The first paragraph of Article 54 of the Constitution of the Republic of Slovenia states that parents have the right and duty to maintain, educate and raise their children. Parents maintain their children to meet their basic living needs (food, clothing, schooling, accommodation, etc.). The obligation of maintenance between parents and children is governed by the Family Code. In this article, we will focus on the determination and change of maintenance.
Both parents have an obligation to maintain their children, thus ensuring the principle of equality. When the parents do not live together (e.g. due to divorce), the parent who does not live with the child must contribute to the child’s maintenance. In accordance with the principle of autonomy, it is up to the parents to come to an agreement on maintenance (on the amount of maintenance, on the method of paying maintenance, on the distribution of the maintenance burden, etc.), taking into account the child’s best interests, which the court verifies ex officio. In the event that the parents are unable to agree on the maintenance of the children, they are assisted in reaching an agreement by the Social Work Centre and/or a mediator. If they fail to reach an agreement with the help of the Social Work Centre and/or the mediator, the decision on the maintenance of children is up to the court. Maintenance is determined for each child separately.
Article 183 of the Family Code states that parents shall maintain their children until the age of majority or until the child reaches the age of 26 if the child is enrolled in regular education, is not employed and is not registered as seeking employment, specifically, by providing, in accordance with their capacities, the conditions necessary for the child’s development. Article 189 of the Family Code states that the amount of maintenance shall be calculated with regard to the needs of the person entitled and the material and earning capacity of the person liable. Article 190 of the Family Code states that the court shall, in assessing maintenance, consider the best interests of the child, so that maintenance adequately provides for their good physical and mental development. Maintenance shall cover the costs of the child’s basic needs – the costs of accommodation, food, clothes, footwear, care, schooling, education, leisure, free time and other needs. Article 196 of the Family Code states that maintenance shall be assessed in a monthly sum and in advance, and may be claimed from the date of lodging the application or the motion for assessment of maintenance. Case law in this field is also uniform and clear. Thus, for example, the Decision of the Ljubljana High Court, ref. no. IV Cp 600/2019 of 17 April 2019 states that the determination of maintenance costs is not based on a precise mathematical calculation, but on an assessment of the child’s average needs, which do not deviate from the needs of children and adolescents of comparable age. The decision on the amount of maintenance is the result of an evaluation or determination of the right measure, while also taking into account the generally known facts and the specifics of the particular child. It is also stipulated that the incomes that the persons liable are potentially able to earn, and not the actually disclosed incomes, shall be the decisive factors. The capacities of the person liable, and whether they are able to realise them, are essential. The court also noted that the payment of maintenance takes precedence over credit obligations.
However, a determined maintenance may also be changed if the living conditions on the part of the person liable and/or the person entitled change in such a way that results in a change of the circumstances that are essential for the maintenance. The maintenance may be changed only at the request or proposal of the person entitled or the person liable, who must submit the request or proposal to the court, and then the court decides on the justification of the submitted claim or lawsuit. Article 197 of the Family Code states that the court, at the request or proposal of the person entitled or the person liable, may increase, reduce or cancel the maintenance determined by an enforceable act where the needs of the person entitled and the resources of the person liable, which are the basis for calculating the maintenance, change. If the parents agree on an increase or reduction of maintenance determined by an enforceable act, they may propose a court settlement. If the court finds that the agreement is not in the child’s best interests, it shall reject the motion. The person liable and the person entitled may conclude an agreement in the form of an enforceable notarial act on the increase, reduction or cancellation of maintenance that the parents are obliged to pay to a child who has reached the age of majority. Case law is also unified in the field of change of maintenance. A claim for an increase or decrease of maintenance can only upheld if the circumstances have changed significantly. Living conditions are constantly changing and therefore not every change can be significant. Thus, for example, the Decision of the Supreme Court of the Republic of Slovenia, ref. no. II Ips 333/2015 of 23 June 2016, states that the reason for a change of maintenance is a change in the circumstances that were the basis for its determination. If the court does not establish changed needs of the person entitled or the resources of the person liable, it cannot change the maintenance, regardless of the fact that the maintenance may not be adequate and does not cover all the needs of the person entitled. In fact, the institute of the change of maintenance determined by an enforceable act does not provide for a change of maintenance simply because it is not appropriate, and thus does not represent a legal remedy against the decision by which the maintenance was determined. A change of circumstances, which represented the basis for determining the maintenance, result in attempting to identify a new value relationship between all three factors that influence the determination of the amount of maintenance – both in the relationship of the child to both parents (involving the right or duty of maintenance) and in the relationship between parents as persons liable (involving the distribution of the maintenance burden). Maintenance can only be determined or changed by taking into account the specific circumstances at the time of the trial. In this way, the best interests of the child can also be ensured. The Decision of the Ljubljana High Court, ref. no. IV Cp 1441/2018 of 19 September 2018 also states that the condition for the justification of the claim for an increase of maintenance is an imbalanced value relationship between the legally decisive factors – the needs of the child and the resources of each parent. The procedure for deciding on a change of maintenance involves two stages; specifically, the court must first determine whether there have been significantly changed circumstances on the part of persons liable and/or persons entitled between the previous determination of maintenance and the time of decision-making in the lawsuit regarding such change, followed by re-determination of the maintenance in proportion to the resources of each of the persons liable (parents) and the needs of the person entitled (child). In the event of changed circumstances, the court must re-establish the value relationship between all three factors influencing the determination of maintenance. The transition to a higher level of schooling (from primary school to secondary school) does not in itself result in higher living costs or altered maintenance needs of the person entitled.