When a couple is considering the possibility of starting a life together, the main discussion revolves around whether or not to marry. Perhaps because many share Nietzsche’s idea that “marriage concludes many brief follies, as a long stupidity,” couples are increasingly choosing not to pass through the church or the court.
Regional legislators (Catalonia was among the first in 1998) have practically blurred the existing differences between marriage and domestic partnership by giving the latter type of union rights and obligations similar to those derived from a civil or canonical marriage. In fact, aside from taxation (domestic partners cannot benefit from joint taxation) and employment-related aspects (paid marriage leave), it could be said that when there is continuous cohabitation, there is little difference between the rights and obligations derived from a domestic partnership and a marriage.
However, this statement is only true when there is continuous cohabitation. But what happens when the couple breaks up? Do the effects produced by the dissolution of a marriage also apply to the dissolution of a domestic partnership? Specifically, arriving at the topic of this article, does the less fortunate member of the couple have the right to claim alimony?
We must begin by clarifying that Spanish law distinguishes between two types of alimony: pensión compensatoria (compensation one spouse pays to the financially weaker one as a result of the divorce; hereafter “spousal compensation”) and pensión alimentaria (an allowance resulting from a family member’s legal obligation to financially support another family member, including child support; hereafter “maintenance”). Catalan civil law does not provide for spousal compensation as an effect of the dissolution of a domestic partnership. Only the dissolution of a marriage gives you the right to claim spousal compensation.
In Catalonia, the dissolution of a domestic partnership during the partners’ lifetime only gives them the right to claim the aforementioned maintenance allowance and/or compensation for work reasons from their partner. However, the dissolution of a marriage gives the spouses the right to claim spousal compensation and/or compensation for work reasons.
First, we’ll address the two types of alimony. It is not necessary to delve into their different legal natures to understand that they have distinct purposes. While spousal compensation aims to guarantee equal footing between spouses when a marital breakdown occurs, a maintenance allowance aims to alleviate situations of need.
Thus, article 233-14.1 of the Civil Code of Catalonia (CCCat) allows the spouse whose financial situation is most harmed as a result of the breakup to claim compensation that does not exceed the standard of living they enjoyed during the marriage, nor the standard of living that can be supported by the spouse forced to pay. Of course, this always takes into account any child’s right to child support, which is a priority.
It is sufficient, therefore, to prove a financial imbalance at the time of the breakup in order to claim this benefit. Most importantly, emphasizes Farrero, being financially comfortable does not prevent the person requesting the compensation from receiving it.
On the other hand, article 234-10.1 CCCat, which governs maintenance, expressly requires the existence of a situation of need: “When the domestic partnership terminates during the lifetime of the partners, either partner may claim maintenance from the other, if such maintenance is needed to properly support them, in any of the following cases:
- When cohabitation has diminished the ability of the applicant to earn income.
- When the applicant has custody of common children in circumstances where their ability to earn income is diminished.”
This benefit is unquestionably of a need-based nature, since section 1 of the aforementioned article 234-10 CCCat requires that the applicant claiming the benefit need it “to properly support them”.
Of course, the rules applied in order to determine the amount of this benefit are those used to establish the amount of maintenance, articles 237-1 et seq. CCCat, which refer to the maintenance of family members, with the rules established in article 233-15 CCCat on determining compensation due to financial imbalance not being applicable.
Finally, we will address financial compensation for work reasons. Article 232-5.1 CCCat tells us that “Under the separate property system, if either spouse has worked for the household substantially more than the other, said spouse is entitled to financial compensation for this work if, at the time of termination of the system due to separation, divorce, annulment or the death of either spouse or, as the case may be, of effective end of cohabitation, the other spouse has accrued more assets in accordance with the provisions of this section.” The spouse who worked for the other spouse without any or sufficient remuneration is also entitled to compensation under the same terms.
An October 21, 2002 ruling by the High Court of Justice of Catalonia requires that the following requirements be met in order to grant this compensation:
- One of the cohabitants must have worked for the household substantially more than the other.
- These tasks must have been carried out without receiving any remuneration, or remuneration that is clearly insufficient.
- As a result of having worked substantially more for the household or the business of the other cohabitant, it is clear at the time of the breakup that the latter has accrued more assets.
As Miralles points out, we must not forget that this is a rule for settlement of the separate property system. It is an action which compensates for an objective harm: the wealth inequality caused and opportunity cost that this work has entailed for the applicant. Differences aside, legally speaking, it is closer to the compensation we mentioned above than it is to maintenance, since its aim is to compensate for the financial imbalance caused by the breakup regardless of the existence of a situation of need.
To conclude this necessarily brief article, we should emphasize how important it is that future members of a couple know the different effects a breakup can have in regards to a marriage or a domestic partnership.
Partner at ICN LEGAL