El trabajo para la casa y su compensación económica en el régimen matrimonial de separación: algunas perplejidades que suscita la aplicación judicial del art. 1438 CC

Abstract

The current jurisprudential interpretation of the article 1438 of the Civil Code —sitting by the Supreme Court 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 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 edication 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» 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 (ex article 217 of the Code of Civil Procedure)—, the art. 1438 is sometimes a source of truly «unbalanced» compensation and the seed of important dysfunctions that, ultimately, come to distort the essence of the separate property regime of marriage.