The above-mentioned project was debated by the Sejm, but due to the continuation of the work of the parliament of that term, it was not adopted. As for the project, the Extraordinary Committee for Changes in Codifications, in its report on the government bill amending the Act - Family and Guardianship Code and certain other acts (forms no. 3254 and 3254-A), after considering the project, requested its adoption. This principle (of discontinuation), which applies to the work of the legislative body, is recognized as an obvious customary general principle. This means nothing other than the fact that all matters for which parliamentary work has not been closed are not transferred in any form to the new parliament.
One of the basic assumptions of the project is to guarantee minors' means of subsistence by introducing the institution of immediate maintenance benefits. It is important to reach a compromise between the need to ensure that minors meet their needs that are appropriate to their age and related conditions, and to enable the obligated party to fulfill the indicated obligations.
Pursuant to Art. 128 of the Family and Guardianship Code, the content of the alimony obligation is to provide means of subsistence and, if necessary, also means of upbringing to the entitled person. This provision concerns a cash benefit. It should be emphasized that the maintenance obligation has a strong axiological justification, due to the protection of individuals and the entire society. Their existence and scope are regulated by mandatory standards. In turn, this provision is related to another one, i.e. Art. 135 § 1 of the Family Code, according to which the scope of these maintenance benefits depends both on the justified needs of the entitled person and the earning and property possibilities of the obliged person. This provides a certain flexibility that allows for taking into account various factors that lie with the entitled person and the obligated party.
Due to the lack of information regarding the continuation of work on the project introducing immediate alimony, pursuant to Art. 2 section 1 and art. 10(1) of the Act of September 6, 2001 on access to public information (consolidated text: Journal of Laws of 2020, item 2176), we sent a request to the Ministry of Justice to provide public information regarding the indicated government project in the field of immediate alimony. The expected information was to concern the progress of work on the preparation of regulations regarding immediate alimony, the circumstances whether the Sejm of the current (9th) term will continue work on the project proposed by the Ministry of Justice in the previous term, whether the project will be subject to another consultation this year and when the expected starting the legislative process on this subject. The response received from the Ministry of Justice on May 6, 2021 indicated: "In response to the question about the continuation of work on the institution of immediate alimony, I would like to kindly inform you that the Ministry of Justice has resumed work aimed at amending the Family and Guardianship Code, including in the area of implementing the alimony obligation. At the same time, analytical work is underway to assess whether the solution proposed so far should take a different, perhaps simpler form. The project requires re-inclusion in the list of legislative works of the Council of Ministers. After obtaining such an entry, the draft will be submitted for arrangements, public consultations and opinions, which is planned for 2021.
On the other hand, on Tuesday, 11 May 2021, the Ministry of Justice, by preparing responses for us, remembered a project sitting in a drawer and presented the assumptions of the family law reform project, returning to the topic after nearly 2 years. Minister Zbigniew Ziobro emphasised that the proposed formula does not exclude the possibility of applying for maintenance in accordance with the previously applicable rules. The primary assumption is to be a breakthrough in the child's situation so that they do not bear the negative consequences of their parents' separation. The granting of immediate maintenance benefits would take place within a dozen or so days, in a summary maintenance proceeding. Such a procedure would relieve courts of the necessity of adjudicating on applications for interim relief, because according to the maintenance project, the payment order would be immediately enforceable.
Could it be more than 500+? Application procedure for maintenance provides for significant simplification. The entitled person could submit a claim on a ready-made form, and apart from a copy of the child's birth certificate, there is no need to attach any other evidence. The amount of alimony will depend on the minimum wage and the number of children in the family. For one child, the amount of immediate alimony would be 21 % of the minimum wage, for two children - 19 %, for three - 17 %, for four - 15% and for five or more children in the family - 13 %. According to information from the Ministry of Justice, as of today maintenance The immediate net payments would be: – for one child – 588 zł, – for two children – 532 zł per child, – for three children – PLN 476 per child, – for four children – PLN 420 per child, – for five or more children – PLN 364 per child. Importantly, the proposed scheme does not differentiate the amount of maintenance based on the age of the eligible minor. The amount of immediate maintenance would be the same regardless of additional circumstances, such as age or state of health. The simplification would involve courts being able to award a predetermined amount of maintenance within two weeks of the application being made. The draft is intended to minimise the risk that, due to lengthy proceedings, a child will lack the necessary means to meet their legitimate needs. The proposed reform of family law regarding the introduction of immediate maintenance payments does not preclude seeking an increase in maintenance under the existing rules through court proceedings. The draft also provides for child maintenance to cease when the child reaches the age of 25, which obviously does not apply to children with a certified disability. However, in the event of exceptional circumstances indicating that the child is unable to support themselves, the court will, at the request of the entitled party, extend the duration of the maintenance payment. In the view of the draft’s authors, the age of 25 should be regarded as the age at which a person is capable of supporting themselves. At present, there is no such provision in law; in each case, it is the person liable for maintenance who must apply to have the maintenance order set aside on the grounds that the child is capable of supporting themselves. The draft bill also provides for an obligation to carry out a genetic test to establish or refute the child’s parentage. This test allows the paternity to be established with almost 100 per cent certainty. The draft bill also provides for the introduction of family information proceedings, which would precede divorce and separation cases involving spouses with minor children. These proceedings would aim to reconcile the spouses, and where this proves impossible, they would ensure that the divorce or separation proceeds as smoothly as possible, with particular regard to the welfare of the minor children. Such proceedings also appear to be beneficial given the proposal that they should be free of charge. Mediators are to play a key role, with their task being to determine the key terms of the divorce, as well as issues relating to child custody and the amount of maintenance. This is also intended to speed up the proceedings. Furthermore, one caveat has been highlighted regarding family information proceedings. They will not be conducted in cases where a spouse is abusing the family. Summary The draft amendment to family law regulations appears purposeful with regard to the protection of the youngest and, at the same time, most vulnerable family members. During the COVID-19 epidemic, the socio-economic situation affected all areas of life, thus not bypassing the family sphere. The financial and living situation of many families deteriorated significantly due to the applicable restrictions and the limitation of activity – both general social and, unfortunately, professional. For many families who have decided to separate, this institution of immediate maintenance would protect minors against the loss of funds enabling the satisfaction of minimum, subsistence needs. However, until the legislative process is completed, the current first step to obtain maintenance is to submit a claim to the competent District Court, preferably together with an application for interim maintenance for the duration of the court proceedings. In this situation, pursuant to Article 32 of the Code of Civil Procedure, there is alternative jurisdiction. What does this mean in practice? The claimant, i.e. the person applying for maintenance, chooses the court – between the court competent for the defendant's place of residence and the court competent for the place of residence of the person entitled, i.e. the child. For the procedure for obtaining the necessary maintenance to run as smoothly as possible, it seems advisable to commission a professional legal representative to conduct the case. There is no doubt that a properly drafted statement of claim and motions, as well as adequate preparation for the case, constitute the key way to obtain a judgement that is as favourable as possible for the child. Piotr Kłodziński with appl. Agata Michalska Legal Advisor Warsaw Law Firm Warsaw Our law firm helps people applying for alimony in preparing appropriate applications to the court and represents participants in such disputes in court. More: biuro@klodzinskikancelaria.pl