by Admin2 | Apr 3, 2023 | news-en
One of the institutions provided for under civil procedure is the securing of a claim (property or non-property), which may be applied for by any party or participant in the proceedings after the claim and legal interest in securing are substantiated (Article 730 (1) CCP). The general provision constituting the basis for the initiation of security proceedings is Art. 730 k.p.c. (Act of November 17, 1964, Code of Civil Procedure (i.e. Journal of Laws of 2021, item 1805, as amended)), which provides that in any civil case subject to examination by a court or arbitration court, one may demand security.
A special provision in relation to the above-mentioned regulation is art. 753 of the Code of Civil Procedure, in which the legislator distinguishes the type of claim, which is a maintenance claim. In maintenance cases, the security may alternatively consist in obliging the obligated party to pay the entitled party a one-time or periodic payment of a specified sum of money. Importantly, in cases relating to maintenance claims, the basis for security is only the substantiation of the claim's existence. Therefore, this aspect makes an exception to the general regulation requiring the simultaneous demonstration of a legal interest.
At this point, reference should also be made to the wording of the legislator in Art. 753 of the Code of Civil Procedure, i.e. "maintenance cases". The jurisprudence emphasizes that this should be understood as alimony cases (resolution of the Supreme Court of February 23, 1982, III CZP 3/82, OSNC 1982/7, item 100). In the above According to the opinion of the Supreme Court, the legislator does not refer to cases for repealing or reducing the maintenance obligation (Resolution of the Supreme Court of November 27, 1980, III CZP 60/80, OSNC 1981/6, item 97) and cases for return of fulfilled maintenance payments on the basis of an investigation under Art. 140 k.r.o., as well as cases for the reimbursement of amounts paid to the entitled person under the decision on granting security
D. Zawistowski points out that since the court does not currently adjudicate ex officio in alimony cases, this form may be used only at the request of the entitled party. ([in:] Code of Civil Procedure. Commentary. Volume IV. Articles 730–1088, ed. T. Wiśniewski, Warsaw 2021). Moreover, the court is bound by the limits of the application in terms of the amount of maintenance requested. The doctrine also emphasizes that the obligation to pay the entitled party a specified sum of money periodically or once indicates that
the use of both forms of security at the same time is excluded. However, it is possible to apply, on general terms, a different method of securing pecuniary claims in parallel.
by Admin2 | Mar 6, 2023 | news-en
Despite the passage of almost 36 years, it is worth recalling the guidelines on the interpretation of law and court practice in maintenance cases contained in the resolution of the full composition of the Civil and Administrative Chamber of the Supreme Court of December 16, 1987.
According to the Supreme Court, in the event of gross misconduct of the person entitled to maintenance, which arouses general disapproval, it is permissible to dismiss the claim in whole or in part due to the principles of social coexistence (Article 5 of the Civil Code). This cannot be done when the entitled person is a minor child.
In practice, there are cases of gross violation by a person entitled to alimony of the rules of coexistence in the family. Such factual situations occur both in the existence of the maintenance obligation of parents towards their child who cannot yet start independent professional and gainful activity (Article 133 § 1 of the Family and Guardianship Code), as well as in the case of parents' maintenance by their children and the performance of the maintenance obligation between other relatives (Article 133 of the Family and Guardianship Code) § 2 of the Family and Guardianship Code), as well as in the case of spousal maintenance during the marriage and after its dissolution (Articles 27 and 60 of the Family and Guardianship Code). Grossly improper conduct of the authorized person may include, among others:
- behaviors detrimental to the life and health of a family member,
- behaviors that violate the dignity, good name and other personal rights of a person,
- culpably falling into poverty or deliberately creating a situation leading to a claim for maintenance.
Guilty behaviors are widely condemned in society and it cannot be assumed that a person suffering harm is nevertheless obliged to provide maintenance to the person harming them in every case, just because the maintenance obligation results from consanguinity, marriage or other ties with which the act binds this obligation.
The Family and Guardianship Code provides for cases in which the legislator makes legal effects dependent on the principles of social coexistence (Article 56 § 2 and Article 144 of the Family and Guardianship Code). With regard to other legal and family relationships, it is possible to refer to the general clause contained in Art. 5 k.c.
Refusal to grant subsistence on the basis of the principles of social coexistence should take place very rarely, in particularly justified cases and when they arouse widespread disapproval.
Application of Art. 5 k.c. it may concern maintenance claims between adult family members. When, for example, the spouses' cohabitation has ceased and alimony is being settled in favor of one of them, the assessment of the legitimacy of such a claim is influenced by the behavior of the spouse, especially the fault in causing the breakdown of the marriage, the determination of which affects the decision on the obligation to provide maintenance. Due to the principles of social coexistence, a situation in which the spouse responsible for the breakdown of the marriage would benefit from his dishonest conduct would be unacceptable. Such behavior does not always have to lead to exemption from the maintenance obligation, however, in gross circumstances it will limit it.
However, the issue of admissibility of applying Art. 5 k.c. to the maintenance obligation between parents and children. This obligation is of a special nature and is subject to a special legal regulation favorable to the child. Therefore, it is assumed that parents should use all their possibilities to ensure the necessary maintenance and proper development of the child. Any behavior of the child's parent, aimed at preventing the performance of the maintenance obligation, should be considered contrary to the principles of social coexistence. The helplessness of the child, his complete dependence on adults, and above all on the parents, justifies the position that they cannot shirk their duty despite the child's reprehensible behavior and regardless of upbringing difficulties and his attitude towards the parents. Therefore, the request of the parents to meet the maintenance obligation towards a child who is not independent cannot be considered contrary to the principles of social coexistence.
The above statement will not always apply in situations where the child entitled to maintenance, despite reaching the age of majority, has not obtained the appropriate education through his own fault and will not take up paid work.
An adult child who repeats particular years of study several times during his studies or does not continue his education and does not take up gainful employment and therefore does not have the means of subsistence, cannot demand them from his parents. Also, a child's resignation - in order to annoy his parents - from scholarship assistance provided by the state may be considered harassment, which violates the principles of proper coexistence in the family, and thus the principles of social coexistence.
yes p amo, an abuse of a subjective right may be considered a demand for alimony by a person incapable of supporting themselves, who found themselves in need through their own fault. This will apply to people who, despite their careful upbringing and parents' care, have led themselves to addictive alcoholism or drug addiction and refuse to undergo treatment.
by Admin2 | Feb 1, 2023 | news-en
In a dispute over alimony for a minor child, parents face the challenge of determining the child's maintenance costs as precisely as possible. Undoubtedly, the final amount of the maintenance pension is determined taking into account the property and earning potential of the obligated party and the justified needs of the entitled person. Nevertheless, it is worth presenting an example of the cost of maintaining a child, regardless of the factual circumstances of a particular case. It is as follows:
- food – when calculating the costs necessary to cover the necessary food and drink for the child, one should take into account the child's diet resulting from its age, but also food allergies or diets required for various diseases, eg insulin resistance;
- clothing and footwear – worn by the child on a daily or seasonal basis, as well as those purchased for special occasions (eg school costume party);
- household expenses, including housing fees – the amount of rent and fees for utilities (energy, gas, garbage disposal, water, central heating), television, Internet or flat insurance;
- treatment - in this case we are talking not only about medicines or vitamins, but these costs also include corrective glasses, orthodontic appliances as well as medical and rehabilitation care, including those incurred constantly in connection with the child's health and, for example, various types of chronic diseases ;
- school and education - which includes tuition fees, but also the costs of a babysitter, additional and compensatory activities, school supplies and stationery, and expenses incurred for parents' councils, parents' committees and other similar expenses;
- hygiene, cosmetics and cleaning products - body and hair gels, nappies, wet wipes, cosmetics depending on the child's age, washing powder, fabric softener, toilet paper, dishwashing liquid and others used every day by the child and members of the household;
- personal expenses, including entertainment and culture - these costs include expenses incurred, for example, for cinema, theater and museum tickets, but also for a hairdresser, birthday gifts for colleagues, toys, books, board games and pocket money;
- child's room equipment and furniture;
- occasional expenses (holidays - summer camps, sports camps, language camps, etc., gifts).
It is important to remember that expenses incurred once a year or once every 2 years (e.g. a holiday trip, painting a room, buying bedding or sports equipment) should be adjusted to the monthly budget, i.e. they should be divided by 12 or 24 months.
by Admin2 | Jan 2, 2023 | news-en
The law applicable to maintenance obligations is determined by 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 (Official Journal EU L 7 of 10.01. 2009, p. 1).
The main goals of alimony are not limited to justifying the institution with the financial situation of the parties, they are also ethical in nature. Polish law regulates maintenance obligations in Art. 128 - 144 k.r.o. On the basis of the Act, it can be inferred that the content of the maintenance obligation is the provision by the obliged person of means of subsistence - to the entitled person, i.e. a person who is unable to meet his justified needs with his own efforts. An interesting issue here is the issue of pursuing maintenance claims in cases with a cross-border element. Pursuant to the indication of Art. 63 of the Act of February 4, 2011 - Private International Law (i.e. Journal of Laws of 2015, item 1792) - "The law applicable to maintenance obligations is determined by Council Regulation (EC) No. 4/2009 of December 18, 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (Official Journal EU L 7 of 10.01.2009, p. 1)”. The scope of the regulation is wide, it applies not only to maintenance obligations arising from a family relationship, but also to consanguinity, marriage and affinity. The regulation in question does not contain, expressis verbis, the regulation of the law applicable to maintenance obligations. This act mainly regulates procedural issues. Therefore, it should be pointed out that the applicable law was, through the institution of reference, defined in Art. 15 of the EU regulation. According to the said provision, the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations in the Member States to which this protocol is binding should be followed. In turn, pursuant to Art. 3, as a result of the conclusion of the Protocol by the European Community, it applies to all Member States, except Denmark. It is the Protocol of 2007 that is the basis for the Polish court to determine the law applicable to maintenance obligations in the scope of its application, which is identical to the scope of the Regulation of December 18, 2008, with the extension that maintenance obligations towards a child are regardless of marital status parents. The material scope of the Hague Protocol also undoubtedly includes maintenance obligations resulting from adoption, but not the claims of the mother of a child born out of wedlock related to pregnancy and childbirth.
In the absence of a choice of law by the parties to the relationship, as a general rule, maintenance obligations are governed by the law of the country where the creditor has his habitual residence. However, in the Protocol of 2007, as regards the choice of the applicable law, a unique possibility was allowed to indicate it by the parties - both generally for the maintenance obligation (the choice is binding until the parties change their minds on this matter) and only with the consequences limited to a specific proceeding (the choice is binding until the completion of a specific proceeding, however, it should also be taken into account in proceedings after the ruling has become final). This choice is limited to the substantive law of the seat of the court and is not limited by time. The parties may choose at any time. However, if we are talking about the choice of the law applicable to a specific proceeding before the initiation of the proceeding, the form of a legal act has been reserved. The contract signed by both parties should be in writing or recorded in another way, so that there is a possibility of later access to the information contained in the contract.
The regulations contained in paragraphs 4 and 5 of Article 8 of the Hague Protocol are of significant importance for the protection of the creditor. Firstly, they provide that, irrespective of the law chosen by the parties, it is the law of the state in which the creditor has his habitual residence at the time of the choice that determines whether the creditor can waive the right to claim maintenance. Second, that the law chosen by the parties does not apply if its application would lead to manifestly unjust or unfair consequences for one of the parties, unless, at the time of choosing the law, the parties were fully informed and aware of the consequences of their choice.
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
