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Child maintenance new spouses

The father of a daughter who is now 20 years old now has to pay dearly for his marriage to a wealthy woman. The Supreme Court has confirmed (22.09.2021, 4 Ob 67/21p) that the fictitious maintenance claim he would have against his well-off wife increases the child maintenance for his daughter, also for the past.

In the case in question, the 20-year-old daughter, who lived with her mother, applied for a (retroactive) increase in child maintenance against her father. The father paid child support regularly, but in a modest amount. He did not receive any income of his own, apart from AMS support. He lived off his well-earning wife. The father resisted his daughter’s demands and argued that the inclusion of his wife’s financial capacity was an intrusion into her private sphere. However, the Supreme Court took a different view.

During an ongoing marriage, there is a maintenance claim against the higher-earning spouse. This can consist entirely or partially of monetary maintenance. This means that the father could also have asserted a monthly claim for money maintenance against his high-earning wife. He failed to do so in the specific case. According to the Supreme Court, however, this should not fall on his daughter’s head. Therefore, even the spouse’s maintenance which was not actually paid, i.e. fictitious maintenance, is to be included in the maintenance assessment basis. Therefore, in the monthly assessment of the daughter’s maintenance claim, the father is to act as if he actually received maintenance from his wealthy wife, even if this is not the case in reality.

The Supreme Court states that this fictitious maintenance claim against the spouse increases the father’s maintenance assessment basis even for the past. Child maintenance can also be claimed for the past. The mere fact that the increase is triggered by the father’s wife does not justify an exception to this principle.

Generally speaking, children are entitled to maintenance from their parents until they are able to support themselves. The amount of the maintenance claim is based on the child’s actual needs, on the one hand and on the other hand, on the parents’ ability to pay. If a child is cared for by one parent in the household of separated parents, this parent already makes his or her maintenance contribution through payments in kind. The other parent is obliged to pay cash maintenance. In Austria there is also a so-called playboy limit (which, incidentally, does not exist in the calculation of maintenance for (former) spouses). This means that very wealthy parents or maintenance debtors above a certain income only have to pay a capped maintenance contribution. It is assumed that above a certain level of maintenance, a negative pedagogical effect could occur.

If parents and children get along well, child support is usually unproblematic. If there is a good understanding, most parents want to ensure that their children are doing well within their means and support them until they can stand on their own two feet. However, especially after a divorce, when conflicts are smouldering within the family, there are often disputes and quarrels about child maintenance.

The current decision of the Supreme Court shows once again that even if the new spouse does not have to pay child maintenance for children from a first marriage, a dissolute lifestyle of the parent liable for maintenance can very well lead to an increase in child maintenance. This is also the case if this high standard of living is due to the high income of the new spouse.


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