The way in which the courts analyze requests to change alimony is once again in the spotlight in Spain, following a decision by the Audiencia Provincial de Navarra which clarifies that the economic situation of the new family of one of the parents is not relevant for the purposes of reducing the benefit payable to the other. The case involves a request from a father who intended to reduce the amount of the pension set for his youngest child, arguing that the mother lived with a new partner and received support from the eldest child.
The case originated from an appeal filed by a father who earns around 2,500 euros a month and who wanted to reduce the maintenance allowance of 400 euros fixed in the first instance. The initial decision, handed down by the Juzgado de Primera Instancia e Instrucción no. 1 de Tafalla, determined the separation and established alimony to be paid by the father, while granting the mother sole custody of the minor. The mother, in turn, had an income of approximately 1,200 euros, according to the Spanish digital newspaper Noticias Trabajo,
In relation to this, the father claimed that the mother lived with a new partner and his older son, both with their own income, understanding that this circumstance should be considered for a reduction in his monthly contribution.
Understanding of the Provincial Audience of Navarra
The Provincial Audience rejected the appeal and fully confirmed the first instance decision. The court recalled that, in accordance with article 146 of the Spanish Civil Code, maintenance must be determined according to the income of the parents and the needs of the minor, without this obligation being transferred to third parties.
The decision highlighted that “coexistence with a new partner cannot affect the father’s obligation towards his child”, ruling out any argument that sought to relate the economic situation of the mother’s new family unit with the father’s duties.
In this regard, the Chamber also reinforced that the dynamics of coexistence after separation do not alter legally established parental responsibilities, according to the same source.
Housing issue and mortgage payment
The court also considered the request regarding payment for family housing. Even though the father no longer resides in the property, the Provincial Audience maintained the payment of the mortgage share in equal shares between them. He explained that this obligation arises from co-ownership of the property and not from its effective use, and can only be reviewed at the time of liquidation of the common assets.
Given the lack of legal basis for changing the pension, the court determined that the father must continue to pay the 400 euros per month initially set. The sentence is not yet definitive, allowing the presentation of a cassation appeal to the Supreme Court, in accordance with the .
What if it happened in Portugal?
In Portugal, a similar case would be analyzed in light of articles 1878, 1905 and 2003 of the Civil Code (CC), which establish that parents have the duty to provide for their children, in accordance with their economic capabilities and the needs of the minor. As follows from Portuguese law, this obligation is exclusive to the parents and cannot be transferred to third parties, including new partners or family members.
The possible reduction of alimony is provided for in article 2012 of the CC, which requires proof of a substantial and lasting change in the economic circumstances of one of the parents or the minor himself. The mother’s simple coexistence with a new partner or the fact that he contributes to household expenses does not, in itself, constitute a legal basis for reducing the value of the pension, according to 2004.º.
Payment of charges
Regarding the payment of charges for common housing, article 1403 relating to co-ownership would apply. As in Spain, the fact that one of the parents no longer resides in the property does not eliminate the obligation to contribute to the payment of the mortgage, as this obligation arises from the right of ownership and not from the use of the house.
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