Under the law, maintenance is paid in kind by the parent caring for the child, and primarily in cash by the parent who is separated. This means that even after divorce or termination of cohabitation, both parents are obliged to care for their minor child: the parent who has the minor child remains to care for the minor child in kind, and the parent who is separated must pay child support.
Today, the child’s best interests are becoming more and more important, and children’s rights are increasingly protected by law. The New York Convention on the Rights of the Child, to which our country has been a party since 1991, states that every child has the right to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. It is primarily the responsibility of parents to ensure this. The Fundamental Law sets out the duty of parental care at constitutional level, and the Family Code of the Civil Code gives concrete expression to these expectations.
Below is a discussion of what determines the amount of child support.
If parents can agree, they can agree on any amount. If they cannot agree, the amount will be decided by the court.
In view of the above-mentioned desire to ensure an adequate standard of living for the child, the law states that when determining the amount of child support, the child’s reasonable needs must be taken into account first, and only then should the parents’ income and financial situation be examined. This is so much the case that, according to the case-law, the parent liable for maintenance is expected to find a job appropriate to his or her education, professional experience, age and state of health and to have a regular income from which he or she can pay the child support.
The law lists the most common basic needs: these are regular expenses for living, health care, education and training. Meeting a child’s reasonable needs means meeting his or her actual needs to an average extent appropriate to the child’s previous way of life. In other words, it should not be a luxury, but should not be limited to a meagre maintenance of physical needs (food, clothing, housing). In addition, the amount should be adapted to the needs actually incurred.
Court practice takes account of the fact that the child has previously enjoyed a higher standard of living (e.g. more expensive hobbies, cultural and sports activities, private school fees). In such cases, it is expected that his or her needs will continue to be met, but this does not mean that the separating parent is obliged to provide the same standard of living as before.
Extraordinary expenses may arise which cannot be foreseen, in which case the debtor is obliged to reimburse a proportionate part of this expenditure.
As regards taking into account the income situation of the parents, the legal provision states that the amount of maintenance per child should normally be set at 15-25% of the income of the debtor. However, this can only be taken into account as a secondary consideration, as explained above, the actual needs of the child are the primary factor determining what percentage of his or her income will be taken into account for the amount of maintenance.
