Separation or divorce processes can cause economic imbalances after the breakup of couples. To solve this situation, marriage law in Spain offers the possibility of a compensatory pension. This does not seek to equalize the assets of both parties, but rather to compensate or compensate whoever is most harmed.
This is aid received by one of the parties, when this breakup fosters an economic imbalance subsequent to the situation they had before the separation. It is frequently confused with alimony.
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The compensatory pension is protected in article 97 of the Civil Code (can be consulted in this BOE) and in the Constitution and is valid for both marriages and de facto couples. So there will be no need to have gone ‘through the altar’ to collect it if it is appropriate. Of course, it may consist of a temporary or indefinite pension, as determined in the agreement regulating the sentence.
Who has the right to access the compensatory pension?
There will be no right to a compensatory pension, whether in a single or monthly payment:
- When separation or divorce causes imbalance in both spouses.
- When both spouses have their own assets or income to continue having, after separation or divorce, an economic level similar to that which they had during the marriage.
Therefore, for a compensatory pension to exist, the economic imbalance can only occur in one of the two spouses.
This benefit must be expressly requested by the spouse who considers that the separation or divorce causes said economic loss. It may not be established or fixed by the Judge ex officio.
How much is the duration and amount of the compensatory pension in 2022
In each separation or divorce the circumstances are very different, which is why it is very difficult to specify the exact amount that the spouse who believes he or she is entitled to the benefit must receive. The final pension is included in the sentence issued by the judge at the end of the legal process and in the divorce agreement. In Spain, current legislation does not establish a specific scale to set this amount.
Currently, what does exist is a calculation method to know how long the pension will be received. An example is the number of years of cohabitation, that is, no matter how many they are, a percentage is obtained that is multiplied by the number of months that the couple has lived together. The result obtained is rounded. This calculation translates into the following formula:
- From zero to four years: 16%.
- From five to nine years: 26%.
- From 10 to 14 years: 38%.
- From 15 to 19 years old: 52%.
- From 20 to 24 years: 67%.
- From 25 to 29 years: 84%.
- From 30 years old: 100%.
For example, if a couple has lived together for 25 months, the compensatory pension will end after four months (25×0.16). Or if you have lived together for 67 months, the support will last until 18 months have passed.
Can the compensatory pension be modified?
As stated in the law, the compensatory pension can always be modified when both spouses do so and by mutual agreement. But this will occur when the amount has been set voluntarily by a regulatory agreement.
If there is no complicity between the ex-spouses and it was established by a court ruling, substantial changes in assets must be proven. That said, the pension that was compulsorily established through judicial means must be resolved that way.
However, if it was set voluntarily and cordially by both parties, they may agree again on the new amount, even if the recipient’s salary is the same as the one he received when it was stipulated.