Disfunciones en la interpretación jurisprudencial del artículo 1438 del Código civil: el riesgo de duplicidad valorativa del “trabajo para la casa” en el régimen económico matrimonial de separación de bienes

Résumé

The radical transformation of the socio-economic structure and cultural and family values (very notably, due to the incorporation of women into the labor market) since housework compensation was introduced by Law 11/1981 in the article 1438 of the Civil Code, more than four decades ago, makes this rule liquidation of the matrimonial regime of separation highly controversial at the doctrinal level and arouses many perplexities in its practical application. Its current jurisprudential interpretation of the Supreme Court -sitting in the leading ruling of July 14th 2011 and confirmed by many more (January 31st 2014, March 26th 2015, April 14th 2015, December 11th 2019 or January 13th 2022, among others)-, leads to an enigmatic “duplicity” in the valoration of “housework”: as a contribution to then charges of marriage and as a formal title that, per se, creates a right credited to whom it was made, fully independently of the benefit or gain accrued to the spouse, and of the extent to which such a work represented a burden exceeding (“overcontribution”) the share to be bore by that spouse (beyond its share in family responsibilities). In addition, the compatibility of this compensation of art. 1438 in fine with economic imbalance pension of art. 97 CC entails, in certain situations, the risk that dedication to home and family comes to be valued, not twice, but triple. If to the above is added the debatable foundation of economic compensation for domestic work in the doctrine of “missed career opportunities”, its difficult reconciliation with the principle of joint responsibility for housework and childcare (art. 68.2 CC) and the sort of judicial “presumption” that the spouse who did not work “away from home” worked effectively and really for the home –with limited evidence supporting in the judicial practice-, it can be concluded that art. 1438 is a source of truly “unbalanced” compensation and the seed of important dysfunctions that, ultimately, come to distort the essence of the property separation regime.