Family Abandonment in Spain: Criminal Consequences of Non-Payment of Maintenance

Article 227 of the Criminal Code punishes the failure to pay, for two consecutive months or four non-consecutive months, any financial allowance set by a court in favour of the spouse or children (maintenance or compensatory allowance).

The Defence: Inability to Pay

The offence requires willfulness (intent). If the non-payment is due to genuine insolvency or an objective inability to pay (prolonged unemployment, lack of income, business collapse), there is no criminal offence but a civil debt. Documenting the defendant's precarious economic situation is the key to obtaining a full acquittal.

What the Offence Actually Requires

For non-payment of maintenance to be a criminal offence, simply stopping the payments is not enough. Article 227 of the Criminal Code requires several elements to concur. First, a court decision setting the financial allowance: a separation, divorce or annulment judgment, or a settlement agreement approved by the court. A private arrangement between the parents that was never judicially approved falls outside the criminal sphere, however badly it is breached.

Second, the non-payment must reach the periods set by the provision itself: two consecutive months or four non-consecutive months. Isolated missed payments or occasional delays that do not reach those thresholds do not amount to the offence. And third — the most disputed element in practice — the debtor must have stopped paying while being able to pay. The offence punishes those who will not pay, not those who cannot.

How the Proceedings Unfold

These proceedings usually start with a report filed by the person receiving the maintenance, on their own behalf or on behalf of the children. Once admitted, the investigating court summons the defendant to testify as a suspect and requests documentation evidencing both the missed payments and the financial situation of both parties.

The investigation phase is decisive. It is the moment to submit exculpatory evidence: employment history records, unemployment certificates, tax returns, and proof of other family burdens and debts. If that documentation shows the non-payment was not a voluntary decision but the consequence of a genuine inability, the dismissal of the case can be requested without going to trial. If the proceedings continue, that same evidence will support the request for acquittal at trial.

Common Lines of Defence

• Supervening insolvency: proving that, after the maintenance was set, the debtor's financial situation changed substantially (prolonged unemployment, business closure, illness), so that payment became objectively impossible.
• Partial payments: paying what the circumstances allow, even if not the full amount, is a clear indication that there is no will to default, and it weakens the claim that there was intent.
• Modification of measures: a debtor who cannot afford the maintenance set should apply in the civil courts for a modification of measures. Having started that procedure, or having attempted it, considerably strengthens the argument that the non-payment was not capricious.
• Defects in the underlying decision: checking that the allowance claimed is actually set in a court decision in force and that the amounts reported match what was agreed.

The Unpaid Amounts Remain a Civil Debt

One idea the provision itself makes clear is worth stressing: even where there is no offence, the amounts owed do not disappear. A criminal acquittal does not extinguish the debt, which can still be claimed through civil enforcement. And conversely, criminal proceedings should not be used as a mere debt-collection tool, because their purpose is not to collect but to punish the voluntary default of someone who can pay and chooses not to.

That is why, when facing a family abandonment complaint, the strategy involves documenting the defendant's financial history month by month throughout the non-payment period. That well-evidenced chronology is the difference between a conviction and an acquittal.