The expression "work for the house" in article 1438 of the Civil Code

Supreme Court rules that precarious work in family businesses gives rise to financial compensation in case of divorce

The First Chamber interprets the expression "work for the house" in Article 1438 of the Civil Code.

The Plenary of the First Chamber of the Supreme Court, in a decision of which the judge Francisco Javier Arroyo Fiestas was the rapporteur, has rejected the appeal in cassation against a decision of the Provincial Court of Albacete which, in the process of divorce of a married couple subject to the regime of separation of goods, recognised in favour of the wife a compensation of 27,000 euros as compensation for her "work for the house".

The husband appealed, claiming that the Chamber's jurisprudence had been infringed by granting the compensation provided for in article 1438 of the Civil Code when the wife had not "only" contributed to the work for the house but had also worked outside the house, which would be incompatible with the right to financial compensation.

The First Chamber has upheld repeated case law which has required, for the recognition of such financial compensation, that the spouse's dedication to domestic work be "exclusive", that is, only with the work done for the home, which prevented recognition of the aforementioned right in cases where the spouse claiming it had made the care of the home and family compatible with the performance of work outside the home, whether part-time or full-time. This doctrine has recently been clarified in STS nº 136/2017, of 28 February, in which the denial of this economic compensation was based on the fact that the work carried out was "employed".

The Plenary's ruling considers that the compensation rule in Article 1438 of the Civil Code, aimed at mitigating the lack of consideration given to the spouse who works exclusively for the household in the regime of separation of property, could originally respond to the budget of someone who had only devoted himself or herself to the household and had not carried out any paid activity.

The Chamber considers, however, that in today's social reality it seems appropriate to address the frequent situation of those who have worked most intensely for the household but, at the same time, have combined their activity by collaborating with the professional or business activity of the other spouse, even when remuneration is involved, especially if this collaboration is compatible and organized in response to domestic and family needs and organization.

In the case under consideration, the wife worked at home and, in addition, in the family business run by her husband and owned by her mother-in-law at a moderate salary and hired as a self-employed person, which deprived her of severance pay.

For all these reasons, the Chamber declares that collaboration in professional activities or family businesses, under precarious working conditions, as is the case, can be considered as work for the house for the purposes of recognition of the economic compensation of article 1438 CC, through an interpretation of the expression "work for the house" contained in the precept, given that such work is mainly intended to support the burdens of marriage in a similar way to work in the home.

SOURCE: General Council of the Judiciary
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