Obtain retroactive payment of the maintenance payments
In the event of a divorce, one of the ex-spouses may not wish to apply for maintenance payments, either personally or for the joint children.
It can also happen that a few years later, the relationship having turned sour or the financial situation having changed, the person who would have been entitled to maintenance payments wishes to reconsider his or her choice and request, retroactively, that the initially unclaimed maintenance payments be granted.
How does the law approach such a situation?
1. Principle
In principle, it seems logical that the creditor should no longer be entitled to the maintenance payments he has failed to claim. The adage ‘alimony does not go into arrears’ captures this reality.
Food serves the purpose of meeting current and future needs, not compensating for past expenses. The phrase 'maintenance payments does not fall behind' entails this. Hence, it makes sense that the creditor cannot collect unpaid maintenance payments anymore.
In fact, there is a double presumption. The inaction of a maintenance payments creditor gives rise to a presumption of absence of need at the time when maintenance payments could have been requested and gives rise to a presumption of tacit renunciation of maintenance payments.
If you have not applied for a pension in your own right, chances are you will not be able to do so.
2. The exception of maintenance payments
This adage is not applicable to the contribution to the maintenance payments and education of children.
The maintenance payments paid to a minor child may be recovered retroactively because the minor child could not waive it validly due to their inability to do so.
On the other hand, minor children are always presumed to be in need, so that inaction on the part of the child or his or her parents does not mean that there is no need.
The parent who has custody of the child cannot waive maintenance payments because he or she is not the owner. Minor children are always presumed to be in need.
The inactivity of the child and that of the parents made it appear that the child was not in a state of need.
3. Prescription
According to the article 2277 of the Civil Code, actions for payment of periodic claims, including maintenance payments arrears, are time-barred after five years.
So it's best not to wake up too late if you regret not having asked for maintenance payments!
CERNO LAW FIRM has the necessary skills to advise and support you in all your family law matters and procedures.
