Family Exemption from Criminal Liability (Art. 268 CP): When It Applies
In this article
Key Takeaways
- Exemption from punishment, not from civil liability
- Spouses who are not separated and close relatives
- No violence, intimidation or abuse of vulnerability
- Outside participants remain liable (Art. 268.2 CP)
Art. 268 CP is the family exemption from criminal liability (excusa absolutoria): spouses not separated and not in divorce proceedings, plus ascendants, descendants and siblings (in-laws if cohabiting), face no criminal penalty, only civil liability, for property offences against each other. It requires no violence, intimidation or abuse of the victim's vulnerability due to age or disability. The relative must still pay restitution; outside participants stay liable.
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A son withdraws €6,000 from his father's account using the card his father left him for shopping. A sister sells, without permission, the car they inherited jointly. A son-in-law who lives with his in-laws "borrows" money from them that he never repays. These are real conflicts that reach the courts every week — and many end the same way: with no punishment. The reason is Article 268 of the Criminal Code, the so-called family exemption from criminal liability, one of the least known — and most decisive — features of property offences.
What Art. 268 CP says and why it exists
The provision declares certain relatives exempt from criminal liability and subject only to civil liability for property offences committed against each other, provided there is no violence or intimidation, nor abuse of the victim's vulnerability. This does not mean the conduct stops being an offence: theft or fraud between siblings remains an unlawful, culpable act that meets all the elements of the offence. What the legislator does is waive the punishment for reasons of criminal policy: to stop the criminal courts from becoming the arbiter of economic conflicts within the family, which is considered better resolved through civil proceedings.
"Spouses who are not legally or de facto separated, or engaged in judicial proceedings for separation, divorce or annulment of their marriage, and ascendants, descendants and siblings by blood or adoption, as well as in-laws in the first degree if they live together, are exempt from criminal liability and subject only to civil liability, for property offences committed against each other, provided there is no violence or intimidation, or abuse of the victim's vulnerability, whether due to age or because they are a person with a disability." (Art. 268.1 CP)
Who is covered (and who is not)
- Spouses, only while the marriage is "active": the exemption lapses on legal or de facto separation or with ongoing proceedings for separation, divorce or annulment. Taking property during the breakup is, precisely, the scenario that most often reaches trial.
- Ascendants, descendants and siblings, by blood or adoption, with no cohabitation requirement.
- In-laws in the first degree (parents-in-law, sons-in-law, daughters-in-law), only if they live together.
- De facto partners: the letter of the law does not mention them, but case law has treated stable partnerships comparable to marriage in the same way; this extension must be argued and proven (registration at the same address, children in common, shared life).
- Outside participants: Art. 268.2 CP expressly excludes from the exemption anyone outside the family relationship who takes part in the act: a friend who helps the son empty his father's account remains criminally liable even though the son is exempt.
Which offences are covered: property offences without violence
The exemption covers "pure" property offences committed between those relatives: theft under Art. 234 CP, fraud under Art. 248 CP, misappropriation under Art. 253 CP, criminal damage under Art. 263 CP or unfair administration. Excluded from it:
- Robbery with violence or intimidation and, generally, any act committed by those means: the provision itself excludes it.
- Offences that protect something beyond property: if the conduct also attacks other legal interests (liberty, privacy, public trust), the exemption does not reach that part. The classic example: forging a document to carry out the family fraud is punished even though the fraud itself is exempt.
- Abuse of the victim's vulnerability, due to age or disability: this is the limit the legislator added with property offences against elderly relatives in mind. If the father has cognitive impairment and the son takes advantage of it, no exemption applies.
Practical effects: no punishment, but still a debt
- Criminal: if the requirements are met, the case should be dismissed during the investigation or lead to an acquittal at trial. The burden of proving the family relationship (and, where relevant, cohabitation or a stable partnership) rests with whoever invokes the exemption.
- Civil: the victim retains the full action to obtain restitution and compensation: it can be exercised within the criminal proceedings before they are closed, or in a separate civil claim afterwards.
- Third parties: participants who are not relatives remain in the proceedings as normal.
- Procedural timing: it is usually raised as early as possible; if the de facto separation or cohabitation is disputed, the court may leave the decision for the trial.
⚖️ For the defence and for the victim
If you are under investigation for a property matter involving a relative covered by Art. 268 CP, the exemption can close the criminal case during the investigation stage: the family relationship and the absence of violence or abuse of vulnerability need to be documented. If you are the victim, be aware that the criminal route may not succeed against your relative, but the civil claim — and the criminal case against outside participants — remains open; and if there was abuse of your age or disability, the exemption does not apply.
You can read the full text in the entry for Article 268 of the Criminal Code, and read on with our guides on the difference between theft and robbery and the guide for fraud victims. When the property conflict plays out within a family business, the exemption interacts with corporate offences and its scope changes: we analyse that in the article on crimes in the family business.
Has a property dispute within your family ended in a criminal report?
Whether to invoke the family exemption or to argue it does not apply, the factual detail — cohabitation, de facto separation, vulnerability — decides the case. We review your situation with discretion.
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Official text: article 268 of the Spanish Criminal Code (BOE)
Frequently asked questions
What is the family exemption under Art. 268 CP?
An exemption from punishment for reasons of criminal policy: the legislator declines to punish non-violent property offences committed between spouses who are not separated and close relatives, so as not to bring the family's economic conflict into the criminal courts. The conduct remains a criminal offence and gives rise to civil liability; what disappears is the punishment.
Which family members does Art. 268 CP cover?
Spouses who are not legally or de facto separated, nor engaged in judicial proceedings for separation, divorce or annulment; ascendants, descendants and siblings by blood or adoption; and in-laws in the first degree (parents-in-law, sons-in-law and daughters-in-law) only if they live together. Case law has extended it to stable de facto partnerships comparable to marriage, an interpretation that must be argued and proven.
What offences does the family exemption cover?
Property offences committed between the relatives covered by Art. 268 CP, provided there is no violence or intimidation: typically theft (Art. 234), fraud (Art. 248), misappropriation (Art. 253), criminal damage (Art. 263) or unfair administration. Robbery with violence or intimidation is excluded, as is any offence that protects something beyond property.
Does a child who takes money from their parent commit an offence?
Yes, the offence is still committed. But if there is no violence, intimidation or abuse of the parent's vulnerability (due to age or disability), Art. 268 CP prevents a sentence being imposed — the exemption does not depend on cohabitation for descendants, who are covered in any event. The parent retains the civil action to recover what was taken.
When does the family exemption NOT apply?
When there is violence or intimidation; when the victim's vulnerability is abused because of age or disability — a limit aimed at property offences against elderly relatives; when the spouses are de facto separated or in proceedings for separation, divorce or annulment; for in-laws in the first degree who do not live together; and for participants outside the family relationship (Art. 268.2 CP), who remain criminally liable even if the relative is exempt.
Is the family exemption assessed during the investigation or at trial?
It can be assessed as soon as its requirements are established: it is common to request dismissal during the investigation once the family relationship and the absence of violence or abuse of vulnerability are shown, although courts sometimes defer the question to trial if the relationship or the de facto separation is disputed.
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This page is for information purposes only and does not constitute legal advice: every case requires individual assessment. How this content is produced and verified: editorial policy.