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.