Spouses are bound to fulfil various duties when they decide marry. In addition to the well-known duties of fidelity, respect and cohabitation, the spouses must also provide each other with assistance and co-operation.
The duty of assistance consists on the obligation of each spouse to contribute to the household expenses. Naturally, this duty stems from the varied needs of the different members of the household.
Contributions in cash and in kind
The law divides contributions into two types: contributions in cash and contributions in kind. When the spouse allocates their income, in part or in full, to meet the needs of the family, such as food, housing, etc., they are contributing in cash. Included in this contribution is the spousal support obligation, which as a rule is an integrated part of that contribution, only becoming autonomous in the event of a rupture in common life. Performing household chores and bringing up children, which is vital work for the family, is an example of contributions in kind.
It should be emphasised that the law does not provide exhaustive criteria for determining what is and what is not a family expense, bearing in mind the vast array of charges that spouses currently have to deal with, and this is even preferable, as this gives spouses the freedom to define and divide family expenses between themselves, especially as what constitutes household economic needs varies from couple to couple depending on their economic and social condition.
The proportion of the contribution
The contribution made by each spouse does not have to be strictly equal. Rather, each should contribute according to their aptitudes, abilities and differences between them, taking into account precisely what is unequal between them. The contribution made by each spouse does not have to be strictly equal. Rather, each should contribute according to their aptitudes, abilities and differences between them, taking into account precisely what is unequal between them. The most important thing is for there to be harmony between the spouses which, in the light of the principle of equality, manifests itself in proportional contributions according to each one’s possibilities. Thus, the spouses can complement each other and while one contributes with domestic labour, the other pays the family’s expenses and vice versa. Until relatively recently, this was the system in force in Western Europe. But with women entering the labour market in large numbers, the position of who made this or that household contribution was increasingly – and rightly so! – progressively diluted so that husband and wife were able to both have a fruitful professional career and contribute to domestic labour.
The only type of expenses that are strictly foreign to the conjugal duty to contribute are those that conflict with the very idea of living together, in other words, those that violate other conjugal duties. We are referring to situations such as when one spouse buys an expensive object to decorate the home, knowing full well that such an object is deeply offensive to the other’s aesthetic sensibilities, or, in a more extreme case, the cost of accommodation in a hotel by a spouse for the purposes of committing adultery.
So what do you do if one of the spouses systematically violates their duty to contribute to payment of household expenses?
As you might expect, if there is a refusal to share family expenses, the most common consequence will be the separation and divorce of the couple. But this is not always the case. In a less common case, sometimes the damaged spouse wants to remain married. In these situations, the law provides for a special process whose purpose is precisely to determine whether one of the spouses is not fulfilling, but can and should fulfill, their contribution to the family’s expenses. This also deconstructs a myth related to family law, which is that the courts don’t intervene in marital relations unless there is a breakdown in common life. Therefore, if the court finds that one of the spouses is not paying the due contribution, it will set a monthly amount, deemed reasonable and adequate, to be paid by one of the spouses to the other.
Generally speaking, setting this payable amount for the other spouse involves an operation in which all the costs of family life are identified and assessed, and each spouse’s ability to contribute to these costs is evaluated. The law has divided the form of contribution to these costs into two categories. On one hand, we have the allocation of resources, the cash contributions seen above, which are, of course, the most easily quantifiable in monetary terms, given that they are earnings from work, dividends, pensions, rents, etc. On the other hand, we have the work spent on maintaining the home and bringing up the children, the so-called contributions in kind (also mentioned at the beginning of the text), which logically are very complicated to assess, but are imperative because the law aims to recognise the economic value of domestic work and bringing up children.
The court can then order that this monthly amount be deducted every month from the salary of the offending spouse by their employer, who will then send this amount to the other spouse. This is a clear demonstration of the possibility of specific enforcement of the conjugal duty of care, which can be fulfilled by making fungible instalments.
There are also cases in which one of the spouses contributes more than is required, or expected, to the costs of family life. In these situations, if the couple divorces, that spouse can obtain compensation for the excessive sacrifice made exclusively or predominantly in order to contribute to family expenses instead of pursuing a profession and advancing their career. The path to a clear and precise value in these cases is still quite winding, because it requires an “excessive sacrifice”, but does not offer concrete guidelines for determining what an “excessive sacrifice” actually consists of.
Finally, it is important to note that the legislator wanted to leave to the parties, the spouses, the freedom of will to agree and fix between themselves how this duty will be fulfilled, a solution that reveals the very spirit that governs marriage. The law does not create hierarchies of charges, does not set minimum or maximum amounts allocated to certain charges, nor does it impose any special form of contribution on the spouses. The contribution to the costs of family life is therefore an area in which a greater margin of autonomy of the will of the parties is privileged in the agreements on the orientation of the couple’s common life.