Modification of separation, annulment or divorce measures

The measures adopted on the occasion of the annulment, separation or divorce, both those agreed by the spouses in the regulatory agreement (duly ratified), as well as those established by the judge in the absence of an agreement, are due to the existence of certain circumstances at that time.

If, due to subsequent events, these circumstances change, they may be modified judicially or by a new agreement to adapt to the new situation by means of the corresponding application for modification of measures.

The object of this process is determined solely by the possibility of modification (termination and/or mere variation) of certain complementary measures, if it is determined that sufficiently relevant new facts or circumstances have arisen.

The modification of the measures will proceed when the circumstances taken into account for the adoption of the measures in force have changed substantially, and provided that such a change could not have been foreseen at the time they were adopted.

The concurrence of the factor of the change of circumstances has to be assessed by the court, which is granted a high degree of discretion, as it has to assess not only the effective change of circumstances, but also the convenience of modifying the measures judicially granted. Sometimes the change of circumstances will be based only on a change in the will of one of the parties or of the descendants, in which case the court will have to assess primarily the appropriateness of the requested modification.

It is not appropriate to file an application for modification of measures in the following cases:

1º.- When it is sought to update some clause or measure of economic content. If the index of updating is stated in the judgment, a writ should be filed requesting the execution of the judgment in order to proceed with the updating of the pension.

2º.- When a spouse considers that there was error or defect in the consent given to the regulatory agreement. The appropriate route in this case is the ordinary declaratory action, since the discovery of the defect cannot be considered as a new fact. Nor is it admissible to join the action for nullity due to error or defect of consent with the action for modification of measures, as these actions are to be heard in a trial of a different nature. 

3º.- To request ex novo alimony and/or compensatory maintenance.

On this point, although referring to the use of the family home, the Judgment of the Madrid Provincial Court, 24th Section, of 16 January 2003, states that one cannot modify what does not exist and one cannot ask for the creation of a measure ex novo in a process of modification of measures; and even less so if in that decision of matrimonial separation such a non-pronouncement was consented to, not accepting as valid the ingenious argumentation of the plaintiff, which stated that "the measure whose modification is sought is, precisely, the non-adoption of a measure relating to the marital home".

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