Alimony paid to children of legal age
Law 122/2015, clarified some aspects of maintenance payments to children of legal age who, under the previous regulation, deserved different solutions by our courts. Some courts understood that maintenance stipulated before the age of 18 was maintained even after this date if the child were still in school, and other courts were of the opinion that the obligation to pay maintenance ceased at age 18. This was, by the way, the majority position in our jurisprudence.
After coming of age, it would then be up to the child to bring an action against the father or mother to stipulate maintenance in their favour.
Now, the 2015 law clarified that the obligation to pay child support remains even after the child comes of age and until he or she turns 25 years old.
The only exceptions being cases where the child has dropped out of school or whenever it is not reasonable to impose this obligation on the parent. Thus, for example, a child who has significant income or assets cannot, in principle, claim maintenance.
Can the parent who provides for an adult child demand a contribution from the other parent?
But the new law did not limit itself to clarifying that issue, but introduced a new rule in our legal system that had not yet existed.
Now the parent who bears the burden of paying the expenses of children over 18 years of age may require the other parent to pay a contribution for their support and education. It is an innovation that, until now, did not exist in our legal system. In such cases, the judge may decide or the parties agree that such contribution may be paid, in whole or in part, to the child.
This legislative innovation had long been demanded by jurists and associations linked to the protection of women’s rights. Indeed, in many, many cases, their adult children continued to live with only one parent, mostly with their mothers, and were reluctant to take action against their parents to pay a maintenance allowance. For their part, mothers could not bring legal actions against their parents for the same purpose, which implied that they would continue to bear the expenses of their children on their own.
When does maintenance payment obligation ends?
The payment of maintenance is due, as we have seen, until the child’s 25th birthday, as long as the child has not yet finished his studies.
Does this mean that the child has to produce evidence every year that he is enrolled in an educational institution to be entitled to receive maintenance in the following school year?
Giving information about their education path to parents is a children’s obligation, in addition to the other duties that the law assigns to them (of assistance, respect, etc.), just as it is the duty of parents to accompany this path.
However, with regard to maintenance, the understanding of our courts has been that it is not up to the child to produce evidence that he is studying as a condition for continuing to receive maintenance. Instead, it is up to the parent who intends to stop paying child support (or reduce its amount) to go to court with that purpose.
Thus, the parent cannot avoid paying child support because the child does not provide school information. Instead, it is up to him to go to court if he becomes aware that his son or daughter is no longer studying or if there is another reason for claiming the end of maintenance.
What if maintenance allowance has not been stipulated before age 18?
In many situations, however, the need to set up a maintenance allowance is felt only after coming of age. In this event, it will be necessary to set the maintenance amount that will remain in effect until the child’s 25th birthday.
The process is initiated by the child against the parent (s) at the Civil Registry Office, where the latter will explain the reasons for his claim and immediately indicate the evidence. The parent (s) will be summoned to file opposition in 15 days. In the absence of opposition, the Conservador immediately makes a decision. If opposition is presented, the Conservador will try to reach an agreement between the parties which, if not achieved, will cause the case to be sent to court where it will be decided.
Does maintenance ends when the child violates his duties towards his parents?
It can be read in article 1874 of the Civil Code: ‘’Parents and children owe mutually respect, help and assistance’’.
Therefore, and in the event of a breach of such duties by an adult child, does maintenance payment obligation still stand? Should the adult child who refuses any contact with the father, or who refuses to provide him occasional help in the family business, for example, keep the right to maintenance?
The Civil Code provides, in general, that the maintenance obligation ceases when the recipient seriously violates his duties to the provider.
With regard to maintenance payments to children of legal age, our courts have understood that only in cases of serious (and unjustified) violations of the duty of respect will there be a termination of the maintenance payment obligation. Thus, for example, in cases where the children refuse contact with the parent, the courts have decided that this does not cause maintenance to end. Especially because, as a rule, such refusals are based on past behaviour of the parents themselves. Detachment, indifference and the lack of care in maintaining the relationship, as well as the simple breaking of the affective child-parent connection have been widely understood not to constitute, in themselves, behaviours that seriously violate the duties towards the parent, and are not enough to justify ending maintenance.
However, and although it may not be enough to justify the end of maintenance, the child’s refusal to keep in contact with the parent may be relevant for the purposes of calculating its amount, for example, and also when it comes to ascertaining their reasonableness in the light of legally provided criteria (children’s needs, parents’ possibilities, etc.).