What is the compensatory pension?
We can distinguish various regulations, in this article we will analyze the legislative differences between the compensatory pension regulated in the state Civil Code and the compensatory pension regulated in the Civil Code of Catalonia.
- In state legislation the compensatory pension is regulated in art. 97 of the Civil Code, which says:
"The spouse to whom the separation or divorce produces an economic imbalance in relation to the position of the other, which implies a worsening in their previous situation in the marriage, shall be entitled to compensation, which may consist of a temporary or indefinite pension , or in a single benefit, as determined in the regulatory agreement or in the judgment. "
In most cases, separations and divorces have a negative effect on the economic aspect of the marriage relationship, that is why by means of the compensatory pension it is possible to balance said difference, understanding that the compensatory pension has the purpose of compensating the imbalance caused after the dissolution of the marriage against the affected party.
How to determine if you are entitled to the compensatory pension?
We must understand that the right to receive the compensatory pension will exist when an economic imbalance is proven between one of the two spouses, as a consequence of the marriage separation or divorce.
According to the jurisprudence of the Supreme Court, it has been established that: "to determine the existence of an economic imbalance that generates the compensatory pension, the dedication to the family and collaboration with the activities of the other spouse, the property regime to which the property of the spouses has been subject insofar as it is going to compensate certain imbalances and their situation before marriage.
How is the amount of the compensatory pension calculated?Unlike the calculation of the alimony, the calculations to establish the compensatory pension must take into account the incidence of the following factors:
- The agreements that the spouses would have reached.
- Age and health status.
- The professional qualification and the probabilities of access to a job.
- Past and future dedication to the family.
- Collaboration with your work in the commercial, industrial or professional activities of the other spouse.
- The duration of the marriage and the conjugal coexistence.
- The eventual loss of a pension right.
- The flow and the economic means and the needs of both spouses.
- Any other relevant circumstance
Temporary or indefinite compensation?
Regarding the time limit for the establishment of said compensatory pension, there is no legally regulated term, so the duration of its term may change, adapting to the different characteristics of each particular case.
In any case, it must be known that the compensatory pension must be in relation to the time deemed necessary for the spouse suffering from the economic imbalance to overcome it.
Is there room for modification or termination of the compensatory pension?
In the compensatory pension, there is a judicial modification in cases where the beneficiary spouse comes to greater fortune, that is, when the beneficiary has an improvement in his economic situation. The modification is also possible, when there is an economic worsening of the spouse forced to pay.
However, according to art. 100 of the Civil Code, it is provided that: «Once the pension is established and the bases for its updating in the separation or divorce sentence, it may only be modified by alterations in the fortune of one or the other spouse who so advise.»
It should also be remembered that the compensatory pension must be updated annually in accordance with the Consumer Price Index (CPI) and that non-payment of it for two consecutive months or four non-consecutive months, may lead to the commission of a crime of abandonment of the family.
- In the regional legislation of Catalonia, the compensatory pension is regulated in accordance with art. 233-14 of the Civil Code of Catalonia.
The Civil Code of Catalonia regulates the same budgets as the state Civil Code, adding that this pension will not exceed the standard of living enjoyed by the spouse who has the right to receive it during the marriage.
Amount of the compensatory pension?
For the determination of the amount and duration, the art. 233-15 CCC, assessing the economic situation of the spouses.
As established by the doctrine of the Superior Court of Justice of Catalonia, by receiving the compensatory pension, marriage solidarity is prolonged after the end of cohabitation, with the sole purpose of balancing the economic part, making a more equitable situation regarding the spouse who is most affected by the separation or divorce.
Duration of the compensatory pension?
Differentiating the aspect of duration, in the Civil Code of Catalonia, specifically in its art. 233-17.4 CCC indicates that the compensatory pension is granted for a limited period, unless there are reasons and circumstances that make it adopt the indefinite nature of said pension.
We remind you that at Forcam Abogados, family law attorneys will be able to clarify any doubts that may arise in your specific case.
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