Am I Entitled to Spousal Maintenance or Compensation for Devoting My Life to the Family?

After 20, 25 or even 30 years of marriage, deciding to get divorced can raise concerns that go far beyond the emotional impact of the separation:

“What is going to happen to me financially now?”

This question is particularly common when, over the years, one spouse has reduced or given up their professional activity to look after the children, take care of the home or even help run the family business.

In these cases, divorce can reveal a significant financial imbalance between the spouses. This is where two different legal concepts may become relevant: spousal maintenance (pensión compensatoria) and compensation for work performed in the home (compensación por trabajo para la casa).

Although both may serve a protective purpose, they are not the same, they have different legal requirements, and they may be awarded at the same time.

Spousal maintenance: What happens if my financial situation worsens after divorce?

Spousal maintenance is regulated by Article 97 of the Spanish Civil Code.

Its purpose is not to equalise the assets of both spouses or guarantee that they maintain exactly the same standard of living after divorce.

Instead, it aims to compensate for the financial imbalance that the breakdown of the marriage may cause for one spouse compared with the other.

For example, consider a marriage in which:

• One spouse has worked throughout their entire adult life.

• The other stopped working or significantly reduced their professional activity to care for the children.

• After the divorce, the first spouse has an income and an established career.

• The second finds it difficult to return to the job market, particularly because of their age and the number of years spent out of employment.

In these circumstances, there may be grounds to apply for spousal maintenance.

However, it is not automatically granted simply because the marriage lasted many years or one spouse looked after the home.

The specific circumstances of the divorce must be examined.

How does a judge decide whether spousal maintenance should be awarded?

To determine whether a financial imbalance exists and, if so, the amount of maintenance that may be appropriate, the court considers various circumstances.

These may include:

• The age and state of health of both spouses.

• The length of the marriage.

• Professional qualifications and realistic opportunities to find employment.

• Past and future responsibilities for the family.

• Contributions to the other spouse’s professional or business activities.

• The income and assets of both spouses.

• Each spouse’s financial needs.

• Any loss of pension rights or financial prospects resulting from their commitment to the family.

• Any other relevant circumstances when assessing the financial imbalance.

For this reason, there is no fixed amount or universal formula for calculating spousal maintenance.

Each divorce requires an individual assessment.

Can spousal maintenance be paid for life?

Yes, although it does not have to be.

Spousal maintenance may be awarded for a fixed period or for an indefinite period, depending on the recipient’s circumstances and the likelihood of overcoming the financial imbalance.

In a long marriage where one spouse is older, has limited work experience and has little prospect of entering the job market, maintenance for an indefinite period may be considered.

By contrast, if there are reasonable prospects that the financial imbalance will disappear over time, maintenance may be awarded for a specific period.

The spouses may also agree on a one-off lump-sum payment instead of regular maintenance payments.

The amount and duration should be carefully considered before accepting a divorce settlement, particularly after a long marriage.

What is compensation for work performed in the home?

This is a different legal concept.

Article 1438 of the Spanish Civil Code provides for compensation linked to work performed in the home where the marriage is subject to the separation of property regime (régimen de separación de bienes).

This is particularly important because someone may have spent decades looking after the home and family without receiving a salary for that work.

Under a separation of property regime, each spouse generally retains ownership of their own assets. Unlike the community of property regime (sociedad de gananciales), there is no joint marital estate to be divided in the same way upon divorce.

For this reason, Article 1438 recognises that work performed in the home may constitute a contribution to the expenses and obligations of the marriage, potentially giving rise to compensation when the legal requirements are met.

Who can claim this compensation?

It is not enough simply to state that you performed domestic work.

It is necessary to establish whether the circumstances required by Article 1438 of the Spanish Civil Code and the relevant case law are satisfied.

One of the key issues is how responsibilities were actually divided during the marriage.

For example, it may be relevant to demonstrate that one spouse:

• Was primarily responsible for cleaning and maintaining the home.

• Took primary responsibility for the children’s needs.

• Organised family life.

• Performed domestic tasks while the other spouse pursued their professional career.

• Did not rely on domestic employees to carry out a substantial part of those responsibilities.

Every family is different. Not everyone who has taken on some household responsibilities automatically has a right to this compensation.

How is compensation under Article 1438 calculated?

This is one of the most frequently asked questions and one of the most difficult to answer.

The Spanish Civil Code does not establish a specific amount for each year spent performing domestic work.

As a result, courts have applied different criteria when determining the amount, depending on the circumstances of each case.

One possible approach is to consider the salary that would have been paid to someone hired to perform the domestic tasks. However, the assessment cannot always be reduced to a simple mathematical calculation.

Other factors may also be relevant, including the length of the marriage, the work actually performed and the financial circumstances of both spouses.

Before claiming a specific amount, it is therefore essential to examine how family life was organised throughout the marriage.

Are spousal maintenance and compensation for domestic work the same thing?

No.

This distinction is essential.

Spousal maintenance aims to address the financial imbalance that the breakdown of the marriage may cause for one spouse.

Compensation under Article 1438 of the Spanish Civil Code, by contrast, relates to the contribution made through domestic work under the separation of property regime.

They therefore have different legal grounds and purposes.

This raises another common question:

Can I receive both?

Yes, they may be compatible.

The Spanish Supreme Court has recognised that these two forms of compensation serve different purposes. Consequently, being awarded one does not necessarily exclude the possibility of receiving the other.

This can be particularly relevant in long marriages where one spouse has spent years looking after the home and, in addition, faces a significant financial imbalance following the divorce.

What if I worked in my husband’s or wife’s business?

This situation deserves particular attention.

In some marriages, one spouse works for years in the other spouse’s business or company without having an employment arrangement equivalent to that of other employees.

For example, one person may:

• Deal with customers.

• Carry out administrative tasks.

• Manage the accounts.

• Work in the family business.

• Regularly contribute to the business’s day-to-day activities.

At the same time, they may also be responsible for a substantial part of the household and family duties.

When divorce occurs, questions may arise about what financial rights that spouse may be entitled to claim.

The answer depends on the nature of the work performed, the matrimonial property regime, whether an employment relationship existed and the financial circumstances of both spouses.

Occasionally helping out in a family business is not the same as working there regularly for years without appropriate financial compensation.

These cases must therefore be assessed individually.

What if I am 60 and have not worked for 30 years?

Age can be a particularly important factor when assessing a potential claim for spousal maintenance.

Facing divorce at 35 with an established career is not the same as facing divorce at 60 after spending several decades primarily looking after the home and family.

As people get older, returning to the job market may become more difficult, which can affect their ability to earn their own income.

Their pension contributions and retirement prospects may also be relevant.

For this reason, in a long marriage, the assessment should not focus solely on how much each spouse currently earns.

It is important to examine how their financial circumstances developed throughout the marriage and what their situation is likely to be after the separation.

What happens if we have a separation of property regime?

The matrimonial property regime is fundamental.

Under a separation of property regime, each spouse generally retains ownership of their own assets and rights.

This means that, upon divorce, there is no division of community property in the same way as there would be under the community of property regime (sociedad de gananciales).

However, this does not necessarily mean that the spouse who devoted their time to the home will receive no compensation.

This is precisely where Article 1438 of the Spanish Civil Code becomes particularly important.

Before signing a divorce settlement or accepting a financial agreement, it is therefore important to establish which matrimonial property regime applies and what rights each spouse may have.

Can I claim compensation if my husband or wife has significantly more assets than I do?

Having fewer assets than your spouse does not automatically entitle you to spousal maintenance.

The assets owned by each spouse may be relevant when assessing their financial circumstances. However, spousal maintenance requires an examination of the financial imbalance caused by the breakdown of the marriage.

For example, someone who has no employment income but owns substantial assets may be in a very different position from someone who has neither employment income nor assets and has little realistic prospect of finding a job.

For this reason, it is important to consider the overall financial situation:

Income + assets + age + employment prospects + length of marriage + contribution to family life.

Can I waive my right to spousal maintenance?

Spousal maintenance may be addressed in an agreement between the spouses, subject to the applicable legal requirements.

For this reason, before signing a divorce settlement, it is important to understand which financial right you are accepting or giving up.

Once an agreement has been reached and approved by the court, changing its terms later may not be straightforward.

If you are unsure whether you may be entitled to spousal maintenance, compensation for domestic work or both, it is advisable to obtain a legal and financial assessment of your circumstances before entering into negotiations.

Divorce after many years of marriage: What should I check before signing an agreement?

If you have been married for decades and are considering divorce, you should not limit your assessment to who keeps the family home or how much child maintenance will be paid.

Other financial issues may have a significant impact on your future.

Before signing a divorce settlement, you should consider reviewing:

1. The matrimonial property regime. Is it community of property or separation of property?

2. The employment situation of both spouses. Current income, career history and future prospects.

3. Each spouse’s contribution to family life. Who looked after the children and who managed the home?

4. Each spouse’s assets. Properties, bank accounts, investments and other assets.

5. Age and retirement prospects.

6. Whether a claim for spousal maintenance may be appropriate.

7. Whether compensation for work performed in the home may be available.

8. Existing debts and financial obligations.

9. The family home and any outstanding mortgage.

10. The tax and financial consequences of the agreement.

A decision made during divorce proceedings can have financial consequences for many years to come. Understanding your rights before signing an agreement can help you make an informed decision about your future.