MAINTENANCE and alimony

The maintenance and alimony can be defined as:

• Maintenance is the obligation between ancestors and descendants (parents and children, grandparents and grandchildren, great-grandparents and great-grandchildren),
• Alimony is obligation between spouses, respectively ex-spouses (the same applies for registered partnership celebrated by the same-sex couples)

Jurisdiction of the Czech courts

On the European Union´s level the jurisdiction is regulated by Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, which should facilitate the enforcement of maintenance claims based on family relationships, parentage, marriage or kinship in cross-border cases.

Jurisdiction of Czech courts will be present in matter of maintenance and alimony if:

• the benefactor has his habitual residence in Czech Republic
• the beneficiary has his habitual residence in Czech Republic,
• according to the Czech law the Czech court has the jurisdiction for the proceedings on the personal status and the maintenance or alimony is related with this proceeding.
• Czech court has the jurisdiction for the proceedings related to the parental responsibility and at the same time for the proceedings on the maintenance or alimony if the jurisdiction is not based only on the nationality of one of the parties,
• the beneficiary and the benefactor conclude an agreement on the jurisdiction of the Czech courts and the beneficiary in not a minor (less than 18 years old).

If any of the above-mentioned conditions do not apply, the jurisdiction of the Czech courts is given at some cases if both parties are of the Czech nationality.
The Czech courts also have the jurisdiction if they have already decided on the same maintenance or alimony for example on the motion for its increase or decrease, if the benefactor has his habitual residence in Czech Republic. This limitation will not be used if:

• the parties agreed upon the jurisdiction with exception for the maintenance of the minor,
• the benefactor submits to the jurisdiction,
• the authorized court cannot or refused its jurisdiction for the alteration of its decision or issue of a new one,
• the decision cannot be admitted or declared as executable in the member state where it was intended to start the proceeding on the alteration of the previous decision or issue of a new one.

In cases concerning minor children where the Council Regulation (EC) No. 4/2009 does not apply, the Czech court has jurisdiction pursuant to Act No. 91/2012 Coll., On Private International Law, if:

• the minor has its habitual residence in Czech Republic,
• the minor is citizen of Czech Republic.

Governing law

The governing law is determined by Council Regulation (EC) No 4/2009 which refers to the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (hereinafter "the 2007 Hague Protocol").

The governing law for the maintenance and alimony rules:

• whether and to what extent and from which beneficiary maintenance or alimony may be claimed,
• the extent to which the beneficiary may claim maintenance or alimony retroactively,
• the basis for calculation of the maintenance or alimony,
• who is entitled to submit the motion for maintenance and alimony and
• time limitation for the maintenance and alimony claims.

Even if the governing law determines something different, when deciding on the maintenance and alimony, it is mandatory to consider needs of the beneficiary and the resources of the benefactor and any compensation already given instead of the regular payments of the maintenance or alimony.

The Maintenance and alimony are generally governed by the law of the state of habitual residence of the benefactor. In case of the change of the habitual residence, the law of the state of the new habitual residence will apply.

In case of maintenance of the parents to their children and vice versa, the governing law is determined by many special provisions which should guarantee the claims for maintenance to the beneficiaries even when they would not obtain the maintenance on the basis of the original governing law. This rule will apply in the following cases:

• the beneficiary is not able to obtain the maintenance from the benefactor in accordance with the governing law, the law of the respective court shall apply and
• the beneficiary submitted a motion at the state of the habitual residence of the benefactor, the law of the respective court shall apply. If the benefactor is not able to get the maintenance in accordance with the law defined by the above-mentioned rule, than the law of the habitual residence of the beneficiary shall apply.

A general rule to determine the governing law exists for matters of maintenance and alimony that is, if:

• neither party objects, nor at the same time
• the law of the other state, especially the state of their last joint habitual residence does not have closer relation to their marriage.

Alimentary obligation according to the Czech law

In the Czech law both maintenance and alimony are regulated by provisions of the Act No. 89/2012 Coll., the Civil Code (hereinafter the "Civil Code").

Alimentary obligation of parents to their child

Alimentary obligation of parents to their child arises:

• at the moment the child is born, to its mother,
• by applying the presumption of paternity, for its father.

The alimentary obligation of the parents to their child terminates at the moment when the child is able to satisfy its needs on its own. The alimentary obligation can end before the child surpasses his or her 18th birthday but can continue even in maturity. In addition, the alimentary obligation can be re-established if proven that the child lost its ability to aliment itself.

The parents are obliged to contribute to the alimentation of their children because if there are more benefactors with same relation to the beneficiary the extent of the alimentary obligation is equal to their financial status, abilities, and potential in comparison to the financial status, abilities and potential of the others. This gives the child a right to have the same life standard as its parents.

Factors determining the extent of the alimentary obligation:

• voluntary performance,
• extent of the custody,
• age,
• health condition,
• education,
• work habits and experiences of parents, as well as the labour market situation,
• financial situation of parents (parents' income, value of movable and immovable property),
• lifestyle and life standard of the parents

When determining the amount of the alimentary obligation it is mandatory to take into account the justified needs of the child, which are influenced by the following factors:

• age
• health condition
• physical and mental maturity,
• the child's interests and hobbies,
• method of preparation for future occupations (primary school, secondary school or university) and
• and other

Based on the above-mentioned the alimentary obligation differs for children at early stages of their lives and college students. Justified needs of the child does not include only standard needs of the child but also individual needs of the child which must be satisfied so that the child can prosper properly.

In the Czech Republic, the amount of maintenance is not precisely determined by law, but there is an unofficial table for determination of the amount of maintenance issued by the Ministry of Justice in 2010. The recommended ranges are for standard cases, i.e. for debtors with no more than three children with maintenance.
The amount of maintenance following the above-mentioned table should be following:

• child aged 0 to 5 years - maintenance in amount from 11 to 15% of the debtor's income,
• child aged 6 to 9 years - maintenance in amount from 13 to 17% of the debtor's income,
• child aged 10 to 14 years - maintenance in amount from 15 to 19% of the debtor's income,
• child aged 15 to 17 years - maintenance in amount from 16 to 22% of the debtor's income and
• child aged 18 to 19 years - maintenance in amount from 19 to 25% of the debtor's income,

Despite the use of the table to determine the extent of the maintenance is not enforceable by law in many cases the Czech courts use it as basis for their decisions, however in recent decisions of the Constitutional Court it is emphasized that the amount of maintenance is beyond the scope of the basic statutory maintenance in the competence of the parent.

Generally speaking, the maintenance should be paid in regular amount and it is due one month in advance. The maintenance can be provided from the day of the commence of the proceeding. Maintenance can be provided up to three-year period backwards from the day of the commencement of the proceeding.

Alimentary obligation between ex-spouses

The ex-spouse has the right to claim alimony when:

• the divorced is not able to provide itself with alimentation,
• its inability has its origin in the marriage or is related to the marriage,
• the claim for the alimony is justified considering the age and the health conditions of the benefactor.

Factors that influence the extent of the alimony are the following:

• length of marriage,
• time passed since divorce,
• the reason why the divorced beneficiary did not find adequate employment, even though there were no serious obstacles,
• whether the beneficiary could obtain alimony through the proper management of its property, and
• whether the beneficiary took care of the family household during the marriage.

In cases when the ex-spouses will not agree on the alimony, the spouse:

• that did not cause the disturbance of the marriage or did not agree with the divorce and
• who was gravely harmed by the divorce,

can apply to the court to ordain alimony to the other ex-spouse in extent that both ex-spouses have a similar life standard.

The right of alimony can be considered justified as appropriate only for period that does not surpass 3 years from the divorce. A spouse who has committed domestic violence against the other spouse is not entitled to the maintenance thus determined.