by Admin2 | Mar 11, 2020 | news-en
The efficiency of collecting maintenance in Poland has increased in recent years, however, it is still not fully satisfactory. Due to this, on December 27, 2018, an amendment to some provisions regarding maintenance came into force and aimed at improving the effectiveness of enforcement of maintenance payments.
The new regulations include raising the income criterion entitling to benefits from the alimony fund from PLN 725 to PLN 800.
A big change is also the new wording of the provision of the Act of 20 April 2004 on employment promotion and labor market institutions, which stipulates that when organizing public works, the organizers are obliged to employ the unemployed who are maintenance debtors first. In addition, the Minister competent for labor when allocating the Labor Fund reserve for financing activation measures implemented by poviat and voivodship labor offices is to take into account in particular measures activating the unemployed who are maintenance debtors.
The Labor Code also increased the fine for dishonest employers who employ maintenance debtors in black - from PLN 1,500 to even 45,000 (up to now PLN 1,000 to 30,000). This fine may be awarded if the employer, contrary to the obligation, pays higher remuneration than resulting from the concluded employment contract, without making deductions for satisfying maintenance, to the employee who is the person against whom enforcement is sought. These provisions enter into force on December 1, 2020.
Additionally, solutions have been introduced thanks to which court bailiffs will be able to receive more efficiently from the Social Insurance Institution information on the income obtained by maintenance debtors from December 2020. Bailiffs will receive this information electronically - with monthly updates in the event of changes.
What's more, enforcement authorities can carry out diets for business trips received by debtors (up to 50% of these diets).
by Admin2 | Feb 3, 2020 | news-en
As indicated inter alia in the resolution of 7 judges of the Supreme Court of 16 December 2015 (file reference number: III CZP 77/15), the claim referred to in art. 140 of the Family and Guardianship Code is not maintenance but regressive. The Court of Appeal in Gdańsk also reached the same conclusions in its judgment of 20 June 2018 (file reference number I ACa 828/17). However, in that judgment, the General Court noted that this claim could not be completely "detached" from maintenance matters. The amount of the recourse claim is determined by the amount of the obligation to pay maintenance, as well as the amount of benefits fulfilled by the claimant. This means that to claim reimbursement from someone for providing subsistence or upbringing, you must first determine whether that person was required to provide maintenance at all, and to what extent that obligation would be met by them. Only by referring to the directives contained in art. 135 of the Family and Guardianship Code, we can determine how much a person would be obliged to pay for an entitled person and, as a consequence, what amount of refund we can expect.
Therefore, if the older, sick father, having two children, was looked after only by his daughter, does she have a claim under Art. 140 of the Family and Guardianship Code towards his brother and what sum should he pay her? In order to answer this question, it is necessary first to determine whether the brother was obliged to pay maintenance to his father based on the provisions regarding maintenance obligations (Article 129 - Article 134 of the Family and Guardianship Code). If we consider that the maintenance obligation was on both the brother and the sister, then it is necessary to determine what the amount was. Here comes the help of art. 135 of the Family and Guardianship Code. A regressive claim will be entitled to a sister only in the amount in which the expenses incurred by her (including independent work, the value of which must be "translated" into money) exceed her own maintenance obligation and only to the amount that under the maintenance provisions would be obliged to pay her brother.
Finally, it should be noted that mere claims about expenses, costs or the work involved are not enough - every claim must be properly proven, in principle and in terms of amount.
by Admin2 | Jan 1, 2020 | news-en
The Code of Civil Procedure does not include a calculation of evidence, which means that this catalog remains open. A party has the right to submit to the court all evidence regarding facts that are of material importance for the resolution of a case. In matters where the essence is to determine the expenses incurred by the party, all documents confirming the transaction will be necessary. It is obvious that the credibility of the evidence increases with its detail and personalized nature, as in the case of invoices or evidence of banking operations, which clearly shows the buyer, however, in some cases the party does not always have this type of material. In such a situation, the question arises whether it is possible to take evidence from the receipt.
The standpoint of the courts
The case law contains many examples of the use of a receipt as evidence by the party. This is most often the case in maintenance cases where a party wishes to demonstrate the amount of costs incurred in connection with day-to-day operation. The court, in accordance with art. 233 CCP, assesses the credibility and power of evidence according to its own belief, based on a comprehensive consideration of the collected material. However, despite the broadly understood freedom, in most judgments the receipt was considered by the court to be an unreliable source of facts. In the judgment of 27.11.2013 (reference number III RC 140/13), the Supreme Court emphasized that "the receipt is proof of purchase of certain products, but it does not indicate who made the specific purchase. In view of the above, it is difficult to accept that it could constitute evidence of the purchase of certain items by the mother of a minor plaintiff. ' In the ruling of June 26, 2016 (reference number XIII Ca 95/16), the District Court in Wrocław shared the position of the Supreme Court stating that "the receipt is proof of purchase of certain products, however it does not indicate who made the specific purchase, but to some extent makes the costs of living more probable. "
As we can see, the essence of the problem is the difficulty in establishing the identity of the person making the payment. There is a risk that the person presenting the evidence has collected receipts from many people, presenting them as their own, thus multiplying the expenses incurred. Unfortunately, there are no reliable methods that would confirm or deny the authenticity of the payments presented. Accordingly, the courts are reluctant to accept evidence from the receipt. Nevertheless, it appears that when the transactions involve highly personalized goods or services regarding a person's specific needs, the court should have no doubt as to the identity of their buyer and admit evidence in the case. We can imagine a situation in which a party purchases medicines or services consistent with the history of the disease or children's accessories corresponding to the age and needs of the mentee, in the above cases obtaining many receipts and falsifying actual expenses would be very difficult. In such a situation, presenting a receipt to the court seems a reasonable solution. It should be recognized that this type of evidence should be taken into account by the court primarily due to the fact that it is the most common form of documenting transactions related to current daily activities.
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.
