The Constitutional Court has issued a ruling that cuts off parents who hide from justice to avoid paying their children’s pension. The magistrates have decided to protect a woman who unsuccessfully reported that the courts had forced her ex-partner to pay 10% of her income and not a fixed amount, while the man’s whereabouts have been unknown for almost a decade. Not being able to find out what your financial capacity is, precisely because you never appear in court, cannot be an “obstacle” for judges to set “a sufficient liquid amount” as support to take care of minor children, says the Constitutional.
Family lawyers consider that this ruling will be “very relevant” to better protect minors when one of the parents hides from justice to avoid paying the child support. The latest statistics from the General Council of the Judiciary relating to the year 2022 show the magnitude of the problem: that year there were 4,990 people convicted of family crimes, 89% men. According to the Prosecutor’s Office, more than half of these sentences were issued specifically for crimes of non-payment of pensions. The Supreme Court has come to consider these non-payments as “economic violence.”
The case that the First Chamber of the guarantee court has studied is that of a woman who divorced her husband in 2015. At that time they had three children together, one of them a minor at the time of the trial. Her ex-husband could never be located, she did not appear in the Getafe court that took up the case and it was not possible to find out her whereabouts. Neither does her income level. He was the only one who worked steadily at home and the woman occasionally worked as a domestic worker or caregiver for children and the sick.
The woman asked that the father of the children pay 100 euros per month for each one, and the court’s decision was different: that he pay, but not a fixed amount but 10% of his monthly income. An income that had been impossible to determine since no one knew then or knows today where the father of the three children is, or if he works, or how much he earns. Justice has certified that he has never contributed a single euro to the support of his three children.
Her absence also benefited her in the processing of the process: the 24th section of the Madrid Court, specialized in family matters, took more than five years to resolve the woman’s first appeal and confirm that 10%, a delay attributed among others factors to the impossibility of notifying the man anything. The lawyer for the mother of the three children argued, unsuccessfully, that this system generated “uncertainty and insecurity” for both her and her children.
The response from the Court and the Supreme Court was negative and she decided to go to the Constitutional Court, exposing the problem that posed for her that her ex-husband, whose whereabouts were unknown, was not legally obliged to pay a specific amount each month: it is “practically unfeasible” to execute a such an indeterminate sentence, making it impossible for the woman to have any reliable claim on that money.
The First Chamber of the Constitutional Court, with a presentation by Ricardo Enríquez and with the support of the Prosecutor’s Office, have harshly reproached the Getafe court and the Madrid Court for not taking into account the interest of the minor when establishing the 10% of income as a guide and even relied erroneously on various Supreme Court rulings. The ruling does not question that in other cases establishing a percentage of the parent’s income to set the pension can be “effective”, but not in a case like this, in which it has been impossible to even find out where the father lives.
Your “elusive behavior” cannot be a shield
The Constitutional Court reproaches the Madrid courts for their “lack of motivation” when imposing this system, which is harmful to minors, without “any argument.” The father’s strategy of not appearing in court and not being reachable cannot prevent a fixed pension from being established as a responsibility for his children, they add. Children who, recalls the ruling, have the right to receive food from their parents, something that ultimately binds the public powers.
“The lack of knowledge of the economic capacity of the defendant, due to his own conduct evading his parental duties, cannot be an obstacle for the sentence to have established in this case a liquid amount sufficient to satisfy the needs of the minor,” it says. the Constitutional.
In this case, the final decision of the courts has come with the father, according to sources in the case, still untraceable. Also when none of the woman’s three children are minors: the youngest is now 24 years old. The lawsuit started nine years ago.
“Hide your economic capacity is the most common thing”
The Constitutional Court’s resolution has not gone unnoticed by lawyers specializing in this type of litigation. From the Spanish Association of Family Lawyers (AEAFA), its president Lola López-Muelas explains to elDiario.es that these types of situations, in which a parent does not appear in court or tries to hide their true economic capacity to pay less, child support after a divorce is “the most common thing.”
“We are very used to it. There are people who claim that they earn much less than what is claimed in the claim and we have to make inquiries about the standard of living through external signs. A salary of 1,000 euros, but a luxury car, for example. It is true that this is very common,” she explains.
This resolution, he adds, is key for this type of judicial processes. “From now on, when there is a rebellious defendant or one whose financial capacity is unknown, at least a minimum amount will be set to cover the minor’s needs. “It will no longer be possible to establish a percentage, we will be able to request the annulment of actions.” As he explains, the main harm that this system has for the parent who takes care of the children is that it is something “not enforceable.”
What the Constitutional Court has said, he adds, is “very relevant” because with these percentages, which were established as a “general rule”, the amount remained “totally undetermined” and that made it “impossible to execute.” “We cannot file an executive lawsuit if we do not have a liquid amount to execute,” he says in statements to elDiario.es.
The statistics on the criminal aspect of this type of non-compliance, the crimes of family abandonment and non-payment of pensions, reflect more than 4,000 people convicted each year, the vast majority of them men. AEAFA statistics reveal that in three out of every ten divorces in Spain, one of the parents fails to pay child support or the visitation regime.
Source: www.eldiario.es
