alimony even though she lives with another man?
Dear reader,
Thank you for your consultation.
You should know that if your exwife has a marital cohabitation with another person, as per the Spanish law, this constitutes enough reason to end the pension rights.
Thus article 101.1 of the Spanish Civil Code states:
The right to the pension is terminated by cease of the reason that caused it, when the creditor remarries or when having a marital cohabitation with another person.
It is true that the main difficulty resides in the interpretation of the expression matrimonial cohabitation with another person. In fact the Court Orders regarding this issue are cases of belt and braces and some of them clearly contradict each other.
Some Judges have considered that living together as a stable partner is sufficient while others have demanded more elements like having a matrimonial life together or even a life project between the couple, etc.
In this regards, we would like to highlight the recent Court Order (No. 42/2012) of the Supreme Court of Spain dated February 9th 2012 referring to the expression matrimonial cohabitation with another person as sufficient grounds to put an end to this compensatory maintenance or allowance.
Thus the Supreme Court points out that Article 101.1 of the Civil Code should be interpreted according to its purpose, which is no other than to include matrimonial cohabitation and stable living together situation as reason enough to lose the maintenance or alimony.
As previously, there were many cases where the beneficiaries of these compensatory alimony lived together as a couple but avoided getting married in order to not lose their rights to collect this allowance.
The Supreme Court also notes that the expression matrimonial cohabitation with another person should be interpreted under the current social reality and from a subjective and objective point of view, that is, a new couple who makes a serious commitment establishing a stable coexistence between them. In general, it is understood that this coexistence situation occurs when the parties live and act as spouses according to the current reality of our time.
In the above mentioned Court Order the Supreme Court understands the existence of MARITAL coexistences and therefore agreed to terminate the support and maintenance to the ex spouse, for the following reasons:
1.) The relationship lasted one and a half years and was well know by family, friends and at social events.
2.) Although the couple was not living together under the same roof, they continuously visited and stayed at each other’s houses, and met at public places as a couple.
3) It was also a solid relationship as during a year and a half they did not have other similar relation with other people, and they showed themselves in public a stable couple.
Should any reader be 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.
Carlos Baos (Lawyer)
Tel:+ 34 966 426 185
E-mail: info@white-baos.com
https://www.white-baos.com/
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