OGH on Child Maintenance after Separation

Sept 13, 2024 Benn-Ibler Rechtsanwälte

What happens to child maintenance payments if the payer simply moves out of the household? The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) recently had to deal with this question.

In the case at hand, the father moved out on 10 September 2023. Ever since then, the child’s parents have been separated, the minor living mainly in the mother’s household where he has been in receipt of care and education. In the period from 10 September 2023 up to and including 30 September 2023, the father did not pay any maintenance at all to his son.

The question was whether the child was entitled to maintenance for the period from 10 September 2023 to the end of September 2023, after the father left the household. The lower courts recognised the minor’s right to maintenance from his father only from 1 October 2023 on.

The OGH disagreed, stating:

If the dependent child lives in the same household as the parents who are obliged to pay maintenance, both parents must provide maintenance in kind. If the household is separated or if the maintenance obligation is breached, maintenance in cash must be provided instead of maintenance in kind.

If the maintenance payer stops providing maintenance in kind for a month, e.g. by moving out of the shared accommodation, maintenance in cash is due for the remainder of the month.

It can be assumed that the father fulfilled his maintenance obligation until he moved out on 10 September 2023. For the period thereafter, however, he did not pay any maintenance, neither in cash nor in kind. However, a period in which a maintenance creditor does not have to pay any maintenance at all is alien to the maintenance scheme. The child is therefore entitled to maintenance in cash for the period in dispute.

A contrary legal view would mean that the child would not have been entitled to cash maintenance for a period of approximately 20 days and that the father would not have had to fulfil his obligation to pay maintenance.

OGH 1 Ob 118/24w (24 July 2024)