.jpg)
One of the most practically significant changes introduced by the latest reform of the LEC (Spanish Civil Procedure Act), in force since May of this year, has been the incorporation of a preliminary declaratory step, of an incidental nature, when seeking enforcement of judgments or measures for non-compliance with child maintenance obligations, specifically regarding extraordinary expenses.
The question of what constitutes extraordinary expenses has long been one of the most frequent sources of dispute between separated parents. In my view, the issue stems from how child maintenance itself is determined.
In an uncontested divorce, it would be worthwhile to set out in detail the precise amount attributable to child maintenance and, separately, which items should fall under so-called "extraordinary expenses", costs that, in most cases, each party must share equally. In other words, it is worth defining as precisely as possible what is meant by extraordinary expenses. The longstanding practice had been to set out in the separation agreement, or in the contested claim, a fixed monthly maintenance figure, and to provide only in general terms that 50% of extraordinary expenses would be borne by each parent. This approach has generated enforcement proceedings with unpredictable outcomes, since everything turns on the judicial interpretation of the term, an interpretation that has consistently held that only expenses which are both "unforeseen and necessary" qualify as "extraordinary". And what counts as "unforeseen and necessary" in any given case remains equally open to interpretation at first instance.
The legislature has, in my view, wisely addressed this problem by introducing, within the enforcement process, a preliminary incidental step that must be resolved at an oral hearing before the competent court. The purpose is to determine, in light of the specific circumstances, what should be classified as an extraordinary expense and what should form part of the maintenance obligation. This avoids automatic enforcement and attachment orders that are, in many instances, unjust and unwarranted, often because they have been applied to amounts that do not actually feature in the enforceable title (the ruling or order on interim measures). It remains to be seen whether the reform works as well in practice as it does in theory, and whether it puts an end to the widely divergent outcomes that, until now, have depended largely on which court happened to receive the enforcement claim.
The regulation I am referring to is set out in Article 776.4 of the Civil Procedure Act (LEC). On reading it, I understand that the way to request this is by way of an additional plea (otrosí) within the enforcement claim, submitted on a subsidiary basis to the main application for enforcement proceedings, in the event that the court considers it necessary to follow a prior incidental procedure and suspends the course of enforcement. That said, I also understand that it could be raised even before the enforcement claim is filed, by the party intending to bring compulsory enforcement proceedings for non-payment of extraordinary expenses.
This therefore strikes me as a significant and novel development that, I believe, will genuinely improve the current situation. In some respects, it resolves the issue of extraordinary expenses in a more measured way, softening the impact of a refusal regarding their admissibility. As I see it, if the incidental procedure concludes that the expenses in question should not be classified as extraordinary, it will at least have prevented the initiation of enforcement proceedings that would subsequently have had to be set aside, with costs awarded against the applicant. By contrast, through this prior declaratory procedure, and given that the matter gives rise to genuine reasonable doubt, a negative outcome will not result in costs being imposed on the applicant, and will at least have resolved, with legal certainty, the perennial thorny question of "extraordinary expenses".
Contact Maria Serra, family lawyer and mediator in Barcelona:
