Attachment of a spouse’s salary for debts incurred by the other spouse
Spouse’s individual occupational earnings
RULING Nº 617/2007
19 of December of 2007
The prohibition of discrimination based on sex - in connection with the effects of marriage - comprises the inherent positive requirement that the spouse/husband and the spouse/wife must have the same dignity in law.
The fact is that recognising the same dignity for both spouses means also acknowledging that neither (as husband or wife) needs special systematic protection vis-à-vis the other, in the personal or property spheres.
In order to implement the constitutional principle of equality between spouses, the 1977 reform of the Civil Code adopted the principle of joint management of marital property. However, it excluded some types of property because of the obvious need for flexibility in juridical transactions. One of these exceptions concerns individual earnings by each spouse from their respective occupations. These earnings are managed by the spouse who receives them, even though they are common property under the applicable system of marital property.
In this appeal the Constitutional Court had to consider whether, in view of the principles of the rule of law, guarantee of private property and equality of rights and duties of spouses, it is constitutionally permissible for one spouse freely to dispose of his orher wages (and specific items of property) to pay off debts for which (s)he alone is responsible, where the said earnings are part of the couple's common property and the spouse who is not liable to the debt has always contributed to household expenses.
The constitutionality of the provisions of Articles 1682.2 and 1696.2.b of the Civil Code was challenged. The former provides that each spouse may legitimately sell or commit, by an inter vivos deed, any jointly or separately held items which (s)he administers. The latter lays down that the proceeds of the work and copyright of the spouse liable to the debt, as well as his or her own property, must be used to pay off any debts for which (s)he is solely responsible, even if, in principle, his/her own property is primarily liable to the said debts, whereby half of the common property is liable on a secondary basis.
So the question is whether the spouse who is not liable to the debt can halt attachments requested by third parties on the grounds of an infringement of constitutional provisions, given that each spouse's wage is an item of common property under the system of community of after-acquired property - which applies in the instant case - and that the attachable amount was established at one-third of the wage of the spouse against whom the attachment was ordered.
The Court concluded that substantial changes in relations within the family lay outside the ambit of both constitutional and ordinary law, and consequently decided not to declare the provisions in question unconstitutional.