Enforcement of child maintenance arrears and ongoing maintenance in the Czech Republic

In this article we look more closely at parents' maintenance obligation towards their children, particularly where one parent fails to meet it and maintenance is not paid in accordance with an agreement or a court judgment. Under Section 921 of the Czech Civil Code, maintenance is always paid in regular instalments and is due one month in advance, unless the court has decided otherwise or the person obliged to pay has agreed otherwise with the person entitled. In practice, therefore, the most common ruling is that one parent must contribute a certain amount to the maintenance of a minor child, always by the 15th day of the month in advance, payable to the other parent.

If one parent fails to pay maintenance at all or only partly, thereby breaching the statutory maintenance obligation towards the child, the other parent, as the statutory representative of the entitled minor child, may enforce the maintenance through a court bailiff (exekuce). The enforcement petition should contain the requirements under Section 38 of the Czech Enforcement Code, i.e.: who is filing it, what matter it concerns, what it seeks, identification of the parties (name, surname, permanent residence and, where applicable, date of birth or birth number), precise identification of the enforcement title, the obligation to be enforced, and information on whether and to what extent the obliged party has fulfilled the obligation, or identification of the evidence relied on by the entitled party. The enforcement petition must also be signed and dated. The original or an officially certified copy of the enforcement title with a confirmation of enforceability must also be attached to the petition; only maintenance determined and awarded by an enforceable enforcement title, usually a judgment, can be enforced.

An enforcement petition may be filed both for maintenance arrears and for ongoing future maintenance; for a petition for ongoing maintenance, there must be arrears for a past period at the time the petition is filed. For arrears, the total amount owed and the period in which the debt arose must be stated; for ongoing maintenance, the date from which ongoing maintenance is sought must be specified.

As regards the course and conduct of the enforcement itself, the same rules apply to the recovery of maintenance as to other proceedings ordering payment of a sum of money; if one method of enforcement is insufficient, the bailiff may enforce in several ways. However, the bailiff should still act in accordance with the principle of proportionality of enforcement and choose a method that is not manifestly inappropriate (Section 47(1) of the Enforcement Code). "Enforcement of ongoing maintenance due in the future could previously only be carried out by deductions from wages and other income. With effect from 1 January 2013, enforcement for recurring payments can be carried out by all methods of enforcement, because the debt being enforced may be considered to be the sum of payments due in the future and, in the case of payments for an indefinite period, an amount of up to five times the annual payment."1

As regards the obliged party's ability to end enforcement proceedings, for maintenance arrears the proceedings can be ended by paying the amount owed and the costs of enforcement. If, however, enforcement is also conducted for ongoing future maintenance, stopping it is much more complicated, and the obliged party will have to prove in the proceedings that he or she meets the conditions for stopping enforcement set out, by subsidiary application, in Section 290(2) of the Code of Civil Procedure, which reads: "On the obliged party's petition, the court may stop enforcement by wage deductions if the deductions are only being made for ongoing maintenance and it can be assumed that the obliged party, in view of his conduct and attitude to work, will continue to pay maintenance voluntarily."2 According to settled case law, stopping enforcement for ongoing maintenance on a petition under Section 290(2) of the Code of Civil Procedure requires that the enforcement is being conducted only for ongoing maintenance, with no arrears whatsoever, that the obliged party, in view of his or her conduct and attitude to work, will continue to pay maintenance voluntarily, and that no enforcement is being conducted for another claim at the same time. The petition to stop enforcement is filed with the bailiff conducting the enforcement, who asks the entitled party or the entitled party's statutory or legal representative whether they agree to stopping the enforcement. If the entitled party does not agree, the petition is referred to the competent court, which assesses at its discretion whether all the conditions for stopping enforcement are met.

If enforcement is stopped because it can be expected that the obliged party will continue to pay maintenance voluntarily, according to settled case law "for a constitutionally compliant determination of the basis for the bailiff's fee, only the amount actually recovered by the bailiff may be taken into account, not the amount being enforced as envisaged by Section 5(4) of Decree No. 330/2001 Coll., on the remuneration and compensation of a court bailiff, the remuneration and reimbursement of cash expenses of an enterprise administrator and the conditions of liability insurance for damage caused by a bailiff. In other words, Section 5(4) of Decree No. 330/2001 Coll. can only be understood as limiting the maximum basis for determining the bailiff's fee where the enforcement lasts five years or longer, so that the costs of enforcement do not have a ruinous effect on the obliged party."3

Stopping enforcement for ongoing maintenance is a rather complicated process, and it depends solely on the court's discretion whether it finds grounds for stopping enforcement in the specific case. For this reason, too, it is better to pay maintenance properly and on time in accordance with the court judgment and avoid such a situation altogether.

1 HRADSKÁ, M. Exekuce a výživné. Komorní listy, 2013, No. 3, p. 19.
2 Section 290(2) of Act No. 99/1963 Coll., the Code of Civil Procedure.
3 Judgment of the Constitutional Court of 30 June 2009, file no. I. ÚS 998/09, N 152/53 SbNU 849

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