Abandonment of home or family

Leaving home, when there is a marital relationship involved, is a very serious matter and entails a number of legal consequences. Since the subject is quite complex, in this article thanks to our team of family lawyers we have set out to answer the main questions surrounding it. In this way, we hope that everything will become much clearer for you.

What is abandonment of the family or home?

It is a conduct that is not criminalised in the Criminal Code. However, non-compliance with the legal duties of assistance, guardianship, foster care or family care, as well as the failure to provide the necessary assistance for the support of the spouse, ascendants or descendants who need it, is. 

It must be made clear that a separation between two spouses, when there is no divorce involved and which implies that one of them leaves the family home, is not abandonment as long as he/she does not fail to pay his/her obligations acquired by judicial decision for two consecutive months or four alternating months. 

Is there such a thing as divorce on grounds of desertion?

The answer is yes. If the spouses are separated, it is sufficient to file an action for abandonment of the home which, in addition to obliging the other party to fulfil his or her obligations towards the spouse, ascendants and descendants in question, will result in a divorce between the parties.

What is the procedure for reporting abandonment of the home to the authorities?

As mentioned above, abandonment of the home is not a criminal offence as long as the spouse continues to fulfil his or her obligations. However, it is important to inform the authorities of the moment when it occurs, as this makes it possible to justify the moment when he or she stops fulfilling his or her obligations. This should be stated in the judgment of separation or, failing that, in a document notifying the Public Prosecutor's Office.

Once this has been done, in the event of two consecutive months or four alternating months in which the spouse in question does not meet his/her obligations, it will be sufficient to file a complaint for abandonment of the home with the National Police, the Civil Guard, the duty court or the corresponding investigating court.

Is leaving home by women any different?

The answer is no. Whether it is the man or the woman who leaves the home and fails to attend to her duties, the law imposes the same penalties and requires the same procedure. This is true except, of course, in the case of women who are being or have been abused, in which case it will never be considered as leaving the home if she ceases to reside in the family home.

What happens if there is an abandonment of the home without children?

It depends on the judgment handed down by the judge. In this sense, whether it is a separation or divorce, the judge may rule that one of the parties must pay a compensatory pension at the time for whatever reason, in which case he or she will have to do so obligatorily. Moreover, the fact that there are no children does not mean that there are no descendants requiring care. It all depends, fundamentally, on the individual case.

What happens if the spouse who leaves the home stops paying the established alimony?

Non-payment of alimony, which is classified as a crime in article 227 of the Criminal Code, is one of the most frequent forms of family abandonment, although it can also be understood as a civil breach of the divorce, separation, filiation or annulment sentence, depending on the case. It is possible to force the parent to pay it by means of a prior lawsuit.

Alimony payments are subject to increases in the CPI, so that at the end of each year the amount must be updated. If this is not done, the receiving party can demand, also by means of a lawsuit, that it be done and, in addition, request that the arrears be paid.

When is family abandonment a crime?

The truth is that, in most cases, family abandonment is not considered a crime. This is mainly because, in addition to proving that the other party has failed to meet his or her obligations, which is usually quite straightforward, the judge must also establish that it has been done with intent, i.e. that there is malice. This is something entirely subjective which, in other words, can mean that the spouse obliged to pay does not pay because he/she does not want to, not because he/she cannot.

How is the recovery of the amount owed for family abandonment received?

The answer to this question depends primarily on the procedure that has been followed:

• Civil proceedings for the enforcement of a judgment. The amount owed is collected by the beneficiary by seizure of real or personal property or of the beneficiary's paycheck.
• Criminal enforcement proceedings. Obligation to meet the civil liability and pay the debt by any available means plus the criminal punishment imposed.

This is always the case if the defendant is unwilling, even after the judgment has become final, to meet his or her obligations. In the event that he or she is, it will be sufficient to pay the amount by consignment to the same court where the proceedings have taken place.

Finally, we must say that, in the event that the person who is no longer meeting their obligations has a salary or real or personal property that can be seized, it is always better to opt for civil proceedings as the procedure is shorter and quicker. However, when the person is not a self-employed person and his income is difficult to prove, the most advisable option is the criminal procedure.

At G.Elias y Muñoz Abogados we have a team of lawyers specialised in this type of cases, do not hesitate to contact us.