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.