Alimony payment / child's mother married
October 13, 2009 | 30,00 EUR | answered by Andreas Scholz
Dear Sir or Madam,
In an extramarital relationship, a son was conceived, for whom I am paying the amount determined by the Youth Welfare Office. Paternity has been acknowledged.
Now the mother of the child (a civil servant teacher), who is also married, is demanding maintenance payments for herself.
Am I generally obliged to do this under these circumstances?
- I am married and the father of three children (17, 18, 20) in education, and I live with my wife.
- The child's mother claims to have been "separated under one roof" with her husband since the beginning of 2008. They have a daughter (10) and a son/stepson (17) living in the house.
- The couple appears together in public.
- The husband takes the "cuckoo child stroller" out with the daughter.
Is there a maintenance claim against the child's mother? What are the prospects of a lawsuit by the child's mother?
Kind regards
Dear questioner,
An entitlement to maintenance from the mother of the child only arises under the conditions of § 1615l of the German Civil Code. I assume that the birth was not recent, so the legal basis for the claim would likely be § 1615 para. 2 of the German Civil Code.
The mother of the child would then have to claim that she requires support from you, for example because she is unable to work or can only work to a limited extent due to the care of the child.
The mother of the child must prove that her ability to work is limited due to the care of the child. If there is indeed a causal limitation, then an exclusion of the maintenance claim would only be considered under the principles of fairness in accordance with § 1579, which applies to cases of § 1615. Whether exclusion is to be assumed would be decided by the court considering all circumstances of the case, if you were to argue exclusion in a legal dispute.
The likelihood of success of the lawsuit largely depends on whether there has actually been a reduction in earning capacity due to the care of the child (such as the mother reducing her working hours). If this is the case and the court does not see any reason to believe that the mother's maintenance is secured through marriage to another man, then you would likely win the case.
However, if the mother of the child does not experience any loss of income because the husband's support effectively compensates for any reduction in income, your case may be disputable, with a certain prognosis not possible without detailed knowledge.
In conclusion, it can be said that under the conditions of § 1615l of the German Civil Code, the mother of the child is generally entitled to maintenance. However, you would at least have the opportunity to argue exclusion in a legal proceeding, in which case the court would reject a maintenance claim if the conditions for exclusion are met.
Whether you are still financially capable of providing maintenance, considering the support you provide to your children, is a different question. If you are left with less than the self-support limit of 1100 euros, you would not be obliged to pay maintenance.
I hope I have been able to assist you. If you have any further questions, please feel free to ask.
Kind regards,
Andreas Scholz, Esq.
