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Between duty and kindness: the maintenance obligation, a pillar of family solidarity

In the complex world of family relationships, the maintenance obligation of children towards their parents in need emerges as a delicate challenge, where filial duty meets the limits of personal resources.

It’s a fine balance between love, responsibility and financial realities, a theme that resonates in the hearts of many families. As we explore this delicate intersection, we delve into the nuances of family solidarity and the emotional and financial implications that come with it.

In accordance with article 205 of the Civil Code, children have a maintenance obligation towards their parents “who are in need” as well as towards their other ascendants. “Children owe food to their father and mother or other ascendants who are in need.”

For there to be a maintenance obligation between ascendant and descendant, filiation must be established. Article 208 of the Civil Code provides that proportionality between the needs of the creditor and the income of the debtor in order to be able to assess the state of need of the ascendant is necessary:

“Maintenance is only granted in proportion to the need of the person who requests it and the fortune of the person who owes it.”

The assistance of a lawyer who has already handled similar cases is important, because he will obviously be able to better respond and defend your interests.

The social chamber of the Court of Cassation ruled, in a judgment of March 6, 1985, that “it is up to the creditor to prove that he is in a state of need”. Solidarity is first and foremost exercised as a couple. Consequently, all sources of income of the creditor are taken into account to assess the state of necessity, including social benefits and the income of the married spouse. The resources of the cohabiting partner or civil partner are only taken into account to the extent that they reduce their needs through participation in joint expenses.

The High Magistrates ruled, for example, in a judgment of the first civil chamber of November 4, 2010 that “the duty of support between spouses comes before the maintenance obligation of all others”.

If one or more children cannot contribute financially, the others must compensate accordingly. In the event of disagreement or difficulty in determining the contribution of each child, the family court judge may be contacted to decide the question and determine the maintenance obligations of each child. He may take into consideration the children's income, expenses, and any other relevant circumstances.

But fortunately, there are remedies between the different co-debtors of the maintenance obligation. The High Magistrates, in a judgment of the first civil chamber of May 29, 1974, judged that “the person held, under article 205 of the Civil Code, to a maintenance obligation, has recourse against his co-obligated parties for the sums he has paid exceeding his contributory share taking into account the respective faculties of the debtors”.

The lawyer will be able, whether before the Departmental Council or before the Family Affairs Judge, to highlight the real financial capacities of the child in the face of this filial responsibility.


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