Until recently, the calculation of maintenance due by one or other of the parents for the maintenance of their children was frequently fixed in an empirical and random manner, and ultimately was left up to the free discretion of the judge who was under no obligation to give an explanation of the method used for this purpose.
Quite often, the litigant had a sense of unfairness, since the amount of the order could vary substantially from one judge to another.
It was to address this legal uncertainty that the legislator has intervened by voting in the law of 19/03/2010 which aims to promote objectivity in the calculation of maintenance for the father and mother for the benefit of their children.
This new law came into force on 01/08/2010.
According to the new article 203 § 1 of the Code Civil [Civil Code], fathers and mothers are obliged to assume, in proportion to their abilities, the accommodation, maintenance, health, supervision, education, training and development of their children. If their education is not completed, the obligation continues after the child comes of age.
Abilities mean all the professional incomes, movable and immovable property of the father and mother, as well as all the benefits and other means which ensure their standard of living and that of the children.
Both the father and mother contribute to the costs resulting from the obligation laid down in article 203, § 1 of the Code Civil [Civil Code], up his or her share in the cumulative abilities.
Without prejudice to the rights of the child, both the father and the mother can claim their contribution from the other to the costs that arise from article 203 § 1 of the Code Civil [Civil Code].
Costs include ordinary costs and extraordinary costs.
Ordinary costs are the usual costs relating to the daily maintenance of the child.
Extraordinary costs mean exceptional, necessary or unpredictable expenditure which results from accidental or unusual circumstances and which exceed the usual budget assigned to the daily maintenance of the child which has served as the basis, where appropriate, to the fixing of maintenance contributions.
At the request of the father or the mother, the judge may impose upon the parties the obligation to open a bank account with an authorised institution based on the law of 22 March 1993 relating to the status and control of credit institutions by the banking, financial and insurance commission, intended for the payment of assessed contributions based on article 203 § 1.
In this case, the judge shall at least determine:
1. The contribution of both the mother and the father to the costs stipulated in article 203 § 1, as well as the benefits accruing to the child which must be paid into this account;
2. The time of the month at which these contributions and benefits must be paid;
3. The manner in which the sums paid into this account should be disposed of;
4. The costs paid by using these sums;
5. How control of the expenses is organised;
6. The manner in which deficits shall be cleared;
7. The allocation of surplus funds paid into this account.
The payments of contributions carried out pursuant to this article are considered to be maintenance payments within the context of the maintenance obligation as defined in article 203 § 1 of the Code Civil [Civil Code].
If the debtor fails to satisfy the maintenance obligations stipulated by law, the creditor may, without prejudice to the rights of third parties, for fixing the amount of maintenance and for enforcing the judgement, obtain authorisation to collect, to the exclusion of the aforesaid debtor, under the conditions and limits fixed by the judgement, the income from the latter or any other sum due to him or her by a third party.
In any event, the judge shall grant authorisation if the maintenance debtor has shirked on his or her obligation to pay maintenance in whole or in part, for two terms, consecutive or not, during the 12 months following the filing of the request, unless the judge decides otherwise by reason of exceptional circumstances specific to the case.
Maintenance determined under article 203, § 1 of the Code Civil [Civil Code], and fixed either by judgement in accordance with article 1321 of the Judicial Code or by agreement, changes automatically according to fluctuations in the consumer price index.
This basic contribution is linked to the consumer price index for the month preceding the month during which the judgement determining the contribution of both the father and the mother is pronounced, unless the judge decides otherwise. Every 12 months, the amount of the contribution shall be changed automatically according to an increase or decrease in the consumer price index for the corresponding month.
This change is applied to the contribution for the payment date following publication in the Moniteur Belge of the new index to be taken into consideration. However, the judge can apply another formula to change maintenance.
The parties may also depart from, by agreement, this change formula.
In the interest of the child, the judge may, upon the request of one of the parties, decide to make an automatic increase in the maintenance payments under circumstances to be determined by him or her.
According to new article 1321 § 1 of the Code Judiciare [Civil Procedure Code], unless otherwise agreed by the parties as to the amount of the maintenance contribution which complies with the interests of the child, any judicial decision which fixes a maintenance contribution under article 203 § 1 of the Code Civil [Civil Code] shall indicate the following elements:
1. The nature and the amount of the abilities of both the father and the mother taken into account by the judge;
2. The ordinary costs which make up the budget for the child as well as the manner in which these costs have been assessed;
3. The nature of the extraordinary costs which may be taken into account, the proportion of these costs to be assumed by both the father and the mother as well as the procedures for undertaking these costs;
4. The arrangements for custody of the child and the in-kind contribution of both the father and the mother to the maintenance of the child following this custody;
5. The amount of family allowances and social security and tax benefits of all types which both the father and the mother receives for the child;
6. Where appropriate, the income of both the father and the mother which results from the enjoyment of the property of the child;
7. The share of both the father and the mother in supporting the costs that result from article 203 § 1 of the Code Civil [Civil Code] and the potential maintenance contribution plus fixed and the procedures for it to be changed;
8. The specific circumstances of the case that have been taken into consideration
The judge shall specify:
1. How the elements specified in article 1321 § 1 of the Code judiciaire [Civil Procedure Code] have been taken into account;
2. In a specially motivated judgement, in which way the maintenance contribution was fixed and the procedures for its adaptation in accordance with the new requirements of the Code civil [Civil Code], and is this deviates from the calculation method provided for by the Code judiciaire [Civil Procedure Code].
The judgement must mention SECAL’s contact details
The judgement shall mention the contact details for the Service des créances alimentaires [SECAL – Department for Maintenance Claims], creating a Department for maintenance claims within SPF Finances [Federal Public Finance Department], and which quotes its tasks in terms of the granting of advances against maintenance payments and the recovery of maintenance payments that are due.
Automatically enforceable judgement
A decision ruling on maintenance payments is automatically provisionally enforceable, unless the judge decides otherwise, upon request of one of the parties.