by Admin2 | Dec 1, 2022 | news-en
Maintenance obligations with a cross-border element necessitate the determination of the applicable law. Among the key legal acts in the field of law applicable to maintenance, the following should be mentioned:
- the Act of 4 February 2011 - Private International Law (i.e. Journal of Laws of 2015, item 1792);
- Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (Journal of Laws EU. L. of 2009 No. 7 , p. 1 as amended);
- Convention on the law applicable to maintenance obligations, drawn up in The Hague on 2 October 1973 (Journal of Laws of 2000, No. 39, item 444);
- Protocol on the law applicable to maintenance obligations (Journal of Laws EU. L. of 2009, No. 331, p. 19), subject to Art. 19, which states that the Protocol does not affect other international instruments to which Contracting States are or will become parties and which contain provisions on matters governed by this Protocol, unless States Parties make a declaration to the contrary to such instrument.
In connection with the above, it should be noted that Poland is a party to bilateral agreements which, apart from other substantive and procedural issues, regulate the law applicable to maintenance obligations. The scope of the agreements is limited. However, if a bilateral agreement takes precedence over the Hague Protocol, and the law applicable to maintenance is regulated therein - even indirectly - the norms contained in the agreement must be applied, and not in the protocol (N. Rycko [in:] International Private Law. Commentary, ed. J. Poczobut, Warsaw 2017, article 63).
by Admin2 | Nov 1, 2022 | news-en
Article 144 of the Family and Guardianship Code was introduced by the amendment of November 6, 2008. This does not mean that before the entry into force of this provision, the Polish legal system was not aware of the institution of evading the performance of the maintenance obligation due to the violation of the principles of social coexistence by the entitled - this possibility was foreseen by the Supreme Court in the resolution of December 16, 1987, reference number III CZP 91/86. The Supreme Court indicated then that the claim for maintenance may be dismissed in whole or in part on the basis of the general clause contained in Art. 5 of the Civil Code, in the event that the behavior of the entitled person causes widespread disapproval. However, the Court ruled out the application of this structure in relation to the minor children of the obligated person. At the same time, the court indicated what behaviors may be considered as causing general disapproval: harming the health and life of a family member, violating the dignity, good name or other personal rights, or events consisting in culpable deprivation or deliberately causing a situation leading to a maintenance request. By adding the indicated provision to the code, the legislator consolidated and confirmed the existing jurisprudence.
Until the provision in question was introduced, some doctrines were not convinced about the applicability of Art. 5 of the Civil Code in order to avoid the maintenance obligation, despite the Supreme Court issuing the said judgment. Some argued that if the conditions for maintenance were met, the recovery of maintenance could not be contrary to the principles of social coexistence or the socio-economic purpose of the law. Others argued that it was possible to evade the maintenance obligation, seeing in its structure an analogy to the unworthiness of inheritance or the cancellation of a donation.
Art. 144 of the Polish Penal Code is a special provision to the already mentioned Art. 5 of the Civil Code, introducing an independent basis for dismissing an action in cases for alimony, thus excluding the application of Art. 5 of the Civil Code to cases of abuse of the subjective right in matters of alimony. It also allows for the assessment of the maintenance claim in terms of its amount - too high a claim may be considered inconsistent with the principles of social coexistence and aimed at harming the obligated person or his creditors. This provision serves to protect the obligated person and public order, and is not an instrument of compensation for the reprehensible behavior of the entitled person.
The legislator explicitly excluded the possibility of parents avoiding the fulfillment of the maintenance obligation in relation to their minor children who act reprehensively and violated the principles of social coexistence. This is due to the fact that minors usually do not have their own means of support and are left to their parents.
While the repeated repetition of a year in studies, frequent change of the field of study or not having a job by an adult may be contrary to the principles of social coexistence, they have a spontaneous basis for avoiding the maintenance obligation by the parents of such an entitled person provided for by Art. 133 § 3 of the family and guardianship code, provided that they are associated with excessive prejudice or failure by the child to make efforts to be able to support himself. In such a case, it may be sufficient to refer to Art. 133 § 3 of the Penal Code, which, however, does not exclude the possibility of simultaneously invoking Art. 1441 co. However, it cannot be considered as meeting the conditions of Art. 1441 of the Code or Art. 133 § 3 of the term of study in a different field of study or employment in a different profession than the parents would like it, because the child has the right to decide about his own future, especially when he or she has reached the age of majority. For meeting the conditions of art. 1441 are considered, inter alia, situations of breaking family ties, not showing respect and acting in a manner contrary to the principles of social coexistence against the will of parents. In order to avoid the maintenance obligation, it is not enough to occasionally not answer phone calls, not to visit the family for Christmas or to quarrels related to the choice of work or life partner. Moreover, pursuant to the judgment of the Supreme Court of November 23, 2018, reference number II CNP 56/17, Art. 1441 of the Penal Code does not apply to the inheritance debt also when the source of the debt is the unpaid maintenance obligation, because this provision only applies to the relationship between the obligated and entitled to maintenance.
Based on: A. Kawałko, H. Witczak [in:] M. Fras, M. Habdas (ed.), The Family and Guardianship Code. Commentary, Wolters Kluwer, 2021; J. Gajda [in:] K. Pietrzykowski (ed.), Family and guardianship code. Commentary, Warsaw, C.H. Beck, 2021
by Admin2 | Oct 3, 2022 | news-en
In the judgment of June 10, 2022, reference number III SA / Kr 140/22, the Provincial Administrative Court in Kraków ruled that "The case for the transfer by the Polish receiving authority to the host authority of another state of the request of the entitled person, in which he demands the obligated provision of maintenance , based on Article. 3 and 4 of the Convention on the Recovery of Maintenance Claims Abroad drawn up in New York on June 20, 1956 (Journal of Laws of 1961 No. 17, item 87) is settled in administrative proceedings to which the provisions of the Code do not apply administrative procedure ", and" The transmitting authority does not deal with the matter of recognition and performance of the maintenance obligation between the entitled and the obligated person, but only facilitates the rightholder to settle such a case in another country by transferring it under the Convention to the receiving body, which is connected with the obligation to take specific actions by the receiving authority. This means that the subject matter of the case handled by the transmitting authority is to undertake strictly defined technical and organizational measures relating only to the family law case. " Consequently, in accordance with the operative part of the judgment, as a result of an application submitted by an authorized person between the entitled person and the transmitting authority, an administrative-legal relationship arises, the content of which is the right to demand that the application be transferred to the receiving authority in another country.
This judgment was issued on the basis of a complaint brought by the daughter of a man who was liable for maintenance imposed by the judgments of March 2, 1993, March 27, 1998, October 26, 2000 and August 29, 2008. They successively set the amount of maintenance at: 1,000,000 old zlotys a month, 300 zlotys a month, 500 zlotys a month and again 500 zlotys a month. The applicant's father currently lives in Germany, therefore the application for enforcement lodged with the Regional Court was forwarded by that authority to the German side in February 1994.
The father stopped paying alimony in 2017, and did not settle the arrears, as the daughter informed the German side many times. The German authority has repeatedly communicated that the failure of enforcement is justified by the fact that the debtor receives a pension which does not exceed the limit to which German law provides for exemption from enforcement, and consequently the chances of successful enforcement are slim.
In July 2021, the German party submitted the application, informing about the completion of the enforcement proceedings, and the District Court responded by re-sending the application together with the returned documents and the applicant's letter. In August of the same year, the German authority again notified that enforcement was not possible due to the lack of property to be seized, and in October it informed that the proceedings had been terminated without the possibility of continuing them due to the debtor's insufficient income combined with a lack of real estate and assets.
As a result, the President of the Regional Court issued an order to close the case for the enforcement of maintenance at the request of the applicant, who lodged a complaint against it with the Provincial Administrative Court. In her complaint, she indicated that her father was regularly informed about settlements and arrears. The District Court appealed for its dismissal, claiming that it had fulfilled its obligations as a transmitting authority.
In accordance with the operative part of the judgment, the Regional Court was not obliged to ensure the successful conclusion of the case, but to submit the letters to the German authority, and the Code of Administrative Procedure was not applicable in the present case.
by Admin2 | Sep 1, 2022 | news-en
The order in which relatives are charged with the maintenance obligation is set out in Art. 129 § 1 k.r.o. The person entitled to maintenance may not voluntarily choose the person from whom he will seek maintenance payments. In the case of a person who has parents, children and siblings, the child will be obliged to bear the maintenance obligation in the first place.
In the event of imposing a maintenance obligation on further relatives, it will always be of a subsidiary nature. In the judgment of the Provincial Administrative Court of April 22, 2022, issued in the case No. II SA / Po 926/21, it was emphasized that "The rule is also that the maintenance obligation of the liable arises only when there is no obligated person in the immediate vicinity. sequence or when that person is unable to fulfill his obligation or when it is impossible to obtain from him the means of subsistence for the time needed by the entitled person or it is associated with excessive difficulties. "
According to the judgment of the Supreme Court of July 16, 1971 in the case No. III CRN 187/71 "If the child's mother, although capable of manual work, has no permanent job, she often stays in a hospital for the nervous and mentally ill, and works only occasionally, it is difficult to believe that she is able to provide the child with means of subsistence systematically and on time. In that case, according to Art. 132 sentence ost.r.o.p., the entitled person could demand the provision of supplementary means of subsistence from the relatives of the obligated further. "
First of all, a state of deficiency must arise on the part of the person entitled to alimony in order to enable him to pursue his claim - this condition does not cover the child's claim against the parents. "The maintenance obligation towards a child is not“ divided ”as if into the parent and the native part, and when the father is unable to meet his obligation, it does not mean that his relatives should do it for him. In such a situation, this obligation is transferred primarily to the other parent, and if the other parent is not able to fulfill this obligation in whole or in part, the grandparents of both lines, ie the mother and mother lines, will be obliged in the same order ".
The thesis of the Supreme Court's judgment of May 14, 1962 (reference number 2 CR 167/62) indicates that "The maintenance obligation of a distant relative exists not only when the closer relative is unable to fulfill this obligation, but may also arise when the closer relative despite such opportunities, he fails to fulfill his obligations. A distant relative who provides for the benefit of the entitled person shall be entitled to recourse to the closer relative to the extent that the latter's failure to fulfill the maintenance obligation is not the result of an objective impossibility, but the result of failure to fulfill that obligation. ".
by Admin2 | Aug 1, 2022 | news-en
Art. 134. In relation to siblings, the obligated person may evade maintenance if they are connected with excessive prejudice to him or his immediate family. (What is this undue prejudice - something from case law and commentaries)
Title II "Affinity and kinship", section III of the Act of February 25, 1964 The Family and Guardianship Code provides for the maintenance obligation. The provision of art. 128 k.r.o. by establishing the institution of the maintenance obligation, it imposes on relatives in a straight line and on siblings the obligation to provide, in line with justified needs, means of subsistence, and, if necessary, also means of upbringing. According to the ruling of the Provincial Administrative Court in Szczecin, "this obligation is not exhausted in relations between relatives and may also apply to other relatives, not bound by blood ties." (Judgment of the Provincial Administrative Court in Szczecin of 17/09/2020, II SA / Sz 438/20, LEX No. 3088619). home. The means of education are, in particular, expenditure on education, physical development, as well as on meeting cultural needs and entertainment. " (A. Kawałko, H. Witczak [in:] Family and guardianship code. Commentary, ed. M. Fras, M. Habdas, Warsaw 2021, art. 128.). Like most institutions of civil law, the maintenance obligation is not absolute. In situations where its performance would violate the principles of social coexistence, it must be limited. For this reason, however, only exceptionally, siblings may avoid the obligation. As an incidental note, it is worth noting that the regulation applies to both biological and natural siblings. The required condition, the fulfillment of which entitles to limit the discussed obligation, is a situation in which the performance of the obligation would be associated with excessive detriment to the obligated person or his / her immediate family. Correct interpretation requires establishing the scope of two concepts, i.e. how to understand the term immediate family and, above all, what behavior may be classified as connected with excessive prejudice.
According to the doctrine, the closest family includes the spouse and ascendants. In a situation where there would be a conflict of the maintenance obligation towards the immediate family and siblings, priority should be given to meeting the needs of the immediate family. As a side note, it can be pointed out that sometimes the notion of the immediate family is also identified with the parents of the obligated person, but only if they are dependent on him (A. Kawałko, H. Witczak [in:] The Family and Guardianship Code. Comment, ed. M. Fras, M. Habdas, Warsaw 2021, art. 134.). On the other hand, as the Court of Appeal in Kraków pointed out, in the judgment issued on January 24, 2013, "who is the closest family member is determined by the actual arrangement of relations between certain persons, and not the formal sequence of kinship resulting in particular from the provisions of the Family and Guardianship Code." or possibly from affinity. " (Judgment of the SA in Kraków of January 24, 2013, I ACa 1347/12, LEX No. 1362742.)
As for the excessive detriment, it is impossible to precisely determine the meaning of the concept. This was emphasized by the Court of Appeal in Warsaw in its judgment of 15 December 2010, unequivocally stating that "the Civil Code does not indicate any criteria according to which the detriment consisting in the deterioration of the life situation should be assessed". Nevertheless, as T. Domińczyk states in the commentary to the act, the point is to establish the effects of a possible burden of maintenance for the debtor himself and his immediate family. Therefore, it is clear that an assessment of a specific case is required each time, taking into account the financial status and payment capacity of the obligee, and also predictions in this respect for the near future (T. Domińczyk [in:] Family and Guardianship Code. Commentary, 5th edition, ed. K. Piasecki, Warsaw 2011, art. 134.). According to J. Gwiazdomorski, a detriment that would result from the fulfillment of benefits and consequently make it impossible to meet the justified needs of siblings, which are so important that they are considered almost necessary, may be considered excessive.
