Criminal Lawyers in Non-Payment of Support

The offence of family abandonment for non-payment of financial benefits typified in Art. 227 CP sanctions the wilful and repeated non-compliance with maintenance or compensatory obligations established in judgment or regulatory agreement in separation, divorce, marriage annulment, filiation, or maintenance proceedings. The protected legal interest is double: on one hand, family solidarity and the satisfaction of vital needs of the most vulnerable members (the children and the spouse or ex-spouse); on the other, the authority of civil judicial decisions that have specified those obligations. Supreme Court case-law has clarified that the offence demands intent —knowledge of the obligation's existence and payment capacity— and does not arise when real and proven economic impossibility concurs.

The typical modalities are concretised in defined periods. The offence requires non-payment for 2 consecutive or 4 non-consecutive months, whether of maintenance (Arts. 142 et seq. CC, in favour of the children, minor or adult with a right to maintenance, or of the spouse), compensatory pension (Art. 97 CC), or any other financial benefit set in a court-approved agreement or court decision (education, health or housing expenses and, depending on how it was framed, the family home mortgage instalment). Systematic partial non-payment may also integrate the offence when full payment capacity is proven and lower amounts are wilfully chosen. Conversely, case-law has consolidated that non-payment due to supervening economic impossibility (unemployment, layoff, serious illness, retirement with reduced pension) excludes intent when documentarily proven and civil measures modification has been requested.

The penalties are significant: 3 months to 1 year prison or 6 to 24 months' fine. In forensic practice, courts usually opt for fine in first-conviction cases with partial damage repair; prison, when imposed, is usually suspended conditional on full payment of owed amounts within a specific period (Arts. 80 et seq. CP). Civil liability ex delicto comprises the totality of unpaid amounts with legal interest, translating into a double procedural demand: payment of the criminal sentence (fine or prison) and restitution of accumulated pensions. Collateral consequences include criminal record, possible suspension or modification of visitation regime (when non-payment connects with obstructive conduct), and parallel civil seizure of payroll, bank accounts or real estate. Conviction prevents access to certain public employment positions and certain benefits or licences.

The technical defence in non-payment of support articulates four axes consolidated by case-law. First, real and supervening economic impossibility: the Supreme Court has consolidated that lack of economic capacity makes intent impossible and therefore excludes typicity; its proof requires submitting work history, bank statements, unemployment benefit certificates, medical reports in case of disability, debts and maintenance obligations to other relatives. Second, the request for modification of civil measures under Art. 775 LEC: when the obliged party has timely requested pension reduction due to substantial change of circumstances and civil proceedings are pending, the conduct may be considered atypical or, at least, mitigated. Third, good faith in systematic partial payment: if it is proven that the maximum possible was paid given economic circumstances, without hiding income or patrimony, intent fails. Fourth, the damage-repair mitigator of Art. 21.5 CP: full payment before trial substantially reduces the penalty (often to the minimum limit) and favours suspension of execution.

In current forensic practice, non-payment of support proceedings have experienced sustained growth, linked to several macroeconomic factors (job precariousness, successive economic crises, inflation) and procedural ones (criminal instrumentalisation of civil non-compliance by the custodial party). Coordination between the civil family route and the criminal route is therefore decisive. The assessment of intent weighs the diligent conduct of the obliged party: immediate communication to the civil court of the change of circumstances, payment of partial amounts as far as possible, avoidance of patrimonial concealment. At Alonso Sala, with 15+ years' experience, we approach each case with a double strategy: technical criminal defence of the investigated (proving impossibility or good faith) and, in parallel, expediting the civil procedure of measures modification to regularise the situation with restitutive and, where appropriate, exonerating effects.

Difference with the Civil Enforcement Route

It is worth distinguishing the criminal route of Art. 227 CP from the civil enforcement route of the family judgment. Civil enforcement (Arts. 517 et seq. LEC) allows claiming unpaid amounts through seizure of payroll, accounts or assets, without needing to prove intent or exceed any temporal threshold: non-payment of a single month suffices. The criminal route, by contrast, requires qualified non-payment of 2 consecutive or 4 alternating months and, above all, intent: payment capacity coupled with voluntary refusal. Both routes may run in parallel, but their nature and requirements differ; therefore, a sound defence works simultaneously on criminal atypicality and civil regularisation of the debt.

Proper Family Abandonment (Art. 226 CP)

Non-payment of benefits under Art. 227 CP must be distinguished from proper family abandonment under Art. 226 CP, which sanctions the breach of the legal duties of assistance inherent to parental authority, guardianship, custody or fostering, or the failure to provide the necessary assistance for the sustenance of needy descendants, ascendants or spouse. Its penalty is 3 to 6 months' prison or 6 to 12 months' fine, and the judge may also, giving reasons, impose special disqualification from parental authority, guardianship, custody or fostering for 4 to 10 years (Art. 226.2 CP). While Art. 227 protects compliance with judicially set financial obligations, Art. 226 protects the generic duty of assistance, which requires careful classification of the facts to avoid a disproportionate charge.

Complaint Requirement and Limitation (Art. 228 CP)

The offence of non-payment of support is semi-public: Art. 228 CP requires a complaint from the aggrieved party or their legal representative to prosecute it; when the victim is a minor, a person with a disability in need of special protection or a helpless person, the Public Prosecutor may also file a complaint. This nature has practical consequences: the victim's pardon does not extinguish criminal liability once the process has begun, but the complaining party's attitude decisively influences plea-agreement negotiations. As to limitation, being a less serious offence, the period is 5 years from consummation, renewed with each new period of non-payment in cases of continued breach; where the victim is a minor child, it runs from the date they come of age (Art. 132.1 CP).