CHILD MAINTENANCE IN SPAIN: LEGAL KEY POINTS

 

In family law proceedings, child maintenance is one of the most common and sensitive matters. It is not merely a financial burden, but rather an inescapable legal obligation rooted in the dignity and future welfare of the children. Maintenance aims not only to cover the child’s basic needs, but also to ensure that their standard of living remains consistent with that enjoyed during the parents’ cohabitation. It includes food, housing, clothing, education, medical care, and recreational needs. The amount is calculated on the basis of the paying parent’s financial means and the actual needs of the child.

This matter arises not only in divorce or legal separation cases, but also when unmarried couples with children separate. Although often regarded as a purely financial issue, child maintenance involves fundamental rights of minors and constitutionally protected principles. This article provides a comprehensive overview of the legal framework, case law and doctrine, including modification and enforcement procedures and disputes regarding extraordinary expenses.

LEGAL FRAMEWORK: THE DUTY TO PROVIDE MAINTENANCE

 

Article 39.1 of the Spanish Constitution imposes on public authorities the duty to guarantee the social, economic, and legal protection of the family. In line with this, Article 154 of the Spanish Civil Code establishes that parental authority must always be exercised in the best interest of the child and includes the duty to feed, educate and provide comprehensive care. Article 142 of the Civil Code defines ‘alimentos’ (maintenance) as all that is indispensable for sustenance, accommodation, clothing, and medical assistance, and also education and training while it continues for justified reasons beyond the age of majority.

CALCULATING THE MAINTENANCE AMOUNT

 

Child maintenance is not a fixed amount and must be assessed on a case-by-case basis. Pursuant to Article 146 CC, two key factors are considered: (1) the paying parent’s financial capacity and (2) the child’s real needs. For guidance, Spanish courts may refer to non-binding calculation tables issued by the General Council of the Judiciary (CGPJ), which offer indicative amounts based on the number of children, income of the non-custodial parent and type of custody arrangement. Nonetheless, the actual amount is determined by the judge.

A maintenance obligation only acquires legal effect when established by court order—typically within divorce, parental responsibility, or enforcement proceedings—or by means of an approved settlement agreement. Under Article 147 CC, the amount may be modified if there is a material change in the financial situation of either parent or in the child’s needs.

DURATION OF CHILD MAINTENANCE

 

Contrary to popular belief, maintenance does not automatically cease upon the child reaching the age of 18. According to Supreme Court case law, the obligation remains until the child becomes financially independent, provided the lack of independence is not attributable to the child. This includes periods of university studies or active job-seeking. A court may terminate the obligation if there is evidence of a lack of need, voluntary departure from the family home, or unjustified refusal to maintain contact with the parent.

EXTRAORDINARY EXPENSES: A COMMON SOURCE OF DISPUTE

 

According to settled case law, extraordinary expenses are those that are unforeseeable, non-recurring and necessary (e.g. medical treatment, dental care, eyeglasses), and cannot be included in the regular maintenance payment. It is advisable to regulate these expenses within the parenting plan. Otherwise, they must be claimed judicially. The Spanish Supreme Court (STS 579/2014) ruled that prior consultation is not necessary if the expense is urgent and essential.

NON-PAYMENT: CIVIL ENFORCEMENT AND CRIMINAL LIABILITY

 

If a court judgment or approved agreement sets a maintenance obligation and the debtor defaults, the entitled parent (normally the custodial parent or legal guardian) may initiate enforcement proceedings before the civil court. These proceedings allow recovery of unpaid amounts and may result in wage garnishment, seizure of bank accounts, or attachment of property (e.g. real estate, vehicles), as well as tax refund interception.

Additionally, under Article 227 of the Spanish Criminal Code, non-payment of maintenance may constitute a criminal offence when the parent deliberately fails to pay two consecutive or four non-consecutive monthly instalments established by a court decision or approved agreement. The offence requires not only omission but wilful default: the debtor must have had the financial capacity to pay and chosen not to do so. Good faith efforts to pay at least part of the amount may be considered in mitigation. If there is a real inability to pay, the parent must promptly notify the other party and apply for a judicial variation of the measures.

DISABILITY AND CONTINUING OBLIGATIONS

 

Where the child has a disability, the obligation to provide financial support may be indefinite. Unlike ordinary cases, the duty continues while the child remains dependent. This is due to the heightened need for protection and the reinforced legal obligation of the parents. In such cases, the extinction grounds listed in Article 152 CC (such as improved financial situation or misconduct of the child) do not apply. This view is confirmed by the Spanish Supreme Court in STS 382/2025, 30th of April, which highlights the special protection owed under Article 93 CC, based on the best interests of the child and the rights of persons with disabilities.

PROCEDURAL REFORM: MANDATORY ATTEMPT OF ADR

As of the entry into force of Organic Law 1/2025, 2th of January, initiating court proceedings to claim child maintenance—whether in divorce, separation, or enforcement—requires prior proof that an Alternative Dispute Resolution (ADR) method has been attempted. Valid ADR methods include mediation, negotiation through legal counsel, or a confidential binding offer.

There are exceptions: in cases of urgency, threat to fundamental rights, or involvement of minors at risk or persons with disabilities, the ADR requirement is waived.

CONCLUSION

In matters of child maintenance, the issue is not merely the amount payable, but how the obligation is understood, fulfilled, and enforced. The right to maintenance is non-waivable, non-transferable, and imprescriptible as long as the beneficiary remains in need. When disability or prolonged economic dependence is present, the duty may continue indefinitely. Before initiating proceedings, modifying the amount or ceasing payment, specialist legal advice is essential. Only through proper legal guidance can the best interests of the child be protected and future legal disputes avoided.

In KAPLAN Legal, our team is ready to help you with these matters, do not hesitate to contact us!