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Last update: 03-05-2005
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Maintenance claims - Spain

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TABLE OF CONTENTS

1. What is meant by “maintenance” and “maintenance obligation” according to Spanish law? 1.
2. Up to what age can a child benefit from maintenance? 2.
3. In what cases is Spanish law applicable? 3.
4. If Spanish law is not applicable, what law do the courts apply in this country? 4.
5. Does the plaintiff need to contact a private organisation, the government or the courts to obtain maintenance? 5.
6. Is it possible to make a claim on behalf of a relative, a close relative or a minor? 6.
7. If the maintenance claimant wishes to have recourse to the law, how can he find out which court has jurisdiction? 7.
8. Does the plaintiff have to use the services of an intermediary in order to bring the dispute before the courts? If not, what procedure should he follow? 8.
9. What costs do judicial proceedings entail? If costs are involved, how high might they be? If the plaintiff has insufficient financial means, can he obtain any financial assistance to help meet the costs of the dispute? 9.
10. 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? 10.
11. How and to whom will the maintenance allowance be paid? 11.
12. If the debtor will not pay voluntarily, what coercive measures are available to enforce judgment? 12.
13. Is there any organisation that could assist the creditor in making maintenance payments? 13.
14. Is there any organisation that could take the place of the debtor in paying all or part of the maintenance? 14.
15. Can the plaintiff obtain assistance from any organisation or from a Spanish government department? 15.
16. If so, what is the name and address of this organisation? Is it central or local? How can it be contacted? 16.
17. What kind of assistance will the plaintiff receive from such an organisation? 17.
18. Can the plaintiff make direct contact with an organisation or Spanish government agency? 18.
19. If so, what are the names and addresses of these organisations? How does one make contact with them? 19.
20. What kind of assistance can the plaintiff receive from such organisations? 20.

 

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:

  1. parents for their children until they are financially independent;
  2. children for their needy parents;
  3. spouses to each other, including after legal separation or divorce;
  4. 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) ;
  5. 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.

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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. Does the plaintiff need to contact a private organisation, the government or the courts to obtain maintenance?

Applications for maintenance should be filed with the general law courts.

However, where minors are involved, applicants can turn, without any formality whatever (point 5. ) , to the Juvenile Court or to the child protection agency and leave it to those bodies to formulate the claim.

6. Is it possible to make a claim on behalf of a relative, a close relative or a minor?

The claim must be submitted personally by the interested party, except where the latter is a minor, in which case the application must be made by the person legally responsible for him, the public prosecutor’s office or the child protection agency.

However, the claim can be filed using representation so long as the representative has been granted power of attorney in the presence of a notary, a court clerk or the consul at any Spanish diplomatic legation abroad.

7. If the maintenance claimant wishes to have recourse to the law, how can he find out 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.

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8. Does the plaintiff have to use the services of an intermediary in order to bring the dispute before the courts? If not, what procedure should he follow?

It is not necessary for the interested party or his legal representative always to be the one to submit the claim and attend the proceedings, which are conducted orally.

If the claim is not presented personally, a public prosecutor must of necessity act for the claimant.

While it is not obligatory, it is nevertheless advisable to have the assistance of a lawyer.

9. What costs do judicial proceedings entail? If costs are involved, how high might they be? If the plaintiff has insufficient financial means, can he obtain any financial assistance to help meet the costs of the dispute?

In Spain there are no court costs involved in these kinds of proceedings, in which justice is free, except for the fees of the lawyers, public prosecutors and experts, if used.

The fees charged by lawyers and public prosecutors are based on the amount of the claim. This amount is calculated, for example where the claim is for regular payments, as in the case of maintenance, on the basis of ten annual payments (Rule 7 of Article 251 of the Regulations governing civil lawsuits) , moderated by the length of time over which these payments are to continue. If a specific amount is being claimed by way of arrears, then this figure is used as the basis of calculation. On average, legal fees will amount to 8% of the total computed figure.

Financial assistance with the costs of litigation is available for those cases where either the plaintiff or the defendant lack the financial means and is entitled to legal aid (any person earning less than 1000 Euros a month). Assistance consists in the provision of services by a court-appointed lawyer or public prosecutor (paid for by the State) to conduct the legal claim, and any court costs such as payments to expert witnesses and publication of decrees are also paid for by the State.

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10. 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:

  1. the needs of the maintenance creditor;
  2. the financial means of the maintenance debtor, and
  3. 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:

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  1. 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) ;
  2. 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.

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

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

  1. 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;
  2. 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.

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

In Spain, the following means of execution are available:

  1. attachment of earnings (apart a minimum subsistence amount as directed by the court) ;
  2. withholding of tax rebates;
  3. seizure of bank accounts;
  4. withholding of social security benefits;
  5. seizure of goods and public sale thereof;
  6. imprisonment in certain cases.

13. Is there any organisation that could assist the creditor in making maintenance payments?

No, except in cases of maintenance payments to minors, when the pubic prosecutor’s office may offer its representation.

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14. Is there any organisation that could take the place of the debtor in paying all or part of the maintenance?

There is no legal provision for this at present. The possibility is being considered of setting up a maintenance fund, but nothing is in place as yet.

15. Can the plaintiff obtain assistance from any organisation or from a Spanish government department?

Yes, but only in cases where the plaintiff lacks means and is entitled to claim legal aid. The State will then arrange for the services of a lawyer or public prosecutor to be available free of charge to conduct the legal proceedings.

16. If so, what is the name and address of this organisation? Is it central or local? How can it be contacted?

The organisation is called the COMISIÓN DE ASISTENCIA JUSTICIA GRATUITA (Legal Aid Commission) , which can be contacted through the Colegio de Abogados (Bar Association) in any town or through any court. Legal assistance can also be obtained from any Spanish Consulate abroad.

Anyone can turn to the local office of the Legal Aid Commission in any town to submit an informal claim in writing, setting out personal circumstances and giving an address, and request the appointment of a lawyer and public prosecutor to make the claim official.

The application for legal aid is made using the special form.

17. What kind of assistance will the plaintiff receive from such an organisation?

The Legal Aid Commission will provide the plaintiff with a lawyer and public prosecutor to represent and defend him before the courts. The lawyer will inform him of his rights and will take on his behalf whatever legal measures may be necessary until judgment is obtained.

18. Can the plaintiff make direct contact with an organisation or Spanish government agency?

There is no legal provision for this. The interested party must approach the competent court.

19. If so, what are the names and addresses of these organisations? How does one make contact with them?

No legal provision exists.

20. What kind of assistance can the plaintiff receive from such organisations?

No legal provision exists.

« Maintenance claims - General information | Spain - General information »

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Last update: 03-05-2005

 
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