Termination of alimony (child
support)
Termination of alimony (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
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JUDr. Milan Ficek,
attorney at law, Slovakia, Bratislava
