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.

1. to initiate bailiff enforcement or
2. 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:

1. date and place of conclusion of the contract
2. specification of the parties, i.e. the obligated and entitled person (names, surnames, addresses, series and numbers of ID cards, PESEL numbers)
3. determination of the form of maintenance (amounts or in kind)
4. determination of the frequency and date of payment of the maintenance payment
5. the form of payment of maintenance
6. 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).