Family Law and Alimony Obligations in Civil Code
Family Law
Family
The family, a legal and social concept, is a collective entity composed of members joined by natural ties of affection and discipline. Sociologists identify various family types:
- Nuclear Family: Parents and children.
- Extended Family: Individuals from a common lineage who maintain frequent contact.
- Polynuclear Family: Members of different nuclear families and generations.
- Extended Nuclear Family: Nuclear family plus other relatives.
- Incomplete Family: A single member of a marriage.
- Polygamous Family: Husband with multiple wives and their children.
The family group is a source of legal relationships, categorized as:
- Internal Order: Rights and duties within the family based on mutual affection.
- External Order: Relations affecting the family unit, such as housing, neighborhood, nationality, and names.
Family law governs family member relationships, including those with external parties. It’s influenced by societal principles and norms. The law’s autonomy is limited by mandatory rules, especially regarding relationship status. Ethical considerations also play a role, shaping social behavior and legislative models.
Family law provisions are binding and do not allow for the flexibility seen in private law. The rules are jus cogens, meaning parties cannot impose conditions or modifications.
Kinship
Kinship refers to the relationship between individuals with a common ancestor. Different types of kinship exist:
- Civil or Legal Kinship: Created through adoption.
- Natural Kinship: Based on blood or marriage. It can be consanguineous (blood relationship) or by affinity (relationship through marriage).
- Double Bond Kinship: Through both parents.
- Simple Bond Kinship: Through one parent.
- Affinity Kinship: Between a spouse and the other spouse’s blood relatives.
- Religious or Spiritual Kinship: Created through sacraments like baptism and confirmation.
Kinship is calculated through lines and degrees:
- Line: The number of generations separating two individuals. It can be direct (e.g., parent-child) or collateral (e.g., siblings).
- Degree: The number of generations between two related individuals.
Alimony
According to Article 142 of the Civil Code, alimony encompasses necessities like food, housing, clothing, and medical care. It also includes education and training for minors and even beyond, if necessary.
Classes of Alimony
The Civil Code distinguishes between:
- Full Alimony: For spouses, ancestors, and descendants, covering maximum legal benefits.
- Limited Alimony: For siblings, addressing basic needs based on the closer relationship.
Persons Obligated to Provide Alimony
Relatives are bound by reciprocity, meaning those who can claim alimony may also be obligated to provide it. The following are mutually obligated to provide full alimony:
- Spouses, due to mutual support obligations.
- Ancestors and descendants, with a specific obligation from the former to the latter, especially during minority. Emancipated minors or adults may owe alimony to their parents.
Article 144 of the Civil Code establishes the order of preference for alimony providers:
- Spouse
- Descendants
- Ancestors
- Siblings
Alimony includes funeral expenses, even if not specified by the deceased, to be paid by those obligated to provide support during their lifetime.
The amount of alimony is determined by the recipient’s needs and the provider’s capacity, considering the family’s social standing.
The alimony obligation is adaptable, increasing or decreasing with the recipient’s needs and the provider’s financial situation.
The provider can choose to pay a fixed pension or provide housing, unless spouses are separated. This choice may be limited by specific circumstances or court orders.
In cases of multiple alimony claims, if the provider can afford it, they must fulfill all obligations. If not, the order of preference in Article 145 of the Civil Code applies. An exception exists when the spouse and a child under parental authority are claimants; the spouse is preferred (Article 144).
Termination and Modification of Alimony
Alimony obligations terminate upon the death of either party. They can also be modified due to changes in circumstances, such as a decrease in the provider’s financial capacity or a change in the recipient’s needs (e.g., improved living conditions, acquiring a profession). Misconduct by the recipient can also lead to termination.
Conventional Maintenance
Conventional maintenance is a contract where one party (transferor) provides housing, support, and assistance to another (beneficiary) for life, in exchange for a capital transfer of assets. It’s a form of asset protection for individuals with disabilities. The transferee or obligor receives the capital and provides support to the beneficiary, who may be the same as the transferor.