Opinion article by our coordinator in the Público newspaper of 07/03/2023, regarding maintenance and alternate residence of children. Read the article on Público’s website or in pdf and the translation below:
When a child splits his time between his father and mother, his standard of living should not be affected. And this could be by setting a maintenance allowance or making different contributions to expenses.
It is intended that the contribution of parents to the support of their children, rather than being quantitative, should be qualitatively equal.
There is an – erroneous – idea that, in the case of children alternating residence, there is never any question of paying maintenance. This is not the case. There are cases in which there is, and should be, payment of maintenance.
We know that in case of separation or divorce, the parents (or the court) can decide between a model of cohabitation with the parents in which the time is divided equally between them (shared custody), or another model in which the child remains mainly in the care of one of them. And if in this last model, called exclusive residence, we know that there will be, in principle, the payment of child maintenance to the parent with whom the child stays longer. In cases of shared custody, there is the general idea that there is no payment at all.
The truth is that maintenance can also be paid, even in cases where a shared custody model is in force. This may happen if there is parental agreement or if the parents agree to do so, or if the court determines the alternated residence.
The duty to support children is, as we know, incumbent on parents. It is a consequence of the duty of care which, together with the duties of respect and assistance, binds parents in their relationship with their children and vice versa (Article 1874 of the Civil Code). And in the event of separation or divorce, this duty of assistance may entail the payment of a maintenance payment to the child.
In another article, we have already referred to the
rules to stipulate child maintenance amounts (https://www.publico.pt/2021/07/20/opiniao/opiniao/calcula-pensao-alimentos-1971009)
There we said: “The amount of child’s expenses should be shared between the two parents according to each one’s possibilities. In other words, greater financial availability of one of the parents will also mean a greater contribution to children support”.
This means that the different financial possibilities of the father and the mother may mean that one has to pay, for example, 70% of the child’s expenses and the other only 30%.
In most cases of shared custody, there are no maintenance payments, and each parent pays the child’s expenses incurred during the period when the child is with him. Health and school expenses that may exist will, as a rule, be split 50-50. In these cases, the contribution of each parent to the child’s support is equal in quantitative terms, and this should be the case whenever the economic possibilities of each parent are similar.
In situations where parents’ economic possibilities are not the same, the child’s expenses should be divided taking this reality into account. The child should maintain the same standard of living in the periods when he or she is with the father and in the periods when he or she is with the mother. This can be done by stipulating child maintenance amounts or paying a higher percentage of certain expenses, such as school and health costs, on behalf of the parent with greater economic availability.
The possibility of child maintenance even in cases of shared custody is now expressly established by law (article 1906, no. 6, of the Civil Code).
The intention is that the parents’ contribution to the support of the children, rather than being only quantitative, should also be qualitatively equal, which means that the effort made by father and mother for the support of their children should be the same.