The parents, whether they are married to each other and cohabiting or have broken off their cohabitation or have been divorced, have a joint obligation to provide for their minor child, even if he or she has property, if the income from it or the product of his or her work or any other income is not sufficient to support him or her. The amount of maintenance shall be determined on the basis of the child's needs as they arise from the circumstances of his or her life and shall include all the expenses necessary for his or her maintenance and, in addition, the expenses of bringing up the child and his or her vocational and general education, and shall be paid in advance in cash each month, unless there are special reasons for paying it in another way.
Living conditions means the specific living conditions, which vary according to the age, place of residence, the need for education, and the health condition of the beneficiary in combination with the financial situation of the debtor. The parent who has custody of the child may take into account everything connected with the actual provision of money for the child's needs as well as other benefits in kind resulting from the cohabitation which, as a rule, accompanies custody. However, it is difficult to assess in each case the specific care and benefits of the parent who has custody of the minor child. The difference is determined to the extent appropriate on the basis of the child's needs as they arise from the circumstances of his or her life and includes what is necessary for his or her maintenance and vocational training. The parents’ income from any source is first assessed and then the child's needs are determined. Living conditions means living conditions that are free from unreasonable demands and waste of money .
These conditions, which correspond to the beneficiary's standard of living according to age, health, abilities, education, etc., determine the amount of maintenance due to him/her, which may be less than the debtor's means. Conversely, the maintenance will be reduced below the beneficiary's standard of living if the debtor's means are limited and insufficient.
In addition, the above obligation of the parents to support their child is borne by them, according to their respective strengths. The defendant parent, therefore, in order to pay the full amount of maintenance, may rely on the fact that the other parent also has the financial capacity, in relation to his own and in conjunction with his other obligations, to cover part of the corresponding maintenance of the minor, in which case the obligation of the defendant parent is limited by the amount corresponding to the financial capacity and on the basis of that obligation of the other parent to contribute.
Furthermore, the spouses have an obligation to contribute jointly, each according to his or her strength, to meet the needs of the family. This obligation, the extent of which is determined according to the circumstances of family life, includes, in particular, the mutual obligation of the spouses to provide for their maintenance, their joint obligation to provide for the maintenance of their children and, in general, the obligation to contribute to the running of the common household. This contribution of the spouses is made by their personal labour their incomes and property, even if unearned.
Further: In case of termination of cohabitation, in which case the marriage between the spouses continues, but there can be no question of their contribution to the needs of the family, including the mutual obligation of the spouses to provide maintenance, since the termination of cohabitation has resulted in the cessation of the existence and functioning of a common home and the creation of family needs, one of the spouses whose cohabitation has been terminated for a reason that is reasonable in his or her eyes is entitled to receive from the other, irrespective of whether one of them is wealthy and the other is destitute, maintenance in cash, paid monthly in advance and substituted for the contribution of the debtor in the circumstances of family life.
The obligation to pay monthly alimony in cash, after the termination of the cohabitation, is a consequence of the obligation of the spouses to contribute to their mutual maintenance during the marriage and is not equivalent to the maintenance due after the divorce, which presupposes the beneficiary's absence, and exists even if the debtor was forced to terminate the cohabitation due to the beneficiary's misconduct. Moreover, the amount of maintenance due to the creditor after the breakdown of the cohabitation is determined on the basis of the needs of the creditor, as they arise in the circumstances of family life, in conjunction with those arising from the separation, taking into account the economic strength of both parties, including property.
In view of the above, in the action for maintenance of the spouse who has broken off the cohabitation for reasonable cause, the plaintiff must rely on the spousal status, the break off the cohabitation for reasonable cause and that his/her living needs, taking into account the circumstances of the separation, justify fixing the amount of maintenance at the amount sought in the application, whereas it is not necessary to state in the application, or in the decision awarding maintenance on the ground of separation, the assessment of the contribution of each of the spouses to meeting the needs of the family.
Furthermore, it can be inferred from the combination of the above provisions that in the event of the termination of a cohabitation, in which case the element of the joint contribution of the spouses to meeting the needs of the family ceases to exist, there is a kind of set-off of mutual obligations for maintenance, so that the spouse who, under the terms of the marital partnership, owed the smallest contribution is the person entitled to the pecuniary claim, so that, if he or she has broken off the partnership for just cause, the difference between the other's larger contribution and his or her smaller contribution is due to him or her in cash as maintenance.
In order to establish this claim (maintenance), either the spouse who is entitled to maintenance must have terminated the marital relationship for a reasonable cause or, by extension, the termination must have been caused by the spouse who is liable for maintenance. Reasonable cause for the termination of a maintenance relationship is any event which may justify the breakdown of the partnership. The manner in which the breakdown occurs (abandonment or expulsion) is irrelevant. The reasonable cause may be due to the fault of one of the spouses or to joint fault.
CASE
The parties entered into a legal religious marriage, during which they had a male child. After the first years of their marriage, during which their cohabitation was harmonious, the parties' relations began to be disturbed and, over time, they became mentally and physically estranged, unable to communicate, and often had intense arguments, with the result that, from the beginning of 2019, their marriage was definitively terminated.
Although the parties continued to reside in the matrimonial home, owned by the husband, at least for a few days a week until the issuance of the judgment, as the wife, from time to time, resided, together with their minor child, in her mother's home, however, their marital cohabitation had essentially ceased since the aforementioned time (beginning of 2019), since there was no mental and physical contact between them.
Already, the latter has left the aforementioned house owned by her husband and has rented a new house, where she now resides together with the aforementioned child of the parties.
The aforementioned interruption of the parties' marital partnership is due to their common fault, as, gradually, due to the husband's long absence due to his profession (sailor), his dissatisfaction with the fact that his wife, on certain days (mainly weekends and holidays), went with their child to her mother's house, in order not to be alone when the husband was travelling, but also for other personal reasons, alienation, indifference and lack of mutual love and respect, with the result that there were constant arguments and quarrels between them, which now made the marital partnership unbearable and, consequently, it was reasonably terminated by the plaintiff.
Furthermore, it was proved that the wife, at least from the birth of the above-mentioned child of the parties and throughout their marriage, did not work, as she was in charge of the care, upbringing and care of the said child, but also of the household chores, participating in meeting the needs of the family exclusively by offering her personal labour. During the marriage and up to the present day, the husband has worked as an AB engineer on a ship with which he sails to the islands of the north-eastern Aegean and to Kavala, earning a salary of at least EUR 4 000 per month. This amount of his earnings is proven both by his income tax return and income tax statement and by his pay slip from the company where he works.
The husband also has exclusive ownership of an apartment, which was the marital home of the parties, as well as a ground floor holiday home. He also owns a private car. He lives in the above apartment and is therefore not liable for the payment of rent, but he is liable for the operating costs of that house (electricity, water, heating, etc.), as well as for the normal costs of providing general maintenance for persons of the same age and socio-economic status as himself, while he has no obligation to provide maintenance for third parties other than his child and his spouse, who is still his wife at the time of the proceedings.
Moreover, it was found that the wife stopped working (as a supermarket clerk) after the parties' marriage and has not worked again since then, while it was not proven that she has any assets or income from any source, nor that she has saved money from what her husband sent her when he was travelling. During her married life with her husband, she was involved in meeting the family's needs by offering her personal labour, especially given that her husband was absent from the marital home for many hours a day due to the nature of his work.
Furthermore, the wife continued to reside for a period of time in the above matrimonial home, despite the breakdown of the marital partnership with her husband, but also in her mother's home from time to time, while she has left the above home and has rented a new home where she now resides together with the above child of the parties. She has the usual maintenance needs of persons of the same age and socio-economic status as herself, and has no maintenance obligations to persons other than her child. According to the above, during the parties' marital relationship, the husband bore the sole burden of supporting their family with his income from his employment, while the wife's contribution consisted of managing and caring for the matrimonial home and providing her services and care to the appellant and their minor child. Whether it was the defendant who prevented the plaintiff, from the beginning of their marriage, from continuing to work in the supermarket where she had been employed until then, or whether the plaintiff herself chose not to work after their marriage, is of no material legal significance, since, in any event, it is established that the wife did not work during the marriage, as she was caring for the minor child she had acquired with her husband, particularly in view of the fact that the latter was absent from the matrimonial home for long hours due to the demands of his work.
It is clear from the above that, during the parties' marital partnership, the wife enjoyed part of her husband's income since she, due to her financial means, was the one who had to make the smallest contribution to meeting the family's needs. And in view of the fact that their marital cohabitation was interrupted for a justifiable reason, that is to say, due to a serious breakdown for reasons affecting both parties, so that it is unreasonable for both spouses to continue it, the wife is entitled to maintenance from the defendant. The amount of that maintenance must be fixed at EUR 400 per month, which corresponds to her needs after the breakdown of the marital partnership and represents the proportion which the defendant would have been obliged to contribute to her maintenance in the context of that (marital) partnership, taking into account the financial resources of each of the parties and the circumstances of their family life. It should be noted that, in addition to caring for her minor child, she was unable, despite her efforts, to find work because of the extremely difficult conditions on the labour market as a result of the measures taken to deal with the covid 19 pandemic, which had significantly reduced economic activity, given that, firstly, she had stopped working many years ago and, secondly, she had no professional qualifications.
Moreover, it was found that the above minor child of the parties is unable to support himself, because he has no property of his own, nor income from any other source, and because of his age, he is unable to work. Consequently, the child's parents are jointly and severally liable for maintenance, each according to his or her financial means.
The mother already contributes to the maintenance needs of the minor child of the parties with her personal work for his care and upbringing, which is valued in money. The minor son of the parties attends a public primary school, attends home English language classes, attends jiu-jitsu classes and swimming lessons. With regard to his medical care, he is indirectly, through his father, insured with the House of the Sailor, as well as with a private insurer, and is further under the care of a private paediatric endocrinologist. In addition, the child in question has the usual needs for food, clothing, recreation, transportation, etc., that a child of his age has, based on the financial situation of his parents.
On the basis of the aforementioned financial means of the parents, the aforementioned expenses of the child and the general circumstances, the monthly maintenance for the minor child of the parties should be set at EUR 750. That amount is proportionate to his needs as they arise from his circumstances and corresponds to the necessary expenses for his education, food, clothing, clothing, entertainment and general upkeep, as set out above.
The defendant will pay as regular cash maintenance for his minor son the amount of EUR 600 per month. The remaining amount of EUR 150 per month, which is required for the maintenance of the above child, will be contributed by his mother, through her personal labour and employment for his care, which is valued in cash.
Author of the article:
Attorney at Law & Attorney-at-Law & Attorney-at-Law
Ave. 403 Mesogeion Street, Agia Paraskevi, Agia Paraskevi, Attica
Tel. 6945-028153, 213-0338950
e-mail: natmil@otenet.gr, info@legalaction.gr
www.legalaction.gr
