Criminal defence throughout Spain · offices in Madrid and Alicante
The starting point is a document both parties have kept for years: a divorce judgment, provisional measures, a judicially approved agreement or a maintenance order. The offence requires two consecutive or four non-consecutive unpaid monthly instalments.
In brief. Nothing about the pension itself is retried in the criminal court: the family decision is the title and it is applied, not reviewed. Paying is not surrendering, it is part of the defence: Article 227.3 makes reparation always include payment of the amounts owed, which supports the mitigating circumstance, a fine instead of prison and the suspension requirement of Article 80.2.
In almost every criminal matter the proceedings start from a new fact. In unpaid support, no: the starting point is a document that has sat in both parties’ drawers for years: a divorce judgment, an order of provisional measures, a judicially approved regulatory agreement or a maintenance judgment in filiation proceedings. Prosecution requires the complaint of the aggrieved person or their legal representative (Article 228), in practice the other parent acting for the minor children. The core of the criminal file is a certified extract from the family proceedings: the decision fixing the pension, its notification and the certificate of finality.
And one more uncomfortable truth: many people accused of this offence believe they are relitigating the pension: that the amount was disproportionate, that the other parent breaches the contact arrangements, that the children spend more days with them than the judgment says. None of that is tried in the criminal section. The family decision is the title and it is applied, not reviewed; changing the amount has its own route, the modification of measures, and until it succeeds the sums keep accruing.
| Question | Rule | Framework | Key point |
|---|---|---|---|
| Threshold | 227.1 | 2 consecutive or 4 loose instalments | Below it, the matter is civil enforcement |
| Penalty | 227.1 | 3 months – 1 year or fine 6 – 24 months | Frequently resolved with a fine |
| Other benefits | 227.2 | Same framework | Extraordinary expenses and lump sums |
| Reparation | 227.3 | Always includes paying the amounts owed | Supports mitigation, fine and suspension |
| Complaint required | 228 | Aggrieved person or representative | The prosecutor cannot substitute the beneficiary |
| Judicial title | 227.1 | Approved agreement or judicial decision | A private pact is not a valid title for this offence |
| Suspension | 80.2 CP | Civil liability satisfied | The requirement that usually fails while the debt stands |
| Limitation | 131.1 | Five years | The computation start is disputed with continuing non-payment |
Penalty ranges are indicative and set out the ordinary framework; the sentence actually imposed depends on the circumstances of each case.
The criminal section applies the family title; it does not review it. The defences that work are those aimed at the elements of the offence: the threshold of instalments, the existence of a valid judicial title, the entity of partial payments and, above all, genuine impossibility to pay, which excludes intent. The key word is proof: employment records, benefit certificates, complete bank statements and medical reports where relevant; statements showing significant discretionary spending dismantle that defence. The breach of contact arrangements never justifies suspending payment: they are independent obligations, and the courts’ answer on this point is constant.
Payment is the most effective lever on both sides. For the accused, paying or consigning before trial supports the Article 21.5 mitigating circumstance, a realistic negotiated judgment with a fine instead of prison, and the satisfied-liability requirement of Article 80.2 for suspension. For the complainant, the criminal route adds pressure the civil enforcement lacks, and the amounts are recovered within the criminal proceedings themselves.
Parents who stopped paying through real insolvency: proof of impossibility and coordination with the modification of measures.
Parents and ex-spouses facing accumulated non-payment: complaint, recovery within the criminal case and coordination with enforcement.
Obligors or beneficiaries outside Spain: representation, appearance and prevention of arrest orders.
Children over eighteen still dependent: their own complaint and the survival of the pension.
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