Breach of Maintenance Obligation – Definition and Legal Basis
Die Breach of Maintenance Obligation describes the failure to fulfill the legally mandated obligation to pay maintenance to entitled persons, such as children, spouses, or parents. In Germany, the disregard of this obligation, under certain circumstances, constitutes both a civil and criminal violation. This article systematically examines the legal aspects of the breach of maintenance obligation under German law.
Term and Distinction
The obligation to pay maintenance arises from family relationships governed by the German Civil Code (BGB). A breach of maintenance obligation occurs when the obligated relative does not fulfill their payment obligation at all, only partially, or not on time. Both the conscious withholding of payments and the negligent omission despite an existing ability to pay are considered violations.
Difference from Payment Default
A breach of maintenance obligation must be distinguished from mere payment default: while payment default already occurs when a due maintenance payment is settled late, a breach of maintenance obligation refers to the ongoing, unjustified failure to pay and can be criminally relevant beyond the civil law context.
Civil Law Aspects of Breach of Maintenance Obligation
Entitlement to Maintenance
The obligation to pay maintenance essentially arises from §§ 1601 et seq. BGB (maintenance among relatives) and §§ 1360 et seq. BGB (spousal maintenance). Prerequisites are always the need of the entitled person and the ability to pay of the obligated person. The specific amount is determined on the basis of income and asset circumstances.
Legal Consequences of the Breach
If the obligated relative does not fulfill their maintenance payment obligation, the entitled person can enforce their claim. Possible measures include:
- Action for Payment of Arrears and Ongoing Maintenance
- Obtaining an Enforcement Order for Maintenance at the Family Court
- Enforcement Measures against the obligated party (e.g., wage garnishment)
- Advance or Substitute Payments by government agencies in the case of outstanding child maintenance (§ 7 UVG – Underhaltsvorschussgesetz).
The entitled person may also claim damages if additional losses arise due to non-payment.
Criminal Law Aspects of Breach of Maintenance Obligation
Criminal Offense under § 170 German Criminal Code (StGB)
The breach of maintenance obligation is defined as a criminal offense in Germany under § 170 of the German Criminal Code (StGB). Under this provision, a person is liable to prosecution if they evade their maintenance duty such that the basic needs of the entitled person are endangered. The minimum subsistence of the person entitled to maintenance is primarily protected.
Elements of the Offense
- Existence of a Statutory Duty of Maintenance
- Ability to Pay of the Debtor (at least partially)
- Deliberate Omission of Payment or Obstruction of Enforcement
- Endangerment of the Entitled Person’s Livelihood
A mere ‘inability’ due to lack of financial means is not punishable in this context. However, the obligated person is required to help themselves and make reasonable efforts to generate income.
Penalties and Legal Consequences
Breach of the maintenance obligation can be punished with imprisonment of up to three years or a fine. In case of minor offenses, the proceedings may be discontinued in accordance with § 153 StPO. In addition to criminal sanctions, there may be ancillary consequences, such as entry into the Federal Central Register.
Practical Significance and Procedure
Enforcement of Maintenance
After an unsuccessful out-of-court request, persons entitled to maintenance can initiate court proceedings for the establishment and enforcement of their claims. An enforceable maintenance order forms the basis for further actions up to and including compulsory enforcement.
Advance Maintenance and State Support
Especially in the case of child maintenance, the state assumes payment through the Unterhaltsvorschussgesetz if the actual obligor fails to pay. The paid amounts are subsequently reclaimed from the obligor.
Defenses Available to the Obligor
Objections to the Claim
The obligor can be discharged if they can prove that they are not able to pay and have made all reasonable efforts to improve their ability to pay. Important factors also include involuntary unemployment or illness affecting the ability to pay.
Adjustments and Modification Proceedings
If life circumstances change, an application to adjust the maintenance order may be filed with the family court through modification proceedings.
Limitation and Retroactive Assertion
Limitation Periods
Claims for maintenance, like all civil claims for payment, are subject to the standard limitation period of three years (§ 195 BGB). Arrears can generally be claimed retroactively for three years, while ongoing maintenance becomes due again each month.
Retroactive Enforcement
Under certain circumstances, maintenance claims can also be asserted retroactively, especially if the obligor intentionally evaded payment or was already in default.
International Breach of Maintenance Obligation
With globalization, cross-border maintenance disputes are increasingly common. International enforcement is based on the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (HUÜ) and the European Maintenance Regulation.
Relevance in Social Law and Tax Law
A breach of maintenance obligation can affect entitlement to social benefits and the tax deductibility of maintenance payments. When benefits are claimed, the failure to pay maintenance is reviewed by the authorities and may lead to further claims for repayment and sanctions.
Literature and Links
- §§ 1601 et seq., 1360 et seq. BGB (German Civil Code)
- § 170 StGB (German Criminal Code)
- Unterhaltsvorschussgesetz (UVG)
- Hague Convention on Maintenance Obligations
With this comprehensive overview, the article provides an in-depth insight into the concept of breach of maintenance obligation, its legal dimensions, and the practical consequences under German law.
Frequently Asked Questions
What are the legal consequences of a breach of the maintenance obligation?
A breach of the maintenance obligation may result in both civil and criminal consequences. Under civil law, the entitled party can retroactively sue for the payment of outstanding maintenance. Enforcement may take place by initiating court dunning proceedings or enforcement measures, such as wage or bank account garnishment. Under criminal law, a breach is punishable under § 170 StGB (German Criminal Code) if the person obliged to pay persistently evades their obligation and thereby endangers the subsistence of the entitled person. In the case of criminal prosecution, fines or even imprisonment of up to three years may be imposed. In addition, the authorities may require disclosure of the debtor’s income and assets, and, through information obligations, ascertain the place of residence and banking relationships. It should also be noted that criminal proceedings may be initiated independently of the assertion of civil claims for maintenance.
What requirements must be met for criminal prosecution under § 170 StGB?
For criminal prosecution due to a breach of maintenance obligation under § 170 StGB to be initiated, several prerequisites must be fulfilled: Firstly, there must be a statutory maintenance obligation—for example, towards children, parents, or spouses. The obligor must be able to pay, i.e., possess sufficient financial means. The default in maintenance payments must also be intentional, meaning the obligor acts deliberately or knowingly. Finally, the omission must endanger the basic subsistence needs of the entitled person. If it is proven that the obligor is not able to pay, the requirements of § 170 StGB generally do not apply. Reports may be filed by affected persons or authorities, usually after repeated payment defaults.
To what extent is retroactive assertion of maintenance possible?
In principle, under German law and according to § 1613 BGB (German Civil Code), maintenance can only be claimed for the period from the date on which the debtor was asked for information about their income or requested to make payment. Retroactive claims for earlier periods are generally excluded unless the debtor was already in default or intentionally failed to make maintenance payments. In exceptional cases, for instance if the obligor fraudulently concealed their financial circumstances, a longer retroactive period may be granted. It is therefore advisable to assert maintenance claims in writing as early as possible to secure rights for the past.
How can the person obliged to pay maintenance defend against a maintenance claim?
The person obliged to pay has various legal possibilities to defend themselves against a maintenance claim. They may raise objections to entitlement, for instance if the claimant already earns sufficient income or the necessity is not proven. Moreover, in cases of so-called ‘deficiency cases’ (Mangelfall), it is possible to apply for a reduction in maintenance if several obligations exist and their own financial capacity is insufficient. The obligor can also file for a reduction of maintenance or file a stepwise action (Stufenklage) based on lack of ability to pay. Any change in economic circumstances should be reported immediately to facilitate adjustment of maintenance obligations.
What role do the Youth Welfare Office and guardianship play in cases of maintenance breaches?
The Youth Welfare Office provides advice and support functions for minor children entitled to maintenance and the parent with custody in cases of maintenance breaches. By applying for guardianship (Beistandschaft), the Youth Welfare Office can act on behalf of the child and assert the maintenance claim both out of court and in court. There is also the option of obtaining an advance payment under the Unterhaltsvorschussgesetz (UVG), which is paid by the competent authority and then recovered from the debtor. The Youth Welfare Office or Advance Maintenance Payment Office can also conduct investigations into the whereabouts and financial status of the debtor and act as an intermediary with courts and enforcement authorities.
Under what circumstances does a claim for maintenance become time-barred?
The civil claim for maintenance is subject to the regular limitation period under § 197 BGB, which is generally three years. The limitation period begins at the end of the year in which the claim arose and the creditor became aware of the circumstances giving rise to the claim or would have become aware of them without gross negligence. For already titled maintenance claims, i.e., those established by a judgment, settlement, or Youth Welfare Office certificate, a longer limitation period of 30 years applies under § 197 para. 1 no. 3 BGB. It is highly recommended to assert or secure maintenance claims early to avoid loss due to limitation.
What enforcement options exist in the event of a breach of maintenance obligation?
If the person obliged to pay maintenance does not fulfill their payment obligation, the entitled person has access to various enforcement measures. These include, in particular, wage garnishment (§ 850 ZPO), account garnishment, and disclosure of assets (previously the statutory declaration in lieu of oath). In cases of continued breaches, the enforcement court may impose coercive fines or coercive detention. It is also possible to apply for compulsory detention in order to compel the obligor to disclose their income and asset situation. If all measures fail, social authorities may step in and recover the payments from the obligor.
