📋Contents
In the previous (8th) term of office of the Sejm in March 2018, the Ministry of Justice announced a significant change Act of February 25, 1964, Family and Guardianship Code (consolidated text: Journal of Laws of 2020, item 1359) - next: cro and other acts, such as, among others, Act of November 17, 1964 Code of Civil Procedure, i.e. Journal of Laws Laws of 2019, item 1460 as amended amended, hereinafter referred to as Code of Civil Procedure For this purpose, the ministry prepared a draft amendment, which was submitted to the Sejm on February 27, 2019 (parliamentary form 3254). After the first reading in the Sejm, the draft was submitted to the Extraordinary Committee for Changes in Codifications, which adopted it with amendments on July 2, 2019 - hereinafter: draft amendment to the Code of Criminal Procedure and the Code of Civil Procedure (parliamentary form 3564).
ANDimmediate alimonyThis is a project by the Ministry of Justice. The ministerial proposal was to establish a minimum amount of child maintenance, which would be due to the entitled party even before the final amount of maintenance was awarded, and the time for the court to hear the case would not exceed two weeks. Such a solution is in place in Germany, among other countries.
Status of legislative work
Despite the project being supported by virtually all political groups, the Sejm of the current (IX) term did not continue work on the project proposed by the Ministry of Justice in the previous (XIII) term. This is due to the principle of discontinuation, which is in force in Polish constitutional law. This principle means the interruption of the parliamentary personnel continuity and the material continuity of its work upon the commencement of a new parliamentary term. In accordance with the principle of discontinuation, following the parliamentary elections held in autumn 2019, the newly elected Sejm was not obliged to continue work commenced during the previous term. In order to initiate work on draft amendment to the Civil Code and the Code of Civil Procedure it is therefore necessary to start its legislative path from the beginning.
The Ministry of Justice assures that work on draft amendment to the Kro I can't parse that. are still being carried out. The ministry originally planned to send the project for further consultation in 2020. Although this did not happen, given the ministry's assurances of its intention to introduce immediate maintenance payments into the Polish legal system as soon as possible, it is worth explaining the assumptions of this institution in more detail. UPDATE – LINK TO DISCUSSION OF THE NEW DRAFT AT THE END OF THE ARTICLE
Minimum formalities designed
The purpose of introducing immediate alimony, i.e. a lump-sum alimony benefit granted from the state budget in a simplified manner, is to ensure faster obtaining the alimony benefit and to secure the basic needs of the person entitled to receive alimony.
The main assumption adopted by the Ministry of Justice when working on the project introducing immediate alimony was to speed up the procedure for obtaining it as much as possible by making it significantly informal.
Pursuant to art. 1 point 2 draft amendment to the Code of Criminal Procedure and the Code of Civil Procedure, if no other action for maintenance was brought before the entry into force of the Act, the child will be entitled to immediate maintenance payments payable monthly. Pursuant to Art. 2 point 9 draft amendment to the Code of Criminal Procedure and the Code of Civil Procedure the person applying for the benefit will have to file a lawsuit against the person who is obliged to provide means of subsistence to the plaintiff and who fails to fulfill this obligation.
In order to facilitate the application procedure immediate alimonyThe lawsuit, according to the design, will be filed on an official form. Upon written request by the plaintiff stated in the lawsuit, the court will hear the case in the maintenance order procedure, provided that the circumstances justifying the claimed demand are confirmed. To confirm these circumstances, the plaintiff or their representative should attach to the lawsuit:
- declaration of income,
- cost of living statement
- a declaration of the number of children from the same parents entitled to maintenance benefits,
- a declaration that the defendant, who is obliged to provide means of subsistence to the plaintiff, is not fulfilling it
- a declaration that the parents of the minor plaintiff have not initiated a divorce or separation case.
All of the above the plaintiff will submit the statements under penalty of criminal liability for making false statements specified in Art. 233 § 6 Act of 6 June 1997, the Penal Code (consolidated text, Journal of Laws of 2020, item 1444).
Moreover, pursuant to Art. 2 point 9 of the draft amendment to the Code and the Code of Civil Procedure, the plaintiff should indicate in the statement of claim evidence to support his claims. However, the only evidence that the parent would have to attach to the lawsuit is the plaintiff's birth certificate, i.e de facto apart from a copy of the child's birth certificate, no other evidence would need to be attached to the claim.
Lump-sum alimony
Pursuant to art. 1 point 5 draft amendment to the Kro and kpc the amount of alimony will be determined using an algorithm that takes into account the minimum wage set for the next year, as well as the fertility rate. Alimony amounts will be calculated using the following formulas:
- 1 child – 38% of the conversion amount
- 2 children – 34.5% conversion amount for each of two children from the same parents
- 3 children – 31% conversion amount for each of three children from the same parents
- 4 children - 27.5% conversion amount for each of four children from the same parents
- 5 children or more – 24% of the conversion amount for each of the five or more children born to the same parents.
The Minister of Justice will announce, by way of a notice, in the Official Journal of the Republic of Poland "Monitor Polski", by November 30 of each year, the amount of the conversion amount and the amount of immediate maintenance benefits for the next calendar year. Maintenance payments will change by operation of law from January 1 of the year following the year in which the Minister of Justice announced the current conversion amount.
Conversion amount pursuant to Art. 1 point 2 draft amendment to the Code of. and kpc means twice the minimum wage determined in accordance with Act of 10 October 2002 on minimum wages (Journal of Laws of 2018, item 2177) for the next year, divided by the sum of the number 2 and the fertility rate announced by the Central Statistical Office for the previous year.
Until the amount of the conversion amount and the amount of immediate maintenance payments are determined in the announcement of the Minister of Justice, the amount of immediate maintenance payments in accordance with draft amendment to the Code of Criminal Procedure and the Code of Civil Procedure. would be as follows:
- PLN 496 for one child,
- PLN 450 for each of two children from the same parents,
- PLN 404 for each of three children from the same parents,
- PLN 359 for each of four children born to the same parents,
- PLN 313 for each of five or more children from the same parents.
As predicted by the Ombudsman for Children, if immediate alimony were introduced and calculated based on the algorithm included in the project, their amount in 2020 would amount to approximately PLN 570 for one child, PLN 1,040 for two children, and PLN 1,360 for three children. For comparison, the average amount of alimony awarded in 2016 was PLN 577, and in the first half of 2017 - PLN 590.
The introduction of lump-sum, standardised maintenance amounts prescribed by law represents a solution hitherto unknown in the Polish legal system. The algorithm proposed in the draft for calculating the amount of maintenance takes into account the changing economic situation and the real purchasing power of money. The aim of introducing such a mechanism is to prevent a decline in the actual value of immediate maintenance, which is experienced, among others, by beneficiaries of non-indexed benefits, such as the 500+ scheme, for example. Furthermore, if the institution of immediate maintenance is introduced, its amount could simultaneously establish an objectively determined minimum maintenance amount in other proceedings.
Sentence in two weeks
According to draft amendment to the Code of Criminal Procedure and the Code of Civil Procedure the court will consider the case at a closed session immediately, but no later than within two weeks from the date of filing the lawsuit. If the claim is accepted, the court will issue a maintenance payment order. If a party requests an award of immediate maintenance payments for the period before the date of filing the claim or an amount different from the statutory amount of immediate maintenance payments, or in the absence of other grounds for issuing a maintenance payment order, the chairman will schedule a hearing, unless the case can be heard in a closed session.
When issuing an alimony payment order, the court would rule that the defendant must pay immediate maintenance to the entitled person within specified periods and pay the costs of the proceedings or file charges within two weeks from the date of service of the order.
The maintenance payment order would become immediately enforceable after the deadline for satisfying the claim expires. If charges were filed, the court could (but did not have to!) suspend the execution of the order at the defendant's request.
Importantly, if the alimony payment order cannot be served because the defendant's place of residence is unknown or if the order could not be served on him in the country, the court would ex officio revoke the alimony payment order until it is properly served.
The defendant's defence
Moreover, in accordance with draft amendment to the Code of Criminal Procedure and the Code of Civil Procedure The defendant may file a statement of defence. This should be filed with the court that issued the maintenance payment order. In the statement, the defendant should indicate whether they are challenging the order in whole or in part, present the defences, which, on pain of forfeiture, must be raised before disputing the merits of the case, and state the factual circumstances and evidence. The court shall disregard late claims and evidence, unless the party proves that they did not raise them in the defence through no fault of their own, or that the consideration of late claims and evidence will not cause a delay in the proceedings, or that there are other exceptional circumstances.
If the charges are properly filed, the chairman schedules a hearing, orders their delivery to the plaintiff and calls on the plaintiff to submit evidence supporting the statements contained in the lawsuit within 7 days.
After the hearing, the court issues a judgment in which the alimony payment order is upheld in whole or in part, or repeals it and adjudicates on the claim, or in a decision it repeals the alimony payment order and rejects the claim or discontinues the proceedings.
Alimony payment order – effects
Maintenance payment order, against which no charges have been effectively brought in whole or in part, has the same effects as a final judgment. The plaintiff will have the opportunity to take the case to enforcement proceedings.
Importantly, obtaining immediate alimony will not prevent the entitled person from applying for higher alimony under Art. 135 kro
Until when will immediate alimony be due??
Pursuant to Art. art. 1 point 1 draft amendment to the Code of Criminal Procedure and the Code of Civil Procedure obligation to provide maintenance, and therefore i immediate alimonyThey are due to expire on the authorised child's 25th birthday. However, the court may extend. the obligation to provide alimony at the request of the entitled person in the event of exceptional circumstances due to which the person receiving alimony will still be unable to support himself on his own - e.g. due to disability.
It should be emphasized that the proposed v draft amendment to the Code of Criminal Procedure and the Code of Civil Procedure the moment at which a maintenance obligation ends differs significantly from the current legal reality. Polish law currently does not set any age for a child as a cut-off point after which the obligation to pay maintenance ceases. According to Article 133(1) of the Family and Guardianship Code, parents are obliged to pay maintenance for a child who is not yet able to support themselves, unless the income from the child's assets is sufficient to cover the costs of their upkeep and upbringing.
Get child support out as soon as possible?
While working on the introductory project immediate alimony To obtain maintenance payments as quickly as possible, a lawsuit for maintenance shall be filed with the District Court competent for the place of residence of the defendant or the child. The choice rests with the person filing the lawsuit, i.e. the plaintiff.
It is recommended to submit an application for appropriate security from the court in the lawsuit - i.e. a temporary order for the duration of the case, which may involve obliging the defendant to pay a specified sum of money periodically. In order for the court to grant an application for securing alimony, all circumstances justifying the application must be substantiated.
In order to streamline the procedure for obtaining alimony, it is advisable to seek the advice of a professional representative - a legal advisor or lawyer. A professional attorney will properly prepare the lawsuit maintenance (if possible, with an application for security to accelerate obtaining the first benefit), and will also estimate the maximum amount of alimony that can be obtained.
The knowledge and experience of a professional representative, i.e. a legal advisor or a lawyer, usually contribute to accelerating the process of obtaining alimony benefits; lawsuits drawn up by them less frequently and to a lesser extent require additional, time-consuming supplements. It's worth trusting someone for whom this is not the first or second issue maintenance, and yet he has a dozen, several dozen, or maybe even several hundred of these cases on his account. Legal advisors and lawyers are usually quite smart people and they usually draw additional conclusions from each case, which usually helps their next clients.
Piotr Kłodziński Legal Advisor Warsaw Law Firm Warsaw UPDATE 2021 - GOOD NEWS ON IMMEDIATE MAINTENANCE, OR HOW WE CONVINCED THE MINISTRY OF JUSTICE TO PRESENT A NEW PROJECT AND ITS ASSUMPTION OUR OFFICE ASSISTS PEOPLE APPLYING FOR MAINTENANCE IN PREPARING LETTERS AND REPRESENTS PARTICIPANTS IN SUCH DISPUTES IN COURT. DO YOU HAVE ADDITIONAL QUESTIONS? IF YES, PLEASE ADD COMMENTS BELOW OR CONTACT THE AUTHOR VIA BIURO@KLODZINSKIKANCELARIA.PL