Everyone is entitled to choose the way of arranging their family life, whether they will have children and how will they raise them, whether they will choose to get married or live in a common-law marriage, what will be the surname of their child, and, eventually, whether and when they will leave their life partner.
However, just like a double-edged sword, relatives have rights on one side, and obligations on the other.
Although alimony is most often associated with the notion of divorce, and mostly focused on child support by parents, there are other relatives who are entitled to receive financial support, or are obligated to provide financial support, in accordance with the law.
Obligations arising from family relations are, in principle, regulated by the law, which is the case with the obligation to provide financial support. Namely, the law, i.e., the state, “interferes” in the private domain of individuals at a time when it is necessary to protect morals and the public interest. Bearing in mind that the family is an important component of every society, the obligations, that are essential in the care of the family, are regulated by the law.
One of the frequently asked questions is, who is entitled to alimony? Who is obliged to provide alimony? What is the alimony amount?
We outlined below the answers to some of these questions, such as: who is protected under the law, who is obliged under the law, as well as any other important circumstances related to alimony payment.
Spousal Support
When a man and a woman start cohabitation, they are obliged to respect, financially support, and help each other. Also, everything that the spouses acquire for the duration of the union is their joint property, unless the partners have agreed otherwise by marriage or prenuptial agreement.
When it comes to divorce or separation, the property is divided in accordance with the several ways prescribed by the law. You could read more thoroughly about the division of property in our other blog post on divorce in Serbia.
Nevertheless, the division of property is not always the only material aspect of divorce. That is, when it comes to separation, i.e., divorce, the question is whether the ex-spouse is entitled to the other ex-spousal support.
The conditions that must be met for the court to oblige one of the ex-spouses for spousal support, are as follows:
- the spouse doesn’t have enough means to pay the spousal support and
- the spouse is unfit for work or unemployed.
The fulfillment of these conditions must be cumulative. What does that mean?
For instance, a spouse may be incapable of work or unemployed, while, on the other hand, holds significant life savings, has property income, company shares that generate capital or owns a property of significant value, etc.
In such a case, even though the person is incapable of work or unemployed, there is no legal ground to receive spousal support, since the person has other means to support themselves, i.e., their livelihood is not endangered.
However, if the spouse is incapable of work or unemployed, and does not have enough means to support themselves, there is a legal ground for spousal support.
However, being unemployed on purpose, and without any external reason cannot be the ground to live at the expense of your ex-spouse. Therefore, when a person does not show interest in finding employment, or decides to terminate the employment relationship, the court will not consider their unemployment status as a legal ground and sufficient condition to oblige the ex-spouse to provide spousal support.
However, even in those situations when a spouse does not have enough means to provide financial support and is unfit for work or unemployed, the Law prescribes one corrective in order to achieve the principle of fairness. The Law specifies that the spouse who requests spousal support (even though the conditions are cumulatively met) shall not be entitled to financial support if it would represent manifest injustice for the other spouse.
The court defines what represents manifest injustice for the other spouse in each case, bearing in mind all personal and family needs, as well as the needs and possibilities of creditors and debtors. The court will particularly define:
- Length of the marriage,
- The reasons for the spouse’s incapacity to work,
- Whether the spouse is unemployed because they do not wish to work, or due to objective causes,
- Activities conducted for finding employment,
- The age of the creditor and debtor,
- Material circumstances of the creditor and debtor,
- The attitude of the spouses during and after separation, etc.
Bearing in mind that the marriage and the common-law marriage are equal according to the Family Law, the same conditions for providing spousal support apply to common-law partners.
The duration for paying the spousal support to your ex-spouse is limited to five years after the termination of the marriage. This is the maximum period for which the spouse can be obliged to pay the alimony. Certainly, in exceptional circumstances, the court will oblige the spouse to a maximum period of five years, and more often, will determine the obligation to provide alimony for a shorter period.
However, the Family Law leaves the possibility for exceptional cases, bearing in mind sufficient reasons that lead to the spouses’ incapacity to work, the period of five years can be prolonged.
Furthermore, if the circumstances change significantly, the period for which the debtor is obliged to pay the spousal support can be cut short. That is most often the case when the dependent spouse is employed, and the reason why the spouse was primarily obliged to provide financial support is lost.
Financial Support for Children’s Mother
Like other laws, the Family Law acknowledges the necessity to financially support women in the prenatal and postpartum period.
Thus, in accordance with the legislation of the Republic of Serbia, an employed woman will, during her maternity leave, i.e., childcare leave, receive the full salary she received before the leave. Accordingly, the child’s mother will be compensated independently during the period when she will not be able to earn a living. However, what happens to a child’s mother who is unemployed or has no other income outside the income which she could use to support herself?
Bearing in mind that the Family Law acknowledges child’s mother as the person with special protection, it is defined that even though the mother and the father of the child are not married, or common-law partners, the child’s mother is entitled to be supported by the father of the child.
The child’s mother is entitled to demand the court to oblige the father to support her during the period when her livelihood is most endangered. In other words, 3 months before, and one year after childbirth.
However, the child’s mother is not entitled to this right automatically, but only after fulfilling the following conditions:
- The mother does not have enough means to support herself, and
- If the acceptance of her request would not represent manifest injustice for the father.
Child Support – How Long Do You Have to Pay?
Parents have an obligation to support their children. While they are married, the parents exercise the parental right together, so it is assumed that they bear all the obligations related to the support of the child jointly.
1. Minor children (up to 18 years of age)
After the divorce, the issue of alimony most often arises for minor children. If, after the divorce, the parental right is exercised independently by one parent, in that case, the other parent will be obliged to provide alimony for their minor child (children).
However, what occurs if the parent responsible for providing child support is deceased or lacks sufficient means to fulfill the child support obligation?
In that case, the grandmother and grandfather, and other blood relatives in the straight ascending line come to the rescue.
Also, adult siblings, who earn or other income, are obliged to help support minor relatives, if their parents are not alive or do not have enough means to support themselves.
The relatives who supported children, are entitled to reimbursement of the costs, by the parent, since the parent is obliged to support the children.
2. Adult Children
What occurs when a child turns 18 and wants to continue education, without finding a job immediately? Are they entitled to child support from parents? Up to how many years are parents, i.e., other relatives, obliged to pay the child support?
The law stipulates those children who are in school have the right to child support up to the age of 26, and under the same conditions as it is provided for a minor child and from other relatives.
If a child over 18 is unfit to work or does not have enough means to support themselves, they are entitled to child support, as long as those conditions exist.
Is the entitlement to support for a child over 18 unconditional? No, it is not. Specifically, the Family Law also incorporates a corrective measure to ensure that the adult child is not entitled to support if it would result in manifest injustice to the supporting party.
The most common type of abuse in practice happens when a child in regular schooling intentionally fails a school year just to receive child support. Of course, this intention is not easy to prove, but there are situations when the abuse of rights by children is obvious.
Support of Parents
Are only children entitled to receive support, or in some cases, even the parents have the same right?
Even though this situation is rare in practice, parents are also entitled to receive support by their children, i.e., by straight descending line relatives, i.e., grandchildren, great-grandchildren etc. However, how to exercise this right?
Most often, the dependents are elder people incapable of work, retired people whose livelihood is endangered, parents in severe financial poverty, etc. The Family Law obliges children to help their parents when life circumstances change. That way, children should repay their parents for all the care they provided during their lives.
Even the parents who are incapable of work are entitled to support from their minor child, who has income or owns property, in proportion to the minor’s ability.
How Is Alimony Calculated
The alimony amount is determined in accordance with the needs of the support creditor and the capacity of the support debtor.
The needs of the support creditor are correlated to the following factors:
- Age,
- Health status,
- Education,
- Property,
- Income,
- Expenses,
- Other significant circumstances…
The capacity of the support debtor is correlated with the following factors:
- Income,
- Expenses,
- Possibility for employment and remuneration,
- Property,
- Personal needs,
- The obligation to support another person…
There are many different examples of the proportion of the needs of the support creditor and the capacity of the support debtor. Therefore, the Family Law introduces the minimum support amount that should be determined. That is the amount of money, received by the persons in family accommodations and adoptees. This amount is periodically determined, in accordance with the Family Law, by the ministry competent for family protection affairs.
In the spirit of the Family Law, the court considers this amount, once determining the support amount, in accordance with the needs and the capacity of the subjects. Accordingly, in practice, this amount is not such a significant factor, bearing in mind that it cannot condition the person who, justifiably, would not be able to fulfill the obligation to provide support in that amount. On the other hand, if the support debtor is the child, the support amount should enable at least the level of the standard of living for the child as enjoyed by the parent-support debtor. This support amount will represent just a framework once the court decides upon support.
How Is Alimony Calculated?
Firstly, it is important to clarify that, as a rule, the amount of alimony is calculated in money.
The alimony amount can be determined in the fixed monthly amount or in the percentage of the monthly pecuniary income of the support debtor.
How is the percentage of monthly pecuniary income of the support debtor determined?
The support, in this case, cannot be determined in a percentage any less than 15% and not exceeding 50% of the gross monthly income of the support debtor, reduced for taxes and obligatory social insurance.
The Minimum Standard of Living the Child Should Have
The Family Law prescribes one provision, that especially protects the living standard of the child. That provision is:
“If the child is the support creditor, the support amount, should enable at least such level of standard of living for the child as enjoyed by the parent-support debtor.”
This provision obliges the parent support-debtor to enable to the child, support creditor, at least the minimum standard of living, that he enjoys.
Contrarily, even though the law makes guaranty of the standard of living of the child, when it comes to the obligation to support other persons, this standard is not guaranteed. On the contrary, it is determined, based on the basic, existential needs of the support creditor.
Consequences of the Failure to Pay Alimony
As previously mentioned in our blog, the law prescribes alimony payments as an obligation. Even though the court will consider all personal circumstances of the support debtor, the court will not release the support debtor from their obligation.
Therefore, even if an individual with a legal obligation to provide support does not generate income despite being capable of working, they will not be excused from fulfilling the support obligation. For instance, an unemployed parent cannot evade their responsibility to support their children but is required to actively seek various forms of employment or additional work opportunities to generate income and fulfill their support duties.
Even if a person is obliged by a court decision to support another person and does not provide the support for which they are obliged, they are committing a crime against marriage and family.
A fine or imprisonment of up to two years is prescribed for this criminal offense (failure to provide support). If the failure to provide support has serious consequences for the dependent, the fine is not prescribed, but imprisonment from three months to three years.
Therefore, it is paramount that a person be bound by a court decision and must fail to fulfill his obligation to be prosecuted.
When Does the Paying Support Stop?
The support can be paid for a definite or indefinite period.
Please see below which legal maximums are prescribed by the Law:
- Parents are obliged to pay child support for their child up to 18 years old,
- Parents of the child on the regularly education are obliged until the child age of 26,
- Parents of the children legally incapable will be obliged to support them until that condition exists,
- The spouse can be obliged to support his incapable of work ex-spouse, in the maximum period of five years after the termination of the cohabitation.
Procedure for Determining the Amount of Alimony
Although it is considered that the providers of alimony are obliged by the Law to pay alimony, to guarantee this in practice, it is necessary for the court to decide on the amount of alimony.
A court decision can be made after a lawsuit has been initiated in two ways:
- A lawsuit filed with a court, or
- Alimony agreement. The agreement must be drawn up in the form of a notarial deed, i.e., the signatures must be certified before a notary public.
Terminating/Reducing Alimony Payments
Is there a possibility for alimony to be reduced or increased, or even terminated?
Of course, if the circumstances change, whether on the side of the support creditor or support debtor, the alimony amount can be changed or terminated. The court decides on the merits of the change, and until a final court decision on a different amount of alimony is made, the obligation must be fulfilled regularly, in accordance with the valid, previously made, decision.
A modification in the alimony amount (either decrease or increase) or the termination of alimony can be sought through a new lawsuit filed in court, requesting a reduction, increase, or termination of alimony. Additionally, alimony can be altered through an agreement reached between the debtor and the creditor.
Termination of Alimony
Alimony must be terminated in the following cases:
- When the duration of providing financial support expires, in accordance with the law or court decision,
- By death of the financial support creditor or support debtor. Therefore, the obligation to provide financial support is not inheritable!
The obligation to provide financial support shall be terminated:
- When the support creditor acquires enough assets to support themselves, unless the support creditor is not a minor,
- When the support debtor loses the capacity to provide financial support or providing support becomes manifestly unjust for him unless the support creditor is a minor.
The spousal support is also terminated when the support creditor concludes a new marriage or common-law marriage.
It is important to highlight the fact that the spouse whose right to support had once been terminated, cannot re-exercise their right to spousal support from the same ex-spouse.
Can Alimony Be Paid Retroactively?
If the claim for financial support is adopted, the support debtor will be obliged to provide financial support, from the moment of filling a claim. That is the only situation when it could be said that the support can be paid “retroactively”.
However, if the parent with whom the child lived during some period, independently supported the child, the claim for child support cannot be demanded retroactively. Namely, in such situations, only material damages could be asked, while that depends on costs which that parent bears independently.
RECOURSE
Following the Law, the person who supported, and did not have the obligation to do so, is entitled to compensation (recourse), from the person who was obliged to provide support by the law. This is mostly related to the relatives who supported children, instead of the children’s parents. For example, grandmother and grandfather could claim recourse from the parents, for supporting their grandchildren.
Financial Support Disputes With International Element
What happens if a person who is legally entitled to financial support or a person who is obliged to support another person is abroad? Which court has the jurisdiction to determine the amount of financial support? How to fulfill the obligation to provide financial support abroad?
The general jurisdiction of the court, even when it comes to international disputes, is the jurisdiction of the court where the defendant resides.
The jurisdiction of the Serbian court, in the support procedures, exists when the defendant has a residency in Serbia, if the claimant is a Serbian citizen and has residency in Serbia. Also, the jurisdiction of the Serbian court in the support procedures exists if the defendant has property in Serbia, from which the support can be collected.
Furthermore, when it comes to providing child support, the Serbian court has jurisdiction when the defendant is not a Serbian resident, if:
- Child files a claim and has residency in Serbia,
- The claimant and the defendant have Serbian citizenship, no matter where they have their residency, or
- The claimant is a minor and holds Serbian citizenship.
In disputes over legal support between partners and former partners, the jurisdiction of the court of the Republic of Serbia exists even if the partners had their last joint residence in Serbia, and the prosecutor still has a residence in Serbia at the time of the court dispute.
However, when it comes to non-payment and the need to initiate enforcement proceedings, the enforcement proceedings abroad pose, after all, the biggest challenge.
In order to facilitate the procedure of execution of alimony claims abroad, 64 countries signed the United Nations Convention on the Execution of Alimony Claims Abroad, which is implemented by the Ministry of Finance in the Republic of Serbia as the competent authority. On the other hand, in case the decision must be executed in a country that has not ratified the convention, the procedure of recognition and execution of a foreign decision should be followed, which is a slightly longer process, unless there is a bilateral agreement between the countries concerned.
Hence, it is crucial to ensure timely payment of financial support to prevent enforcement actions, additional enforcement expenses, and potential criminal proceedings for non-payment of maintenance.
However, it is also important to know that the decision on the amount or provision of financial support can always be changed in the event that circumstances change in relation to the moment when the financial support was previously decided.
