The crime of non-alimony in Polish criminal law: consequences of non-payment of alimony

The offence of non-payment of maintenance occurs when a person obliged to pay maintenance fails to fulfil this obligation. Under the Criminal Code, evading the payment of maintenance carries severe consequences, as, pursuant to Article 209 of the Criminal Code, it is an offence punishable by a fine, a restriction of liberty or even imprisonment.

The subject of protection under Article 209(1) of the Criminal Code is the right to financial security for persons who are unable to support themselves, as well as the right to decent living conditions. It should be emphasised that the purpose of the provision is not to ensure the fulfilment of the maintenance obligation itself by making efforts to support and raise the child, but in fact to provide financial security for the person entitled to such maintenance.

In turn, the perpetrator of the offence of non-payment of maintenance can only be a person on whom a maintenance obligation has been imposed 1) by a court judgment, 2) by a settlement reached before a court or other authority, or 3) by contract.

The very concept of the maintenance obligation is explicitly regulated in Article 128 of the Family and Guardianship Code, according to which the maintenance obligation encompasses the duty to provide means of support and, where necessary, also means of upbringing.

A particularly important issue in the context of maintenance is the precise determination of the conditions for the payment of maintenance, including the amount thereof, which must be specified in one of the three sources. The maintenance obligation may be specified in a judgment awarding maintenance or in an order securing maintenance claims for a minor child or a divorced spouse, as well as in a settlement reached before a court or other authority, or in another agreement.

The maintenance obligation, in accordance with Article 128 of the Family and Guardianship Code, falls on relatives in the direct line as well as siblings; therefore, the circle of persons on whom such an obligation may be imposed includes children, parents, grandparents, great-grandparents, grandchildren, great-grandchildren, as well as siblings – brothers and sisters.

Within the meaning of Article 209(1) of the Criminal Code, the offence of failure to pay maintenance occurs where the person liable fails to pay the maintenance to which they were obliged, although it must also be established that they are ‘evading’ this obligation. Evasion of the maintenance obligation occurs when the person liable, having an objective ability to fulfil this obligation, fails to do so out of ill will. The offender therefore fails to fulfil the obligation because they do not wish to fulfil it or because they disregard this obligation.

Furthermore, for the offence of non-payment of maintenance to be established, the amount of arrears arising from evasion of maintenance payments must be equivalent to at least three periodic payments, or the delay in fulfilling the maintenance obligation must be at least three months. The offender must therefore evade the payment of maintenance for a period of at least three months or, despite paying maintenance within the specified time limit, fail to pay the required amount in full, and the total arrears must amount to the equivalent of at least three periodic payments, or if the delay in payment of a non-periodic maintenance payment is at least three months.

The penalty provided for in the Criminal Code for committing the offence of non-payment of maintenance may be imposed on the offender in the form of a fine, a restriction of liberty, or imprisonment for up to one year. Such a penalty applies in the case of committing the basic form of the offence of failure to pay maintenance, i.e. where the prohibited act is the mere evasion of the obligation to pay maintenance to the entitled person.

In turn, Article 209 § 1a of the Criminal Code regulates the issue of a more severe penalty in the case of committing the offence of non-payment of maintenance in its aggravated form, which differs from the basic form under Article 209 § 1 of the Criminal Code in that in that the evasion of maintenance must simultaneously result in the person entitled to maintenance being unable to meet their basic living needs.

Basic living needs include those needs which are objectively essential to the entitled person’s daily life. This concept cannot therefore be limited solely to needs such as food, housing, education and medical treatment. If a child also requires private tuition because they are struggling at school, this need must be regarded as a basic one. The costs of any medical treatment should be treated in a similar manner.

In the case of the offence of non-payment of maintenance under Article 209 § 1a of the Criminal Code, i.e. the aggravated form, the penalty imposed on the offender may take the form of a fine, a restriction of liberty, or imprisonment for up to two years.

As regards the procedure for prosecuting the offence of non-payment of maintenance, in accordance with Article 209 § 2 of the Criminal Code, both the basic and aggravated forms of the offence are prosecuted by private prosecution. This means that in order to initiate criminal proceedings against a person evading the payment of maintenance to an entitled person, a request for prosecution must be lodged by the aggrieved party (the person who is not receiving the maintenance payments due to them), a social welfare authority, or an authority taking action against the offender (the maintenance debtor).

An exception to the rule of prosecuting the offence of non-payment of maintenance upon application, as set out in Article 209 § 2 of the Criminal Code, applies where the person entitled to maintenance has been granted a specific family benefit or other benefit in the event of unsuccessful enforcement. In such circumstances, the mode of prosecution is converted to ex officio prosecution, and this is conditional upon the mere award of the benefits, rather than their collection, in accordance with the rule laid down in Article 209 § 3 of the Criminal Code.

For both types of maintenance default offences, Article 209 of the Criminal Code provides for the possibility of exemption from punishment for evading maintenance payments, i.e. in the basic form under Article 209 § 1 of the Criminal Code and the possibility of waiving the imposition of a penalty for evading maintenance payments resulting in the entitled person being unable to meet their basic living needs, i.e. the aggravated form under Article 209 § 1a of the Criminal Code.

The exemption from punishment provided for in Article 209 § 4 of the Criminal Code is conditional upon the offender paying the outstanding maintenance in full no later than 30 days from the date of the first hearing.

Similarly, the court may refrain from imposing a penalty for failure to pay maintenance, in accordance with Article 209 § 5 of the Criminal Code, where the perpetrator, who is obliged to pay maintenance, has paid the outstanding maintenance in full no later than 30 days from the date of the first hearing as a suspect. In such a situation, however, it is necessary to bring the indictment before the court and to deliver a conviction. Furthermore, if the period of arrears or the amount of arrears was significant, the perpetrator maliciously failed to pay the maintenance, and the financial situation of the entitled party was very poor as a result of the obligor’s evasion of maintenance, it is not possible to refrain from imposing a penalty. In such circumstances, the culpability and social harmfulness of the act argue against waiving the imposition of a penalty.

One of the main objectives of introducing both the institution of non-punishment and the waiver of punishment was the desire to achieve the result of full repayment of the maintenance debt. A change in the offender’s attitude and the fulfilment of the maintenance obligation therefore directly translates into the issue of criminal liability. In this case, the motives driving the offender are irrelevant, and it is not particularly significant whether their behaviour is dictated by fear of the impending penalty or by other considerations.

In summary, the offence of non-payment of maintenance falls within the category of prohibited acts of which many people are unaware. Failure to fulfil the maintenance obligation not only constitutes a breach of the legal basis binding the person obliged to pay maintenance, but above all infringes upon the right to financial security of those who are unable to support themselves. The criminal provisions in this area are intended to ensure the most effective protection possible for those entitled to maintenance payments, whilst taking into account certain moral considerations related to this issue arising not only from a court judgment or a relevant agreement, but also from the principle of honesty and fair conduct on the part of those obliged to fulfil their maintenance obligations towards the entitled persons, i.e. their closest relatives.