The basic source of the maintenance obligation in Polish family law is Art. 128 of the Family and Guardianship Code. It provides that the obligation to provide means of subsistence, and, if necessary, also means of upbringing (maintenance obligation) is imposed on relatives in a straight line and siblings.
There is no standard in Polish law that would rigidly define the amount of the benefit, leaving it possible for the court to determine it. This means that the amount of maintenance awarded by the court will be the resultant of the needs of the entitled party and the capacity of the obligated party, in accordance with Art. 135 §1 of the Family and Guardianship Code.
The ability to pay maintenance is not determined by the achieved, declared earnings, but by the objective, actual earning capacity. The scope of the maintenance obligation may and should be greater than that resulting from the actual earnings and income of the obligor, if with the full and proper use of his strength and skills, earnings and income would be greater, and the existing socio-economic conditions and important reasons for such use do not stand in the way. – judgment of the District Court in Sieradz of January 22, 2020, file ref. I Ca 531/19
However, the judge does not have full freedom in assessing the situation of the entitled person. The Family and Guardianship Code introduces a rule that requires the omission of certain types of benefits when determining the size of the maintenance obligation. According to Art. 135 §2 of the Family and Guardianship Code:
“The scope of maintenance benefits is not affected by:
- benefits from social assistance or the alimony fund referred to in the Act of 7 September 2007 on assistance to persons entitled to alimony, to be reimbursed by the person liable for alimony;
- benefits, expenses and other financial resources related to placing a child in foster care, referred to in the provisions on supporting the family and the foster care system;
- the childcare benefit referred to in the Act of 11 February 2016 on state aid in raising children;
- family benefits referred to in the Act of 28 November 2003 on family benefits;
- supplementary parental benefit referred to in the Act of 31 January 2019 on supplementary parental benefit”.
The above benefits are of an auxiliary nature for the entitled person. They result from the general obligation of the state to provide protection and support to given individuals.
On the other hand, the maintenance benefit results from a special, i.e. personal relationship between the obligated party and the entitled party.
Therefore, social benefits do not affect the scope of the maintenance obligation. It could happen that the state would take over the entire burden of maintaining persons entitled to maintenance, which in the opinion of the legislator is not a desirable situation.
At this point, it should also be noted that benefits from the Alimony Fund in no way exempt from the obligation to pay maintenance.
In accordance with the decision of the Supreme Administrative Court of November 24, 2022 on the reference number
I OSK 1851/20: The fact of paying benefits from the maintenance fund to a minor does not release the obligor from the obligation to provide maintenance to his own child.