ECONOMIC COMPENSATION AS AN INSTRUMENT FOR THE PROTECTION OF THE WEAKER SPOUSE: REFLECTIONS IN LIGHT OF SUPREME COURT CASE LAW

Abstract

This article critically examines economic compensation under Law No. 19.947, more than twenty years after the entry into force of the New Civil Marriage Act, in order to assess its capacity to operate as an instrument for the protection of the weaker spouse. Although this institution was conceived as one of the main expressions of the protective principle enshrined in Article 3 of the New Civil Marriage Act, its statutory design and practical application reveal significant limitations. To develop this thesis, the article first reviews the notion of the weaker spouse and the requirements set forth in Article 61, emphasizing that compensable economic detriment is linked to occupational or income-related postponement arising from the care of children or the common household. It then analyzes several critical issues affecting its effectiveness, particularly evidentiary difficulties, the situation of double-shift female workers, the sufficiency of judicial oversight of agreements, and the problems arising from its application to Civil Union Agreements. Special attention is devoted to recent Supreme Court case law on quantification, where the use of formulas aimed at providing certainty can be observed, but which may reduce the comprehensive assessment of the criteria established in Article 62 of the New Civil Marriage Act and lead to a significant moderation of the amount awarded. On this basis, the article concludes that economic compensation retains a relevant protective function, but currently operates as a tool of limited scope, whose effectiveness requires a more robust judicial assessment of economic detriment and the correction of the regulatory gaps affecting its application.