In Spanish law, maintenance comprises everything that is necessary by way of sustenance, clothing, living accommodation, health and education, which means the basic essentials of a person receiving maintenance.
Those obliged to pay maintenance are:
- Parents for their children until they are financially independent;
- children for their needy parents;
- spouses to each other, including after legal separation or divorce;
- 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);
In the case of children, until they reach the age of majority, which in Spain is at 18 years, except in the cases, 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.
In what cases Spanish law is applicable?
Spanish civil law (Article 9. 7) establishes a principle of positive discrimination, so 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.
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.
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.
Calculation of the size of maintenance payments
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 paid in one sum; this only happens in cases 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. Having into account the needs of the maintenance creditor and the financial means of the maintenance debtor.
The amount 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:
- 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);
- a downward revision is appropriate when there is a deterioration in the maintenance debtor’s position or an improvement in the creditor’s means.
If the debtor will not pay voluntarily, what coercive measures are available to enforce judgment?
- Withholding of earnings (apart a minimum subsistence amount as directed by the court);
- withholding of tax rebates;
- embargo of bank accounts;
- withholding of social security benefits;
- embargo of goods and public sale thereof;
- imprisonment in certain cases
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