Alimony for children of full age?
Alimony after the breakdown of the marriage
The obligation of alimony is understood as the payment of all that is indispensable for the sustenance, room, clothing, medical care and education of minor children (article 142 CC).
Our Civil Code establishes that, upon the breakdown of the marital relationship, the judge will determine the contribution of each parent to satisfy the alimony, as well as the appropriate measures to ensure the effectiveness and accommodation of the benefits to the economic circumstances and needs of the children at all times.
What happens when the children have reached the age of majority?
As a general rule, Article 93.2 of the Civil Code provides that, in the event that children of legal age or emancipated children who lack their own income continue to live in the family home, the rules of Article 142 and following shall apply. That is to say, with respect to children of legal age, the pension fixed in the nullity, divorce or separation sentence will also include education and instruction when they have not completed their education.
This paragraph was added by Law 11/1990, of October 15, 1990, and, in this respect, the doctrine offered several reasons to justify this normative provision: either for procedural economy, to avoid another process, this one of alimony at the request of the children; or to avoid the latter having to confront the parents or one of them.
In any case, the incorporation of this paragraph responded to an urgent social need, which was to protect the child who, although of legal age, was not economically independent and would have to live with one of his parents (STS 223/2019, 10 Apr. 2019).
When does a child of legal age cease to receive a child support payment?
Given the non-existence in the law of an age limit regarding when this obligation has to be extinguished, the answers offered by our courts to this question have been very diverse, always taking into account the circumstances of each case and the economic partners of the temporary moment in which the pension is requested (STS 558/2016, of 21 Sept. 2016).
For example, in the judgment of the Supreme Court No. 95/2019, of 14 Feb. 2019, a time limit of one year was set for the continuity in the receipt of the pension, according to the estimated time remaining for the eldest child to conclude his studies and get a paid job, understanding that this was a reasonable period for the child to adapt to his new economic situation.
However, article 152.3 of the Civil Code establishes an exception to the payment of alimony to the oldest child: when the situation of need of the oldest child has been created or caused by the child himself or by his “lack of application to work”. The Provincial Court of Ciudad Real, in its judgment No. 182/2014 of 14 Jul. 2014, assimilated the lack of work diligence to the idleness in the dedication to the necessary studies to access a qualified labor world, which would even, in some cases, require the son, due to his lack of academic application, to join a job position of lesser demand in his qualification, of easier access, which will determine the extinction of the alimony duty.
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