SENTENCE Nº 239/2021 OF THE SPANISH SUPREME COURT FROM 17TH MARCH 2021 – to Avoid Child's Support Payment / Coercive Abuse / Economic Violence

Violence against women is a violation of human rights and a form of gender-based discrimination. Rooted inequalities between men and women take many forms, and estimations of the level of the problem are alarming.

Such violence has a major impact on victims and imposes a significant cost burden on society. The instruments put in place by the United Nations and Council of Europe, including the latter’s “Istanbul Convention”, of which Spain is a part, are benchmarks in efforts to combat violence against women.

The European Union is tackling the problem in various ways, but has no binding instrument designed specifically to protect women from violence.

The Spanish Supreme Court has condemned a father failing to pay child support to his family for the offence of article 227 of the Spanish criminal code.

Regarding the conviction for the crime of non-payment of child support, the Spanish Supreme Court points out that this crime exists for failing to pay alimony, pointing out that this crime “may be configured as a kind of economic violence, given that the breach of this obligation leaves their own children in a state of need in which, given their young age and lack of self-sufficiency, they need that food support from the one obliged to provide it, first due to a moral and natural obligation that the obligated person has, and if this does not come, it will have to be due to judicial obligation. And this, to the point that, if the person obliged to provide them fails to comply, this requires the parent who has them in custody to carry out an excess in their effort of care and attention to the children, depriving themselves of taking care of their own needs to cover the obligations not verified by the obliged to do so.

“All this determines that we can call these behaviours economic violence when there are non-payments of child support. And this, because it supposes the breach of an obligation that should not be required by law or by judicial resolution, but should be fulfilled by the conviction of the person obliged to cover the need of his children; all this from the point of view of the approach that the obligation of natural law has the obligation to pay maintenance.

“But, nevertheless, due to the breaches that occur, it must be the legislator who configures this obligation ex lege, and the courts who resolve these conflicts that should not exist, due to the moral and natural requirement of the parent obliged not to leave the needs of their own children, and without ever putting their wishes and/or preferences before their own, since with respect to these they are not wishes or preferences, but their needs.

“Thus, once the non-payment of pensions has been proven, so is the uprising of assets, since, despite the appellant’s allegation, it must be concluded that according to the evidence practised in the oral trial there has been concealment and theft of the assets and assets belonging to the society with the consequent impossibility for them to be affected to pay the debts, as well as the intentionality with which it acted in the demaritalisation manoeuvres of its assets.

“The actual impossibility of non-payment is articulated by the appellant himself with the depatrimonialisation manoeuvres that he is carrying out, and that concludes in the non-payment of alimony to his children.”