Family Law and Alimony: Rights, Obligations, and Characteristics
Family Law: Content and its Characteristics
As Lacruz December states, “The right of law in front of the family is a ‘postrius’ because the legislator does not create the family, but is limited to disciplining it, taking into account other human life facts.” On the other hand, Diez-Picazo adds, “Initially, the family is a group and a qualifying institution. Only the ‘social’ becomes legal when the legal system occupies, organizes, and regulates it legally, transforming it into a legal institution.” Following Ao’cayag, we can define it as a set of legal standards, of civil law, that regulate the family in all aspects of private law.
Extrajuridical doctrine, especially Italian (Cicu, Ruggiero), and a large part of the Spanish (Castan, Lacruz, Puig Brutau) coincide substantially in pointing out the following as characteristics of family law:
1. Its Ethical Content
This means that its rules proceed more from the basic ethics field than from positive law, because the first is undoubtedly the natural institution of law, which merely accepts and regulates it. It is understood that the U.S. precepts exist without penalty or with attenuated sanction, because they depend more on the conscience of the interested subjects.
2. Prevalence of Personal Relations and Supraindividual Interest
In family law, the following are fundamentally regulated: status, rights, and personal duties. Economic relations are regulated subsequently, such as alimony, matrimonial regime, parental authority, etc. All these relations have a secondary role, not because they are regulated by themselves, but as a consequence of those personal relations. Wolf, quoted by Lacruz, insists on the personal sense that family relations have, centered on the married couple and always subordinate to supraindividual interests: those of the family.
3. Character of its Function
When a right is granted not to satisfy an individual’s interest, that is, not just for protection, it is a subjective right, but to achieve a higher good, it is a right under the name of function. In family law, the character of their rights is very frequent (parents over their children, if the spouses notify…)
4. Limited Autonomy of Will
We know well that the principle of autonomy of will is an irreplaceable pillar and base of civil law. However, in family law, it suffers a special limitation because its rules, in general, are imperative and non-derogable. A marriage creates a union, but the marital status must be accepted as it is provided by law, without the autonomy of the will of the contracting parties being able to change it in any case. Consequently, neither its personal effects nor the exercise of parental authority, duties, or affiliation may vary. Autonomy will only be maintained in relation to ordering economic relations, but in any case, these will also be conditioned by personal relations many times. In summary and in general, family rights are unavailable and almost always non-transferable, non-renounceable, and imprescriptible.
Obligation of Alimony Between Relatives: Concept, Nature, and Characteristics
Undoubtedly, the first good that a person possesses, both in a physical and social order, is their own life. Hence, our undoubted interest in preserving it is projected as the first need to achieve sufficient means to subsist. For this reason, no legal system can remain indifferent to such a fundamental issue, and thus dictates precepts and laws that tend to ensure vital goods for the person. This need arises in this way and forms the legal institution that encompasses a set of situations that may arise.
Under “Alimony Between Relatives,” Book I, Title VI, Articles 142 to 153 of the Civil Code, inclusive, will dissect this institution, undoubtedly converted into a rule and collected by the doctrine. Article 142 of the Civil Code states that “Alimony means everything that is indispensable for sustenance, housing, clothing, and medical assistance. Alimony also includes the education and training of the alimony recipient while they are a minor, and even afterward when they have not finished their training for a cause not attributable to them. Among alimony are included the expenses of pregnancy and childbirth, as long as they are not covered otherwise.” This article has been drafted under Law 11/81 of May 13. Originally, the first paragraph conditioned alimony to the “social position of the family,” contemplating, no doubt, the minor’s alimony beyond the age of majority. In any case, the dominant criterion seems to lie in the way that alimony is an enforceable obligation, from a certain age and not when training has been acquired and life is dislocated by personal circumstances, which is a case to be resolved.
Let us pray well: whenever vital benefits are not possible to satisfy individually (minors or disabled) or in what is referred to in Article 142, these alimonies are borne by the members of the family. The obligation will decrease as the degree of kinship increases. We must bear in mind that the legal obligation of alimony is significantly different from the first family obligation. The organic means needed to meet it are shown united in what is traditionally called “charity.” Although from the Constitution, where the state is concerned with citizens in all their needs, charity does not achieve high obligations. Not in vain, our state is defined as a “social state,” and so clearly Articles 41, 49, and 50 of the Constitution establish mechanisms undoubtedly analogous to alimony and social security (Article 41: “Public powers will maintain a social security regime for all citizens and ensure sufficient social assistance and benefits in situations of need, especially in case of unemployment…”).
Otherwise, we do not feel the same, because we believe that the state, today, cannot and should not replace alimony with social security, and the Spanish social security system does not protect the entire population or cover all possible risks, nor are its benefits always sufficient. Diez-Picazo considers that if the real budget of the legal obligation of alimony lies in the state of need, it is possible to understand that this institution only functions in civil law when the social institutions of the state do not fulfill it. Therefore, each time we see the obligation of alimony as a subsidiary operating institution, of lesser importance than other possible obligations (parental authority, mutual aid…).
Nature and Characteristics
Lacruz indicates that the doctrine disputes whether the obligation of alimony is required or not. It is an ordinary obligation, that is, of those referred to in Article 1088 of the Code, and the cited author adds that “the response will depend on the limits of the concept that we attribute to the obligation: if a debt represents an isolated relationship, whose performance exhausts it, the simple right to alimony cannot be considered a right of credit in the regular sense.” And so thinks Beltran de Heredia, because this right (alimony) is not of a patrimonial nature, even if it has content. The requirement in a broad sense is not only “to give food” but also to maintain the alimony recipient’s status as it was developing, and also in education and what is referred to as clothing.
Regarding the characteristics, these give our institute its own physiognomy. They are:
1. Imposed by Law: It is certainly an obligation created, regulated, and imposed by law. Voluntary and even legal alimony have their own rules. Besides the obligation of alimony imposed on spouses and ascendants and descendants by Article 143 of the Civil Code, there is a mutual obligation of mutual aid and relief between spouses (Articles 67 and 68 of the Civil Code) and of parents to “have in their company, feed, and educate” their children (Article 154.1 of the Civil Code), obligations as holders of parental authority. Obviously, the doctrine discusses whether these cases are obligations other than those of alimony, legal under Article 142 of the Civil Code, or if they are a qualification. It is open in case we consider Articles 68 and 154.1 of the Civil Code included in Article 143 of the Civil Code. Trying to defend another criterion would be that we are dealing with different institutes, a position that places the dominant opinion in choosing the distinction of effects required for the maintenance of the spouse and minor children, and the stricter duty of parents to feed their children is a reciprocal duty, not exclusive to them, and, in addition, this is important, subject to the extreme of lack or vital need. A young child, even having their own property, that is, even if they are “rich at home,” will always have certain personal needs. Instead, the obligation of alimony properly so-called arises only when, in the performance of the broad obligation of feeding the minor (education, training…), the child is in need and is found at the age of majority independently of this. But here is a very valuable element: guilt. If the child is more socially understood as a “total slacker,” of misconduct, etc., then the parents have no obligation to feed them, as they should if the child cannot trade or exercise a job.
2. Reciprocity: The subjects are assets and liabilities of it. The fortune of one and the needs of the other are particularly preferred (Article 143 of the Civil Code: they are reciprocally obliged to give each other alimony… (to be read…)).
3. Relativity: That is, since everything depends on the economic possibilities of the alimony provider and the needs of the alimony recipient. Consequently, it is also variable and conditional, as the possibility will be reduced or increased, and the preferentially expressed need will cease if the first or the other disappears. Hernandez Gil considers that the change in alimony can occur even if the amount has been fixed by a final judgment.
4. Free: We are dealing with an obligation imposed by law. The person who receives alimony is not a debtor or has any consideration for the alimony provider.
5. Personalism and Unavailability: The obligation imposes on a specific alimony provider and for a specific alimony recipient. Consequently, it is an unavailable obligation, although the amounts subject to alimony can be disposed of. Article 151 of the Civil Code: The right to alimony is not waivable or transferable to a third party.
Cohabitation and Unmarried Couples
It is common for people to live together as if they were married, but without having formalized their relationship through marriage. These couples often face similar situations to married couples, such as raising children, sharing finances, and managing a household. However, they do not enjoy the same legal rights and protections as married couples.
Family life does not exist; communication is lost. The only voice is that of television. Everything is rigid, conditioned by work schedules. There are also other reasons, such as low wages, job insecurity, housing in “dormitory towns,” generational distrust, and delinquency. These factors undermine the family day by day.
The Civil Code initially ignored these relationships, just as its French progenitor did. All relations had been created outside of the law, and it even reached the point of prohibiting the investigation of the paternity of so-called illegitimate or natural children. Paradoxically, we see how concubinage was treated very differently in historical ignorance. Our law, based on the legislator, did not recognize concubinage. The French Code was the same, due to Napoleon’s hardening of family law and the position of women, especially married women. On the other hand, we know well that our history regulated the so-called “concubinage,” as can be seen in Las Partidas.
These situations were not foreseen, or very little, because they were simply “ajuridical,” but they produced a series of personal and economic effects of undoubted significance. The Civil Code itself, after substantial reforms in 1981, considered several of these situations, such as de facto unions. The Constitution, without expressly referring to these unions, gives us principles to respect them: Article 9.2 (freedom and equality of the individual), Article 10.1 (dignity of the person), and especially Article 14, which proclaims the equality of all Spaniards before the law.
The Italian Court of Cassation, in an old ruling from 1977, came to recognize the “famiglia di fatto” according to Article 2 of its Constitution. Our jurisprudence, breaking with the strict molds of the legislator, has ruled on de facto unions in several judgments. Well, we must start from the basis that these unions can be broken by unilateral will. In principle, it is a stable and lasting “more uxorio” cohabitation, heterosexuality, monogamous sexual relations, the absence of voluntary compliance with any formalities, and the absence of the current social extremes of marriage.
The process has been slow. Law 1/2005 of July 8, on the right to marriage and modification of the Civil Code and the Law of Civil Procedure in matters of separation and divorce, came into force. In the autonomic order, Catalonia was the first to legislate on unmarried couples. Aragon approved Law 6/1999, of March 26, on stable unmarried couples. It recalls in its preamble that, since 1982, the Council of Europe promoted a congress on unmarried couples, and several countries have been adapting their respective legislations to this social phenomenon. The law has a total of 18 articles, 2 additional provisions, and 1 final provision. It recently came into force, and the administrative registry receives all unmarried couples (Article 2 of the law). The minimum period of the relationship must be 2 years, and its constitution must be in a public deed if the relationship is to be regulated. Common expenses are paid in proportion to their respective incomes.
At the moment, I cannot make a positive critical assessment, because there are delicate issues that are not well treated or are not resolved. For example, the succession (Article 17) and the changes that were made regarding the possibility of adoption by homosexual couples.
5. Family Law: Content and its Characteristics
As Lacruz December states, “The right of law in front of the family is a ‘postrius’ because the legislator does not create the family, but is limited to disciplining it, taking into account other human life facts.” On the other hand, Diez-Picazo adds, “Initially, the family is a group and a qualifying institution. Only the ‘social’ becomes legal when the legal system occupies, organizes, and regulates it legally, transforming it into a legal institution.” Following Ao’cayag, we can define it as a set of legal standards, of civil law, that regulate the family in all aspects of private law.
Extrajuridical doctrine, especially Italian (Cicu, Ruggiero), and a large part of the Spanish (Castan, Lacruz, Puig Brutau) coincide substantially in pointing out the following as characteristics of family law:
1. Its Ethical Content: This means that its rules proceed more from the basic ethics field than from positive law, because the first is undoubtedly the natural institution of law, which merely accepts and regulates it. It is understood that the U.S. precepts exist without penalty or with attenuated sanction, because they depend more on the conscience of the interested subjects.
2. Prevalence of Personal Relations and Supraindividual Interest: In family law, the following are fundamentally regulated: status, rights, and personal duties. Economic relations are regulated subsequently, such as alimony, matrimonial regime, parental authority, etc. All these relations have a secondary role, not because they are regulated by themselves, but as a consequence of those personal relations. Wolf, quoted by Lacruz, insists on the personal sense that family relations have, centered on the married couple and always subordinate to supraindividual interests: those of the family.
3. Character of its Function: When a right is granted not to satisfy an individual’s interest, that is, not just for protection, it is a subjective right, but to achieve a higher good, it is a right under the name of function. In family law, the character of their rights is very frequent (parents over their children, if the spouses notify…)
4. Limited Autonomy of Will: We know well that the principle of autonomy of will is an irreplaceable pillar and base of civil law. However, in family law, it suffers a special limitation because its rules, in general, are imperative and non-derogable. A marriage creates a union, but the marital status must be accepted as it is provided by law, without the autonomy of the will of the contracting parties being able to change it in any case. Consequently, neither its personal effects nor the exercise of parental authority, duties, or affiliation may vary. Autonomy will only be maintained in relation to ordering economic relations, but in any case, these will also be conditioned by personal relations many times. In summary and in general, family rights are unavailable and almost always non-transferable, non-renounceable, and imprescriptible.
2. Obligation of Alimony Between Relatives: Concept, Nature, and Characteristics
Undoubtedly, the first good that a person possesses, both in a physical and social order, is their own life. Hence, our undoubted interest in preserving it is projected as the first need to achieve sufficient means to subsist. For this reason, no legal system can remain indifferent to such a fundamental issue, and thus dictates precepts and laws that tend to ensure vital goods for the person. This need arises in this way and forms the legal institution that encompasses a set of situations that may arise.
Under “Alimony Between Relatives,” Book I, Title VI, Articles 142 to 153 of the Civil Code, inclusive, will dissect this institution, undoubtedly converted into a rule and collected by the doctrine. Article 142 of the Civil Code states that “Alimony means everything that is indispensable for sustenance, housing, clothing, and medical assistance. Alimony also includes the education and training of the alimony recipient while they are a minor, and even afterward when they have not finished their training for a cause not attributable to them. Among alimony are included the expenses of pregnancy and childbirth, as long as they are not covered otherwise.” This article has been drafted under Law 11/81 of May 13. Originally, the first paragraph conditioned alimony to the “social position of the family,” contemplating, no doubt, the minor’s alimony beyond the age of majority. In any case, the dominant criterion seems to lie in the way that alimony is an enforceable obligation, from a certain age and not when training has been acquired and life is dislocated by personal circumstances, which is a case to be resolved.
Let us pray well: whenever vital benefits are not possible to satisfy individually (minors or disabled) or in what is referred to in Article 142, these alimonies are borne by the members of the family. The obligation will decrease as the degree of kinship increases. We must bear in mind that the legal obligation of alimony is significantly different from the first family obligation. The organic means needed to meet it are shown united in what is traditionally called “charity.” Although from the Constitution, where the state is concerned with citizens in all their needs, charity does not achieve high obligations. Not in vain, our state is defined as a “social state,” and so clearly Articles 41, 49, and 50 of the Constitution establish mechanisms undoubtedly analogous to alimony and social security (Article 41: “Public powers will maintain a social security regime for all citizens and ensure sufficient social assistance and benefits in situations of need, especially in case of unemployment…”).
Otherwise, we do not feel the same, because we believe that the state, today, cannot and should not replace alimony with social security, and the Spanish social security system does not protect the entire population or cover all possible risks, nor are its benefits always sufficient. Diez-Picazo considers that if the real budget of the legal obligation of alimony lies in the state of need, it is possible to understand that this institution only functions in civil law when the social institutions of the state do not fulfill it. Therefore, each time we see the obligation of alimony as a subsidiary operating institution, of lesser importance than other possible obligations (parental authority, mutual aid…).
Nature and Characteristics
Lacruz indicates that the doctrine disputes whether the obligation of alimony is required or not. It is an ordinary obligation, that is, of those referred to in Article 1088 of the Code, and the cited author adds that “the response will depend on the limits of the concept that we attribute to the obligation: if a debt represents an isolated relationship, whose performance exhausts it, the simple right to alimony cannot be considered a right of credit in the regular sense.” And so thinks Beltran de Heredia, because this right (alimony) is not of a patrimonial nature, even if it has content. The requirement in a broad sense is not only “to give food” but also to maintain the alimony recipient’s status as it was developing, and also in education and what is referred to as clothing.
Regarding the characteristics, these give our institute its own physiognomy. They are:
1. Imposed by Law: It is certainly an obligation created, regulated, and imposed by law. Voluntary and even legal alimony have their own rules. Besides the obligation of alimony imposed on spouses and ascendants and descendants by Article 143 of the Civil Code, there is a mutual obligation of mutual aid and relief between spouses (Articles 67 and 68 of the Civil Code) and of parents to “have in their company, feed, and educate” their children (Article 154.1 of the Civil Code), obligations as holders of parental authority. Obviously, the doctrine discusses whether these cases are obligations other than those of alimony, legal under Article 142 of the Civil Code, or if they are a qualification. It is open in case we consider Articles 68 and 154.1 of the Civil Code included in Article 143 of the Civil Code. Trying to defend another criterion would be that we are dealing with different institutes, a position that places the dominant opinion in choosing the distinction of effects required for the maintenance of the spouse and minor children, and the stricter duty of parents to feed their children is a reciprocal duty, not exclusive to them, and, in addition, this is important, subject to the extreme of lack or vital need. A young child, even having their own property, that is, even if they are “rich at home,” will always have certain personal needs. Instead, the obligation of alimony properly so-called arises only when, in the performance of the broad obligation of feeding the minor (education, training…), the child is in need and is found at the age of majority independently of this. But here is a very valuable element: guilt. If the child is more socially understood as a “total slacker,” of misconduct, etc., then the parents have no obligation to feed them, as they should if the child cannot trade or exercise a job.
2. Reciprocity: The subjects are assets and liabilities of it. The fortune of one and the needs of the other are particularly preferred (Article 143 of the Civil Code: they are reciprocally obliged to give each other alimony… (to be read…)).
3. Relativity: That is, since everything depends on the economic possibilities of the alimony provider and the needs of the alimony recipient. Consequently, it is also variable and conditional, as the possibility will be reduced or increased, and the preferentially expressed need will cease if the first or the other disappears. Hernandez Gil considers that the change in alimony can occur even if the amount has been fixed by a final judgment.
4. Free: We are dealing with an obligation imposed by law. The person who receives alimony is not a debtor or has any consideration for the alimony provider.
5. Personalism and Unavailability: The obligation imposes on a specific alimony provider and for a specific alimony recipient. Consequently, it is an unavailable obligation, although the amounts subject to alimony can be disposed of. Article 151 of the Civil Code: The right to alimony is not waivable or transferable to a third party.