Article 268 Spanish Criminal Code: Family Exemption for Property Offences

Article 268 of the Spanish Criminal Code exempts from criminal liability, leaving only civil liability, spouses who are not legally or de facto separated or in proceedings for separation, divorce or nullity, and ascendants, descendants and siblings by nature or adoption, as well as relatives by affinity in the first degree living together, in respect of property offences committed between them. The exemption falls away where there is violence or intimidation, or abuse of the victim’s vulnerability by reason of age or disability, and it never covers outsiders who take part.

Wording of Article 268 of the Spanish Criminal Code

Elements of the offence

1. One of the family relationships listed, and for relatives by affinity in the first degree, cohabitation.
2. For spouses, the absence of legal or de facto separation and of pending proceedings for separation, divorce or nullity, assessed at the time of the acts.
3. A property offence committed between them: theft, misappropriation, fraud, unfair administration, damage and the remaining offences of the title.
4. The absence of violence or intimidation and of abuse of the victim’s vulnerability by reason of age or disability.

Defence strategy

Invoking the exemption at the earliest stage. The exemption is a ground of exclusion of liability, not a mitigating circumstance, and it should be raised at the first appearance with the documentary proof of the relationship. In family disputes over an inheritance, a joint account or a business, prosecutions are opened without anyone examining article 268, and the discontinuance follows automatically once the relationship and the absence of violence are established.

The marital situation at the material time. For spouses the exemption depends on the situation when the acts occurred, not when the complaint was filed. Where the parties were still living together and no proceedings had been commenced, the exemption applies even if they separated afterwards. The defence establishes the chronology with the registry entries, the padrón and the date of any petition.

Absence of violence or of abuse of vulnerability. The exemption falls where violence or intimidation was used, or where the vulnerability of an elderly relative or of a person with a disability was exploited. This is the ground on which prosecutors resist it in cases involving elderly parents. The defence addresses the actual capacity of the person concerned at the time, with clinical evidence where necessary, since age alone is not vulnerability.

Outsiders and the civil claim. Paragraph 2 excludes outsiders, so a partner, an employee or a third party who took part answers in full. Conversely, the exemption does not extinguish the civil claim: the relative remains liable to restore the property or its value, and that claim is pursued in the civil courts, where the evidence gathered in the criminal file remains usable.

• Article 253: misappropriation
• Article 234: theft
• Article 252: unfair administration
• 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.