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