The Civil Code (Article 101) expressly establishes that the compensatory pension (that which is set to compensate the ex-spouse to whom the separation or divorce leaves in a worse economic situation) is extinguished in the event that the beneficiary contracts a new marriage or live "maritally with another person." However, a recent sentence of a court of A Coruña (whose full text can be consulted here) It forces a divorced person to continue to maintain the pension to his former wife who married another person. The resolution supports a private document for which the man promised to continue paying although the "civil situation" of the beneficiary varies. Although the man claimed that He believed that the agreement referred to other types of situations (illness or incapacitation), the court concludes that the literality of the clause He did not admit another interpretation.
The then marriage subscribed a private agreement, drafted by the children, under which the ex-husband voluntarily committed himself to continue paying the compensatory pension "even if the civil situation of the beneficiary varies". However, once he learned of his ex-wife's wedding (two years after the separation), he requested to stop paying her.
At first, the resolution of the court declared the pension terminated because he considered that the terms of the agreement were not clear. According to the judge, the document provided by the woman's lawyer presented an "indefinition" in its formulation, so that it could not be clearly deduced what was its purpose. After questioning the parties, he concluded that none of them was intended that the pension would continue to be paid despite the new marriage. If that consequence had been wanted, it would have been expressly stated in the agreement, he argued.
Purpose of the agreement
The man said that when he signed the document he thought that the variation of the "civil situation" referred to other assumptions, such as a worsening of the disease of your ex-wife, age 70, or incapacitation. He added that when he was given to sign the agreement, nobody told him that the intention of this was to contract a new marriage. On the other hand, the woman stated that she thought it was an act of generosity for the past of both, compensation for the mistreatment suffered during the marriage. For all this, and applying the provisions of the law in this regard, the sentence declared the pension extinguished as a "logical effect" as a result of the new marriage.
But nevertheless, the Provincial Court of A Coruña estimated the woman's appeal, revoking the judgment of the court and maintaining the pension despite the new situation of the beneficiary.
The defense of the woman denounced that the legality and applicable jurisprudence had been violated. In matters of compensatory pensions, he said, the agreements between the parties prevail, which may be agreed that it be maintained indefinitely. As he argued, the document voluntarily signed by the parties it was valid and clear in its purpose, which was none other than to exclude the subsequent marriage of the woman as a cause of termination of the pension. He defended that the meaning of the expression "civil situation" left no room for doubt, and that it was impossible that in the "information age" man did not know what he was referring to. Another interpretation, he added, would leave the decision of the ex-husband to decide how long it would be extended to pay him, leaving the woman defenseless. The woman, 70 years old, he needed the pension for his subsistence, and he redid his sentimental life after signing the document knowing that he could not lose the pension. Finally, he said, if true, alleged cheating of the children, suspects that he dropped the counterpart, it would be an illicit that had to be reported to the criminal judge.
The sentence of the court of A Coruña interprets the expression concerning the variation of civil situation of the beneficiary as a clear reference to the possibility of contracting a new marriage, because no other fact could modify it.
Although, he points out, the wording could be clearer and "strict", the intentions that the man alleged to sign the document (protect the woman in situations of illness or disability) did not need to be documented in writing since there were no circumstances justifying the termination of the pension.
According to the possible trick of the children, the magistrates indicate that testifical evidence had to be requested that, since it was not proposed, the court can not assess. This evidentiary absence, he concludes, "only him can harm him".
Pinch HERE to know more about compensatory pension.