TABLE OF CONTENTS

1. What is meant by “maintenance” and “maintenance obligation” according to Spanish law? 

2. Up to what age can a child benefit from maintenance? 

3. In what cases is Spanish law applicable? 

4. If Spanish law is not applicable, what law do the courts apply in this country? 

5. Which court has jurisdiction? 

6. What kind of assistance do the courts usually provide? If it is in the form of a maintenance allowance, how is it calculated? Once it has been fixed, how is it reviewed to take account of changed circumstances? 

7. How and to whom will the maintenance allowance be paid? 

8. If the debtor will not pay voluntarily, what coercive measures are available to enforce judgment? 

1. What is meant by “maintenance” and “maintenance obligation” according to Spanish law?

In Spanish law, maintenance comprises everything that is necessary by way of sustenance, clothing, living accommodation, health and education, that is to say the basic essentials of a person receiving maintenance.

Those obliged to pay maintenance are:

a.     parents for their children until they are financially independent;

b.    children for their needy parents;

c.     spouses to each other, including after legal separation or divorce;

d.    members of a stable partner relationship, whether heterosexual or homosexual, to each other (in those territories of regions where such matters are regulated by the law) ;

e.    collateral relatives up to the second degree, if they have no closer relatives.

The indispensable requirement is the situation of need on the part of the individual seeking maintenance. In the case of beneficiaries who have reached the age of majority, it is a requirement that the lack of financial means should not be through any fault of their own.

2. Up to what age can a child benefit from maintenance?

In the case of children, until they reach the age of majority, which in Spain is at 18 years, except where the minor has sufficient income of his own.

Beyond the age of majority, the obligation remains with respect to children so long as they have insufficient means, have not completed their education or are out of work through no fault of their own.

3. In what cases is Spanish law applicable?

Spanish civil law (Article 9. 7) establishes a principle of positive discrimination, such that the most favourable law will always be applied to anyone who claims or needs maintenance, from among the following: in the first place, the national law common to both maintenance creditor and maintenance debtor, and secondly the law on habitual residence of persons needing maintenance and, by way of an alternative of last resort, the lex fori. In the event of a change in shared nationality or place of residence, the new law applies from that moment on.

4. If Spanish law is not applicable, what law do the courts apply in this country?

If the maintenance debtor and creditor share the same nationality, their own law will apply. Otherwise, the law applicable in the habitual place of residence of the maintenance debtor will apply, always provided that maintenance payments can be obtained under that law.

The fact that both parties happen to find themselves on Spanish territory does nothing to alter the order of precedence of the applicable law indicated in the previous answer.

5. Which court has jurisdiction?

The general rule is that jurisdiction lies with the courts in the domicile of the maintenance debtor. If there are several joint debtors (father and mother) , jurisdiction lies with the courts in the domicile of either of them. If the debtor is not resident in Spain, the courts in his last place of residence in Spain have jurisdiction. In all other circumstances it is the domicile of the maintenance creditor that determines jurisdiction.

6. What kind of assistance do the courts usually provide? If it is in the form of a maintenance allowance, how is it calculated? Once it has been fixed, how is it reviewed to take account of changed circumstances?

In most cases regular payments are determined which, according to law, are required to be paid monthly in advance. It is highly unusual for arrangements to be made for a single lump-sum payment; this only happens when it is a case of paying off maintenance arrears, when the debtor is an individual without fixed assets and this is the best way of protecting future payments, or by agreement between the parties.

In calculating the actual amount of the payments to be made, the court follows an abstract legal rule based on a triple proportionality:

a.     the needs of the maintenance creditor;

b.    the financial means of the maintenance debtor, and

c.     the financial means of other persons also under obligation to contribute to maintenance (co-debtors) to the same degree as the principal maintenance debtor.

In the court resolution in which the level of maintenance is determined the bases for future updating need to be established. Such updating is designed to be automatic, triggered by the simple passage of time, and it is the person making the payment that is responsible for ensuring that the required increases in maintenance payments are implemented. If the maintenance debtor fails to update the maintenance payments, the court will do it, on prior application by the maintenance creditor.

The size of the maintenance payments can be adjusted (always on prior application by the interested party) if there is any substantial change in the bases used initially to determine them:

a.     an upward revision is appropriate when there is an improvement in the financial position of the maintenance debtor or a deterioration in that of the creditor and a larger contribution is required (for example, worsening of an illness) ;

b.    a downward revision is appropriate when there is a deterioration in the maintenance debtor’s position or an improvement in the creditor’s means.

Finally, maintenance may ultimately no longer be payable once the grounds for it have disappeared.

7. How and to whom will the maintenance allowance be paid?

The usual form of payment is in money. There are however two possible exceptions:

a.     the debtor can opt to fulfil his obligation by providing food and shelter to the maintenance creditor in his own home; recourse to this option is highly restricted when there is no guarantee of good relations;

b.    payment by the handing over of property is the exception and only happens as a means of paying off arrears, when there is a risk of the goods disappearing, or the maintenance debtor is a rootless individual.

Maintenance is paid directly to the creditor. The most usual method is by bank transfer. Where the maintenance creditor is a minor or incapacitated, the payment is made to his legal representative.

8. If the debtor will not pay voluntarily, what coercive measures are available to enforce judgment?

In Spain, the following means of execution are available:

      i.        attachment of earnings (apart a minimum subsistence amount as directed by the court) ;

     ii.        withholding of tax rebates;

    iii.        seizure of bank accounts;

    iv.        withholding of social security benefits;

     v.        seizure of goods and public sale thereof;

    vi.        imprisonment in certain cases.

Source: European Commission