The termination of alimony when both spouses work

Over the last few years, the termination of the compensatory pension has become a controversial issue in the field of Family Law, which has generated a great deal of case law, both from the Supreme Court and the different Provincial Courts, especially in those cases where both spouses work. Our specialist lawyers analyse the current issue.

Termination of alimony when both spouses are in employment

Since the establishment of the compensatory pension in 1981, the Supreme Court has constantly reminded us that we are dealing with a legal institution that in no case is a mechanism for equalising disparate economies, nor does it provide professional qualities that one does not have. Thus, in the recent Supreme Court Judgement of 20 June 2013, it was once again affirmed that the compensatory pension does not operate if both parties work, thus receiving an income that is fair or if they have their own abilities and aptitudes to generate it. In this case, it has been established that the ex-wife's employment has been consolidated, maintaining a sufficient and adequate standard of living, and therefore the termination of the compensatory pension that she received from her ex-husband should be agreed.

As the majority of doctrinal and judicial opinion maintains, the fundamental purpose of this institution is to help the beneficiary spouse to reach, if feasible, that degree of economic autonomy which she would have enjoyed, through her own efforts, had the marriage not taken place, insofar as the marriage, and the consequent dedication to the family, has been an impediment or obstacle to her work or, in general, her economic development.

As we have said, one of the issues that may raise doubts when it comes to terminating the compensatory pension is the fact that both spouses are in the labour market but their salaries are different. In relation to this issue we can find contradictory case law from the different Provincial Courts.

One sector of case law argues that the rebalancing that seeks to alleviate the compensatory pension does not have to imply equality between the assets of both spouses, nor does it give them professional qualities that they do not have. It also maintains that, if both spouses work, there can be no question of imbalance, and each spouse must provide for their own autonomy with income in line with their attitudes and aptitudes to generate it. In this sense, for example, the Judgment of the Madrid Provincial Court (24th Section) of 8 February 2007 has ruled in this sense.

On the other hand, another sector understands that if the income of both spouses has a notable difference (for example, if the husband earns almost twice as much as the wife), this does not mean that the divorce has not caused the wife an appreciable economic imbalance in terms of the level that the marriage could afford, recognising her right to receive a pension. In this sense, we can mention, by way of example, the Judgment of the Provincial Court of Castellón (2nd Section) of 20 July 2009.

The latter has been followed by the Supreme Court, which, in its ruling of 17 July 2009, established that the fact that each spouse has an independent job is not an obstacle for a compensatory pension to be set if there is an economic imbalance at the time of separation.

Likewise, we cannot overlook the recent Judgment of 17 May 2013, which states that the inequality of income between the spouses when it is not a consequence of the greater dedication to the family of one of them, does not give the right to a compensatory pension.

We must not forget that the figure of the compensatory pension, contemplated in Article 97 of the Civil Code, cannot be conceived as a legal instrument of automatic equalisation, or at least approximation, of the different pecuniary capacities of one and the other spouse, but that it will be necessary to take into account the circumstances of each specific case.

If you have any further questions, please contact us.

Nuestro Law Firm in Madrid has specialists in the field of family law, who will be able to advise you on this and many other matters.