The lecture concerned interim maintenance, regulated by the Interim Maintenance Act (Zakon o privremenom uzdržavanju, Official Gazette, No. 92/14).
It was pointed out that maintenance is based on the principle of family solidarity. Normally, a family member does not need to sue another family member for maintenance. Maintenance is an act of love.
Parents and close relatives are naturally motivated to support their children. This is a reflection of natural law, where close relatives take care of their children. Sadly, it is not always the case in real life. Maintenance is also a moral obligation: the fact that somebody fails to provide maintenance to a child, especially a minor child, is morally unacceptable.
Parents-debtors find so many excuses to avoid paying maintenance (according to numerous sources, around 40% of them fail to provide maintenance for the child regularly and/or the whole amount). Many countries try to secure child maintenance. Some have blacklists of debtors, which the author think is a very good message to society. In some countries, maintenance debtors can have their driving licenses confiscated. In others, debtors are not allowed to perform any public duties because their conduct is found to be morally unacceptable.
So, maintenance is the right and the duty of a parent, and the right of the child, as well. The parent who lives with the child is not allowed to refuse maintenance for the common child.
This right of the child is also enshrined in the Convention on the Rights of the Child. Every child has the right to a standard of living adequate for his or her physical, mental, spiritual, moral, and social development, not just biological needs. Such comprehensive provision is necessary, as it tries to prevent children’s poverty, as well. Children who live in poverty have problems with social development and tend to suffer from anxiety.
So, maintenance is not only meant to cover the basic biological needs of the child, it should also help the holistic development of the child, and the parents or other persons responsible for the child have the primary responsibility to secure, according to their abilities and financial capacities, the living conditions necessary for the child’s development.
The child always follows the standard of the parents, so when parents live in poverty, the state is invited and obliged to provide subsidiary assistance.
According to the Convention on the Rights of the Child, state parties should take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the state party and from abroad (Art. 27 Par. 4).
The Family Act (2015) prescribes maintenance as a duty of parents to children and vice versa. Parents are obliged to maintain children until they reach majority, and later until the 26th birthday if they are regularly attending school and if they are not able to find employment one year after finishing school.
If a child cannot get maintenance from a parent with whom he or she does not live, the next persons obliged are the parents of this parent. If the child cannot get maintenance for his or her needs from them, then he or she can claim the maintenance from the stepfather or stepmother (the spouse of the parent-debtor). This solution was drafted to prevent a parent from transferring their assets to their close family members (parents and new spouses) and in such a way avoid the payment of maintenance.
In case of a dissolution of the family, parents may agree on joint parental care, and they should agree on maintenance, as well. This agreement should be approved by the court. If they fail to reach an agreement, the maintenance can be ordered by a court decision.
Parents often consult each other about the amount of maintenance. To help them reach an agreement and to prevent litigation, the Ministry of Justice publishes once a year a table on the average needs of a child, according to age and parents’ income. The income of the parent with whom the child lives is not relevant, as there is a legal fiction that this parent maintains the child by providing everyday care, and that a pecuniary amount should be given solely by the parent who does not live with the child.
There are different reasons why parents who don’t live with their children fail to pay maintenance. Some of them simply do not have an income, so they can’t fulfill their obligation; others refuse to pay maintenance, as they think that this money is used by his/her ex-spouse, or as an act of revenge if their ex-wife obstructs contacts with the child.
The Family Act 2015 (Obiteljski zakon, Official Gazette 2019, 47/2020, 103/2015, 98/2019, 47/2020, 49/2023, and 156/2023) obliges the Croatian Institute for Social Work (social welfare office), when it receives a maintenance decision, maintenance agreement or a court settlement on maintenance, to warn the parent who lives with the child that she/he has to inform the Croatian Institute for Social Work if the maintenance debtor fails to fulfill his/her obligation regularly and completely, and that the child in this case has the right to interim maintenance.
The debtor is also provided with the same information but is also notified that the Institute will file a criminal complaint against him/her if he/she fails to fulfill the maintenance obligation. The Republic of Croatia has versio in rem toward debtor for the amount of interim maintenance. The State tries to force the debtor to pay maintenance threatening with prosecution and forcing him to pay back at least the amount of interim maintenance to the State.
The interim maintenance will be granted to the child if the debtor does not fulfill his obligation in whole or in part for more than three months continuously from the date of initiation of enforcement proceedings for maintenance and if it seems likely that grandparents by that parent may not contribute to the child’s maintenance at least in the amount specified by law as the amount of interim maintenance for more than three months continuously from the date of initiation of enforcement proceedings for maintenance.
The child is entitled to maintenance from the date of applying for maintenance, i.e. from the date of initiation of proceedings ex officio, and lasts until the debtor begins to perform the maintenance obligation at least in the amount determined by the Interim Maintenance Act as the amount of interim maintenance, and for a maximum period of three years.
Interim maintenance equals half of the minimum amount for maintenance determined by the Ministry of Family, which is the greatest problem.
The minimum amount for maintenance is calculated as a percentage of the average net monthly salary per person employed by legal persons in the Republic of Croatia for the previous year. For a child of up to 6 years of age, it is 17% of the average salary (172,67 euros), for a child between 7 and 12 years of age, 20% of the average salary (203,15 euros); and for a child between 13 and 18 years of age, it is set at 22% of the average salary (223,46 euros). By way of exception, a lower amount may also be set for the child’s maintenance needs, but not lower than half of the statutory minimum, if the maintenance debtor must support two or more children, or if the child contributes to their maintenance by earning their income.
As the amount of interim maintenance is set to half of the minimum maintenance for a child of a certain age, this means it equals 81,38 euros, 101,07 euros, or 111,73 euros.
The parent who lives with the child first needs to recover the debts in enforcement proceedings. If that fails, she/he must submit a statement to the Croatian Institute for Social Work saying that it is not likely that grandparents will pay maintenance.
The right of the child to interim maintenance lasts until the debtor begins to perform the maintenance obligation at least in the amount determined by this act as the amount of interim maintenance, and, as stated above, for a maximum of three years.
Every child of a certain age group gets the same amount as interim maintenance, no matter how much was originally awarded as maintenance. The difference has to be requested in another proceeding, against the debtor.
Some German economists tried to find out how much it costs to maintain a child and concluded that it is between 500 and 700 euros. Even though in Croatia life expenses are not so high, interim maintenance cannot be considered maintenance at all, but rather only charity.
Let us conclude with an interesting legal case. The father did not pay maintenance. The child’s mother asked for interim maintenance for their child. After a while, the state requested a refund for the paid interim maintenance, but at the same time, the child, represented by the mother, requested payment for the unpaid instalments of maintenance. There were two proceedings before two courts, so in the end, somehow, the father had to pay twice: the debt towards the child and the debt towards the state. At the very end, the Constitutional Court ruled that that legal situation breached the father’s constitutional rights.
The Government announced an improvement of the interim maintenance regulation. Firstly, the amounts are going to be increased and, secondly, the interim maintenance will last not just one year, but until the majority of the child. Such changes require significant financial sources, so it remains to be seen if children will indeed be better protected.
