Obligation to Return Substitute Child Maintenance

The entitlement to substitute maintenance is regulated by Act No. 201/2008 Coll. on Substitute Maintenance and on amendments to Act No. 36/2005 Coll. the Family Act and on amendments to certain acts as amended by the Finding of the Constitutional Court of the Slovak Republic No. 615/2006 Coll.

In the event that substitute maintenance was paid to you by the Office of Labour, Social Affairs and Family as compensation for the non-fulfillment of the maintenance obligation of your former husband, i.e., the liable person, whereby your former husband subsequently paid you this outstanding amount, or a part thereof, for the period for which this substitute maintenance was provided to you, it is your obligation to return this amount.

Pursuant to Section 10a (1): “If the liable person subsequently pays the maintenance or if the maintenance is recovered in enforcement proceedings for the collection of a maintenance claim, the recipient of the substitute maintenance is obliged to return the substitute maintenance provided in advance, up to a maximum of the amount in which the maintenance was paid or recovered.”

In the event that he paid you this amount subsequently, it is not possible for you to keep both incomes, i.e., the substitute maintenance as well as the maintenance subsequently paid by the liable person. Therefore, the aforementioned act also regulates such a possibility.

The question remains whether your former husband paid you the full amount. You mentioned that he paid a larger part; precisely in such a case, in the aforementioned provision of the law, you can see that you shall return the amount to the Office of Labour, Social Affairs and Family in the amount in which the maintenance was paid or recovered. In any case, in this instance, it is not a decisive element whether the maintenance was paid voluntarily or was recovered by a bailiff.

Substitute maintenance in the event that the father is not listed on the child’s birth certificate

The basic conditions for awarding substitute maintenance can be found enshrined in Section 2 of Act No. 201/2008 Coll. on Substitute Maintenance (hereinafter referred to as the “ASM”).

The purpose of substitute maintenance is to ensure the sustenance of a dependent child in cases where a person who has been ordered by a court to pay maintenance in a certain amount (most often a parent) does not fulfill this obligation “in full, within the time limit and in the manner determined by the court decision (Section 2 (1) (a) point 1 of the ASM)”.

The awarding of the entitlement to substitute maintenance therefore presupposes that the maintenance obligation has already been determined by a court, i.e., ordered to the person of the father. If your former boyfriend is not registered in the birth certificate of your child as its father, he must first be “officially” determined in such a case.

According to Section 26 of Act No. 154/1994 Coll. on Registries (hereinafter referred to as the “AR”): “Changes to entries, additional entries, additional records, and their corrections in the registry shall be performed by the registry office on the basis of public instruments, other official documents, or written notifications, unless this Act provides otherwise.”

As a basis for entering the father into the birth certificate, you can use, for example, the institute of a mutual declaration of the parents, by which paternity to a child can be determined according to the so-called second presumption of paternity (Section 90 et seq. of Act No. 36/2005 Coll. the Family Act, hereinafter referred to as the “FA”). However, this method of determining paternity presupposes the consent of the father.

If the father’s consent cannot be obtained, you can still file a petition with the relevant District Court to determine by its decision that your former partner is also the father of your child (Section 94 of the FA). This decision will then serve as the basis for entering the father into the child’s birth certificate, even against the father’s will. In terms of the principle of cooperation: “Courts (…) are obliged to send to the relevant registry office notifications of decisions, agreements, mutual declarations, or other facts that affect personal status, first name, or surname of a person and constitute a basis for an entry in the registry, its change, or its cancellation (Section 24 of the AR).”

As soon as the father is registered in the birth certificate, you can seek in court that a maintenance obligation be ordered against him. Only the non-fulfillment of this obligation under further conditions established by the Act on Substitute Maintenance creates an entitlement to substitute maintenance.

Hello, First, it is necessary to clarify that just as the obligation to pay maintenance is “ordered” by the court in a divorce decision, relieving the liable parent of this obligation is again possible only through judicial proceedings. As the provision of Section 78 (1) of Act No. 36/2005 Coll. the Family Act (hereinafter referred to as the “FA”) states: “Agreements and court decisions on maintenance may be amended if there is a change in circumstances (on which the amount of the original maintenance was based – e.g., a parent loses their job, another child is born to them, etc.). Except for maintenance for a minor child, an amendment or cancellation of maintenance is possible only upon petition.” A prerequisite of the petition for the cancellation of the obligation to pay maintenance is also the inclusion of data on from when this change is to take effect. In principle, however, it should be the day preceding the day the petition was filed (source: Bános: Family Act – EPI commentary).

According to Section 78 (2) of the FA: “If maintenance for a minor child is cancelled or reduced for the past period, consumed maintenance shall not be returned.” A minor child is therefore obliged to return only that maintenance which remained unconsumed. According to Pavelková, maintenance intended for the creation of savings deposited into the account of a minor established by their parent can always be considered unconsumed maintenance (source: Pavelková: Family Act – commentary, 3rd edition, C. H. Beck, 2019). An adult child, however, who received maintenance, is always obliged to return the amount of maintenance that exceeds the awarded rate.

We remind you that the right to claim the return of maintenance overpayments is barred by a three-year limitation period, which runs “from the day when the right could have been exercised for the first time (Section 101 of Act No. 40/1964 Coll. the Civil Code).” In this case, the decisive day for the commencement of the limitation period will be the day when the court decision on the cancellation of maintenance entered into legal force.