December 3, 2023
In order not to cause the maintenance debtor to incur too much backlog in the past, maintenance claims should be prosecuted promptly. This principle also applies to authorities that pursue transferred maintenance claims, as with parental support.
The Higher Regional Court of Munich had Decision 26 UF 1466/16 to address the question of whether, even if an authority pursues (parental) maintenance claims transferred to it, the retroactive prosecution for maintenance from the past simply over a long period of time is unfair.
It is recognized in case law that maintenance is forfeited for the past if the maintenance claim is not prosecuted for a long period of time (moment of time) and the person liable for maintenance therefore no longer had to reckon with its claim (circumstantial moment).
Moments of time and circumstances must be present at the same time.
In its decision, the Higher Regional Court of Munich has clarified that parental support is also being prosecuted by an authority and the authority is required to prosecute the maintenance promptly. This means that if the authority fails to act more than one year before taking action again, the time for forfeiture must be affirmed.
Whether there is an additional circumstance depends on the overall conduct of the authority. The circumstantial moment is answered in the affirmative if the person liable for maintenance has been allowed (and may have also arranged) that the authority will not assert the maintenance claim in the future either.
Whether the circumstance exists in addition to one year of inaction on the part of the authority will therefore always depend on the individual case.
In the case that the Munich Higher Regional Court had to decide, the circumstance had to be answered in the affirmative.
The facts were as follows:
“In the period from September 2013 to May 2014, the authority and maintenance debtor were in regular written contact in the form of requests for information about the income situation of the maintenance debtor and the assertion of quantified maintenance claims. In a letter dated 27.03.2014, the authority filed for the first time an estimated maintenance claim of 851.00€ per month. The lawyer of the maintenance debtor issued an opinion on this in a letter dated 03.04.2014. In a letter dated 06.05.2014, the authority then made a new maintenance calculation, which amounted to 835.00€ per month. By letter dated 30.05.2014, the maintenance debtor's lawyer objected that the claim had not been conclusively set out. In a letter dated 02.06.2014, the maintenance debtor's lawyer prepared his own maintenance calculation, in which he came to the conclusion that a maintenance claim of at most €15.00 per month was owed, but in this specific case none at all. The authority did not initially respond to this. There was no indication that the calculation of the maintenance debtor had yet to be reviewed or would reserve the right to comment on this. Only with a letter dated 29.06.2015, received undisputed by the maintenance debtor on 02.07.2015, i.e. 13 months later, did the authority send the maintenance debtor a new maintenance calculation.
At that point, the person liable for maintenance no longer had to assume that the authority would continue to pursue his maintenance claim. This is due to the fact that the authority had previously always responded relatively quickly to letters from the person liable for maintenance. The authority's waiting of more than one year to respond to the maintenance calculation of the debtor dated 02.06.2014, in which the latter expressed that no or only negligible maintenance was owed according to its own calculation, led to the expectation that the authority would accept the maintenance debtor's opinion and refrain from pursuing its maintenance claim. Contrary to the supreme court decisions cited by the authority, there were no proceedings in the present case which, although not directly aimed at enforcing the claim, served to prepare it, such as granting comment periods which should enable further clarification of the facts. The authority has neither relied on a period for comment nor indicated that it initially intended to check the maintenance debtor's own maintenance calculation in order to get back to him after the audit has been carried out. Rather, the authority did not respond to the letter dated 02.06.2014 for over a year, which, in view of the fact that otherwise a timely response from the authority to letters from the maintenance debtor had always been received, legitimately led to the conclusion that the authority was no longer adhering to its claim.
The authority's objection that time and circumstance are equated with the Senate's opinion is incorrect. In the opinion of the Senate, forfeiture occurred not only because more than a year had elapsed between the last letter from the authority in May 2014 and renewed action on 29.06.2015, but also because, from the point of view of the maintenance debtor, the authority's conduct allowed the authority to refrain from its maintenance claim. In this regard, reference is made to the above explanations. As already explained above, concrete investments in trust by the maintenance debtor or particular disadvantages for him were irrelevant. ”
