Can unpaid alimony be recovered retroactively?

It is quite common for the expenses of minor children to be covered solely by the mother or the father after a couple’s breakup, despite the existence of a settlement agreement. In addition, the parent who leaves the children to their financial fate is often unreachable or doesn’t listen to reason. Faced with this non-payment, the aggrieved partner can take legal action, which usually results in the garnishment of wages, accounts and assets. The justice system is accustomed to these processes, and they don’t tend to take too long.
 
What truly causes legal controversy is not the recovery of unpaid alimony when there is a separation or divorce, whose amount is fixed in the settlement agreement; but whether it is possible to demand alimony from a parent retroactively, following the judicial recognition or determination of paternity. The Spanish Civil Code is clear in this regard, as article 112 states that the legal determination of filiation shall have retroactive effects, provided that such retroactivity is compatible with the nature of such effects; and article 148 establishes that the obligation to provide alimony shall be payable from the time upon which the person entitled to receive it should need it to subsist; but it shall not be paid until after the date that the claim is filed.
 
Thus, the Civil Code determines that alimony does not have to be provided from birth in the case of a child who is recognized later, or whose paternity is established by legal decision. The law only establishes minimum retroactivity up to the date of the claim in favor of the alimony recipient. Therefore, under our legislation, the parent who owes alimony is protected in a certain sense, and is prevented from suddenly having to confront a claim of a large sum of money.
 
Thus, Supreme Court jurisprudence dispels any doubt, reaffirming what is stated in the Civil Code: in the case of a determination of “late” paternity, the parent who has supported the child’s expenses up to that point cannot ask the other parent for their part (Full Court Judgments of the Civil Chamber 573/2016 of 29 September, and 574/2016 of 30 September). Additionally, in 2014 the Constitutional Court dismissed a question of unconstitutionality raised due to the apparent contradiction of temporarily limiting the obligatory nature of alimony with the duty to provide assistance of every kind to your children, which is established in article 39 of the Constitution. At the time, this Court ruled that limiting the enforceability of alimony over time is justified in order to avoid a situation of “pendency”, which is incompatible with legal certainty.
 
In addition, the High Court argues in several judgments that if the Civil Code closes the door to the beneficiary of the alimony bringing an action for the amounts they should have been paid before the claim, “a fortiori, their mother will not get it via the action of reimbursement from the father”. The Supreme Court recognizes that a certain moral obligation may arise that would fall on someone who is declared a parent with regard to the support and educational expenses prior to the date that filiation is declared, but it is not something that the law supports. According to the Civil Chamber of the Supreme Court, this would require a modification of the Civil Code that extended the obligation to provide alimony to minor children beyond what is established by law, or excluded minor children’s right to alimony from the general system for alimony between relatives; and even facilitated the action of reimbursement of the parent who assumed the care of the child for the part corresponding to the non-cohabiting parent, with the statute of limitations (as occurs in other legal systems).
 
Is this fair? We cannot doubt the benevolence that, by virtue of legal certainty, prevents a parent from suddenly having to pay 45,000 euros (a figure that a mother claimed from a father in one of the appeals decided by the Supreme Court). But we also cannot lose sight of the fact that the process to achieve recognition of filiation tends to take a long time (for example, in the event that the parent refuses to take a DNA test). There is no doubt that special cases are always abundant in family law.
 
Isabel Núñez
Partner at ICN LEGAL
 

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