– Will this reform succeed? Description of how we convinced the Ministry of Justice to resume legislative work!
In March 2018, the Ministry of Justice announced changes to the Act of February 25, 1964, Family and Guardianship Code (consolidated text: Journal of Laws of 2020, item 1359). further: cro, as well as other acts, including Act of November 17, 1964, Code of Civil Procedure (consolidated text: Journal of Laws of 2020, item 1575). The government bill was submitted to the Sejm on February 27, 2019 (form no. 3254). According to the project's assumption, the aim of the changes was to protect the rights of minor children against behavior that violates their well-being. The assessment of the existing regulations led to the conclusion that the position of minors requires strengthening - both in the sphere of substantive and formal law.
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.
In turn, on Tuesday, May 11, 2021, the Ministry of Justice reminded us about the project waiting in the drawer by preparing our response.
and presented the assumptions of the family law reform project, returning to the topic after almost 2 years. Minister Zbigniew Ziobro emphasized that the proposed formula does not exclude the possibility of applying for alimony in accordance with the rules currently in force. The basic assumption is to be a breakthrough in the child's situation so that he or she does not suffer the negative consequences of the parents' separation. Immediate alimony benefits would be granted within a dozen or so days, in order for alimony proceedings. Such proceedings would relieve the courts of the need to decide on applications for security, because according to the alimony 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 immediate net amounts would be:
– for one child – PLN 588,
– for two children – PLN 532 for each child,
– for three children – PLN 476 for each child,
– for four children – PLN 420 for each child,
– for five or more children – PLN 364 for each child.
Importantly, the proposed institution does not include any differentiation in the amount of alimony due to the age of the eligible minor. The amount of immediate alimony would be the same regardless of additional circumstances, such as age or health condition. The simplification would allow courts to award a predetermined amount of alimony within 2 weeks of submitting the application. The project is intended to minimize the risk that, due to lengthy proceedings, the child will not have the resources necessary to meet justified needs. The proposal to reform family law with respect to the introduction of immediate alimony does not exclude the possibility of seeking an increase in alimony under the existing principles through legal proceedings.
The project also assumes that child support will expire when the child turns 25, which, of course, does not apply to children with a disability certificate. However, in the event of exceptional circumstances indicating that the child is unable to support itself, the court will, at the request of the entitled person, extend the validity of the maintenance benefit. In the opinion of the project's creators, the age of 25 should be treated as enabling independent living. Currently, there is no such regulation in the law, and each time the obligor should apply for the abolition of alimony due to the fact that the child is able to support itself.
The project also assumes the obligation to test the genetic code in order to determine or deny the child's origin. This test allows for a determination to be made with almost 100% certainty. The project also envisages the introduction of family information proceedings, which would precede divorce and separation cases for spouses who have minor children. These proceedings would aim to reconcile the spouses, and if this proves impossible, then the divorce or separation should proceed as smoothly as possible, taking into account the best interests of minor children. Such proceedings also seem to be beneficial due to the proposal that they should be free of charge. The main role is to be played by mediators, whose task will be to determine the key terms of the divorce, as well as the issue of child custody and the amount of alimony. This is also intended to speed up proceedings. Moreover, one reservation was indicated in the scope of family information proceedings. It will not be carried out in a case where a spouse abuses the family.
Summary
The project to amend the provisions of family law seems to be advisable due to the protection of the youngest and weakest family members. During the COVID-19 epidemic, the socio-economic situation affected all areas of life, including the family sphere. The financial and living situation of many families deteriorated significantly due to the restrictions in force and limited activity - both social and, unfortunately, professional. For many families who have decided to separate, this institution of immediate alimony would protect minors against losing the means to meet their minimal subsistence needs. However, until the legislative process is completed, currently the first step to obtaining alimony is to file a lawsuit in the appropriate District Court, preferably together with an application to secure alimony for the duration of the court proceedings.
In this situation, in accordance with Art. 32 of the Code of Civil Procedure, there is alternating jurisdiction. What does this mean in practice? The plaintiff, i.e. the person applying for alimony, chooses the court - between the court competent for the place of residence of the defendant and the court competent for the place of residence of the entitled person, i.e. the child. To make the procedure for obtaining the necessary alimony as smooth as possible, it seems advisable to commission the case to a professional attorney. There is no doubt that a properly prepared lawsuit and applications, as well as appropriate preparation for the case, are a key way to obtain the most favorable decision 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