Find here all important informations about canceling alimony in Slovakia. Our law firm can help you with terminating child support in Slovakia.
Termination of alimony may concern alimony between parents and children, between other relatives, but also between spouses. The most often occurring is termination of alimony (child support) for an adult child (person).
In practice, two situations can occur with regard to termination of alimony. The first case is when alimony (child support) was determined by a judicial decision. The second case is when alimony (child support)was not determined by a judicial decision.
Termination of child support not determined by a judicial decision
If the court in your case did not determine child support obligation by a specific decision (such as divorce, judgement, order, approval of the settlement), the parent who pays alimony does not need to file a specific proposal to the court and thus seek termination of child support obligation. Child support obligation expires by operation of law. Below are situations in which child support obligation expires by operation of law, and you can also find here judicature of courts.
Termination of child support determined by a judicial decision
Termination of child support which was determined by a judicial decision must be performed by filing the proposal for its termination under Article 78 of the Family Code. In case that the liable parent wilfully refuses to fulfil child support obligation, he or she risks enforcement proceedings or criminal proceedings against him or her. For the purposes of termination of child support, especially correct formulation of the proposal for court is necessary. Below are reasons when it is possible to file the proposal for termination of child support determined by a judicial decision.
Termination of alimony for an adult child
Fulfilment of alimony obligation of parents towards children is their legal obligation that lasts until children are able to make their own living. (Article 62 section 1 of the Family Code).
Among the individual types of alimony (child support) obligation, the child support of parents towards children has an important position. Child support obligation burdens both parents, regardless of whether a child was born in marriage or not.
From the view of assessment of termination of child support obligation, the most common situation is when the child receives a regular income, such as from employment, business or some other way.
The practice of courts in connection with expiration (termination) of child support concluded that the condition for acquisition of the child’s ability to make his or her own living is completing one study of the same level, and in this regard they did not consider as relevant for example further study at the university that is not a regular continuation of study. By completing one study, the child may acquire qualification for performance of work.
However, it is clear that it is necessary to take into account specific circumstances of the case. It is necessary to take into account the situation in the labour market, existence of a wider variety of forms of study, educational institutes, improving language skills necessary for performance of acquired qualification, distance learning, retraining, follow-up study, foreign stays, need for skills development.
The court will stabilize the moment of acquiring the child’s ability to make his or her own living.
The court examines whether the request for termination of child support is justified, or whether there is an abuse of parental alimony obligation only because of the negative attitude to work (lack of interest to be employed, even in a part-time job, or to take a temporary job).
It should be noted that when the child reaches the age of majority (or any other age) , child support obligation of parents does not expire if the child does not acquire the ability to make his or her own living (for various reasons).
In this context it should be noted that child support obligation of the parent or the child lasts until the death of the beneficiary or the liable person.
If an offspring marries, alimony obligation between spouses takes precedence, while parental obligation has only a supporting role (for example, when the husband is not capable to provide all reasonable needs).
The parents do not need to fulfil this obligation to the extent that also the other spouse would benefit from it. Child support obligation expires completely by termination of the respective family legal relationship (death, denial of paternity, adoption).
When deciding about termination of child support (alimony obligation), the court takes into consideration also criterion of good manners, but only in the case of adult children.
The court takes into account for example also the real situation in the labour market, the overall unemployment in the region, in the respective field, age group, and also achieved earnings in the respective occupation.
The court examines regular and also irregular income, based on the average monthly income.
They also examine the overall property situation of the liable parent (immovable property as well as movable property (e.g. valuables), funds in the accounts, securities, and other). They do not take into consideration claims for damages for pain and suffering and hindering of social fulfilment of the liable parent.
Under Article 78 section 1, agreements and judicial decision can be changed when the situation changes.
Except child support for an underage child, the change or termination of alimony is possible only on the basis of proposal. The Code of Civil Procedure provides that for a judicial decision, the state at the time of promulgation of the decision is decisive.
Therefore, the court cannot take into account the facts that can be expected or that will occur after the promulgation of the decision, as participants often believe. Decisions sentencing to performance of benefits payable in the future are causes of “clausula rebus sic stantibus” (i.e. reservation that the conditions, under which the court determined the extent of performance, will not change). If the change of conditions on the part of participants is proved, the law allows breaking the barriers of res iudicata (i.e. adjudicated matter).
Sometimes termination of judgements relating to alimony obligation occurs under the law (e.g. judgement of divorce and regulation of rights and obligations towards children cancels the previous regulation of child support obligation of parents towards children).
The provision of Article 78 states that “the change of circumstances” is necessary for a change of the amount of child support obligation (decreasing, increasing, but also termination) to be possible.
The change of circumstances can occur on the part of the beneficiary, the liable person, but also on both parts.
These can be subjective, but also objective facts, change of income, expenses or property.
In practice, most often the following reasons belong among these changes: the beginning of school, change of level of the school system, change of state of health, incapacity for work (long-term), unemployment, new child support obligation, acquiring the ability to make one’s own living.
The Family Code does not directly demand a significant change of circumstances, but with regard to the structure of this circumstance as an exception to the principle of unchangeability of judicial decisions, which aims to legal certainty, it is required that issuing a new decision happen only when it concerns a change of a serious nature. It is not desirable and permissible to change effective judicial decision for an insignificant change of circumstances.
Whether the change of circumstances is relevant is examined by comparing new circumstances (which must be proved) with the original circumstances (which were here at the time of the court’s decision making in the past). The court assesses whether the alleged change of circumstances amounts to a sufficient degree of intensity for a change of decision.
The law allows for a change in relation to judicial decisions by which alimony obligation was adjudged, as well as agreements. The wording of Article 78 implies that it is possible to cancel or change alimony, which can be decreasing or increasing of alimony.
To change or cancel the decision on alimony obligation towards an adult person requires proposal from the persons concerned (proposal to the court).
Regarding an underage child, the change is possible also in the proceedings commenced without the proposal, not only increasing, but also decreasing, or termination of alimony.
Regarding adult persons, the alleged change of circumstances in the past is assessed to the date of the commencement of the trial. At the very latest, the change of circumstances must occur at the time of the court’s decision making.
It is not possible to decide about the change of circumstances which should occur in the future. In the proposal for the change or termination of child support obligation, the participant must state from when the change should be made.
Filing the proposal for termination of alimony obligation does not mean that the liable participant (usually a parent) is entitled to stop the fulfilment of child support obligation to the beneficiary.
If the court does not comply with the proposal for termination of child support obligation, by paying alimony up to the effective conclusion of the proceedings, the liable person avoids distress or criminal proceedings against him or her.
According to Article 78 section 2 of the Family Code, in case of termination or decreasing of child support for an underage child for an elapsed time, the consumed alimony shall not be refunded.
The provisions of the Family Code which regulate child support obligation towards an underage child do not constitute the right of a liable person to refund amounts spent in this way.
The nature of regulation of family legal relations determines the difference from the general regulation of unjust enrichment under the Civil Code. The liable person therefore cannot request refunding of consumed child support in relation towards an underage child.
The likely purpose of such regulation was to prevent deterioration of living standards of underage children.
Whether the provided child support was consumed and which part of it will be the subject of inquiry. If alimony for an underage child was not consumed, the liable person is entitled to its refunding.
A different situation is with regard to decreasing or termination of child support obligation concerning adult beneficiaries.
If the court with regard to adult persons (beneficiary) decreases or terminates child support, the adult person (beneficiary of alimony) is obliged to return the difference for the period from filing the proposal to the court’s decision.
In such case the court does not examine whether the provided alimony was consumed. The right for refunding the stated amounts is barred by the statute of limitations, because these are not payments of the nature of child support.
For mutual alimony obligation of parents and children, also in such cases substantive exemption from court fees applies.
From judicature:
The consumed child support is not refunded; therefore in decreasing child support for an underage child the debtor cannot account for overpaid amounts for regular child support. R 23/1964
The decisive moment for termination of child support obligation of the adoptive parent towards the adoptive child is when the decision on termination of adoption comes into effect. Up to this point the blood-related parents have alimony obligation towards the child under the law. R 62/1965.
The proposal of the parent for termination of child support for an underage child includes also the proposal for decreasing of child support; therefore in the proceedings, which examine the legitimacy of the proposal for termination of alimony, the court is obliged to deal also with the fact whether there has been change in circumstances, possibly justifying the decrease of child support. R 2/1967
The child's ability to make his or her own living does not depend on reaching a certain age limit; therefore there is no reason for limiting the fulfilment of alimony obligation of the parent towards the child before reaching a certain age limit of the child (e.g. by attaining majority). R 100/1967
Termination of child support cannot be caused by the fact that the underage person is capable of any gainful activity, regardless of his or her reasonable interests, skills, state of health and overall physical fitness, as well as regardless of social need for such work. R 16/1968
Sporadic income of the child (e.g. during school holidays), who otherwise prepares by the study for a future occupation, generally does not affect the alimony obligation of parents. The substantive hearing of a mutual proposal (Article 97 section 1 of the Civil Procedure Code) filed in the appellate procedure is not permissible; a different solution would not be in compliance with the provisions of the Civil Procedure Code on competency. R 76/1968
For determining from when the earlier court’s decision on child support for an underage child (increasing, decreasing, termination) changes, it is not decisive when the proposal for initiating the proceedings for a new regulation of child support was filed, or when the resolution on commencement of such proceedings was passed, or to which date participants of the proceedings proposed the change of the earlier court’s decision, only the fact when the change of circumstances occurred. R 54/1969
The ability of an underage child to make his or her living cannot be considered only with regard to the reached age and level of physical and mental maturity, but also with regard to the fact how the underage child is prepared from the moral and character perspective, especially by educational influence of parents, to participate by his or her activity in the socially useful work. If it is necessary with regard to the child’s deficiencies in behaviour to place him or her into the educational institution (institutional or protective education), in which he or she cannot earn livelihood by working, the child is not able to make his or her own living, and the alimony obligation of parents towards him or her lasts; it is not decisive whether the child made his or her own living before placement in the educational institution and that the statutory requirements for the fulfilment of alimony obligation of parents towards him or her were not met. R 74/1969
The part of the proposal for decreasing or termination of the obligation determined by the court to pay contribution to child support of a divorced spouse is also indicating the information from when this change is to be made. R 4/1976
