The crime of “stalking” or harassment
June 3, 2024
(Updated) On the Legitimate Defense in Spain, we analyze the Pepe Lomas case ruling.
July 2, 2024
"Whoever fails to pay for two consecutive months or four non-consecutive months any type of economic benefit in favor of his spouse or children, established in a judicially approved agreement or judicial resolution in cases of legal separation, divorce, declaration of nullity of marriage, filiation proceedings or child support proceedings in favor of his children, shall be punished with a prison sentence of three months to one year or a fine of six to 24 months."
This is a "crime of omission" that condemns the person judicially obliged to pay, so it is an indispensable requirement that there is a previous judicial resolution (sentence or order establishing provisional measures) that declares such obligation, and it is also necessary that this resolution has been notified to the person who has to make the payments (since the obligation arises from this notification).
But not just any non-payment can lead to conviction, it is also necessary that the non-payment occurs during two consecutive months or four non-consecutive months, which means that the non-payment of three non-consecutive monthly payments would lead to acquittal for the offense (although the amounts owed could be claimed through civil proceedings).
The case is initiated upon complaint by the beneficiary of the benefit (spouse or former spouse and children of legal age) or by their legal representative in the case of minors or incapable persons.
BUT WHAT IF I CAN'T PAY?
This crime can only be committed when the person obliged to pay fails to pay the benefits consciously and voluntarily (this is known as a fraudulent crime), so if the non-payment is because we are unable to do so (because we do not have enough money) we would not be facing this crime, although in this case the proof of insolvency would fall on us, so if we do not prove the impossibility of payment, we would be convicted.
In this case, and if the insolvency is of a lasting nature (because we have been dismissed from work...) it would be advisable to request a modification of the measures in the Family Court in order to avoid new complaints.
WHAT IF I MAKE PARTIAL PAYMENTS?
In cases in which part of the corresponding amount is paid, the Courts usually consider that there is a crime only when the partial payment may affect the beneficiary's basic needs, acquitting in cases in which the beneficiary's living conditions have not been modified or have not worsened.
As has already been mentioned, and if the total amount is not paid due to lack of sufficient money, it would be advisable to modify the measures judicially, reducing the amount to be paid.
MY CHILDREN ARE OF LEGAL AGE, UNTIL WHEN DO I HAVE TO PAY?
Article 93 of the Civil Code states that "If children of legal age or emancipated children who lack their own income live in the family home, the Judge, in the same decision, will establish the maintenance that is due in accordance with articles 142 and following of this Code", for this reason the non-payment of pensions to these children would constitute the crime we are referring to, which in this case could be denounced and claimed by the children themselves.
In this case it is important to bear in mind that children of legal age are entitled to alimony as long as they have no income of their own, this right being extinguished as soon as they have access to a trade and also in the case in which they do not want to study or work, without having physical or mental impediment to do so, but not when they are adequately trained and cannot access a stable job due to circumstances of the labor market.
