Maintenance contributions in case of divorce

Order of priority of maintenance contributions in case of divorce

The legal principle

Generally, the Swiss Civil Code stipulates that the obligation to maintain a minor child takes precedence over other family law maintenance obligations (art. 276a para. 1 CC). This priority covers the entire suitable maintenance of the minor child and therefore also includes the possible care contribution (art. 285 CC).
However, the judge has the possibility to deviate from this principle in certain configurations. This may notably be the case when an adult child is entitled to a maintenance contribution and it is appropriate not to prejudice them (art. 276 para. 2 CC). The goal is to prevent a child who turns 18 and is in training at the time of divorce from suddenly finding themselves in a situation of need. This nuance, however, will not put the adult child on an absolute equal footing as they may be able to find part-time work or a scholarship, whereas the minor child cannot.

Order of priority in a deficit situation

Minor child and spouse

If the available means of the maintenance debtor are not sufficient to cover the needs of the family, the maintenance of the minor child will take precedence over that of the divorced spouse. The care contribution will also take precedence over the maintenance of the former spouse. These priorities also apply to children from the debtor’s possible other relationships.
In terms of calculation method, the vital minimum of the debtor’s debt enforcement law should first be covered, then that of the minor child, followed by the care contribution (also established according to the vital minimum of debt enforcement law) and finally the vital minimum of the debt enforcement law of the spouse.

Once the vital minimum of the debt enforcement law of each has been covered, it should be examined whether there are remaining resources and, if so, some charges of the vital minimum of family law may be covered, observing the same order of priority as before.

The maintenance of the minor child also takes precedence over the maintenance of the spouse with whom the debtor cohabits. The expenses of the new spouse should not be included in those of the debtor of the child’s contribution. This remains the rule even if the new spouse does not assume their own maintenance.

Adult child and spouse

The contribution of the ex-spouse always prevails over the contribution of the adult child in training.
Despite the establishment of article 276a paragraph 2 of the Civil Code, the existing jurisprudence on the matter still applies, and the priority conferred on the ex-spouse is maintained.

Minor child and adult child

Article 276a paragraph 2 of the Civil Code allows for a relativization of the primacy of maintenance for the minor child in motivated cases.
It is a margin of appreciation left to the judge depending on the concrete circumstances of the case. This provision thus allows the judge to deviate from the basic legal principle conferring priority to the maintenance of the minor child.

Recent jurisprudence in the matter

On April 20, 2022, the Federal Court rendered a decision in the case of a blended family (TF 5A_382/2021).
This is a case where a first child was born out of wedlock. After the separation of this child’s parents, the mother remarried and gave birth to another child.

The Federal Court thus had to decide on the competition between the obligation of the first father to pay a care contribution and the maintenance obligation of the mother’s husband, according to the principles of family maintenance during marriage. In its decision, it considered that the father of the first child no longer had the obligation to assume a care contribution in favor of the latter, to the extent that the father of the second child covered the mother’s subsistence expenses through his earnings from gainful activity. To reach this conclusion, the Federal Court explained that as the mother and her new husband had agreed on a traditional division of tasks, whereby the husband gave money to the mother who, in return, took care of the household and the common child, the maintenance costs of the latter were covered. Thus, insofar as she did not suffer a deficit, it was not appropriate to set a care contribution in favor of the child from the first marriage.

Through this jurisprudence, the Federal Court did not respect the purpose of the care contribution, which aimed to ensure that the child had the necessary resources, even in case of a change in the personal situation of the parent providing the care. Thus, it is not excluded that in the long term the Federal Court may review this jurisprudence.

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