by Admin2 | Dec 2, 2019 | news-en
The maintenance obligation, according to the Family and Guardianship Code, exists for a child who is not yet able to support himself. This means that it also applies to children who have already reached the age of majority. Parents of a child are obliged according to their strength and earning and property possibilities to contribute to satisfying the needs of the family. If the parents of the children are divorced, the other parent submits the maintenance claim on behalf of the minor child, if the child has already reached the age of majority, he / she does it personally. A special case where the court must decide on maintenance is divorce, provided that the spouses have minor children. Even in a situation where both spouses would ask for no maintenance, in a divorce decree, the court states how much the spouses are required to bear the costs of raising and maintaining children.
However, sometimes divorce cases last several months. During this period, you cannot start a separate maintenance case. For this period, you can receive funds to support your family members through an application for security, which you can bring with your divorce application or during the proceedings. If such proceedings were initiated before an action for divorce or legal separation, it shall be suspended ex officio.
The situation when the spouses have minor children is clear. Doubts arise when children are of legal age, but are not yet able to support themselves. Until 2005, the legislator regulated such a situation in the Code of Civil Procedure, but the provision was repealed. In connection with this, the Supreme Court adopted a resolution on November 28, 2012 with reference number III CZP 77/12, in which it responded to the above issue - it decided that at the request of one of the spouses, it is possible to decide on the obligation to contribute to satisfaction during dealing with the needs of the family, including the cost of living of adult children. The resolution was repeatedly cited and confirmed in later jurisprudence of the Supreme Court (including the decision of the Supreme Court of November 24, 2016, reference number III CZP 73/16).
Notwithstanding the Supreme Court's resolution, not all Courts apply this interpretation of the applicable provisions. The Court of Appeal in Katowice in its judgment of 10 September 2014. I Acz 670/14 pointed out that he did not share this legal structure. He considered that one could not rule on the obligation of the other spouse to meet the needs of adult children.
In the aforementioned resolution of 2012, the Supreme Court also acknowledged that an adult child may be secured during a divorce case, a divorce decree may not provide maintenance for an adult child. Securing claims for contributing to satisfying the needs of the family is treated as spontaneous and ultimately, detached from the judgment and is not subject to verification in the judgment (the security is checked as part of the precautionary procedure). If you are still entitled to a maintenance claim, after your divorce is over, an adult child can file a lawsuit.
It is also worth mentioning the situation in which the child acquires the majority of majority during the trial. Such a case was examined, among others The Court of Appeal in Kraków - I ACa 223/14 - where it decided that if the child reaches the age of majority after passing the sentence, as a result of appealing against the judgment, in the part concerning parental authority or maintenance, the court should quash the sentence and discontinue the proceedings in this respect.
[legal status: November 2019]
by Admin2 | Nov 1, 2019 | news-en
While it seems relatively simple to make maintenance payments, enforcing amounts due is often associated with major problems. A person possessing an enforceable title (this is an enforceable title, awarding maintenance together with an enforcement clause. Pursuant to Article 1082 of the Code of Civil Procedure in the case of maintenance, an enforcement clause is granted ex officio) has two options, i.e.
- to initiate bailiff enforcement or
- enforce the claim directly from the debtor's employer.
Bailiff enforcement
The creditor may go to the bailiff, where by submitting an application to initiate enforcement proceedings together with an enforceable title, he may begin enforcement proceedings. The bailiff first of all takes the remuneration (also includes bonuses and bonuses due to the debtor as well as profits or shares in the company fund in relation to the employment relationship - Article 881 of the Code of Civil Procedure). Then, he must inform the debtor that he cannot receive all the remuneration until the debt is fully covered. It also obliges the employer, who from that moment will not be able to pay the debtor full remuneration. It is worth mentioning that the bailiff's fee will be collected from the remuneration seized, which means that the creditor will be charged with these costs.
Execution directly from the employer
The second option is to submit an application directly to the debtor's employer (Article 88 of the Labor Code). This method can only be used for debtors employed under an employment contract. In this case, it is also necessary to submit an enforceable title.
From now on, the employer is obliged to deduct the amount due to the creditor from the debtor's remuneration, with a maximum of 60% of the remuneration being deducted. In the case of maintenance claims, there is no so-called deduction-free amount, which is important mainly for low-income people.
The employer is exempted from making deductions only if:
- maintenance payments are to be deducted for the benefit of several creditors, and the total amount that can be deducted is not sufficient to fully cover all maintenance payments,
- remuneration for work was seized by way of judicial or administrative execution
It is also the duty to inform the debtor about the attachment of remuneration from the creditor's application. In this case, all the remuneration seized will be transferred to the creditor (there is no bailiff here, whose remuneration will be deducted from the enforced sum).
In the event that it is impossible to obtain the full amount due from the debtor's remuneration, it will be more beneficial to start enforcement proceedings through a bailiff. He may also reach for other solutions than attachment of remuneration, e.g. he may carry out executions on movable property. Of course, you can always start with the enforcement through the legislator, and when it proves to be ineffective - report to the bailiff.
by Admin2 | Oct 11, 2019 | news-en
The maintenance agreement is an alternative to the determination of maintenance in court, which will work out if the parties are able to reach an agreement on their own. The law does not impose any requirements as to form, so it can be an oral agreement. However, such a solution is not convenient for reasons of evidence, hence it is recommended that such a contract should have at least a documentary form.
Notarial contracts
Definitely most often you can meet with maintenance agreements in the form of a notarial deed. This is a very convenient solution, as the notarial deed is an enforcement order. This means that when the debtor stops paying maintenance, the creditor may submit an application for an enforceability clause. In the proceedings for granting a clause, the court does not examine substantively whether maintenance is due or not, which is why, in principle, these cases are very simple and short. Having a notarial deed (contract) equipped with an enforcement clause, we can go straight to the bailiff or even directly to the debtor's employer (read more).
For such "simplified" enforcement to be possible, the contract must include the debtor's declaration of submission to enforcement. In addition, the contract must include:
- date and place of conclusion of the contract
- specification of the parties, i.e. the obligated and entitled person (names, surnames, addresses, series and numbers of ID cards, PESEL numbers)
- determination of the form of maintenance (amounts or in kind)
- determination of the frequency and date of payment of the maintenance payment
- the form of payment of maintenance
- hand signatures of the parties to the contract
Contract in a form other than notary
If we conclude a contract in written or oral form, we will also be able to assert our rights, but it will be considerably complicated. In such a situation, it is necessary to bring an action for awarding the unpaid amount. It is the Plaintiff's responsibility to prove that the contract has been successfully concluded (hence the oral form of the contract is not particularly convenient). Unfortunately, even in the case of winning such a judgment allows us to demand repayment of outstanding debts - if the debtor does not pay maintenance for subsequent periods, you will have to submit another lawsuit.
by Admin2 | Sep 2, 2019 | news-en
According to the natural order of things, it is the parent's legal responsibility to support their child. Confirmation of this principle is found in the provisions of the Family and Guardianship Code, and more specifically in Art. 133, of which §1 explicitly states that "parents are obliged to provide maintenance for the child." This rule seems clear when we are dealing with a standard family situation, when the minor requires a constant investment of funds due to the fact that he is still attending school and there is no possibility of employment.
According to the further wording of the provision, this obligation exists until the child is able to support himself. This could indicate that as soon as he reaches the age of majority he is forced to become financially independent. In reality, however, it is not so obvious - turning 18 does not necessarily mean that a young person will finish education and immediately enter the labor market. This fact was emphasized by the Supreme Court in its judgment of November 14, 1997 (III RC 234/16), stating that "the obligation for the maintenance of parents towards their children is not limited by time, and that the child reaching a certain age is not a condition for its repeal. It does not cease when the maintenance party obtains a specific education. It depends only on whether the child is able to support himself. "
Maintenance obligation and continuing education
This raises the question, however, is there an upper age limit for the child for which the parent ceases to have a statutory maintenance obligation? We can, after all, imagine a situation in which an ambitious adult descendant gains further degrees while still remaining on the proverbial pot of parents. This state of affairs can last for years.
According to the case-law, continuing education and efforts of an adult child to acquire or raise qualifications relevant to his talents, which will enable him to earn higher earnings in the future, may justify their refusal to take up work or not using their earning opportunities, including those related to the occupation they have acquired. The cessation of maintenance is also not related to the degree of education, in the sense that it does not cease once the child reaches a certain basic or secondary level of education. It should be emphasized, however, that the personal abilities and character traits of an adult child must actually allow continuing education - undertaking education cannot be an illusory activity directed only at extending the maintenance obligation.
Evasion of the obligation
Article 133 of the Family and Guardianship Code introduces the possibility for parents to evade maintenance by respecting an adult child. This is only possible if the benefits are linked to undue detriment to them or if the child does not endeavor to be able to support himself. The final decision on the waiver of maintenance for an adult child is taken by a court that assesses each case individually.
by Admin2 | Apr 11, 2019 | news-en
The notion of scarcity appearing in maintenance cases may raise interpretation problems. The Supreme Court dealt with this issue many times. April 24, 2018 in the judgment reference number act: V CNP 22/17 SN again spoke on this subject.
The court noted that, as a rule, one cannot speak of the shortage of a person who, by selling his property or part of it, could alone, and for a longer period of time, satisfy his justified needs from his own resources. At the same time, he noted that there is no obligation for the authorized substance to infringe on items that directly satisfy his or her needs that could be claimed from the obligor (for example, selling an apartment), as well as if the principles of social coexistence are contrary to this. The assessment of whether a given item serves only to directly meet the needs and whether the sale contradicts the principles of social coexistence, however, should be assessed on a case-by-case basis.
For example, an old woman living alone in a very large apartment cannot claim that she is in short supply, because the apartment is of an antique nature (a much smaller premises would be sufficient to meet her needs, while generating much lower costs). This woman could sell him, buy a smaller place and still have her money to support herself for at least a few years. In addition, the court drew attention to the possibility of concluding a reverse mortgage agreement, which can be a very beneficial solution for older people who, for various reasons, do not plan to transfer real estate to their relatives after death (as was the case here).
