Eight weeks have passed since the state of alarm was decreed. If the first few days we talked about how the visitation regime should be complied with, and we explained the criteria that the Family Judges of the different judicial parties announced in this regard, today we have to talk about the special procedure that, in family matters, the Royal Decree-Law 16/2020 , of April 28, on procedural and organizational measures to deal with COVID-19 in the field of the Administration of Justice.
As we have already said, the Courts were practically paralyzed with the declaration of the state of alarm, except for urgent and non-postponed actions, which accentuated the convenience of reaching agreements for the fulfillment of the visits, given that the Court’s response to our demand, of not reaching an agreement would not reach the end of the alarm state.
Well, one of the assumptions to which the special procedure that we are going to talk about today applies is precisely that: compensation for visits that have not been enjoyed due to confinement.
Royal Decree of Law 16/2020 , in addition to adopting organizational measures so that the Courts face the multitude of demands that are expected due to the economic situation derived from the health crisis, creates a procedure special and summary, in family matters, preferential processing and applicable in three cases:
The first is the one already stated: when compensation is sought for visits or periods of stay that have not been enjoyed due to mobility limitations during the state of alarm.
The second , the request for a review of the alimony and compensatory pension when, due to the health crisis, the economic circumstances of the person obligated to provide them, or of the recipient, have changed substantially.
Finally , it is possible to go to this process to request the establishment of a new alimony between relatives not previously agreed upon, or to review the existing one based on a reduction in the income of the person obliged to provide it , in both cases, because of the current crisis.
Compensation for visits or stays that have not been enjoyed
The parent who, due to the mobility limitation measures adopted by the Government, has not been able to enjoy the visits that corresponded to him during the state of alarm, or the periods of stay with the minors in the cases of joint custody , you can request your compensation through of this summary procedure in order to restore balance in the initially agreed regime.
This process may be instituted while the alarm status is in force and up to three months after its completion. The demand must be directed to the Court that issued the measures, who, once admitted, will summon the parties and the Public Prosecutor to a hearing that must be held within ten business days following its admission.
Before its celebration, the agreement between the parties will be tried, always respecting the best interests of the minor. If this is not possible, the judge, also before the hearing, will hear the minor in a reserved manner if he considers it necessary, and always if he is over twelve years of age.
At the hearing, the evidence provided by the parties will be practiced, and that which the Judge agrees ex officio. Once completed, the judge may decide orally in the same act, or in writing within three business days, a resolution that may be appealed to the Provincial Court.
Modification of the pension due to reduction of the income of the person obliged to pay it, or of its recipient, due to the state of alarm
The same procedure as the one described may be followed to request the review of the alimony, compensatory pension and other agreed economic measures (for example, the payment of the mortgage loan), when the economic circumstances of the parent who files the claim have changed substantially as a consequence of the health crisis caused by COVID-19.
In these cases, the documents that prove such change in circumstances must be attached to the claim, which may be the certificate of the unemployment benefit or subsidy received by the employee, or, in the case of self-employed, a certificate from the Treasury the cessation of the activity declared by the interested party or the decrease in their income.
The parties may also request, at least five days in advance of the hearing date, that the Court collect from public or private institutions the documents that are not available to them, summon witnesses or make the necessary requirements for the practice of the proof in the act of sight.
As mentioned above, the judge may decide orally at the conclusion of the hearing, or in writing within three days, such resolution being subject to appeal.
Application for alimony between relatives
In addition to requesting the review of a pension already agreed in a previous family process, you can go to this new process to request, for the first time, the establishment of a maintenance pension, either in favor of minor children, in which case it will be the parent who has custody who must formulate it, or any other of the relatives to whom the Civil Code recognizes the right to request it.
Let us remember that spouses, descendants and ascendants are reciprocally obliged to provide food to each other, in this order, understanding as food all that is essential for sustenance, room, clothing, medical care and, in the case of descendants, education while they are minors and, even afterwards, while they have not finished their training for reasons that are not attributable to them.
The brothers, the Civil Code tells us, only owe the necessary aid for life, when they need it for any reason that is not attributable to whoever asks for it, and it will be extended to those that are needed for their education. The amount of the pension must be proportional to the wealth of the person who lends it and the needs of the person who claims it.
Finally, this new process may also be used by those who, being obliged to pay alimony to one of the aforementioned relatives, want to request a review of the pension because their income has been reduced due to the state of alarm.
In short, with the regulation of this new procedure, it is a matter of channeling in an agile way the multitude of demands that are expected to be presented, but limited to the three cases already mentioned, which are expected to multiply as a result of the state of alarm.
Therefore, it cannot be used to request a modification of the custody regime or the attribution of the use of the family home, having to resort to the ordinary measures modification procedure regulated in art. 775 of the Civil Procedure Law.
What seems difficult is that the very short deadlines established for its processing are met. It will be seen.