by Admin2 | Nov 2, 2020 | news-en
Where the parties have minor children, the issue of parental responsibility and child support should be included in the divorce petition. The divorce court is obliged to issue a ruling in this respect also if the party has not submitted such a request.
The divorce court always rules on parental responsibility over joint minor children, even if there is currently a ruling by another court regulating this issue. The court should also, in the divorce decree, decide on the issue of the maintenance obligation towards joint minor children, even if such an obligation was imposed in a previous decision. This was ruled by the Supreme Court in its judgment of June 9, 1975 (file reference number III CRN 155/75).
In practice, this means that the court deciding to dissolve a marriage is obliged to decide on the issue of the obligation to maintain child support. He is not relieved of the fact that it was regulated by a final judgment prior to the initiation of the divorce case.
In a situation where the alimony has been settled by a final and binding judgment of the guardianship court or a court settlement before initiating divorce proceedings, the divorce court should refer to the previous judgment. Then the court must indicate whether it raises or reduces the maintenance to a specific amount or keeps it at the same level.
If the court decides that there has been no change in relations in this respect, it should state in the operative part that the maintenance payments are specified in the previous judgment. However, in the event of a change in the facts, the adjudicating court may modify the amount of maintenance. However, he cannot do so without referring to the previous maintenance order. In this way, doubts related to the execution can be avoided.
A spouse filing for divorce should apply for parental authority and maintenance, also in a situation where his request is consistent with the content of a previously issued judgment.
by Admin2 | Oct 5, 2020 | news-en
It is obvious that a child who is not married also deserves the care and support of both parents. In practice, it may often appear that the child is looked after by a single mother who may not be able to perform paid work with additional duties. According to the law, both the child and the mother may be entitled to maintenance in this situation. The Supreme Court decided that material support for the mother is also indirect help for her child.
The basis for the claims of the mother of an extramarital child against the child's father is Art. 141 of the Family and Guardianship Code. According to this provision, the father, who is not the mother's husband, is obliged to contribute to covering the expenses related to:
- pregnancy and childbirth,
- three-month support of the mother during childbirth.
This assistance should be adequate to the circumstances.
Importantly, in the further part of this provision, the legislator specified an additional obligation of the child's father. The mother may, therefore, demand the father's share in the cost of her living for a period longer than three months if there are important reasons for this.
The Supreme Court in judgment ref. No. II CR 418/78 recognized the extension of the obligation to maintain the mother as a further protection of the rights of the child. Securing a mother's support is intended to provide the child with the necessary care in a special situation. The Supreme Court recognized the situation in which the mother ceased gainful employment due to giving birth and did not have the means to ensure the necessary support as an important reason for extending the obligation to maintain the child's mother.
KS
by Admin2 | Sep 7, 2020 | news-en
The issuance of a decision on recognition of the maintenance debtor as evading maintenance obligations is provided for in Art. 5 sec. 3 of the Act on helping persons entitled to alimony. Prerequisites that are necessary to initiate proceedings in this regard are:
- Preventing the maintenance interview by the maintenance debtor,
- refusal to submit a financial declaration by the debtor,
- refusal to register with the poviat labor office as an unemployed person or a jobseeker within the time limit set by the competent authority of the debtor,
- the debtor's refusal to accept an offer of suitable employment or other gainful work, performing socially useful work, intervention works, public works, works on the basis of public works or participation in training, apprenticeship or vocational preparation of adults without just cause.
The competent authority then initiates the procedure for recognizing the maintenance debtor as evading maintenance obligations, the culmination of which may be the issuance of a decision.
The next paragraph of this provision mentions an exception to the above rule. It specifies that the decision to recognize a maintenance debtor as evading maintenance obligations is not issued to a maintenance debtor who has fulfilled maintenance obligations in the last 6 months each month in the amount not lower than 50% of the amount of the currently established maintenance.
In the judgment of the Provincial Administrative Court in Białystok of December 3, 2019, II SA / Bk 684/19, the court noted that the interpretation of the above-mentioned provisions of the Act on assistance to persons entitled to maintenance is ambiguous. He also stressed that the existence of the above-mentioned conditions is necessary at the time of commencing the proceedings to recognize the maintenance debtor as evading maintenance obligations. At the same time, it pointed out that, in that case, it did not matter whether these conditions existed at a later stage.
In the present case, proceedings were initiated against the maintenance debtor to recognize the maintenance debtor as a maintenance debtor. Already during the proceedings, he submitted to the maintenance interview, i.e. he performed one of his obligations. In the opinion of the court, however, this did not mean that the condition for initiating and conducting the proceedings was dropped.
The court emphasized that these provisions are intended to mobilize maintenance debtors to fulfill their obligations. The court stated that recognizing the debtor's behavior at the stage of the pending proceedings would contradict the purpose of the solutions introduced in the act. Submission to the maintenance interview does not, therefore, remove the condition for initiating proceedings. According to the Court, the position that allows for such behavior to be regulated is unacceptable and is in contradiction with the ratio of the Act on Assistance to Persons entitled to Alimony.
KS
by Admin2 | Aug 3, 2020 | news-en
In the resolution of February 24, 2011, III CZP 134/10, the Supreme Court gave a negative answer to this question. The Supreme Court took the position that maintenance claims should be included in the categories of claims for which the prohibition of the transfer of claims results from the purpose of their creation.
The resolution emphasized that the purpose of the maintenance obligation on the moral level is to satisfy the obligation arising from family ties to provide assistance to those family members who, through their own efforts and resources, cannot satisfy their living needs. This goal can only be achieved if the benefit is met for a specific person.
Apart from the strictly personal nature of the maintenance obligation, the subject of the claim is also opposed to the transfer of the maintenance claim to a third party by transfer, which is not the payment but the satisfaction of the vital needs of the beneficiary.
In accordance with the provisions of the Civil Code, maintenance claims may not be redeemed also by setting off, they may not be subject to execution or lien. Moreover, the entitled person may not waive the right to maintenance, even with the payment of a lump sum capitalized amount of future benefits, or transfer to another person both the right to maintenance and the maintenance installments already due.
For this reason, the right to maintenance is not only protected against the risk of depriving him of his means of subsistence as a result of placing his maintenance claims on the market, but also benefits from significant facilities in the recovery and enforcement of the payments awarded on this basis.
The adjudicating panel drew attention to the view presented in more recent literature, which narrows the principle of non-transferability of maintenance rights by allowing the possibility of selling to another person by an entitled person maintenance installments already due also by way of transfer of receivables. It is argued that maintenance installments that have become due and awarded by a final judgment are no longer closely related to the person entitled. However, the Supreme Court did not follow this view.
by Admin2 | Jun 1, 2020 | news-en
The enforcement of maintenance obligations can be very difficult - the debtor avoids paying, gets rid of his property or conceals it, or suddenly loses his job. Facilitation for creditors is introduced by the Act on assistance to persons entitled to maintenance, which provides for a minimum of the option to withdraw the debtor's driving license and report it to the economic information office. Before we achieve this effect, however, we must meet several conditions.
First of all, the creditor should go to the bailiff and start the execution. Only when this proves to be ineffective, the entitled person may submit to the "his" commune (commune of the entitled person's residence) an application for taking action against the maintenance debtor. The application shall be accompanied by a certificate of ineffectiveness of enforcement.
Then the debtor's municipality conducts the so-called maintenance interview - it determines the family, income and professional situation of the debtor, as well as his health and reasons for non-maintenance. What's more, the debtor receives a property declaration, made under pain of criminal liability. The information collected in this way is forwarded to the bailiff, which may allow enforcement. If the debtor is in arrears with liabilities for a period longer than 6 months, the municipality notifies economic information bureaus (at least BIG, KRD, etc.).
If the maintenance interview shows that the debtor cannot meet his obligations due to unemployment, the authority will oblige him to register as unemployed or looking for work within a specified period (it may not be longer than 30 days). In addition, the municipality will inform the employment office of the need for professional activation of the maintenance debtor.
The above-mentioned activities (especially disclosure of assets in the asset declaration) should facilitate the collection of receivables. But what if the debtor:
o during the last 6 months at least in 1 month has not paid maintenance or has paid them in an amount lower than 50% of the obligation, and
- makes it impossible to carry out maintenance interviews or
- refused to make a property declaration,
- refused to register as an unemployed / jobseeker or
- without a justified reason, refuses to accept a proposal of suitable employment or other gainful work, socially useful work, intervention works, public works, works on the basis of public works or participation in training, internship or vocational preparation of adults?
In such a case, the commune authority will issue a decision to the debtor to recognize him as evading maintenance obligations. When this decision becomes final (cannot be appealed to the administrative body) the commune:
- will submit a request to the prosecutor's office for prosecution for an offense of non-alimentation, and
- for submitting an application to the staroste to keep the debtor's driving license.
As a consequence, the staroste will issue a decision to stop the driving license. The staroste may check whether a decision has been made to recognize the debtor as a person evading his obligations and whether it is final. However, there is no right to check whether this decision is correct, lawful and factually correct (as in the judgment of the Supreme Administrative Court of October 14, 2016, reference number I OSK 287/15).
