Article 227 Spanish Criminal Code: Non-Payment of Maintenance

Article 227 of the Spanish Criminal Code makes the failure to pay court-ordered maintenance a criminal offence once two consecutive or four non-consecutive monthly instalments have gone unpaid. It applies to any financial provision in favour of a spouse or children established in a judicially approved agreement or in a court decision on separation, divorce, nullity, filiation or maintenance. For separated foreign residents it is the provision most often encountered, and the third paragraph gives the defence its principal instrument: reparation of the harm always includes payment of the sums owed.

Wording of Article 227 of the Spanish Criminal Code

Elements of the offence

1. A financial provision established in a judicially approved agreement or in a court decision. A private arrangement between the parties, however clear, cannot support this offence.
2. Non-payment for two consecutive or four non-consecutive months. The count is of instalments, so partial payments must be examined instalment by instalment.
3. Capacity to pay. The offence requires an ability to meet the obligation, so genuine and involuntary insolvency excludes it. This is the element on which most cases are decided.
4. Intent, comprising knowledge of the obligation and of its terms, which for a foreign national requires that the decision was validly notified.

Defence strategy

Absence of capacity to pay. The offence is not committed by a person who cannot pay. The defence documents the whole economic position over the period of the default: loss of employment, records of the employment service, tax returns, banking movements, medical incapacity and any competing obligations. What the court examines is not whether the accused paid but whether he could, and a default coinciding with a documented loss of income is habitually resolved by acquittal or discontinuance.

Counting the instalments. The article requires two consecutive or four non-consecutive months. Irregular partial payments, payments made directly to third parties such as a school or a mortgage lender, and payments made in a currency or through a channel the complainant did not acknowledge frequently reduce the count below the threshold. The defence reconstructs the payment history from the banking records rather than from the complainant’s schedule.

Notification and modification of the order. The obligation must have been validly notified, and where the sum was varied on appeal or by a subsequent decision, the figure due is the varied one. Where an application to modify the order was pending during the default, and particularly where it was later granted with retroactive effect, the mental element is materially weakened. This situation is common where the paying party has moved abroad.

Payment of the arrears before the hearing. The third paragraph makes payment of the sums owed the measure of reparation. Payment before the hearing founds the mitigating circumstance of reparation, ordinarily secures the fine rather than a custodial penalty, and very often removes the complainant’s interest in the prosecution. Where full payment is impossible, a documented instalment agreement complied with from the outset carries substantial weight, and it is the route that also resolves the underlying family dispute.

• Article 226: abandonment of family
• Spanish Criminal Code by article
• Article 801 LECrim: guilty plea at the duty court
• 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.