The Spanish Constitutional Court in its Ruling 2/2024 15th January declared void of a decree of the Court of First Instance no. 3 of Getafe in a divorce case, as well as the ruling on appeal in the same case by the 24th Section of the Provincial Court of Madrid, for infraction of the fundamental right of the plaintiff to effective judicial protection without defencelessness.
Both judgments had set the amount of the father’s contribution to the maintenance of his underaged child at ‘10% of the parent’s monthly income’. However, only the wife’s income was accredited, and the amount of the father’s income remained ignored. Now the Constitutional Court remaks that, ‘it is not possible to know in any way how much is that 10% in real money’. Thus, it is also not possible to know whether this 10% will be sufficient to cover the needs of the child, or whether, on the contrary, it will be a disproportionate amount. Furthermore, the Constitutional Court observes that for the determination of the maintenance obligation, not only the income of the obligor is relevant, but also his or her assets, since in the event of non-compliance, enforcement could be carried out on his or her assets.
The lack of knowledge of the financial capacity of the respondent, due to his own conduct in evasion of his parental duties, should not have been an obstacle for the Court’s judgment, or on appeal by the Provincial Court, to set a liquid amount sufficient to meet the needs of the child. For this reason, the Constitutional Court declared the infringement of the applicant’s fundamental right to effective judicial protection without defencelessness, and declared void the contested decisions, ordering that the case be taken back to the time immediately prior to the issuing of the Court’s decision and that, in its place, another decision be handed down that does respect the fundamental right that has been infringed.
