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Compensatory pension and its temporality

Is it possible to have a lifetime compensatory pension? Find out!

Compensatory pension and its temporality

Lately there are many inquiries in the office of Audacia Abogados, inquiries about the temporary nature of the compensatory pension.

An important case in this matter is the one that we are going to explain below.

In divorce proceedings, the wife applied for a compensatory pension for life, which was obtained in the first instance.

The resolution was appealed before the Provincial Court, giving the reason to the ex-husband, understanding that there is a temporary pension, granting it for a period of 4 years.

The ex-wife decides to go to the Supreme Court considering that the ruling of the Provincial Court is not adjusted to the law because it modifies the criteria of the First Instance Judge who had set it for life.

Normally the main criterion for granting a divorce pension is to alleviate the economic imbalance that is generated in the parties when they stop sharing their income. Now, the Supreme Court understands that in order to achieve this objective, it is necessary to go to the circumstances of each specific case, as established in art. 97 of the CC, which reads the following:

The spouse to whom the separation or divorce produces an economic imbalance in relation to the position of the other, which implies a worsening of their previous situation in the marriage, will be entitled to compensation that may consist of a temporary or indefinite pension, or in a single benefit, as determined in the regulatory agreement or in the judgment. In the absence of an agreement by the spouses, the Judge, in judgment, will determine the amount of it taking into account the following circumstances:

1. The agreements reached by the spouses.

2. Age and state of health.

3. The professional qualification and the chances of access to a job.

4. The past and future dedication to the family.

5.ª Collaboration with his work in commercial, industrial or commercial activities.

other spouse's professionals.

6. The duration of the marriage and conjugal coexistence.

7. The eventual loss of a pension right.

8.ª The wealth and financial means and the needs of both spouses.

9. Any other relevant circumstance.

In the judicial resolution or in the regulatory agreement formalized before the court clerk or the Notary Public, the periodicity, the form of payment, the bases for updating the pension, the duration or time of termination and the guarantees for its effectiveness will be established.

These factors make it possible to assess the suitability of the beneficiary to overcome the economic imbalance in a specific time.

Applied the jurisprudential doctrine to the present case, the Supreme Court considers the appeal since, due to the age of the ex-wife, her lack of training, and the duration of the marriage, age at which she was contracted, dedication to the family, and current income and future of the husband, it is appropriate to grant a compensatory pension indefinitely, in order to avoid the imbalance that the divorce situation produces in the appellant. It is stated how it cannot be otherwise than the raising of the children and dedication to the family of the woman, allowed the professional growth of the ex-husband, and understanding that the possibilities of the woman to get a job in her situation are scarce.

The TS establishes the possibility of granting a compensatory pension of an indefinite nature if the circumstances of the case fit with the full dedication to the family life of the wife, allowing the husband's professional development, thus granting him a higher income, seeking to avoid the economic imbalance between ex-spouses STS 07/06/2020.

Elena Petrova, specialist in family and marriage law in Torrevieja.

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