Article 226 Spanish Criminal Code: Abandonment of Family

Article 226 of the Spanish Criminal Code punishes the failure to perform the legal duties of assistance inherent in parental authority, guardianship, custody or family fostering, and the failure to provide the legally established support for descendants, ascendants or a spouse who are in need. Unlike article 227, it does not require a court order fixing a sum: the duty arises from the law itself. The penalty includes a possible disqualification from parental authority of four to ten years, which is the consequence that matters most in practice.

Wording of Article 226 of the Spanish Criminal Code

Elements of the offence

1. A legal duty of assistance arising from parental authority, guardianship, custody or fostering, or from the obligation of support between relatives and spouses.
2. A state of need in the person entitled. Where that person has sufficient means of his own, the duty of support is not engaged.
3. Failure to perform the duty, understood as a persistent omission and not an isolated lapse.
4. Capacity to perform. As with non-payment of maintenance, involuntary inability excludes the offence.

Defence strategy

Absence of a state of need. The offence protects a person who is in need. Where the descendant is of age and working, where the ascendant has a pension or assets, or where the spouse has independent income, the element is absent whatever the moral assessment of the conduct. The defence establishes the economic position of the complainant, which the file frequently omits altogether.

Assistance rendered in another form. The duty of assistance is not confined to money. Direct payment of accommodation, school fees, health insurance or utilities, the provision of housing, and periods of actual care all discharge it. Where such assistance was given, the defence documents it, because complaints under this article are commonly framed in terms of the absence of cash transfers alone.

Involuntary inability. Unemployment, incapacity, imprisonment and documented insolvency exclude the offence, since a duty cannot be breached by a person who cannot perform it. The evidence is the same as in maintenance cases: employment records, medical reports and banking movements over the relevant period.

Resisting the disqualification. The disqualification from parental authority requires a reasoned decision and it is not a routine consequence. The defence addresses it separately from the finding of guilt, with evidence of the actual relationship with the children, of contact maintained and of the child’s own position where the child is of sufficient age, since a disqualification of up to ten years affects schooling, travel and consent to medical treatment.

• Article 227: non-payment of maintenance
• Spanish Criminal Code by article
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• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.