by Admin2 | Oct 4, 2021 | news-en
The Act of 23 March 2017 amending the Act - Penal Code and the Act on assistance to persons entitled to alimony (Journal of Laws of 2017, item 952) introduced changes to the statutory description of the offense of non-alimony. First of all, the hitherto mark of persistence has been replaced with a specific period beyond which non-alimony becomes a crime. However, this amendment also introduced another significant change. The legislator resigned from indicating the sources of the maintenance obligation (the act and the court ruling), pointing out at the same time that only the avoidance of maintenance is punishable in the case where the amount of maintenance has been specified, inter alia, a court decision or contract. Does it mean that the legislator completely resigned from punishing non-alimony, when the obligation arises only from the act?
This question had to be faced by the Supreme Court in the case no. act IV KK 56/19. In the decision of March 16, 2020, the Supreme Court indicated that the above-mentioned amendment decriminalizes only one case of maintenance evasion - when its obligation results from the act, and the amount of maintenance is not specified in any of the forms listed in the Penal Code (these may be: a court decision, a settlement concluded before a court or other authority or an agreement). In other cases, the punishability of non-alimony remains unchanged.
The conclusion resulting from the position of the Supreme Court seems clear - in order for the criminal law to protect us against the offense of non-alimony, we must ensure that it is clearly specified as to the amount in the event of a statutory maintenance obligation.
by Admin2 | Sep 1, 2021 | news-en
The difference between a donation and alimony in tax law
The Provincial Administrative Court in Warsaw, in its judgment of 16 March 2021 (file reference number III SA / Wa 1631/20), ruled that the purchase of real estate and high-standard cars cannot be considered expenses aimed at satisfying the justified needs of an entitled child making up the scope of the maintenance obligation referred to in Art. 128 k.r.o.
This means that such expenses are subject to inheritance and donation tax.
by Admin2 | Aug 2, 2021 | news-en
The legislator, taking into account the continuing problem with the lack of payment of maintenance obligations and the increasing number of maintenance debtors, decided to tighten the law related to non-payment of maintenance again. On December 1, 2020, the amendment entered into force, exacerbating the consequences of non-alimony.
The new regulations increase the sanctions in order to force a person obliged under a valid court judgment to fulfill their obligations. The most painful consequences include:
I. entering the debtor into the National Economic Register - the provisions of the Act of April 9, 2010 on the provision of economic information and exchange of economic data will change by changing the rules for disclosing information in the register of the economic information bureau about the debts of maintenance debtors towards the State Treasury arising from benefits paid in in the event of ineffectiveness of the enforcement of maintenance payments, as long as these debts are not repaid to the State Treasury.
II. Increasing penalties for employers who pay black remuneration for maintenance debtors - in accordance with the provisions of the Labor Code, an employer who pays a wage higher than that resulting from the concluded employment contract, without making any deductions for payment of maintenance benefits, is subject to, in accordance with punishes a fine from PLN 1,500 to even PLN 45,000. The same penalty applies to an employer who employs such a maintenance debtor without a contract.
The amendment to the regulations by increasing the sanctions for maintenance debtors is to help in the enforcement of claims against the State Treasury, which pays benefits in place of debtors. The legislator expects that high penalties for employers will discourage them from hiring illegally.
by Admin2 | Jul 1, 2021 | news-en
Pursuant to Art. 137 of the Act of February 25, 1964, the Family and Guardianship Code, maintenance claims shall expire after three years. However, it should be borne in mind that the right to maintenance itself is not statute-barred. This means that entitled persons (relatives in the straight line and siblings) may claim maintenance at any time.
Referring to the limitation of claims such as maintenance payments, attention should be paid to the possible interruption or suspension of the limitation period. At this point it is necessary to refer to the resolution of the Supreme Court (reference number III CZP 65/68), according to which, during the term of parental authority, the limitation period for the claims that children are entitled to against their parents does not start, and the started one is suspended. The Supreme Court also put forward a second thesis, according to which the limitation period for the above-mentioned claims runs not only when both parents are not entitled to parental responsibility, but also when this authority is not vested only in the parent from whom the child is seeking maintenance.
To sum up, during the term of parental responsibility, the limitation period for maintenance claims is suspended and continues until the parental authority ceases to exist. Thus, when a parent is deprived of parental responsibility, a 3-year limitation period applies.
by Admin2 | Jun 1, 2021 | news-en
The Supreme Court in the judgment of September 29, 2020, file ref. act I NSNc 42/20 (OSNKN 2021/1/3) ruled that a donation that is contrary to the interests of minor children and the donor's wife is inconsistent with the principles of social coexistence and as such may be considered invalid.
The Supreme Court indicated that the Constitution of the Republic of Poland made it possible to limit the right to property in exceptional cases, and one of them was the necessity to protect goods particularly valued by the legislator. The court recognized the protection of the principles of social coexistence as a good of higher rank than the right of ownership, thus creating the possibility of recognizing the donation agreement as invalid when it led to the violation of the welfare of the family and the child under Art. 58 § 2 of the Civil Code. Such an effect will be caused, inter alia, by the transfer of property by means of a donation by a person against whom proceedings are pending for maintenance for a minor child and proceedings for family abuse.
by Admin2 | May 3, 2021 | news-en
Court proceedings can be very costly, especially if we are dealing with a periodic claim - e.g. monthly. On the other hand, Polish law, and in particular the Constitution, protects children's rights and provides support to the family (Articles 71 and 72 of the Constitution). Consequently, in order to ensure a real possibility of pursuing maintenance claims even in the case of the poorest families, the legislator introduced a number of financial facilitations.
First of all, Art. 96 sec. 1 point 2 of the Act on court costs in civil cases states that the party claiming maintenance claims and the defendant in a case for reduction of maintenance are not obliged to cover court costs. This applies to the costs of the entire proceeding - both in the first instance (e.g. a claim fee, application for justification or an application for a copy of the judgment) and in the second instance (e.g. appeal fee, complaints). This also applies to any expenditure listed in Art. 5 of the Act - min. Experts' fees, advertising costs or costs of taking other evidence.
The person entitled to claim maintenance will also not pay the stamp duty on the power of attorney. This exemption results from Art. 2 clause 1 point 1 lit. and the act on stamp duty.
Moreover, the ordinance of the Minister of Justice on fees for attorneys' services (§4 section 1 point 9) sets the minimum rates in matters relating to maintenance at PLN 120. However, this does not apply to a situation where the obligation to reimburse costs is borne by the person liable for maintenance. In such a situation, attorney fees are determined on general principles - based on the value of the subject matter. The twin regulation is included in the regulation on fees for legal advisers' activities. In practice, this means that if the maintenance claimant loses the case, the costs of representation, which he will have to reimburse the other party (if, of course, he used the help of an attorney or counselor and applied for reimbursement) will be very low. However, if the person liable to pay maintenance loses the case, he will have to reimburse the entitled person for much higher costs of representation.
To sum up, the maintenance proceedings have been structured in such a way that the person requesting the payment of maintenance and its increase or the person defendant for the reduction of maintenance (including the determination of non-existence of the maintenance obligation) does not have to bear the costs of the procedure. It certainly has a positive effect on the possibility of actual enforcement of maintenance claims by entitled persons.
