Modification of measures in divorce proceedings

Separation or annulment. Family Law

Our law firm considers it necessary to analyse this issue related to family law, which is of permanent legal relevance. According to articles 90 and 91 of the Civil Code, in order to modify the effects of the separation, marriage annulment or divorce, provided for in the corresponding final judicial sentence, it is an essential requirement that the circumstances taken into account for its establishment have substantially changed.

Based on an analysis of case law, it can be deduced that the alteration of circumstances must have occurred after the judgment that established the measures, it must be supervening, relevant, permanent, beyond the control of the spouse requesting the modification and sufficiently accredited by the latter.

Some judgments of some Courts establish that the request for modification of the measures agreed by the divorce judgment that approved the regulatory agreement signed by the spouses requires that there has been a substantial alteration of the circumstances that were taken into account previously for the approval of the proposed agreement presented by the spouses, since it is contrary to the requirements of good faith for a spouse who has expressly and solemnly agreed with certain measures agreed with his or her spouse to seek their modification without even invoking an alteration of the factual assumptions determining that agreement or acquiescence.

In order for the modification requested by one of the spouses of the judicially approved agreement or of the measures replacing it to be successful, there must be an alteration of the circumstances taken into account by the spouses for the adoption of the agreement or by the judicial authority for the approval of the proposal submitted.

Said alteration must be substantial and not affect only accidental or minor circumstances, and must be duly accredited by the party who asserts it in order to obtain the modification of the agreement or measures judicially agreed, as a fact constituting his or her claim. Thus, a modification of the judicially approved agreement or of the measures adopted in the absence thereof can only be justified by the alteration other than that which the parties could reasonably have contemplated in order to issue their consent or the judicial authority to decree the measures; otherwise it would be more a matter of a revision of what has already been agreed and not of the adjustment of the pre-established regulation to a factual situation that has become different. This is what is stated in the AP Badajoz Judgment of 3 November 2004.  

Similarly, the judgments of the AP Navarra of 27 May 2002 and the AP Murcia of 27 July 2006 require, for the viability and success of the modification sought, the concurrence of a certain and fundamental premise that substantially alters the bases on which the measures and agreements that are to be modified were established, that is to say, it is not a matter of providing merely subjective criteria or complacency, but real reasons, sufficiently proven, necessary and convenient for the viability of the effective cessation of the measures agreed at the time, with the burden of proof and accreditation falling on the person who alleges them.

Relevant alteration

The circumstances that determined the establishment of the measures to be modified must have changed substantially. That is to say, it is required that the alterations are transcendental, fundamental and not of little or relative importance, as determined by the Judgment of AP Castellón of 20 April 2010

The change in the previous situation must be sufficiently significant so that, if what was previously agreed is maintained, it would result in serious harm to the children. As pointed out by theAuto de AP Valencia of 27 January 2010, the modification of the measures or secondary effects consequent to the marital separation or divorce, agreed in the corresponding judgment, can only take place when there is a serious or substantial alteration of the circumstances contemplated when that decision was handed down. 

Thus, in order to recognise an alteration of circumstances as substantial, it is necessary that the personal and property conditions of the parties, on which the effects are based, appear to have been qualitatively and quantitatively modified without them fulfilling or satisfying the needs that they must satisfactorily meet and attend to, as agreed by the interested parties or as judicially resolved. In this sense, the Balearic Islands Regional Court Judgment of 11 July 2001 states that the fact that the defendant had experienced an increase in the sickness pension she was receiving is not a reason to abolish the compensatory pension, as this was due to the worsening of her state of health, so there is no substantial alteration in the circumstances that led to its imposition.

The Judgment of the Balearic Islands Regional Court of 4 June 2001 states that the involuntary loss of the father's job, who was wrongfully dismissed, for which he received a high annual salary, in order to start receiving unemployment benefit, represents a substantial alteration of the circumstances taken into consideration to quantify the child maintenance allowance.  

Supervening alteration

The change in circumstances must be the consequence of new, supervening facts that could not have been taken into consideration at the time when the measures to be modified were adopted, either because they occurred after that time or because their appearance and influence could not reasonably have been foreseen. The change must be of an unforeseeable nature, and consequently, changes in circumstances that were already foreseen, in the future, at the time the judicial decision to be modified was issued, or whose advent could have been foreseen in an elementary foresight calculation, cannot be included in the legal provisions for modification. Therefore, if the modification is sought on the grounds of circumstances or events that were already foreseen or could have been foreseen, it will not be possible to meet the request for modification. This is stated in the judgments of the AP Las Palmas of 31 January 2005 and the AP Madrid of 11 May 2011.  

The Madrid Provincial Court Judgment of 1 February 2002 considers that the obligations contained in the Civil Code bind the regulatory agreement signed between spouses to contractual freedom and legal certainty, so that except for exceptional and novel conditioning factors - not foreseen - that make such commitments impossible or extremely difficult, they must be fulfilled in accordance with what has been stipulated.

Going further in this doctrine, the Judgments of the AP Toledo of 17 April 2000 and 28 October 2009 consider necessary the concurrence of circumstances in some way unforeseen or that were not taken into consideration at the time, beyond the variations that could be considered ordinary and usual in family life, with respect to the factual situation that was taken into account in the out-of-court agreement or, where appropriate, in the judgment, and that require a rethinking of the personal or economic relations inherent in such measures. Consequently, events which, even if they have occurred, have already been contemplated, even implicitly, or those which, even if they involve a change in circumstances, do not have an essential and basic impact on the factual conditions taken into account in the agreement, and it can be rationally deduced that, if they had been foreseen, they would not have led to a change in the terms of the agreement, will not be valid to justify such a modification.

Permanent alteration

The events causing the change in the previous situation must be of a stable, lasting nature, with a vocation for permanence, so that the new circumstances are not merely temporary or transitory.

In this sense, the AP Salamanca Judgment of 13 January 2009 states that the alteration of circumstances must be stable or permanent over time and not merely temporary, but sufficiently structured to make the modification of the measure necessary, excluding all forms of temporariness.  

Alteration beyond the control of the person requesting the alteration

The alteration of the circumstances must have been caused by events beyond the unilateral will of the person requesting the modification of the measures agreed in the nullity, separation or divorce Judgment.

Thus, the Judgement of the AP Baleares of 9 May 2002 declares that if the alteration, even if substantial, has been caused by fraud or fault of the person requesting the modification of measures, it cannot be changed or modified, as it will have been intentionally or culpably achieved, under penalty of fraud of law, abuse of rights or breach of the principles of good faith.

For its part, the AP Madrid Judgement of 10 May 2001 states that it is necessary that the changes are not brought about voluntarily by one of the parties, precisely the one who instigates the modification process.

Accredited alteration

The existence of a radical change in circumstances must be proven by the party requesting the establishment of new measures. In effect, the alteration of circumstances must be fully accredited as real, discarding any fiction, as this is imposed by legal certainty, since it implies leaving without effect to some extent what has been agreed in a final and enforceable court decision.

The judgments of the AP Baleares of 9 May 2002 and AP Teruel of 28 July 2011 indicate that all the argumentative force must be concentrated on showing the substantial and significant alteration of the circumstances or events that cannot be avoided. This is so because a minimum of legal certainty indicates that the general rule is the inalterability of these measures and the exception is their modification.

The new facts must be fully accredited, using all legally admissible means of proof. Pursuant to Art. 217 LEC, the burden of proof falls on the spouse requesting the modification, as indicated in the Judgments of the Madrid Provincial Court of 5 February 2002 and 24 January 2002.

Moreover, it must be borne in mind that the evidentiary activity must be directed both to the time when the circumstances existed when the measures whose modification is sought were adopted, and to the current time, in order to assess whether or not there is a change in them.