Parental maintenance: Obligation to pay parental maintenance can also apply to retirees

Düsseldorf Higher Regional Court, 27 October 2010, Ref.: II-8 UF 38/10

Parental maintenance is the legal obligation of biological children to ensure the living expenses of parents in need of care by making maintenance payments within their financial means.

In Germany, the obligation of children to support their parents is based on Section 1601 of the German Civil Code. According to this, relatives in a direct line are obliged to support each other.

According to § 1589 BGB, relatives in a direct line are persons whose one descends from the other. These are therefore grandparents, parents, children, grandchildren, etc.

A claim to maintenance therefore exists not only for parents towards their children, but generally between relatives in the direct line.

As the point of reference for the obligation to provide parental maintenance is the relationship, children-in-law are therefore generally not obliged to pay for parents-in-law in need of care.

However, as the income and assets of the children-in-law are also taken into account when calculating the maintenance obligation, children-in-law are often indirectly affected by the maintenance obligation (concealed liability for children-in-law).

If the long-term care insurance and any existing supplementary long-term care insurance is not sufficient to cover the maintenance, the social welfare provider will initially pay the maintenance. However, as the parents' claims are transferred to the social welfare organisation, the latter will regularly take recourse to the children if they are liable to pay maintenance.

According to §§ 1601 ff. BGB (German Civil Code), an obligation to pay parental maintenance exists if the parents are in need of maintenance and the children are able to pay at the same time ("congruent in time").

The determination of the ability to pay of the children obliged to pay maintenance differs depending on the type of income.

In the case of dependent children, the average income of the last 12 months before the need arose is used to determine the ability to pay (this also includes one-off payments such as Christmas bonuses, holiday pay, back tax payments and refunds).

For children who are self-employed, the relevant income is generally calculated as an average of the last three financial years. In special cases (e.g. if profits fluctuate greatly), completed financial years can also be used as the basis for calculating income. It is also possible that results from the current financial year are used to calculate income.

The obligation to pay parental maintenance repeatedly leads to legal disputes.

As the transfer of claims is subject to the general proviso of reasonableness, this reasonableness in particular is repeatedly the subject of court decisions.

Unreasonableness can exist, for example, if the family relationship has broken down through the parent's own fault. There can be various reasons for this:

* Neglect of the children
* Offences committed by parents against their children
* Mental cruelty of the parents
* Lack of maintenance payments by the parents in the case of previously existing maintenance claims by the children.

Unreasonableness may also exist if the parents' need for maintenance was caused by their own fault:

* Extremely unhealthy lifestyle of the parents
* Drug abuse or alcoholism
* Severe overweight.

The above-mentioned judgement by the Düsseldorf Higher Regional Court documents that parental maintenance can also affect retired people. In this case, the 69-year-old son of a 95-year-old mother was required to pay parental maintenance. The defendant, a retired person, tried to argue that the deductible to which he was entitled should not be calculated based on his current income, but on the income from his last employment.

Facts of the case: The defendant's mother had been in a nursing home since February 2008 and the need for nursing home care had been certified by the nursing care insurance. The mother's own income was not sufficient to cover the nursing home costs, so that the claimant (social welfare provider) had to provide supplementary benefits in accordance with SGB XII. The plaintiff therefore notified the defendant in accordance with § 94 SGB XII by means of a transfer notification and held him liable for the benefits in accordance with §§ 1601 ff. BGB, 94 SGB XII.

Until he retired, the defendant was self-employed and had extensive real estate and cash assets. Based on these financial circumstances, the local court ordered the defendant to pay maintenance arrears of € 8,968 for the period from April 2008 to July 2009 and a monthly maintenance amount of € 561 for the period from August 2009.

With his appeal, the defendant pursued his first instance application to dismiss the claim and argued that the plaintiff had chosen a home for his mother whose costs were 10 % above the average for comparable homes. In addition, the mother was not entitled to any further pocket money of approximately €100 in view of the approximately €300 per month from child-raising benefits that she had been granted free of charge. Furthermore, the plaintiff had not sufficiently explained the financial circumstances of the defendant's seven jointly liable siblings or had not correctly assessed them. The defendant was also wrongly considered by the plaintiff and the district court to be capable of paying. The consumption of assets attributed to him was not appropriate because half of the assets belonged to his wife and the consumption of assets would lead to him becoming needy even at an advanced age. In addition, he must have the opportunity to build up reserves for the future maintenance of his property assets and the purchase of a new car. His superior financial circumstances at the time of his employment also had to be taken into account, so that a minimum deductible could not merely be based on his current income.

OLG Düsseldorf: The OLG only partially ruled in favour of the defendant (in terms of the amount) and otherwise dismissed all of the defendant's objections:

In principle, the maintenance debtor, whose economic interests are to be taken into account as far as possible, can invoke the fact that more cost-effective residential care is possible. However, the defendant had not presented any specific reasonable options; the general reference to the existence of more cost-effective facilities close by was not sufficient in this respect.

Contrary to the view of the defendant, the mother's neediness was also to be affirmed. Insofar as the brother had "taken over" the flat previously occupied by the mother from the mother, this had not led to a transfer of assets from the mother to the son that could be offset, as it was a rented flat in this respect. Even if the brother had actually taken over valuable furnishings from the mother, this had also not led to the assumption of a needs-reducing gift, as the brother himself was undisputedly a recipient of social benefits and therefore not in a position to pay significant amounts of money for any furnishings taken over from the mother.

The plaintiff had also sufficiently demonstrated the inability of the defendant's siblings to pay. In the case of none of the siblings was it even remotely recognisable that they would also be able to pay alongside the defendant. The defendant had also not specifically argued with regard to any of his siblings that the relevant information provided by the plaintiff was incorrect, although he had a right to information against the siblings pursuant to § 242 BGB.

Contrary to the defendant's view, the defendant's ability to pay was also given (even if not to the extent claimed by the plaintiff)

The defendant's argument that his deductible should be based on his previous income is also irrelevant. This is because the deductible rates in the Düsseldorf table also apply to maintenance debtors who are still in active employment, meaning that this also applies to retired persons.

Source: Higher Regional Court of Düsseldorf

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