Bill No. 05617-2022-CR seeks to modify the assumptions of exoneration of alimony in cases of children of legal age.
In Peru, one of the most common processes before the Judiciary is the alimony process. Generally, the need to go to court is due to the fact that one of the parents (usually the father) does not comply voluntarily with his obligation to provide alimony to his minor son or daughter. Therefore, through a process, a judge will be the one to determine the child support that the defendant parent will have to pay.
At the legislative level, the current Civil Code contemplates a series of rules that regulate the right and obligation of alimony, the criteria to establish the alimony, the parties obliged to pay it, and the exemption from the obligation to pay alimony. In this regard, Article 483 of the Civil Code establishes the cases in which the defendant can be exempted from his obligation to pay alimony. Let us see what this article prescribes:
Text in force
“Article 483.- The person obliged to pay alimony may ask to be exempted if his income decreases, so that he cannot pay it without endangering his own subsistence, or if the state of necessity has disappeared in the person providing alimony.
In the case of minor children, to whom the father or mother was paying alimony by court order, this ceases to apply when they reach the age of majority.
However, if the state of need subsists due to duly proven causes of physical or mental incapacity or the provider is successfully pursuing a profession or trade, he/she may request that the obligation continue to be in force”.
From this provision, we can extract as a general rule that the alimony, fixed in a judicial process, will remain in force as long as the son or daughter is a minor. However, when they reach the age of majority (18 years of age), the son or daughter will no longer be able to claim alimony. Here the Civil Code makes two exceptions in order for the child of legal age to continue receiving alimony. These two exceptions are the following: i) that the state of need persists because of a disability, or ii) when the child is successfully pursuing studies in a profession or trade.
Regarding the latter exception (“successfully pursuing studies”), we note the existence of a bill in the Peruvian Congress, which proposes to modify the conditions for alimony no longer to be demanded by a son or daughter of legal age. We are referring to Bill No. 05617-2022-CR, presented on July 25, 2023 by one of the members of the parliamentary group “Bloque Magisterial de Concertación Nacional”.
Among the normative changes proposed by this initiative, we have the modification of article 483 of the Civil Code regarding the assumptions where the alimony would cease to apply in favor of children of legal age. The following is part of the new wording of said article contained in the bill:
Proposed text
Article 483.
[…]
In the case of minor children, to whom the father or mother is paying alimony by judicial decision, this ceases to apply when he/she has obtained the status of citizen alimony payer in the following cases:
a. Marriage, cohabitation or procreation of a child.
b. He has obtained the degree of bachelor and has not obtained the professional title after one year of his obtaining the professional degree.
c. Has obtained the professional degree.
d. When the student does not show satisfactory passing grades with a weighted average of not less than 13.
e. Upon reaching 25 years of age.
[…] (emphasis added).
Within this list of assumptions, the one contained in paragraph d) stands out, i.e., “when the provider does not evidence satisfactory passing grades with a weighted average of not less than 13”. Under this wording, the legislative proposal establishes a minimum number of grades that must be met for an adult son or daughter to continue receiving alimony.
According to the bill, that minimum grade would be 13 and above. However, this requirement has been questioned, since it will certainly not be favorable for those sons and daughters of legal age who, although they are studying for a profession or trade, have as a weighted average a grade equivalent to 12 or lower.
It would be worthwhile to meditate on what is really sought to be achieved with this regulatory modification. What is the cost-benefit of such changes? Who will end up benefiting and, at the same time, harming? Could it be that this bill is intended to favor only certain people? Several questions arise, which we will answer in greater detail in a future issue.
Dr. Hilda Rojas Sinche
Lawyer - Family and Gender Studies Area
