Maintenance Obligations Between Relatives (Arts. 142-153 CC Spain): Amount, Obligors and Extinction

The Obligation of Family Support (Alimentos) Among Relatives

Article 142 of the Código Civil (Spanish Civil Code) establishes the obligation of family support (alimentos): "Alimentos shall be understood as everything indispensable for sustenance, housing, clothing and medical care. Alimentos shall also include education and instruction of the recipient while a minor and even thereafter when the recipient has not completed their education for reasons not attributable to them."

Legal Concept of Alimentos

Article 142 CC includes within the concept of alimentos:

• Sustenance: food and nutrition proper
• Housing: accommodation
• Clothing and medical care
• Education and instruction: while the recipient is a minor and, if an adult, while continuing education without fault on their part

This concept is notably broader than in many comparative legal systems.

Order of Those Obligated (Art. 144 CC)

Where several persons are obligated to provide alimentos, Article 144 CC establishes the following order of precedence:

1. The recipient's spouse
2. Descendants of the closest degree
3. Ascendants of the closest degree
4. Siblings, with full siblings taking precedence over half-siblings

Where several persons are of the same degree: the obligation is shared in proportion to their respective means (Art. 145 CC), unless the court distributes the obligation differently on grounds of need.

Amount: The Proportionality Principle (Art. 146 CC)

The amount is determined in proportion to the means of the person obligated and the needs of the recipient (Art. 146 CC). This is one of the most significant principles:

• Need of the recipient: objective economic situation (own income, assets, earning capacity)
• Means of the obligated party: assets and available income of the debtor

Variability: The alimentos payment is essentially variable; it may be modified if the circumstances of need or means change (Art. 147 CC). The STS (Supreme Court judgment) of 16 November 2020 clarified that a mere reduction in income is insufficient; it must be objective, substantial and lasting.

Arising and Enforceability

Alimentos are enforceable from the date the claim is filed (Art. 148 CC): the court may provisionally order alimentos from the admission of the claim, without prejudice to the final judgment. Alimentos generally may not be backdated to a date prior to the claim.

Provisional alimentos (Art. 770.3 LEC (Code of Civil Procedure)): in family proceedings, the court may order provisional measures (including alimentos) from the outset of the procedure or even beforehand (Art. 771 LEC: prior measures).

Alimentos for Adult Children

Article 142 CC in fine (and the STS of 1 March 2001 interpreting it) recognises the right to alimentos of adult children who have not completed their education for reasons not attributable to them. Key characteristics:

• The obligation subsists while the child studies diligently and does not have sufficient income of their own
• The STS of 5 November 2015 holds that an adult child who has completed a degree but cannot find employment may be entitled to alimentos, although the obligated party may invoke their own lack of financial means
• A parent cannot refuse payment on the grounds of disagreement with the studies chosen, unless those studies are manifestly unnecessary or disproportionate
• Unjustified failure by the child to meet their academic obligations may be grounds for termination (STS 18 January 2019)

Forms of Compliance (Art. 149 CC)

The obligated party may choose between:

• Paying the agreed periodic support, or
• Receiving and maintaining the recipient within their own household

The recipient may object to the second option if there are moral grounds or cohabitation is impossible, in practice, the court assesses this on a case-by-case basis.

Termination of the Obligation (Art. 150 CC)

Alimentos cease:

1. Upon the death of the obligated party or the recipient, the obligation is not transmissible to heirs except by agreement (Art. 150 CC)
2. Where the recipient acquires sufficient means: if their circumstances improve to the point where they can support themselves
3. Deterioration of the obligated party's means to the point where they cannot meet the obligation without neglecting their own needs
4. Reprehensible conduct by the recipient: if the recipient commits any offence against the person of the obligated party, or if a child has lost contact with the parent without justified cause

Alimentos in Family Proceedings

In divorce and separation proceedings, alimentos for children are governed by the convenio regulador (regulatory agreement, Arts. 90–91 CC) or, in its absence, are determined by the court. The enforcement of alimentos judgments is subject to a special regime (Arts. 712–720 LEC: special procedure with reinforced enforcement measures).

Criminal offence of non-payment of support (Art. 227 CP (Penal Code)): wilful non-compliance with financial obligations established by agreement or court judgment may constitute a criminal offence (penalty: imprisonment of 3 months to 1 year or a fine), without the need to first exhaust civil proceedings.

Conclusion

The obligation of alimentos among relatives is of a public and family law nature, and is exempt from attachment and non-waivable (Art. 151 CC). Lawyers must correctly quantify the support payment using objective income and expenditure data, and act promptly to request provisional measures from the outset of the proceedings.

Lexiel enables searches of Supreme Court case law on alimentos for adult children, proportionality and termination, with verified citations.