Despite the passage of almost 36 years, it is worth recalling the guidelines on the interpretation of law and court practice in maintenance cases contained in the resolution of the full composition of the Civil and Administrative Chamber of the Supreme Court of December 16, 1987.
According to the Supreme Court, in the event of gross misconduct of the person entitled to maintenance, which arouses general disapproval, it is permissible to dismiss the claim in whole or in part due to the principles of social coexistence (Article 5 of the Civil Code). This cannot be done when the entitled person is a minor child.
In practice, there are cases of gross violation by a person entitled to alimony of the rules of coexistence in the family. Such factual situations occur both in the existence of the maintenance obligation of parents towards their child who cannot yet start independent professional and gainful activity (Article 133 § 1 of the Family and Guardianship Code), as well as in the case of parents’ maintenance by their children and the performance of the maintenance obligation between other relatives (Article 133 of the Family and Guardianship Code) § 2 of the Family and Guardianship Code), as well as in the case of spousal maintenance during the marriage and after its dissolution (Articles 27 and 60 of the Family and Guardianship Code). Grossly improper conduct of the authorized person may include, among others:
- behaviors detrimental to the life and health of a family member,
- behaviors that violate the dignity, good name and other personal rights of a person,
- culpably falling into poverty or deliberately creating a situation leading to a claim for maintenance.
Guilty behaviors are widely condemned in society and it cannot be assumed that a person suffering harm is nevertheless obliged to provide maintenance to the person harming them in every case, just because the maintenance obligation results from consanguinity, marriage or other ties with which the act binds this obligation.
The Family and Guardianship Code provides for cases in which the legislator makes legal effects dependent on the principles of social coexistence (Article 56 § 2 and Article 144 of the Family and Guardianship Code). With regard to other legal and family relationships, it is possible to refer to the general clause contained in Art. 5 k.c.
Refusal to grant subsistence on the basis of the principles of social coexistence should take place very rarely, in particularly justified cases and when they arouse widespread disapproval.
Application of Art. 5 k.c. it may concern maintenance claims between adult family members. When, for example, the spouses’ cohabitation has ceased and alimony is being settled in favor of one of them, the assessment of the legitimacy of such a claim is influenced by the behavior of the spouse, especially the fault in causing the breakdown of the marriage, the determination of which affects the decision on the obligation to provide maintenance. Due to the principles of social coexistence, a situation in which the spouse responsible for the breakdown of the marriage would benefit from his dishonest conduct would be unacceptable. Such behavior does not always have to lead to exemption from the maintenance obligation, however, in gross circumstances it will limit it.
However, the issue of admissibility of applying Art. 5 k.c. to the maintenance obligation between parents and children. This obligation is of a special nature and is subject to a special legal regulation favorable to the child. Therefore, it is assumed that parents should use all their possibilities to ensure the necessary maintenance and proper development of the child. Any behavior of the child’s parent, aimed at preventing the performance of the maintenance obligation, should be considered contrary to the principles of social coexistence. The helplessness of the child, his complete dependence on adults, and above all on the parents, justifies the position that they cannot shirk their duty despite the child’s reprehensible behavior and regardless of upbringing difficulties and his attitude towards the parents. Therefore, the request of the parents to meet the maintenance obligation towards a child who is not independent cannot be considered contrary to the principles of social coexistence.
The above statement will not always apply in situations where the child entitled to maintenance, despite reaching the age of majority, has not obtained the appropriate education through his own fault and will not take up paid work.
An adult child who repeats particular years of study several times during his studies or does not continue his education and does not take up gainful employment and therefore does not have the means of subsistence, cannot demand them from his parents. Also, a child’s resignation – in order to annoy his parents – from scholarship assistance provided by the state may be considered harassment, which violates the principles of proper coexistence in the family, and thus the principles of social coexistence.
yes p amo, an abuse of a subjective right may be considered a demand for alimony by a person incapable of supporting themselves, who found themselves in need through their own fault. This will apply to people who, despite their careful upbringing and parents’ care, have led themselves to addictive alcoholism or drug addiction and refuse to undergo treatment.