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 alimony, is a project of the Ministry of Justice. The ministerial proposal was to establish the minimum amount of alimony that the entitled person would be entitled to before the final amount of alimony was awarded and the time for considering the case by the court would not exceed two weeks. This solution operates, among others, in Germany.
Status of legislative work
Despite the support of the project by virtually all parties on the political scene, the Sejm of the current (9th) term did not continue work on the project proposed by the Ministry of Justice in the previous (13th) term. This state of affairs results from the principle of discontinuation applicable in Polish constitutional law, which means interruption of the personal continuity of the Parliament and the material continuity of its work after the commencement of the new term of office of the Parliament. In accordance with the principle of discontinuation, after the parliamentary elections that took place in the fall of 2019, the newly elected Sejm was not obliged to continue the work started during the previous term. In order to initiate work on draft amendment to the Family and Guardianship 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 and the Code of Civil Procedure are still being conducted. Ultimately, the ministry planned to submit the project for further consultation in 2020. And although this did not happen, due to the ministry's assurances of its willingness to introduce immediate alimony into the Polish legal system as soon as possible, it is worth explaining the assumptions of this institution in more detail.
UPDATE – LINK AT THE END OF THE ARTICLE TO DISCUSS THE NEW PROJECT
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 alimony, the lawsuit, in accordance with the bill, will be submitted on an official form. At the written request of the plaintiff submitted in the lawsuit, the court will consider the case in alimony order proceedings, provided that the circumstances justifying the requested request are confirmed. In order to confirm these circumstances, the plaintiff or his 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, 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% conversion amount for each of five or more children from 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 amounts of maintenance benefits standardized by law is a solution previously unknown in the Polish legal system. The algorithm for calculating the amount of alimony proposed in the project takes into account the changing economic situation and the real purchasing power of money. The purpose of introducing such a mechanism is to prevent the decline in the actual value of immediate alimony, which is experienced by, among others, beneficiaries of non-adjusted benefits, such as 500+. Moreover, if the institution of immediate alimony is introduced, its amount may also determine the objectively determined minimum amount of alimony 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.
Defendant's defenses
Moreover, in accordance with draft amendment to the Code of Criminal Procedure and the Code of Civil Procedure the defendant could submit a letter containing allegations. They must be filed with the court that issued the maintenance payment order. In the letter, the defendant should indicate whether he/she is appealing the order in whole or in part, present the allegations which must be reported under pain of loss before entering into a dispute as to the merits of the case, as well as the factual circumstances and evidence. The court disregards late claims and evidence unless the party proves that it was not his fault that he did not raise them in the plea, or that taking into account the late claims and evidence will not result in a delay in the examination of the case, or that other exceptional circumstances exist.
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 alimony, are to expire on the day the eligible child reaches the age of 25. However, the court may extend it. 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 of expiry of the maintenance benefit differs significantly from the applicable legal reality. Currently, Polish law does not recognize any child's age as the threshold beyond which the maintenance obligation expires. Pursuant to Art. art. 133 § 1 of the Family Code, parents are obliged to provide maintenance to a child who is not yet able to support itself, unless the income from the child's property is sufficient to cover the costs of its maintenance and upbringing.
Get child support out as soon as possible?
While working on the introductory project immediate alimony are not completed, in order to obtain alimony benefits as quickly as possible, you should file a claim for alimony in the District Court for the place of residence of the defendant or the child. The choice belongs to 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
OUR OFFICE ASSISTS PEOPLE APPLYING FOR MAINTENANCE IN PREPARING LETTERS AND REPRESENTS PARTICIPANTS IN SUCH DISPUTES IN COURT.
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