by Admin2 | Oct 1, 2024 | news-en
The principle of prohibition of waiving alimony was already recognized in the case law between the wars. According to the Supreme Court ruling of 17 August 1933 (C.I. 529/33), the obligation of spouses to provide each other with support and assistance and to feed, maintain and raise their children is based on the right to life of the individual and family solidarity, so the provisions of the law in this respect fall within the scope of public order, and therefore the waiver by the entitled person of the right to alimony itself cannot be significant, while the waiver of the pursuit of strictly defined and liquidable alimony claims does not concern public order, because these claims could have been satisfied or turned out to be unnecessary due to the change in the material situation and relations of the parties.
by Admin2 | Sep 2, 2024 | news-en
According to art. 115314 point 5, enforcement titles in the Republic of Poland are: judgments in maintenance cases issued in the Member States of the European Union that are parties to the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations (OJ EU L 331 of 16.12.2009, p. 17) and settlements and official documents in maintenance cases originating from these countries, covered by the scope of application of Regulation No. 4/2009. According to the legal definitions contained in the Regulation, "judgment" means a judgment issued in matters concerning maintenance obligations by a court of a Member State, regardless of the name of such judgment, such as "judgment", "order", "order" or "enforcement order". On the other hand, a "court settlement" means a settlement in matters concerning maintenance obligations approved by a court or concluded before a court in the course of proceedings. "Authoritative document" means a document in matters concerning maintenance obligations drawn up or officially registered as an official document in the Member State of origin, the authenticity of which: concerns the signature and content of the official document and has been established by a public authority or other authority authorised for this purpose.
It should be emphasised that in the case of a judgment originating from a Member State of the European Union, the "exequatur" principle, which requires a judgment declaring the enforceability of a judgment issued in another country, does not apply. This means that a judgment issued in one Member State is enforced in another Member State under the same conditions as a judgment issued in the Member State of enforcement. They apply "automatically". The assessment of whether the act invoked by the creditor is an enforceable title within the meaning of Article 115314 is made by the enforcement authority (bailiff or court) and at the same time examining the justification of the application to initiate enforcement in the context of checking the existence of a basis for enforcement.
In the case of countries belonging to the European Union but not being parties to the Hague Protocol (Denmark), court judgments, settlements and official documents originating from these countries do not enjoy the benefit of automatic enforceability in other Member States and may constitute an enforceable title in Poland after their enforceability has been confirmed by means of an enforceability clause.
by Admin2 | Aug 5, 2024 | news-en
The answer to this question may be somewhat surprising. Polish law, under the provisions of the Family and Guardianship Code, imposes alimony obligations in certain cases (which have already been described in detail on this page).
The problem of non-payment of alimony is, unfortunately, a clearly noticeable phenomenon.
This clearly negative phenomenon was also noticed by the legislator, who, in order to combat this problem, introduced severe sanctions for failure to meet the alimony obligation, including the most serious ones - criminal sanctions.
In accordance with Article 209 §1 of the Penal Code, non-payment of alimony is a crime.
A person who evades the obligation to pay alimony
- 1. specified in terms of the amount by a court decision, a settlement concluded before a court or another body or another agreement,
- 2. if the total amount of arrears resulting from this is the equivalent of at least 3 periodic benefits
- 3. or if the delay in the arrears of a benefit other than periodic benefits is at least 3 months,
shall be subject to a fine, restriction of liberty or imprisonment for up to one year.
This provision should be considered quite severe, which is an expression of justified disapproval of this type of action. Moreover, the Code also introduces a qualified type of the crime of non-payment of alimony, punishable by a higher penalty.
If failure to pay alimony exposes the entitled person to the inability to satisfy basic living needs, the perpetrator may be deprived of liberty for up to 2 years (Article 209 §1a of the Criminal Code).
Non-payment of alimony is a crime prosecuted at the request of the injured party, a social welfare body or a body taking action against the alimony debtor.
However, if the person entitled to alimony has been granted appropriate family benefits or cash benefits paid in the event of ineffective enforcement of alimony, then the prosecution is carried out ex officio.
So to answer the question posed at the beginning - failure to pay alimony can have serious consequences, including even a prison sentence.
by Admin2 | Jul 1, 2024 | news-en
In its judgment of 17 April 2024 (II KK 115/24), the Supreme Court stated that in the case of multiple crimes, which include the offense under Article 209 § 1 of the Criminal Code, there is no res judicata if the previous final conviction concerns only a fragment of the act charged later. Evading the obligation to pay alimony during the period not covered by the final conviction is already a new criminal act, entailing further criminal liability, and the time limits of the next crime should be precisely defined, taking into account the content of the previous conviction.
In the justification of the aforementioned judgment, we read that from the list of periods of non-payment of alimony offenses assigned to the accused under the judgments of the District Court for Warsaw Praga Południe in Warsaw, i.e. the order judgment reference number file reference III K 870/20 (from 3 August 2018 to 10 January 2020) and the chronologically earlier penal order judgment with file reference III K 899/20 (from 1 October 2018 to 20 March 2019), it clearly follows that the penal order judgment appealed against in cassation determined the time of committing the act under Article 209 § 1 of the Penal Code by the accused in such a way that it fully overlapped with the previous final conviction for the offence of failure to pay alimony under Article 209 § 1 of the Criminal Code, and moreover, it went beyond this time frame, essentially being reduced to two periods falling: from 3 August 2018 to 30 September 2018 and from 21 March 2019 to 10 January 2020.
Therefore, indisputably, when ruling in case file reference III K 870/20, the court on the merits committed a gross violation of Art. 504 § 1 point 4 of the Code of Criminal Procedure, which provision requires a precise - in the circumstances of a given case - determination of the time of the commission of the crime. In the description of the act attributed by virtue of a penal order, similarly to the judgment issued after the main hearing (Art. 413 § 2 point 1 of the Code of Criminal Procedure), it is necessary to include not only the manner of committing the crime, its possible effects, the type of attacked interest protected by law, but also the time and place of its commission. Precise determination of the time of committing the offence, as indicated, is of crucial importance for holding the perpetrator criminally liable (see judgments of the Supreme Court: of 19 March 2019, IV KK 58/19 and of 20 April 2017, V KK 39/17).
by Admin2 | Jun 3, 2024 | news-en
The court with jurisdiction in alimony cases is always the district court, even if the value of the subject matter of the dispute exceeds PLN 100,000. The value of the subject matter of the dispute in alimony cases is the annual value of alimony. Therefore, even if their annual value exceeds PLN 100,000 (i.e. PLN 8,333 per month), the district court remains competent (Article 17 point 4 of the Code of Civil Procedure)
by Admin2 | May 2, 2024 | news-en
The District Court in Sieradz, in its judgment of December 18, 2019 (I Ca 494/19), reminded that the upper limit of alimony benefits is the earning and financial capabilities of the obligor, even if all the justified needs of the person entitled to alimony are not covered within these limits.
