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.
by Admin2 | Jul 4, 2022 | news-en
Pursuant to Art. 130 of the Act of February 25, 1964 - Family and Guardianship Code (i.e. Journal of Laws of 2020, item 1359) - hereinafter referred to as K.r.o., obligation of one spouse to provide means of subsistence to the other spouse after dissolution or annulment of the marriage or after a decision separation precedes the maintenance obligation of the spouse's relatives.
The above issue is part of the wider context of the institution of alimony under civil law. Another legal act regulating the obligation of maintenance is, next to the k.r.o. Act of 23 April 1964 - Civil Code (i.e. Journal of Laws of 2022, item 1360, as amended) - hereinafter the Civil Code On the basis of the donation agreement in accordance with Art. 897 of the Civil Code the problem of the obligation arising on the side of the recipient arises when his donor falls into shortage, which consists in providing the donor, within the limits of the existing contribution, with funds that he lacks to maintain his justified needs or to fulfill the statutory obligations imposed on him. maintenance obligations
In the judgment of SA in Kraków of April 10, 2019 with reference number I ACa 575/18, the adjudicating panel argued that despite the fact that in accordance with Art. 130 k.r.o. the obligation of one spouse to provide means of subsistence to the other spouse after the dissolution or annulment of the marriage or after the decision of separation precedes the maintenance obligation of the spouse's relatives, but the maintenance obligation of the recipients under Art. 897 of the Civil Code, within the limits specified in this provision, precedes the ex-spouse's maintenance obligation, even in a situation where the donor's relatives are the recipients. In this ruling, the judicature thus juxtaposed the legal regulations described above, giving priority over the maintenance obligation of divorced spouses to the maintenance obligation of the recipients, regardless of their family ties with the donor.
by Admin2 | Jun 1, 2022 | news-en
From January 1, 2022, § 2 Art. 733 of the Code of Civil Procedure, according to which, in the case of a security in the form of a monthly benefit for the provision of means of subsistence, the deadline for the collapse of the security, set by the court, before the commencement of proceedings in the case is six months. Upon a reasoned request of the attorney, the court may indicate a longer period, but not more than one year. Until this sweat, the maximum period was only two weeks as in other cases.
The discussed regulation applies to claims based on art. 444 § 2 or article. 446 § 2 of the Civil Code, in the form of a monthly allowance for the provision of means of subsistence, in connection with the damage suffered as a result of a tort that exhausts the features of:
- 1) one of the crimes against safety in land traffic communication, referred to in Chapter XXI of the Criminal Code, or
- 2) homicides with the use of a motor vehicle in land traffic, or
- 3) willful damage to health with the use of a motor vehicle in land traffic - the court grants this security to each entitled person in the amount not lower than the amount of the lowest old-age pension specified in art. 85 sec. 2 of the Act of 17 December 1998 on pensions and pensions from the Social Insurance Fund (Journal of Laws of 2021, item 291, as amended20), unless obtaining disability benefits from other sources supports granting security in the lower amount.
The total amount of security for all entitled persons in the form of a monthly benefit for the provision of means of subsistence under Art. 444 § 2 and article. 446 § 2 of the Civil Code may not exceed the amount of the victim's monthly net remuneration or income in the period preceding the event and five times the amount of the lowest old-age pension specified in Art. 85 sec. 2 of the Act of 17 December 1998 on pensions and disability pensions from the Social Insurance Fund.
It should be noted, however, that it is not entirely clear whether an application for an extension of the deadline can only be submitted by a professional representative or also by another (e.g. descendant)
by Admin2 | May 2, 2022 | news-en
The Supreme Court in its judgment of June 30, 2021 (file reference number I NSNc 79/20) ruled on the impossibility of reducing maintenance due to loan installments
The maintenance obligation arises by operation of law. The person liable for maintenance may only exceptionally waive the obligation to provide for the maintenance of the entitled person. The Family and Guardianship Code indicates that a parent may evade maintenance for an adult child if they are associated with excessive detriment to him or if the child does not make efforts to obtain the possibility of independent maintenance. It should therefore be emphasized that a parent is always obliged to provide maintenance for a minor child, unless the income from the child's property is sufficient to cover the costs of its maintenance and upbringing.
In the above judgment of the Supreme Court it is indicated that "the purpose of the maintenance obligation is to satisfy the justified needs of a minor child." The scope of maintenance is determined by the justified needs of the entitled person as well as the economic and financial possibilities of the obligee. The Supreme Court emphasizes, however, that “the earnings and financial possibilities of the obligee are not determined solely on the basis of actual earnings and income. Even the difficult financial situation of the parent does not release him from the obligation to provide child support. The parent is obliged to share even a very meager income with the child. On the other hand, in extreme situations, satisfying the needs of minor children may even take place at the expense of some of the assets ”.
Failure to pay the benefit to the beneficiary is very rare. As indicated above, the code limits them only to exceptional cases. You can also not justify yourself with low income or incurred financial obligations. As the Supreme Court points out, "the obligation to repay credit obligations is independent of the maintenance obligation, and therefore cannot constitute grounds for avoiding its performance". The debtor's debt may not deprive the entitled to the benefit.
The change or waiver of the maintenance obligation may only take place in a judgment or court settlement.
