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.
KS