Actions for non-compliance with judgement
Concept of non-compliance with judgement
When there is non-compliance with any of the pronouncements contained in the judgement that establishes the separation or divorce of the spouses, or the establishment of parental-filial measures, the affected party can request an enforcement of the judgement in order to normalise the situation.
It is common that there are non-payments of pensions, non-payment of extraordinary expenses, non-compliance with visiting arrangements... so it will be necessary to go as soon as possible to a professional who will indicate the best way to claim our rights.
Our Family Lawyers in Madrid, specialists with extensive experience in Breach of Judgment or Regulatory Agreement, will be able to offer you our professional services in all matters related to the Breach of Judgment or Regulatory Agreement.
What is the Regulatory Agreement?
The settlement agreement is the document in which two people who were previously married agree on the property and personal consequences of their divorce or separation. The conditions set out therein may be agreed by mutual agreement or imposed by a judge. In either case, it must always be ratified by a court judgment. But what happens when one of the spouses does not comply with them? Here we are going to explain it to you.
Content of the separation or divorce agreement
In order to understand how one of the former spouses can fail to comply with the provisions of their divorce or separation agreement, it is first necessary to know what this document regulates. Specifically, this is stipulated in Article 90 of the Civil Code, which stipulates the minimum content it must have. It reads as follows:
- The common property. It is obligatory that the matrimonial property regime is settled and, therefore, that an agreement is reached on the distribution of burdens. This refers to the family trousseau and the use of the home, which must be attributed in the event that it is not sold.
- The children. The agreement must also moderate the regimes of custody, visits, parental authority and communications in the event that the couple have minor children. In the event that the grandparents are still alive, the document must reflect their right to see their grandchildren.
- Other economic effects. In particular, we are talking about maintenance and alimony, if any.
That said, it is clear that the main significance of the agreement is the financial aspect. Therefore, although the drafting of the agreement does not require the work of a lawyer or a person with extensive knowledge of family law, it is highly advisable to use the services of a divorce lawyer.
Approval of the settlement agreement
The separation or divorce agreement is a binding document. That is to say, both spouses have the absolute obligation to comply with what is agreed in it. This is the reason why, in exceptional cases, the figures in charge of its approval may refuse to approve it.
The Civil Code gives priority to the agreement between the parties. In fact, in recent years, the figure of express divorce has emerged with the aim of speeding up the process. In this case, a judicial sentence issued by a judge is not required, but a notary is the one who certifies the separation or divorce.
The problem is that sometimes the agreement reached by the parties is too unfavourable to one of them, which can lead to a breach of the agreement if the creditor's financial circumstances worsen. In such cases, the judge or notary acts to protect the weaker party by refusing the agreement in order to prevent default.
In the event that the agreement is refused, it will always have to be a judge who, by means of a judgement, determines the consequences of the separation or divorce.
What are the consequences of non-compliance with the judgment of the settlement agreement?
As we said, the regulatory agreement is binding for both parties. Therefore, once it has been approved and ratified by a judge or notary, there is no going back. Failure to abide by its provisions can have serious consequences.
But how can you fail to comply with the terms of a divorce or separation agreement? Quite simply. Here are some examples:
- Breaches in the payment of alimony or maintenance.
- Breaches in the visiting arrangements for minors.
- Breaches of what has been agreed regarding the use and enjoyment of the family home.
Etc.
This has consequences for the party that does not comply with the agreement. It all depends on whether the non-compliance occurs on a one-off basis or whether it becomes a repeated and persistent practice. In any case, the affected party must always report the incident to the police.
These are the most common consequences of non-compliance with the judgement of the divorce or separation agreement:
- Fines. These are intended to force the parent to comply with the agreement. For example, in case of non-compliance with the visiting arrangements, the parent can be fined from 10 days to 2 months and up to 30 days of community service.
- Payment demands and garnishments. In the event of non-payment of maintenance or alimony. Firstly, it will give the debtor 10 days to prove that the debt has been paid. If he fails to do so, he can seize his assets, including the money available in his current account or his paycheck.
- Crime of disobedience. This is one of the most serious offences, as it can lead to the filing of a lawsuit. All of the above is governed by the Civil Code, but in this case the Criminal Code would come into play.
- Modification of the regulatory agreement. In the event of repeated and flagrant non-compliance by one of the parties, the judge may deem it appropriate to modify the terms of the agreement in favour of the other party. This may include, for example, relevant changes in the parental authority of the children and in their guardianship or custody.
In short, the advice of a lawyer specialising in family law is essential during the negotiation and signing of the separation or divorce agreement. The main reason for this is to defend the rights of the ex-spouses and to reach a fair agreement, which always results in fewer possibilities of non-compliance.
Proceedings for non-compliance with judgement
The procedure to be followed will be that of the compulsory enforcement of a judicial decision, which must be initiated within five years of the occurrence of the aforementioned non-compliance.
It should also be borne in mind that for a judgment to be enforceable, it is necessary for twenty days to elapse from the date of notification of the judgment without it having been appealed.
At G. Elías y Muñoz Abogados, we have specialists dedicated exclusively to the practice of Family Law who will provide you with comprehensive advice on everything related to this matter, informing you of all the rights and obligations that correspond to you and advising you on the most appropriate way to proceed in each case.
You can make an appointment at any of our offices in Madrid, Majadahonda or Pozuelo de Alarcón or if you prefer, you can speak to one of our lawyers specialising in Family Law by calling 91.571.17.87 from 9am to 2pm and from 4pm to 8pm, who will advise you on the steps to follow in your specific case.
If you wish, in addition to being attended in our Law Firm in Madrid, we offer you the possibility of our Lawyers attending you in our offices in Pozuelo de Alarcón and Majadahonda.
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