Lthe civil code says that “Each of the parents” must contribute to the maintenance and education of children, “In proportion”, especially, “Of its resources “. In the event of separation, this contribution takes the form of “alimony”, paid by one of the parents to the other. If the debtor of the pension has no resources, he does not have to pay anything. But if he’s remarried to someone who earns a good living, isn’t it otherwise? This is the question posed by the following case.
Pierre (invented first name) was born in October 2000. Shortly after his birth, his parents separated, and successively obtained his custody, until he was placed in a children’s home. of a social nature. At the end of 2015, Pierre returned to live with his father, M. X., who lives in Thionville (Moselle), while his mother married MY
6,600 euros per month
MX referred the matter to the Thionville family affairs judge to obtain, in particular, that Mr.me Y. be ordered to pay him a sum of 450 euros per month, as a contribution to the maintenance and education of their child. Although the latter certifies that she has not found a job and does not receive any help from social organizations, he maintains that she can pay, since her husband earns some 6,600 euros per month.
On October 9, 2017, the judge sentenced Mr.me Y. to pay MX alimony of 150 euros per month. That, March 19, 2019, the Metz Court of Appeal (Moselle) confirms, in these terms: “Whereas if, of course, MY is not bound by any obligation with regard to Olivier, the fact remains that Mr.me Y, who shares her responsibilities with her husband, benefits from the latter’s resources; that it is his responsibility, failing to seek a salaried job, to deduct from these sums to participate in the maintenance costs of his son. “
“Personal” debt
Mme Y. applied to the Court of Cassation, and his lawyer, Me Jerôme Ortscheidt, recalls that “The debt of the maintenance debtor is a personal debt, the amount of which must be fixed in consideration of his resources”. The income of the new husband should therefore not be taken into account. To judge the contrary, as the Court of Appeal did, amounts to giving this step-parent an obligation of maintenance that he does not have, and that the Civil Code only imposes “Parents”.
The Court of Cassation censures the appeal judgment, the 1er December (2021, 19-24.172). It confirms a decision rendered on October 21, 2015 (14-25.132), about a “Partner”, earning 20,000 euros per month, and extends it to the income of “Husband”. It sends the parties back to the court of Nancy, which will have to retry the case … and remove any hope from Pierre of benefiting from the 5,500 euros (150 euros per month, from 1er February 2016 until March 19, 2019) claimed by his father.
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