Requirements for the extinction of compensatory pension
The AP agrees to the termination of the compensatory pension granted to the wife as a result of the divorce, since the beneficiary’s economic situation has undergone a significant improvement from the liquidation of the community property, thanks to the management of that patrimony, since it invested the money obtained in the acquisition of real estate for its subsequent lease.
The court of first instance dismissed the request for modification of measures requesting the termination of said compensatory pension, in which the now appellant alleged a worsening in his economic situation and a notable improvement in that of the ex-wife, due to the acquisition and management of real estate assets after the liquidation of the community property, which gives you rental income, even if it has not been incorporated into the labor market.
The Chamber notes that the doctrine of the Supreme Court establishes that the essential presupposition of a compensatory pension lies in the inequality that results from the confrontation between the economic conditions of each one, before and after the break. It is not necessary to prove the existence of need – the most disadvantaged spouse in the breakdown of the relationship may be a creditor of the pension, even if they have sufficient means to support themselves – but it must be proven that there has been a worsening in their economic situation in relation to that enjoyed in the marriage and with respect to the position enjoyed by the other spouse. But it is not about equating the assets economically either, because it does not mean absolute parity or equality between two assets.
On the other hand, there was a doctrinal debate in determining whether the setting of a temporary compensatory pension is or is not prohibited by legal regulations, and whether such possibility, depending on the circumstances of the case, can fulfill the rebalancing function, that is, it can act as a mechanism corrector of the economic imbalance generated between the spouses.
The Court insists, following the jurisprudence of the Supreme Court, that it does not constitute a life annuity, life insurance policy or life guarantee of maintenance, nor can it operate as a harshness clause, since marriage does not create a right to receive a pension, and that the right to a compensatory pension is relative, personal and conditional. What’s more; Temporalization can play an instrumental role of stimulation or indisputable incentive for the recipient in order to obtain rebalancing through economic autonomy, understood as the possibility of developing autonomously, and, specifically, finding a job or professional placement soon.
The temporary nature of the compensatory pension – has been resolved by the reform of Art. 97 CC (EDL 1889/1) operated by Law 15/2005, of July 8 (EDL 2005/83414) , which modifies the Code Civil and Civil Procedure Law in matters of separation and divorce, by establishing that the compensatory pension may consist of a temporary or indefinite pension, or a single benefit, as determined in the regulatory agreement or in the judgment.
Factors to establish it
Among the most prominent, and without being exhaustive, it is worth mentioning: age, effective duration of the conjugal coexistence, dedication to the home and to the children; how many of these require future attention; health status, and its recoverability; work that the creditor performs or may perform due to his professional qualification; labor market circumstances in relation to the profession of the recipient; ease of accessing a paid job -real and effective prospects for entering the labor market-; possibilities of recycling or returning -reintegration- to the previous job (which was left by marriage); preparation and work or professional experience; opportunities offered by society, etc.
A situation of suitability or aptitude to overcome the economic imbalance that makes it inadvisable to extend the pension must be established. It is about appreciating the possibility of developing autonomously. And it is required that the “ex ante” forecast of the conditions or circumstances that define the temporality be possible; a forecast, in short, with certainty or real potentiality determined by high probability indices, which is alien to what has been called «futurism or divination».
Applying the previous doctrine to the specific case, it is obvious that the economic situation of the defendant has undergone an important improvement from the liquidation of the community property, investing the money obtained in the acquisition of real estate for its subsequent lease, being from of said acquisitions in a situation of suitability or aptitude to overcome the economic imbalance that makes the extension of the pension inadvisable.
It is a matter of appreciating the possibility of developing autonomously, and certainly, the significant amount of money received by the defendant as a result of the liquidation of community property, has allowed her to acquire three houses that she has rented, receiving the corresponding rents.
This patrimonial situation, together with the amount that he receives monthly for private insurance, leads to the extinction of the actor’s obligation to pay the compensatory pension since the economic imbalance that caused the marriage breakdown twenty-one years ago has disappeared.