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XII 2024 r.

1956 Convention on the Recovery of Maintenance Claims

In accordance with the judgment of the Provincial Administrative Court in Kraków of 25 September 2024 (III SA/Kr 583/24) regarding the provisions of the Convention on the Recovery of Maintenance Claims Abroad, drawn up in New York on 20 June 1956 (Journal of Laws of 1961, No. 17, item 87), the application of the entitled person is considered in accordance with the law of the country in which the obligated person is staying, and the transferring body does not settle the matter regarding the recognition and enforcement of the maintenance obligation between the entitled person and the obligated person, but only facilitates the authorized person in settling such a case in another country by transferring it under the Convention to the receiving body.

The District Court, Independent Section for Legal Transactions with Foreign Countries in this case does not act as an enforcement body. Any initiative regarding possible reminder letters to foreign authorities in the event of non-receipt of maintenance payments rests with the applicant.

XI 2024 r.

Increase in maintenance fund benefits

The draft act (Print No. 800 of November 6, 2024) assumes an increase in the maximum amount of maintenance fund benefits by 100%, i.e. by PLN 500 per month to PLN 1,000 per month. The justification for the draft states that under the current legal status, maintenance fund benefits are due in the amount of currently established maintenance, but not higher than PLN 500 per month. The above maximum amount of maintenance fund benefits has been unchanged since the beginning of the validity of the Act of September 7, 2007 on assistance to persons entitled to 2 maintenance payments, i.e. since 2008. Since the introduction of maintenance fund benefits, the costs of living have increased significantly, including for persons entitled to maintenance payments, and consequently the amounts of maintenance payments for children from parents determined by the courts (data from the Ministry of Justice)

X 2024 r.

Prohibition of waiving alimony

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.

IX 2024 r.

Does a foreign judgment in maintenance cases constitute an enforcement title in the Polish legal system?

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.

VIII 2024 r.

Can you go to prison for unpaid alimony?

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.

VII 2024 r.

Res iudicata for the crime of non-payment of alimony

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).

VI 2024 r.

Jurisdiction of the court in alimony case

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)

V 2024 r.

Upper limit of maintenance payments.

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.

IV 2024 r.

Charging family members with fees for staying in a social welfare home

Pursuant to Art. 61 of the Social Welfare Act, the persons obliged to pay a fee for staying in a social welfare home are in the following order:

a resident of the house, and in the case of minors, a statutory representative from the child's income,
spouse, descendants before ascendants,
the commune from which the person was referred to the social welfare home

- however, the persons and the commune specified in points 2 and 3 are not obliged to pay fees if the resident of the house pays the full amount.

The Act does not specify whether the spouse's obligation precedes the obligation of the descendants, or which specific persons among the descendants or ascendants are to be charged the fee. The jurisprudence has also not developed a uniform position in this respect,

Some judgments refer to the Family and Guardianship Code and model the order of payment on the maintenance obligation (so the Provincial Administrative Court in Kielce in the judgment of January 10, 2019, II SA/Ke 759/18, LEX no. 2619010).

In other judgments, when determining the order of charging descendants or ascendants, it is possible to take into account benefits received by them from a resident of a social welfare home (Judgment of the Provincial Administrative Court in Gdańsk of November 28, 2019, III SA/Gd 444/19, LEX no. 2758821.

Finally, there is also a view that all persons from a given group should be charged fees and their situation may be differentiated only due to their income (judgment of September 21, 2017, I SA/Wa 704/17, LEX No. 2376391, Provincial Administrative Court in Warsaw). In such a situation, the authority should conduct proceedings simultaneously against all persons belonging to the same group of persons obliged to pay the fee for the resident's stay in the social welfare home. These persons should be notified of the initiation of proceedings and should be parties to these proceedings, and they should all be subject to the decision issued on establishing the obligation to pay for a resident's stay in a social welfare home" (similarly, the judgment of the Provincial Administrative Court in Warsaw of June 27, 2018, VIII SA/Wa 198/18, LEX no. 2523717).

III 2024 r.

The legal nature of securing family maintenance costs during the trial

One of the obligations imposed on spouses is specified in Art. 27 of the Family and Guardianship Code, participation in the costs of maintaining the family. During divorce proceedings, which often last for a longer period, it is necessary to ensure that the spouses continue to participate in maintaining the family.

The institution used to ensure the participation of the other spouse in the costs of maintaining the family is a claim for security for the costs of maintaining the family for the duration of the trial. An application for security for family maintenance costs may be submitted both in a separate pleading or in the content of the lawsuit itself. The letter should indicate and justify the amount requested and make it probable that the family will bear the costs.

The claim, as emphasized by the case law of both common courts and the Supreme Court (resolution of the Supreme Court of July 13, 2011, III CZP 39/11), is independent in nature, independent of the verdict of the divorce court. For the spouse submitting such an application, this means that even if a lower amount of alimony is awarded in the divorce judgment, the benefit paid on the basis of the decision to grant security is not refundable. Moreover, the autonomous and final nature of the court's decision means that it constitutes an enforcement title, which becomes an enforcement title after the enforcement clause is issued. This title provides the basis for initiating enforcement proceedings and the possibility of collecting the amounts due. Also, the issuance of a divorce decree does not mean that the security is terminated by operation of law and the inability to enforce the amounts specified in the court's decision. This is another consequence of the autonomous nature of the claim.

II 2024 r.

Where to file a claim for alimony

A suit for alimony may be filed either according to general jurisdiction, i.e. to the court competent for the place of residence of the defendant, or to the court competent for the place of residence of the entitled person (Article 32 of the Code of Civil Procedure)

Pursuant to the resolution of the Supreme Court of April 16, 1991 (III CZP 24/91), this principle also applies to a request to change the amount of alimony. An alimony claim is an alimony claim, regardless of the legal basis invoked by the plaintiff.

A claim by the child's mother against the child's father for reimbursement of the child's maintenance and upbringing costs, based on the provisions of Art. 140 of the Family and Guardianship Code (resolution of the Supreme Court of October 6, 1967, III CZP 63/67)

I 2024 r.

Placing money in a court deposit, Art. 883 § 2 of the Code of Civil Procedure

Enforcement proceedings regulated by the provisions of the Code of Civil Procedure include several institutions that enable the debtor to protect against further enforcement. One of them is provided for in Art. 883 § 2 of the Code of Civil Procedure, the possibility of discontinuing enforcement proceedings by paying all due payments and depositing an amount equal to the sum of periodic payments for six months to the deposit account of the Minister of Finance, with the simultaneous authorization of the bailiff to collect this amount in the future if the debtor is in default.

The implementation of the above provision may pose some problems. This is due to the fact that the method of depositing money in a court deposit described in Art. 883 § 2 of the Code of Civil Procedure constitutes a lex specialis in relation to the content of Art. 693² § 1, which states that an application for placing the subject of the service in a court deposit requires the court's permission. In the resolution of the Supreme Court III CZP 153/07, it was stated that in the case of depositing money in accordance with Art. 883 § 2 of the Code of Civil Procedure, court permission is not required. Therefore, there is a question as to how money can be deposited.

In order to effectively place money in court deposit under Art. 883 § 2 of the Code of Civil Procedure, the money should be transferred to a deposit in the District Court under the jurisdiction of the bailiff conducting enforcement. The payment title should specify that it is an advance payment for alimony for a specific person and that it concerns enforcement proceedings conducted by a specific bailiff. Then, you should submit an application to discontinue the proceedings along with the authorization for the bailiff to carry out any future enforcement from the deposit account. The application must be accompanied by proof of payment to the account.

XII 2023 r.

Enforcement of alimony in Poland on the basis of an enforcement order from another EU country

Based on Article. 115314 of the Code of Civil Procedure, enforceable titles in the Republic of Poland are judgments in maintenance matters 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 agreements and official documents in maintenance matters originating from these countries, falling within the scope of application of Regulation No. 4/2009.

Based on Article. 2 of Regulation No 4/2009, "judgment" means a judgment given in matters relating to maintenance obligations by a court of a Member State, whatever the name of such judgment, such as a judgment, order, order or enforcement order, as well as a judgment as to the determination of costs given by an officer of the court. "Court settlement" means a settlement in matters relating to maintenance obligations approved by a court or concluded before a court in the course of proceedings;. "Authentic document" means: a document in matters relating to maintenance obligations, drawn up or registered officially as an authentic document in the Member State of origin, the authenticity of which relates to the signature and the content of the authentic document and has been certified by a public authority or other body empowered for that purpose; or an agreement on matters relating to maintenance obligations concluded with or authenticated by the administrative authorities of the Member State of origin;.

XI 2023 r.

Offense of non-maintenance – scope of sentencing

The Supreme Court, in its judgment of October 27, 2023 (V KK 236/23Wyrok), stated that in the case of multiple (or collective) crimes, which include the offense under Art. 209 § 1 of the Penal Code, there is no state of res judicata if the previous final conviction concerns only a fragment of the later charged act. Evading the maintenance obligation during the period not covered by a final conviction is a new criminal act entailing further criminal liability, and the time limits of the next offense should be precisely defined, taking into account the content of the previous conviction.

This ruling was issued as a result of the cassation appeal of the Prosecutor General in a case in which the accused was convicted of a crime committed in the period from September 28, 2020 to May 31, 2021, while for an offense under Art. 209 § 1 of the Penal Code, to the detriment of the same injured party, committed in the period from December 1, 2019 to July 19, 2020, from September 28, 2020 to November 30, 2020 and from January 1, 2021 to 31 May 2021, the accused has already been sentenced by a penal order of the District Court in Sochaczew of May 9, 2022, ref. no. file II K 603/21.

Taking the above into account, the Supreme Court agreed to the cassation motion of the Prosecutor General and annulled the penal order judgment of the District Court in Sochaczew of January 16, 2023, ref. no. No. II K 456/21 and referred the case to the same Court for reconsideration, during which a judgment will be issued taking into account the above comments and devoid of the described shortcomings.

X 2023 r.

Maintenance obligation and exemption from fees for staying in a social welfare home

The maintenance obligation arising from the content of Art. 128 of the Family and Guardianship Code may be implemented in various ways. The person entitled to it is not always obliged to be able to take care of it on their own. The entitled person may, for example, be an elderly and sick person who requires constant care. Therefore, a situation may arise in which such a person will have to be placed in a social welfare home. The Act on Social Assistance specifies the group of persons obliged to pay fees and the amount of the fees themselves. At the request of the person paying the fee or obliged to pay such a fee, these persons may be exempted partially or completely from the obligation to pay fees for staying in a social welfare home. However, the existence of such a possibility depends on the prior imposition of an obligation on the obliged person to pay such fees. Therefore, it is impossible to apply for exemption from the fee for staying in a social welfare home if the person obliged to pay the fees has not been previously determined and the amount of the monthly fee for the stay has not been determined.

IX 2023 r.

MAINTENANCE INTERVIEW

If, in the event of ineffective enforcement, the commune head, mayor or president of the city having jurisdiction over the place of residence of the entitled person - the creditor - requests to take action against the alimony debtor, the debtor's competent authority conducts an alimony interview. The purpose of such activities is to determine the family, income and professional situation of the alimony debtor, his health, as well as the reasons for not contributing to the maintenance of the entitled person. As indicated by the Provincial Administrative Court in Poznań in its judgment of January 31, 2019, the so-called "actions against the alimony debtor" are primarily aimed at restoring the expected state of affairs in a situation where there is a "failure to provide for the maintenance of the entitled person"" (Judgment of the Provincial Administrative Court in Poznań of January 31, 2019, II SA/Po 1062/18, LEX no. 2705604).

The essential part of the alimony interview is receiving a declaration of assets from the debtor, during which the financial situation of the debtor is determined, such as real estate, movable property and other resources owned. Explanations are provided under penalty of criminal liability for submitting false testimony. The case law emphasizes that the alimony interview must take place with the participation of the authority. The debtor is only the person who gives the interview, so he cannot submit it himself. The Provincial Administrative Court in Gliwice reminds us of this in its ruling in the case no. no. IV SA/Gl 1016/17 (Judgment of the Provincial Administrative Court in Gliwice of July 26, 2018, IV SA/Gl 1016/17, LEX no. 2537174.). Maintenance interview referred to in Art. 4 of the Act of September 7, 2007 on assistance to persons entitled to alimony, is carried out on the basis of a questionnaire, the template of which is specified in the Regulation of the Minister of Labor and Social Policy of March 23, 2011 (Journal of Laws No. 73, item 395). The above-mentioned legal act also established a template for the declaration of assets of the alimony debtor.

A negative condition for taking the discussed actions is the situation where the head of the social welfare center has a family environmental interview regarding the debtor, carried out on the basis of the provisions of the Act of March 12, 2004 on social welfare (consolidated text: Journal of Laws of 2023, item 901, as amended). d.). If such an interview was conducted and is not older than three months, then the competent authority of the debtor applies for its issuance.

VIII 2023 r.

Exemption from the fee for staying in a social welfare home

On May 31, 2022, the Provincial Administrative Court in Wrocław issued a judgment on the exemption of the descendant from the fee for staying in a social welfare home. The key legal act regulating the above matter is the Act of 12 March 2004 on social assistance (i.e. Journal of Laws of 2023, item 901, as amended), and in particular articles 64 and 64a. According to the approved thesis of the judgment, "the complainant's negative attitude towards his father and the lack of any relationship with him cannot affect the very existence of the obligation to pay fees" for the stay of a resident in a social welfare home. As indicated by the court, the obligation arising from Art. 61 of the aforementioned Act, remains in a functional relationship with the provisions of the Family and Guardianship Code on alimony, however, above all, it is a public-law burden arising at the moment of accepting a person referred to DPS. Thus, its incurrence is intended to cover the costs of living of a resident determined in the administrative procedure. On the other hand, the administrative court drew attention to the direction of subsequent amendments to the Act on Social Assistance, which express the need to guarantee greater protection to family members of residents of these institutions.

The decision that gave rise to these considerations was issued on the basis of the following facts. The complainant asked for cancellation of the arrears arising from the failure to pay the amount due for his father's stay in a social welfare home due to his difficult situation. In the justification for the application for full exemption from payment, he also pointed to negative relations with his father. The complainant was met with a refusal decision, which - as a result of the appeal lodged - was upheld by the authority of the second instance. Dissatisfied with this decision, the complainant then filed a complaint against the final decision to the Voivodeship Administrative Court. In its decision, the Provincial Administrative Court agreed with the authorities of both instances that it is the complainant who is obliged to pay for his father's stay in the institution. Pursuant to the regulation contained in Art. 61 sec. 2 ups The following persons are obliged to pay the fees in a specific scope: the resident of the home, the spouse, the descendants before the ascendants, and the commune from which the person was referred to a social welfare home. However, in the course of the considerations made, the court came to the correct conclusion, in which it correctly pointed out the differences in the interpretation of Art. 64 and 64a, which obliged to eliminate the decisions of the authorities of both instances from legal circulation. The first of the articles allows the obligor to be released from payment, and if the conditions set out in the second are met, such exemption must take place, it takes place ex lege.

The standard from art. 64a is bound. The burden of proof rests with the person applying for the exemption from payment. If only the obligated person submits an appropriate application and presents a final court decision on depriving the resident of parental authority over that person and declares that parental authority has not been restored or a final court decision on conviction of that resident for an intentional crime prosecuted by public indictment committed to the detriment of the person obliged to payment of the fee, its descendant, a minor or an adult helpless due to age, mental or physical condition of a sibling or their parent, unless the conviction has been expunged, the role of the authority conducting the proceedings "is de facto limited to issuing a decision exempting from this fee." (E. Żołnierczyk, Special circumstances regarding relations between family members as the admissibility of exemption from payment for a resident's stay in a social welfare home. Commentary approving the judgment of the Provincial Administrative Court in Wrocław of May 31, 2022 (IV SA/Wr 590/21), OwSS 2023, No. 1, pp. 132-138). The situation is different with regard to Art. 64 u.p.s. The legislator, noting that the applicant often does not have the required documents, either due to the passage of time or due to the fact that the appropriate procedure to obtain them has never been initiated, which may be due to various reasons of a moral nature or fear, introduced the possibility of optionally applying for exemptions from payment. In the case of exemption based on the standard of art. 64 u.p.s. discretionary character is not only the exemption itself, but also its scope. What is worth emphasizing clearly, the authority granting the exemption provided for in Art. 64 A.P.S., operates under conditions of a certain kind of arbitrariness, which, however, cannot in any way be equated with arbitrariness. The action must always comply with the law and have a legal basis. In the judicial and administrative jurisprudence, already before the judgment in question, it was rightly pointed out that there were no grounds for limiting the examination of the grounds for exemption only to the sphere of the material status of the obligated persons. “Relationships and family ties can be established by authorities and assessed ko special case', justifying the granting of the request for exemption. In addition to the economic situation, grounds for discretionary exemption were added to grounds relating to family relationships. The changes were additionally strengthened by the amendment, in force since January 27, 2022, under which point 7 was added. It indicates further circumstances of dismissal, namely "gross violation by a person directed to a social welfare home or a resident of the home of the maintenance obligation or other family obligations towards person liable to pay the fee. It is rightly argued in the doctrine that interpretation difficulties may arise against the background of the interpretation of a "gross" violation of the maintenance obligation or other family obligations. Nevertheless, by way of example, the administrative court reminded that these obligations include those defined in detail in the provisions of the Family and Guardianship Code. regarding the exercise of parental authority and the relationship between the parent and the child - including: the obligation to respect and support each other, or the obligation to maintain contacts.

Finally, it should be noted that the court agreed with the complainant and found that the term used in Art. 64 sec. 2 ups the phrase "in particular" means that the specified list of grounds justifying the fee waiver is an exemplary list. The catalog is open, which in turn means that the justified circumstances that justify the application should be assessed individually in the context of a specific case.

VII 2023 r.

What does not affect the amount of child support?

The basic source of the maintenance obligation in Polish family law is Art. 128 of the Family and Guardianship Code. It provides that the obligation to provide means of subsistence, and, if necessary, also means of upbringing (maintenance obligation) is imposed on relatives in a straight line and siblings.

There is no standard in Polish law that would rigidly define the amount of the benefit, leaving it possible for the court to determine it. This means that the amount of maintenance awarded by the court will be the resultant of the needs of the entitled party and the capacity of the obligated party, in accordance with Art. 135 §1 of the Family and Guardianship Code.

The ability to pay maintenance is not determined by the achieved, declared earnings, but by the objective, actual earning capacity. The scope of the maintenance obligation may and should be greater than that resulting from the actual earnings and income of the obligor, if with the full and proper use of his strength and skills, earnings and income would be greater, and the existing socio-economic conditions and important reasons for such use do not stand in the way. – judgment of the District Court in Sieradz of January 22, 2020, file ref. I Ca 531/19

However, the judge does not have full freedom in assessing the situation of the entitled person. The Family and Guardianship Code introduces a rule that requires the omission of certain types of benefits when determining the size of the maintenance obligation. According to Art. 135 §2 of the Family and Guardianship Code:

“The scope of maintenance benefits is not affected by:

benefits from social assistance or the alimony fund referred to in the Act of 7 September 2007 on assistance to persons entitled to alimony, to be reimbursed by the person liable for alimony;
benefits, expenses and other financial resources related to placing a child in foster care, referred to in the provisions on supporting the family and the foster care system;
the childcare benefit referred to in the Act of 11 February 2016 on state aid in raising children;
family benefits referred to in the Act of 28 November 2003 on family benefits;
supplementary parental benefit referred to in the Act of 31 January 2019 on supplementary parental benefit”.

The above benefits are of an auxiliary nature for the entitled person. They result from the general obligation of the state to provide protection and support to given individuals.

On the other hand, the maintenance benefit results from a special, i.e. personal relationship between the obligated party and the entitled party.

Therefore, social benefits do not affect the scope of the maintenance obligation. It could happen that the state would take over the entire burden of maintaining persons entitled to maintenance, which in the opinion of the legislator is not a desirable situation.

At this point, it should also be noted that benefits from the Alimony Fund in no way exempt from the obligation to pay maintenance.

In accordance with the decision of the Supreme Administrative Court of November 24, 2022 on the reference number

I OSK 1851/20: The fact of paying benefits from the maintenance fund to a minor does not release the obligor from the obligation to provide maintenance to his own child.

VI 2023 r.

Cassation appeal in the case of alimony recourse

The judgment of the Supreme Court of August 18, 2020 in the case with reference number II CSK 12/20 was issued as a result of a cassation appeal by the defendant, the child's father, against the judgment of the court of second instance. The claimant, the child's mother, bore the maintenance burden in relation to her child not only to the extent that she was obliged to do so, but also to the extent that the defendant should have paid for the child. The court of second instance increased the amount awarded to the plaintiff for the claim provided for in Art. 140 § 1 of the Family and Guardianship Code, i.e. providing another person with means of subsistence or upbringing, despite the lack of such an obligation towards him or in the event of such an obligation arising due to excessive difficulties in collecting these benefits from the person who is first obliged. This amount was increased to PLN 262,556.

The Supreme Court recalled its jurisprudence to date, according to which a cassation appeal is inadmissible in the context of a claim under Art. 140 § 1 of the Family and Guardianship Code, regardless of the value of the subject of the appeal. Therefore, the fact that the value of the claim amounted to PLN 262,556 was not relevant in this case.

The court adopted the interpretation that although the recourse claim under Art. 140 § 1 of the Family and Guardianship Code is not a claim for maintenance, but it belongs to the scope of maintenance cases within the meaning of Art. 398(2) § 2 point 1 of the Code of Civil Procedure, because the child's mother bore the maintenance burden beyond her own obligation and sought to award the child's father the costs of the maintenance burden he should have borne. Therefore, the cassation appeal in this respect is inadmissible and as such was rejected by the Supreme Court.

V 2023 r.

What is the Maintenance Fund?

The Maintenance Fund is a separate mass of funds intended for a specific purpose, which in this case refers to securing the payment of maintenance whose payers turned out to be insolvent or evaded payment.

The history of the Fund dates back to the 1970s, when in 1974 the Alimony Fund Act was passed. The funds were to be administered by the Social Insurance Institution. In 2003, the institution of the so-called maintenance advance, which was intended to replace the Fund. However, the idea turned out to be so ineffective that in 2008 the Alimony Fund was reactivated following the adoption of the Act on assistance to persons entitled to maintenance.

Going to the land of legal act, it should be noted that in art. 1 sec. 2 there is a legal definition of the Fund in the following wording: "The maintenance fund is a system of supporting persons entitled to maintenance with funds from the state budget." Importantly, the legislator makes a reservation that the alimony fund is not a fund within the meaning of the provisions on public finance. Thus, the indicated institution acquires an independent character, slightly detached from the usual associations with financial law regulations.

Benefits from the Maintenance Fund are available primarily to Polish citizens, but also to certain groups of foreigners, i.e. those for whom it results from bilateral agreements on social security binding the Republic of Poland, residing in the territory of the Republic of Poland on the basis of a permanent residence permit, a resident's residence permit a long-term European Union permit and a temporary residence permit, as well as those residing on the territory of the Republic of Poland in connection with obtaining refugee status or subsidiary protection.

Further on in the Act, i.e. in Chapter 4, the legislator indicates the procedure in which benefits from the Fund are granted. The provisions stipulate that the determination of the right to benefits from the Maintenance Fund and their payment are made at the request of the entitled person or their statutory representative, respectively. Such an application is submitted to the commune or city office competent for the place of residence of the entitled person. The application should be accompanied by documents listed in the following provisions of the above-mentioned regulations. of the act. At the same time, the authority conducting enforcement proceedings against the person liable for maintenance is obliged to send a certificate of ineffective enforcement within 14 days from the date of receipt of the summons.

Finally, the legislator decides that decisions issued in cases related to granting benefits from the Maintenance Fund are immediately enforceable, with the exception of decisions in cases concerning benefits received unduly. These benefits are paid to the entitled person on a monthly basis.

IV 2023 r.

Securing a maintenance claim under the Code of Civil Procedure

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.

III 2023 r.

Guidelines on the interpretation of law and court practice in maintenance cases (Article 5 of the Civil Code)

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.

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Child support costs

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.

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Law applicable to maintenance obligations

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.

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Law Applicable to Alimony

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).

XI 2022 r.

Failure to fulfill the maintenance obligation

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

X 2022 r.

Enforcement of child support payments from Germany

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.

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"Order in the maintenance obligation"

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. ".

VIII 2022 r.

The maintenance obligation of siblings

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.

VII 2022 r.

Scarcity. The maintenance obligation of the spouse and the gifted relative.

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.

VI 2022 r.

Loss of annuity collateral

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)

V 2022 r.

Loan installments do not release you from alimony

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.

IV 2022 r.

The maintenance obligation and the payer's earning potential

Pursuant to Art. 135 § 1 of the Act of February 25, 1964 - Family and Guardianship Code: "the scope of maintenance depends on the justified needs of the entitled person and the economic and financial possibilities of the obligee".

The Provincial Administrative Court in Gorzów Wielkopolski in its judgment of March 31, 2021 issued in the case number II SA / Go 157/21 referred to this provision and ruled that it was not possible to arbitrarily impose a maintenance obligation on a given person without prior, precise verification of its "economic and financial possibilities" referred to in Art. 135 § 1 k.r.o. According to the Provincial Administrative Court, it should be checked whether the potential obligated person has any life limitations that could hinder the proper care of the entitled person.

III 2022 r.

Recourse claims between maintenance obligations

A recourse claim is a pecuniary claim, but not a maintenance claim. It does not use the provisions concerning, inter alia, enforcement of maintenance payments. The substantive and procedural rules relating to the privileging of maintenance claims do not apply to him.

Recourse claims are not maintenance claims, but can be treated as already fulfilled maintenance. As a rule, however, alimony is intended to meet current needs. Maintenance for the past period is awarded exceptionally in the case in which there are unmet needs of the child from the past period, or as a result of satisfying these needs a debt was incurred to cover the justified needs of the child.

Pursuant to Art. 140 par. 1 of the Family and Guardianship Code, a person who provides another means of subsistence or upbringing without being obliged to do so or being obliged to obtain timely maintenance from the obligated person in a closer or the same order would be impossible for the entitled person or associated with excessive difficulties, may request reimbursement from the person who should have fulfilled these benefits.

It is therefore possible to demand from the person obliged to provide the means of subsistence or upbringing the reimbursement of costs incurred by the person entitled to maintenance. It is not necessary that there has been a prior decision determining the extent of the maintenance obligation. The court will determine its amount in the process of reimbursement of the said costs. It should be noted, however, that the amount of the reimbursement is directly related not only to the justified needs of the entitled party, but also to the property and earning capacity of the obligee. This means that the amount allocated to the current needs of the child may be too high, taking into account the financial capacity of the debtor. In this case, the reimbursement will not cover the entirety of the funds allocated to the child's maintenance.

Recourse claims expire after three years.

II 2022 r.

Sale of property to cover child support.

In the judgment of June 30, 2021, the Supreme Court recalled that "even a difficult financial situation of a 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 assets. " This means that the court may order maintenance even from a parent who does not earn any income, forcing him to sell the property. Of course, this cannot lead to the parent's living standard falling below that of the child.

I 2022 r.

Cohabitation and alimony

Pursuant to Art. 60 § 3 of the Polish Family and Guardianship Code, the maintenance obligation towards the former spouse shall expire in the event of the contracting of a new marriage by that spouse. Therefore, the Supreme Court in the judgment of 10 July 1998 (I CKN 788/97) had to rule that if the former spouse did not formalize a new relationship, the maintenance obligation still exists. Staying in cohabitation by a divorced spouse entitled to alimony is not a statutory condition for the expiry of the maintenance obligation towards him by the other divorced spouse.

XII 2021 r.

Debt of the accused for non-alimony

In the judgment of December 2, 2020 (IV KK 706/19), the Supreme Court rightly recalled that "apart from the amount of income earned by the accused and his earning potential, from the perspective of assessing whether the accused fulfilled the features of a prohibited act under Art. 209 § 1a of the CC in connection with from § 1 of the CC and any further findings as to the degree of social harmfulness of this act, the amount and nature of the financial obligations incumbent on him is also of key importance, including in particular those subject to enforcement proceedings, as well as the degree to which the accused fulfilled these obligations and his efforts in in this respect "

This ruling was issued in a case in which the accused could not fulfill his maintenance obligation due to bailiff seizures.

XI 2021 r.

Changing the amount of maintenance before the divorce decree becomes final

The Court of Appeal in Kraków, in its judgment of June 15, 2021, rightly pointed out that if, after the divorce judgment was issued by the court of first instance, there was a change in the so-called relations within the meaning of Art. 138 k.r.o. it is the court of second instance that may change this alimony. This is so because "in a divorce case, the decision on the maintenance obligation of divorcing parents towards their minor children applies to benefits from the date of the validity of this judgment."

X 2021 r.

Offense of non-alimony - changes in regulations

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.

IX 2021 r.

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.

VIII 2021 r.

Tightening up the rules for maintenance debtors

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.

VII 2021 r.

Limitation of maintenance - in a situation where the obligated person has parental authority and when it does not exist

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.

VI 2021 r.

Invalid donation contrary to the principles of social coexistence

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.

V 2021 r.

Costs of maintenance proceedings

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.

IV 2021 r.

Is the court obliged to decide on maintenance in a divorce decree?

The divorce decree results in a maintenance obligation on the minor children of the former spouses. In the divorce decree, the court is obliged to decide how the spouses will contribute to the costs of the child's maintenance and upbringing. There is no way that the issue of child support will remain unresolved in the divorce decree, even if the parents have reached an agreement with each other. The same goes for separation.

The obligation to decide in the divorce decree on the amount of maintenance for minor children provided by the parent who has not been entrusted with custody of the child, exists regardless of the position of the parent who is entrusted with custody of the child and his / her efforts to independently support the child. The renunciation of child support payments to the child by one of the parents will therefore be ineffective, as neither of the parents, nor any other legal representative of the child, may validly waive in advance on his behalf the maintenance claims that the child serves against both parents (judgment of the Supreme Court of 21 October 1952, C 1624/52).

In another judgment, the Supreme Court indicated that the obligation to establish maintenance also exists when one of the divorcing parents already pays the maintenance voluntarily (Supreme Court judgment of 9 January 1953, C 2943/52).

In the case of alternating custody, the courts often resign from establishing maintenance and charge both parents with the costs of maintaining and bringing up a minor child. Then they agree that each of them will bear the costs of the current maintenance of the child during the periods of direct care of the minor, and the remaining costs will be borne by the parents in half. This will happen when the financial situation of both parents is similar. On the other hand, when the income and financial resources of each parent are different, and the child stays with each parent for comparable periods, this may justify ordering maintenance for the child from the parent whose earning potential is higher.

On the other hand, entrusting one of the parents with custody of a child thus determines the manner of performing the maintenance obligation by him (judgment of the Supreme Court of 21 November 1952, C 1814/52).

However, if neither of the parents will be custody of the child after the divorce, the court will determine the amount of child support ordered by them separately for each of them.

III 2021 r.

The influence of the ex-spouse's cohabitation on the amount of maintenance

Do the income and needs of the ex-spouse's cohabitant affect child support from a previous relationship?

In the judgment of 10 July 1998, I CKN 788/97, the Supreme Court considered the issue of the relationship between cohabitation and the maintenance obligation. According to the operative part of the judgment, the ex-spouse's cohabitation does not exempt from maintenance.

With art. 60 § 3 sentence 1 of the KRO it is clear that the condition for the expiry of the maintenance obligation of the divorced spouse obligated to maintenance is the contracting of a new marriage by the former spouse recognized as entitled to maintenance. This provision stipulates that the divorced spouse's obligation to provide subsistence ceases when the spouse concludes a new marriage. The effect of the expiry of the maintenance obligation between divorced spouses is therefore related to the contracting of a new marriage by the entitled spouse. The Supreme Court thus emphasized the differences between a formal marriage and cohabitation.

On the other hand, in the judgment of 11 July 2000, II CKN 1015/00, the Supreme Court indicated that the ex-spouse's cohabitation may affect the amount of alimony. According to the Supreme Court, the financial and life situation of a cohabitant of one of the ex-spouses, and thus also the fact of being in an actual relationship, may affect the amount of child support payments from the previous relationship. Running a common household in an extramarital relationship brings mutual economic dependence on the partners of this relationship. In the opinion of the court, therefore, it should be assumed that the needs of a divorced spouse who is in an informal relationship are assessed taking into account the earning and financial possibilities of the divorced spouse's partner in this relationship. Had the courts failed to take this into account, the divorced spouse entitled to maintenance would be in a privileged position vis-à-vis the other spouse. According to the Supreme Court, such a situation is unacceptable as it would violate the principles of social coexistence.

To sum up, the cohabitation of the ex-spouse does not exempt the child from alimony, but it may affect the amount thereof.

II 2021 r.

Consequences of the reduction of earning capacity by the maintenance obligation for the scope of the maintenance obligation

People who are under an obligation to pay maintenance often try to avoid it. The family and guardianship code therefore protects the interests of the person entitled to maintenance. In art. 136. it was determined that if, in the last three years before the judicial recovery of maintenance benefits, a person who was already liable for these benefits, without valid reason, renounced his property right or otherwise allowed to lose it, or if he resigned or changed employment less profitable, the resulting change is not taken into account in determining the scope of the maintenance. The sanction of art. 136 of the Criminal Code is directed against those persons obliged to maintain who, of their own free will, without valid reasons, reduce their earning potential, which makes it difficult or impossible to fulfill the maintenance obligation.

Pursuant to art. 138 of the Family and Guardianship Code, in the event of a change in relations, you can request a change to the decision or agreement regarding the maintenance obligation. According to the position of the District Court in Nowy Sącz in the judgment of 24 October 2013, ref. No. III Ca 607/13, the maintenance obligation depends on the earning and financial possibilities of the maintenance obligee and the justified needs of the person entitled to maintenance. Due to this, a reduction (or increase) of maintenance may occur in the event of a significant change in the personal and financial situation of the parties to the maintenance relationship.

In the judgment of March 12, 1973, case no. III CRN 6/73, the Supreme Court pointed out that the change of employment to less profitable, resulting in a decrease in the earnings of the person liable for alimony may constitute the basis for a demand for a reduction of maintenance pursuant to Art. 138 kroons if there is a valid reason for this change. This means that only a change of employment to a less profitable one without valid reason will be sanctioned. However, it must not be forgotten that if the needs of the entitled to maintenance increase at the same time, and the awarded maintenance does not exceed the financial and financial capacity of the obligee, there will be no reason to lower them.

At the same time, it is assumed that the mere possibility of the defendant finding a job and receiving earnings at a level similar to those obtained on the date of determining the maintenance payments means that the application of the claim for the reduction of maintenance will be excluded (judgment of the District Court in Nowy Sącz of October 24, 2013 No. . with reference number III Ca 620/13).

It is worth quoting the words of the District Court in Sieradz in the judgment of June 26, 2013 I Ca 215/13 that the scope of a child's justified needs should be determined in such a way that, if they are satisfied, the child's living standard would be the same as that parents, because the level and quality of meeting the child's needs depend on the parents' income and financial opportunities, which also determine their standard of living.

I 2021 r.

An enforcement clause in a maintenance case

Art. 1082 of the Code of Civil Procedure provides for granting an enforcement clause to an enforcement order which awards maintenance. According to it, the court gives the enforcement clause ex officio to the writ of execution, which awards maintenance. The writ of execution is then served on the creditor ex officio. This title can be either a judgment, an order or a court settlement.

The commented article modifies the provisions of Art. 782 of the Code of Civil Procedure, according to which the enforcement clause is issued by a single court at the request of the creditor. Pursuant to this provision, an enforcement order issued in proceedings that was or could have been initiated ex officio is given an ex officio enforceability clause by the court, and a payment order issued in an electronic writ proceedings is subject to an ex officio enforcement clause immediately after it becomes final. This means that in matters relating to maintenance, Art. 782 of the Code of Civil Procedure does not apply.

In cases where maintenance has been awarded, enforcement may be initiated ex officio in accordance with Art. 1085 of the Code of Civil Procedure at the request of the court of first instance that heard the case. Such a request is addressed to the competent enforcement authority.

It is also possible to initiate execution upon request. Art. 1081 § 1 of the Code of Civil Procedure says that if enforcement concerns maintenance or an annuity in the nature of maintenance payments, the application for enforcement may also be submitted to the bailiff of the court having jurisdiction over the creditor's place of residence.

The order of immediate enforceability should be distinguished from the enforcement clause. Applying such a rigor makes the decision enforceable, even though it is not final. Only then is it possible to apply to the bailiff with a request to initiate enforcement, even if the deadline for appealing the judgment has not expired.

According to Art. 333 of the Code of Civil Procedure, the court ex officio (i.e. without the claimant's or the defendant's request) imposes the order of immediate enforceability if it awards maintenance - in terms of installments payable after the day the claim is brought. However, as for the installments payable before bringing the action - for a period not longer than three months.

In order to start the recovery of maintenance, you must submit an application for the initiation of the recovery of maintenance and an enforcement order (judgment with an enforcement clause). These documents are submitted to the court bailiff in whose district the debtor or creditor lives.

XII 2020 r.

The right of the parent of a minor aggrieved party to exercise his / her rights in proceedings against the other parent

The content of the Family and Guardianship Code regulates that the parents are the legal representatives of the child under their parental authority and each of them may thus act independently. Art. 98 § 2 of the Commercial Companies Code However, it introduces an exception to this rule - neither parent may represent the child in legal transactions between the child and one of the parents or their spouse. However, this regulation will not apply when the legal act to be performed by one of the parents consists in a gratuitous contribution to the child or concerns the maintenance and upbringing due to the child from the other parent.

It was doubtful whether in cases concerning the crime under Art. 209 of the Penal Code (non-alimony) a minor victim may be represented by one of the parents in a situation where the accused is the other parent or the other parent cannot represent the injured child and it is necessary to appoint a guardian for him in accordance with the requirements of Art. 98 § 2 and 3 and article. 99 k.r.o.

So far, this issue has been ambiguously resolved and the courts have overwhelmingly opposed the possibility of representation by the other parent. In the Resolution of the Supreme Court of 7 judges of 30 September 2010, I KZP 10/10, it was stated that the appointment of a probation officer is necessary, but an application for prosecution may be submitted by the other parent. This exception, however, concerned only the act of submitting a motion for prosecution and the Supreme Court did not comment on the remaining actions.

In the decision of the Supreme Court of June 25, 2020, I KZP 4/20, the court ruled that legal actions taken by a representative of a minor victim in criminal proceedings for the offense of persistent non-alimony against a child's parent are legal actions relating to the maintenance due to the child from that parent and education, within the meaning of the above-mentioned Art. 98 § 2 point 2 k.r.o. Thus, the Supreme Court extended its view expressed in the previous jurisprudence by adding that the other parent may perform all activities. In practice, this means the consent of the Supreme Court to the exercise of the minor's rights in these proceedings by the other parent.

XI 2020 r.

Ordering child support in a divorce case

Where the parties have minor children, the issue of parental responsibility and child support should be included in the divorce petition. The divorce court is obliged to issue a ruling in this respect also if the party has not submitted such a request.

The divorce court always rules on parental responsibility over joint minor children, even if there is currently a ruling by another court regulating this issue. The court should also, in the divorce decree, decide on the issue of the maintenance obligation towards joint minor children, even if such an obligation was imposed in a previous decision. This was ruled by the Supreme Court in its judgment of June 9, 1975 (file reference number III CRN 155/75).

In practice, this means that the court deciding to dissolve a marriage is obliged to decide on the issue of the obligation to maintain child support. He is not relieved of the fact that it was regulated by a final judgment prior to the initiation of the divorce case.

In a situation where the alimony has been settled by a final and binding judgment of the guardianship court or a court settlement before initiating divorce proceedings, the divorce court should refer to the previous judgment. Then the court must indicate whether it raises or reduces the maintenance to a specific amount or keeps it at the same level.

If the court decides that there has been no change in relations in this respect, it should state in the operative part that the maintenance payments are specified in the previous judgment. However, in the event of a change in the facts, the adjudicating court may modify the amount of maintenance. However, he cannot do so without referring to the previous maintenance order. In this way, doubts related to the execution can be avoided.

A spouse filing for divorce should apply for parental authority and maintenance, also in a situation where his request is consistent with the content of a previously issued judgment.

X 2020 r.

Extending the obligation to support a single mother

It is obvious that a child who is not married also deserves the care and support of both parents. In practice, it may often appear that the child is looked after by a single mother who may not be able to perform paid work with additional duties. According to the law, both the child and the mother may be entitled to maintenance in this situation. The Supreme Court decided that material support for the mother is also indirect help for her child.

The basis for the claims of the mother of an extramarital child against the child's father is Art. 141 of the Family and Guardianship Code. According to this provision, the father, who is not the mother's husband, is obliged to contribute to covering the expenses related to:

pregnancy and childbirth,
three-month support of the mother during childbirth.

This assistance should be adequate to the circumstances.

Importantly, in the further part of this provision, the legislator specified an additional obligation of the child's father. The mother may, therefore, demand the father's share in the cost of her living for a period longer than three months if there are important reasons for this.

The Supreme Court in judgment ref. No. II CR 418/78 recognized the extension of the obligation to maintain the mother as a further protection of the rights of the child. Securing a mother's support is intended to provide the child with the necessary care in a special situation. The Supreme Court recognized the situation in which the mother ceased gainful employment due to giving birth and did not have the means to ensure the necessary support as an important reason for extending the obligation to maintain the child's mother.

IX 2020 r.

Decision to recognize the maintenance debtor as being avoiding maintenance obligations

The issuance of a decision on recognition of the maintenance debtor as evading maintenance obligations is provided for in Art. 5 sec. 3 of the Act on helping persons entitled to alimony. Prerequisites that are necessary to initiate proceedings in this regard are:

Preventing the maintenance interview by the maintenance debtor,
refusal to submit a financial declaration by the debtor,
refusal to register with the poviat labor office as an unemployed person or a jobseeker within the time limit set by the competent authority of the debtor,
the debtor's refusal to accept an offer of suitable employment or other gainful work, performing socially useful work, intervention works, public works, works on the basis of public works or participation in training, apprenticeship or vocational preparation of adults without just cause.

The competent authority then initiates the procedure for recognizing the maintenance debtor as evading maintenance obligations, the culmination of which may be the issuance of a decision.

The next paragraph of this provision mentions an exception to the above rule. It specifies that the decision to recognize a maintenance debtor as evading maintenance obligations is not issued to a maintenance debtor who has fulfilled maintenance obligations in the last 6 months each month in the amount not lower than 50% of the amount of the currently established maintenance.

In the judgment of the Provincial Administrative Court in Białystok of December 3, 2019, II SA / Bk 684/19, the court noted that the interpretation of the above-mentioned provisions of the Act on assistance to persons entitled to maintenance is ambiguous. He also stressed that the existence of the above-mentioned conditions is necessary at the time of commencing the proceedings to recognize the maintenance debtor as evading maintenance obligations. At the same time, it pointed out that, in that case, it did not matter whether these conditions existed at a later stage.

In the present case, proceedings were initiated against the maintenance debtor to recognize the maintenance debtor as a maintenance debtor. Already during the proceedings, he submitted to the maintenance interview, i.e. he performed one of his obligations. In the opinion of the court, however, this did not mean that the condition for initiating and conducting the proceedings was dropped.

The court emphasized that these provisions are intended to mobilize maintenance debtors to fulfill their obligations. The court stated that recognizing the debtor's behavior at the stage of the pending proceedings would contradict the purpose of the solutions introduced in the act. Submission to the maintenance interview does not, therefore, remove the condition for initiating proceedings. According to the Court, the position that allows for such behavior to be regulated is unacceptable and is in contradiction with the ratio of the Act on Assistance to Persons entitled to Alimony.

VIII 2020 r.

Can the maintenance claim be the subject of a transfer?

In the resolution of February 24, 2011, III CZP 134/10, the Supreme Court gave a negative answer to this question. The Supreme Court took the position that maintenance claims should be included in the categories of claims for which the prohibition of the transfer of claims results from the purpose of their creation.

The resolution emphasized that the purpose of the maintenance obligation on the moral level is to satisfy the obligation arising from family ties to provide assistance to those family members who, through their own efforts and resources, cannot satisfy their living needs. This goal can only be achieved if the benefit is met for a specific person.

Apart from the strictly personal nature of the maintenance obligation, the subject of the claim is also opposed to the transfer of the maintenance claim to a third party by transfer, which is not the payment but the satisfaction of the vital needs of the beneficiary.

In accordance with the provisions of the Civil Code, maintenance claims may not be redeemed also by setting off, they may not be subject to execution or lien. Moreover, the entitled person may not waive the right to maintenance, even with the payment of a lump sum capitalized amount of future benefits, or transfer to another person both the right to maintenance and the maintenance installments already due.

For this reason, the right to maintenance is not only protected against the risk of depriving him of his means of subsistence as a result of placing his maintenance claims on the market, but also benefits from significant facilities in the recovery and enforcement of the payments awarded on this basis.

The adjudicating panel drew attention to the view presented in more recent literature, which narrows the principle of non-transferability of maintenance rights by allowing the possibility of selling to another person by an entitled person maintenance installments already due also by way of transfer of receivables. It is argued that maintenance installments that have become due and awarded by a final judgment are no longer closely related to the person entitled. However, the Supreme Court did not follow this view.

VII 2020 r.

The special nature of the maintenance support during divorce proceedings.

As stated in art. 445 of the Code of Civil Procedure during the divorce or legal separation process, separate proceedings cannot be instituted to meet the needs of the family and for maintenance. These cases fall within the jurisdiction of the court that decides in a divorce case, with maintenance being awarded for the duration of the trial in accordance with the provisions on safeguard proceedings.

I am talking about art. 730 et seq. Of the Code of Civil Procedure. In order for the court to grant an application for security, a minimum of substantiate the claim. In jurisprudence and legal doctrine, it is agreed that "probability" does not mean "proof". It is enough to show the high probability of the fact. As a rule, the examination of the court is more superficial here, the principle of formal admission and taking of evidence does not apply. At least this is what it looks like in "ordinary" civil matters.

Maintenance payments, especially those granted in the form of security, however, have a specific character. This issue was the subject of adjudication by the Court of Appeal in Krakow (decision of May 21, 2019; reference number I ACz 660/19), which came to the conclusion that in this case the order on securing has features of "self-sufficiency and last resort" and has substantive character. The court pointed out that such a decision ultimately determines the duration of the trial concerning the subject matter and after it becomes final until the divorce judgment is issued, it can be changed only in the event of a change in relations (e.g. change of the child's needs, parent's earnings). Consequently, when examining a case, the court should carefully examine the claim, as if it were adjudicating on the merits of a maintenance case in a separate case. The Court of Appeal pointed to the new jurisprudence of the Supreme Court, citing the resolution of the Supreme Court of October 20, 2010, reference number act: III CZP 59/10.

To sum up, by awarding support for maintenance during a divorce case, the court deciding the case cannot limit itself to a cursory check of the plausibility of the claim, as in a "ordinary" civil case. The examination of evidence must be very careful and thorough.

VI 2020 r.

Can I take my driving license for non-maintenance payments?

The enforcement of maintenance obligations can be very difficult - the debtor avoids paying, gets rid of his property or conceals it, or suddenly loses his job. Facilitation for creditors is introduced by the Act on assistance to persons entitled to maintenance, which provides for a minimum of the option to withdraw the debtor's driving license and report it to the economic information office. Before we achieve this effect, however, we must meet several conditions.

First of all, the creditor should go to the bailiff and start the execution. Only when this proves to be ineffective, the entitled person may submit to the "his" commune (commune of the entitled person's residence) an application for taking action against the maintenance debtor. The application shall be accompanied by a certificate of ineffectiveness of enforcement.

Then the debtor's municipality conducts the so-called maintenance interview - it determines the family, income and professional situation of the debtor, as well as his health and reasons for non-maintenance. What's more, the debtor receives a property declaration, made under pain of criminal liability. The information collected in this way is forwarded to the bailiff, which may allow enforcement. If the debtor is in arrears with liabilities for a period longer than 6 months, the municipality notifies economic information bureaus (at least BIG, KRD, etc.).

If the maintenance interview shows that the debtor cannot meet his obligations due to unemployment, the authority will oblige him to register as unemployed or looking for work within a specified period (it may not be longer than 30 days). In addition, the municipality will inform the employment office of the need for professional activation of the maintenance debtor.

The above-mentioned activities (especially disclosure of assets in the asset declaration) should facilitate the collection of receivables. But what if the debtor:

o during the last 6 months at least in 1 month has not paid maintenance or has paid them in an amount lower than 50% of the obligation, and

makes it impossible to carry out maintenance interviews or
refused to make a property declaration,
refused to register as an unemployed / jobseeker or
without a justified reason, refuses to accept a proposal of suitable employment or other gainful work, socially useful work, intervention works, public works, works on the basis of public works or participation in training, internship or vocational preparation of adults?

In such a case, the commune authority will issue a decision to the debtor to recognize him as evading maintenance obligations. When this decision becomes final (cannot be appealed to the administrative body) the commune:

will submit a request to the prosecutor's office for prosecution for an offense of non-alimentation, and
for submitting an application to the staroste to keep the debtor's driving license.

As a consequence, the staroste will issue a decision to stop the driving license. The staroste may check whether a decision has been made to recognize the debtor as a person evading his obligations and whether it is final. However, there is no right to check whether this decision is correct, lawful and factually correct (as in the judgment of the Supreme Administrative Court of October 14, 2016, reference number I OSK 287/15).

V 2020 r.

Pension for a child entitled to maintenance

In a situation where the person entitled to maintenance cannot obtain them due to the death of the person obliged to pay them, the person responsible for the damage should pay compensation in the form of a pension. Such a pension compensates for damage suffered by a person entitled to maintenance as a result of the death of an obliged person by losing maintenance due to him from the deceased.

The amount of compensation should correspond to the amount of lost maintenance obligations.

Due to this, a person towards whom the deceased had a statutory maintenance obligation may demand a pension from the person liable for compensation. This pension should be calculated according to the needs of the injured party and the earning and property possibilities of the deceased. Its payment should cover the duration of the likely duration of the maintenance obligation.

If required by the rules of social coexistence, the same pension may be demanded by other relatives to whom the deceased voluntarily and constantly provided means of subsistence. It is worth emphasizing that the right to a maintenance allowance is a personal claim of each of the entitled persons and should be determined for each of them separately.

Pursuant to the case-law (Supreme Court judgment of 18 January 1974 reference number I CR 746/73), maintenance is not due to the spouse because of the death of the other spouse, if he has full capacity to work and is not burdened with the obligation to raise minor children , even if he was supporting his deceased spouse during his lifetime. However, if the surviving spouse cannot take up paid work or is forced to resign from work because of the obligation to raise minor children, the surviving spouse may be entitled to a maintenance allowance. A similar situation occurs in the case of a widow who was pregnant on the day of her husband's death.

IV 2020 r.

Fine imposed on employer for concealing employees' income

Strengthening the efficiency of collecting maintenance is to be ensured by the amendment of 27 December 2018. One of the assumptions of the new regulations is to impose higher penalties on employers.

A significant change was introduced in the Labor Code. The fine imposed on the employer for employing maintenance debtors in black was raised. Such a fine can currently range from PLN 15,000 to 45,000. This is a significant increase, because so far its amount was in the range of 10,000 - 30,000 PLN. It may be awarded in the event that the employer, contrary to the obligation, pays higher remuneration than resulting from the concluded employment contract without making deductions for satisfying maintenance payments to the employee who is the person against whom enforcement is sought.

Until now, the Code of Civil Procedure provided that the bailiff was required to call on the employer not to pay the debtor remuneration, but to transfer the remuneration paid to the bailiff or directly to the enforcing creditor. This situation also applied to maintenance debtors.

In addition, the Code of Civil Procedure provides that when seizing remuneration for work, the bailiff calls on the employer to make a statement in the event of obstacles to pay remuneration within a week about the nature of these obstacles. The employer is also obliged to immediately notify the bailiff and creditor of any change in these circumstances.

In the event of termination of employment with the maintenance debtor, the current employer mentions the seizure of receivables in the work certificate issued to the debtor, and if the debtor's new employer is known to him, sends him a bailiff's notification and documents regarding attachment of remuneration.

The December amendment adds that an employer who has not fulfilled these obligations will have a fine of up to PLN 5,000. If the employer continues to evade these activities, the fine may be reproduced.

These provisions enter into force on December 1, 2020.

III 2020 r.

Amendment of provisions on the collection of maintenance

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).

II 2020 r.

I ACa 828/17, Scope of a reverse claim for maintenance. - Judgment of the Gdańsk Court of Appeal

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.

I 2020 r.

Receipt as proof of child expenses

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.

XII 2019 r.

Maintenance obligation for adult children

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]

XI 2019 r.

Enforcement of maintenance payments

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.

X 2019 r.

Maintenance agreement

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.

IX 2019 r.

How long is the child dependent on the parents?

According to the natural order of things, it is the parent's legal responsibility to support their child. Confirmation of this principle is found in the provisions of the Family and Guardianship Code, and more specifically in Art. 133, of which §1 explicitly states that "parents are obliged to provide maintenance for the child." This rule seems clear when we are dealing with a standard family situation, when the minor requires a constant investment of funds due to the fact that he is still attending school and there is no possibility of employment.

According to the further wording of the provision, this obligation exists until the child is able to support himself. This could indicate that as soon as he reaches the age of majority he is forced to become financially independent. In reality, however, it is not so obvious - turning 18 does not necessarily mean that a young person will finish education and immediately enter the labor market. This fact was emphasized by the Supreme Court in its judgment of November 14, 1997 (III RC 234/16), stating that "the obligation for the maintenance of parents towards their children is not limited by time, and that the child reaching a certain age is not a condition for its repeal. It does not cease when the maintenance party obtains a specific education. It depends only on whether the child is able to support himself. "

Maintenance obligation and continuing education

This raises the question, however, is there an upper age limit for the child for which the parent ceases to have a statutory maintenance obligation? We can, after all, imagine a situation in which an ambitious adult descendant gains further degrees while still remaining on the proverbial pot of parents. This state of affairs can last for years.

According to the case-law, continuing education and efforts of an adult child to acquire or raise qualifications relevant to his talents, which will enable him to earn higher earnings in the future, may justify their refusal to take up work or not using their earning opportunities, including those related to the occupation they have acquired. The cessation of maintenance is also not related to the degree of education, in the sense that it does not cease once the child reaches a certain basic or secondary level of education. It should be emphasized, however, that the personal abilities and character traits of an adult child must actually allow continuing education - undertaking education cannot be an illusory activity directed only at extending the maintenance obligation.

Evasion of the obligation

Article 133 of the Family and Guardianship Code introduces the possibility for parents to evade maintenance by respecting an adult child. This is only possible if the benefits are linked to undue detriment to them or if the child does not endeavor to be able to support himself. The final decision on the waiver of maintenance for an adult child is taken by a court that assesses each case individually.

VIII 2019 r.

The concept of scarcity

The notion of scarcity appearing in maintenance cases may raise interpretation problems. The Supreme Court dealt with this issue many times. April 24, 2018 in the judgment reference number act: V CNP 22/17 SN again spoke on this subject.

The court noted that, as a rule, one cannot speak of the shortage of a person who, by selling his property or part of it, could alone, and for a longer period of time, satisfy his justified needs from his own resources. At the same time, he noted that there is no obligation for the authorized substance to infringe on items that directly satisfy his or her needs that could be claimed from the obligor (for example, selling an apartment), as well as if the principles of social coexistence are contrary to this. The assessment of whether a given item serves only to directly meet the needs and whether the sale contradicts the principles of social coexistence, however, should be assessed on a case-by-case basis.

For example, an old woman living alone in a very large apartment cannot claim that she is in short supply, because the apartment is of an antique nature (a much smaller premises would be sufficient to meet her needs, while generating much lower costs). This woman could sell him, buy a smaller place and still have her money to support herself for at least a few years. In addition, the court drew attention to the possibility of concluding a reverse mortgage agreement, which can be a very beneficial solution for older people who, for various reasons, do not plan to transfer real estate to their relatives after death (as was the case here).