Corona bridging aid as income relevant for maintenance law – Current developments
The assessment of government support measures in the context of the COVID-19 pandemic continues to raise significant questions in maintenance law. In particular, the issue with so-called Corona bridging aid is whether and to what extent these payments should be considered as income within the meaning of maintenance law. The Higher Regional Court of Bamberg confirmed in its judgment of April 6, 2022 (Ref. 2 UF 23/22) that Corona bridging aid is to be attributed to income relevant for maintenance obligations. The ruling clarifies the treatment of these pandemic-related payments under maintenance law and provides important guidance for maintenance obligors, beneficiaries, and their advisors.
Background of the Corona bridging aid
The government bridging aids were established to mitigate the economic consequences of the COVID-19 pandemic, particularly for self-employed entrepreneurs, solo self-employed, and freelancers. The aim was to cushion existential sales slumps and to preserve the economic ability to act for those affected. As part of the application process, extensive information on operating costs, revenues, and the economic situation must be provided, with the aid regularly being disbursed as earmarked grants to cover business fixed costs.
The classification of Corona aid under maintenance law
Principle of income relevance
According to established case law, in the context of maintenance law, all actual income that is available to the maintenance obligor for covering his or her living expenses must be considered, provided it is not explicitly earmarked for a particular purpose or qualifies as a pure pass-through item. In addition to income from self-employment or employment, this standard practice also includes government transfer payments, unless they are solely subject to a specific professional purpose.
Ruling of the Higher Regional Court (OLG) Bamberg
The OLG Bamberg assumes that benefits granted as part of the Corona bridging aid are generally to be regarded as the recipient’s income within the meaning of § 1603 BGB. This applies at least when the funds serve to compensate for business expenses that would otherwise have had to be covered by private income — and thus from income relevant for maintenance law. In the court’s view, a different assessment is only appropriate if the earmarking of funds is so strict that their direct use for personal living expenses is categorically excluded.
Impacts on the assessment of maintenance capacity
By including the bridging aid in the assessment of income, the income relevant for maintenance calculation increases. Such support payments must therefore be taken into account when assessing the ability to pay maintenance, provided that—after deducting business fixed costs actually paid with the aid—a surplus remains, or where the precise scope of the recognized business expenses cannot be clearly determined in the individual case.
Distinction from other support measures
A distinction must be made between bridging aid and other pandemic-related support, such as short-time allowance, immediate aid, or tax relief. While, for example, short-time allowance is generally to be counted as income, funds used purely for business purposes, as may occasionally occur with immediate aid, may be excluded in rare exceptions, provided a strict earmarking can be demonstrated.
Practical implications and uncertainties
Repayment obligations and forecast decisions
In practice, there is often uncertainty about the extent to which received support benefits may later be considered overcalculated and reclaimed. For maintenance law purposes, however, the decisive factor remains what income is available to the obligor at the time of the maintenance calculation. Forecast decisions regarding income development during crises must always be made with caution and require careful documentation of the individual amounts and their use.
Disclosure obligations and transparency
The maintenance obligor has an extensive duty of disclosure towards the beneficiary and before the courts concerning all relevant income components. This also includes details about the amount, the period of approval, and the use of the received Corona aid. Transparency regarding these details is essential in order to enable a proper and fair calculation of maintenance.
Conclusion and outlook
The decision of the OLG Bamberg confirms the trend in case law to classify pandemic-related support measures as relevant income and thus to consider them in the context of maintenance law. Given the complexity and diversity of government aid programs, it remains to be seen how future case law will address further comparable situations. Entrepreneurs, self-employed persons, and freelancers facing conflicting maintenance obligations and government support should carefully monitor current developments.
Source
The judgment of the Higher Regional Court of Bamberg from April 6, 2022 (Ref. 2 UF 23/22) can be accessed at urteile.news.
For questions or uncertainties regarding the maintenance law assessment of Corona aid payments and other business law issues, the attorneys at MTR Legal – a business law firm operating nationally and internationally – are happy to assist you.
