The Civil Chamber of the TS has issued a ruling dated February 11, 2016, which establishes that the system of shared custody of children does not exempt the payment of alimony if there is a disproportion between the income of both spouses.
Furthermore, it rejects that this pension can be temporarily limited "since minors cannot be left at the mercy of whether the mother can or cannot find work", beyond the fact that there may be modifications later if there is a substantial change in circumstances (article 91 of the Civil Code). .
The TS ruling
The appellant understands that by adopting the shared custody system, payment of alimony is not necessary, since each person will be responsible for it during the period in which they have custody of the minors.
However, if the mother does not have her own income, it is limited to a period of two years, in which it is considered that the mother could find work.
Shared custody does not exempt from paying alimony when there is a disproportion between the income of both spouses, or when the parent does not receive any salary or income. (art. 146 Civil Code), since the amount of food will be proportional to the needs of the person who receives it, but also to the wealth or means of the person who gives it.
This temporary limitation makes sense in a compensatory pension, as an incentive in the search for a job, but it has no place in child support, as it is proscribed by art. 152 of the Civil Code.
Article 97 CC requires that separation or divorce produce an economic imbalance in one spouse, in relation to the position of the other, for the right to obtain compensatory pension to arise.
In determining whether or not the imbalance occurs, various factors must be taken into account. The compensatory pension - he declares - “aims to prevent the damage that cohabitation can cause from falling exclusively on one of the spouses and to do so it will be necessary to take into consideration what has happened during married life and basically, the dedication to the family and the collaboration with the activities of the other spouse; the property regime to which the spouses have been subject as it will compensate for certain imbalances, and even their situation prior to the marriage in order to determine if it has produced an imbalance that generates possibilities of compensation.
In view of this, the judge must be able to decide on three questions:
- a) If an imbalance generating a compensatory pension has occurred.
- b) What is the amount of the pension once its existence has been determined.
- c) Whether the pension should be permanent or temporary.
Imbalance must be understood as an economic worsening in relation to the existing constant marriage situation that must result from the confrontation between the economic conditions of each one, before and after the breakup. Since, due to its legal and jurisprudential configuration, the compensatory pension is not intended to perpetuate, at the expense of one of its members, the economic level that the couple had been enjoying until the moment of the breakup, but its legitimate object or purpose is to achieve rebalancing the disparate situation resulting from that, not in the sense of fully equalizing assets that may be unequal for reasons unrelated to coexistence, but in that of place the spouse harmed by the breakdown of the marriage bond in a situation of potential equality of employment and economic opportunities with respect to those he or she would have had if the marriage bond had not been involved... »
Applying the doctrine to what is alleged in this appeal, the temporary compensatory pension must be maintained, in view of the manifest situation of imbalance given that:
- The wife doesn't work.
- Throughout his life his work occupation has spanned only 1973 days.
- He has invested most of his time in family care.
