Recently, the Lancang Court concluded a case of alimony dispute, in which the defendant requested a reduction in the standard of alimony for the eldest daughter on the grounds that he could not afford to have a child after remarriage, and the court ruled that the alimony should be paid in full in accordance with the divorce agreement.
Case review
In September 2015, Zhang (pseudonym) and Wang (pseudonym) divorced by agreement due to emotional discord, and at the time of the divorce, the legitimate daughter Xiao Zhang was not yet one year old. The parties agreed that Xiao Zhang would be raised by his mother Wang, and Zhang would pay 1,500 yuan per month for child support. After the divorce, Zhang only paid child support for a few months and never paid it, and after the divorce, the two each formed a new family and had children. Now Xiao Zhang is eight years old, because he was suddenly diagnosed with a disease and needed long-term treatment, Xiao Zhang asked Zhang to pay child support, and after unsuccessful negotiation, he finally went to court!
Xiao Zhang asked Zhang to pay more than 100,000 yuan in alimony owed since the divorce, and asked Zhang to pay future alimony in accordance with the divorce agreement signed at the time of divorce. Zhang said that at the time of the divorce, most of the property had been distributed to the woman, which was enough to deduct more than ten years of child support, and that he had two more children after remarriage, and his current economic situation could only give Xiao Zhang 500 yuan per month in child support. At the same time, he requested a paternity test with Xiao Zhang to confirm the paternity between the two.
After several failed mediations, this court organized Zhang and Xiao Zhang to conduct paternity tests in accordance with the law. After identification, Xiao Zhang and Zhang are indeed father and daughter. Later, this court conducted a trial in accordance with the law.
The court held that the divorce agreement voluntarily signed by the parties stipulated the custody of the children and the burden of child support, the content of the agreement did not violate the provisions of the law, and the divorce agreement had legal effect on both parties after it was signed, and both parties should fulfill their obligations to pay child support in accordance with the agreement. When Zhang remarries and gives birth to two children, his obligation to support Xiao Zhang and his own ability to support him should be taken into account. Therefore, Zhang's remarriage and the need to support the elderly do not belong to the circumstances that can reduce or reduce the standard of child support, and Zhang's defense claim that the child support fee since the divorce and reduce Xiao Zhang's future child support fee to 500 yuan per month is not supported.
In the end, this court ruled that Zhang should pay more than 100,000 yuan in child support owed to Xiao Zhang, and pay Xiao Zhang 1,500 yuan per month in accordance with the divorce agreement until Xiao Zhang was 18 years old.
What the judge said
The obligation of parents to raise their minor children is unconditional, and the relationship between parents and their children is not eliminated because of the divorce of their parents. Refusal to adopt a child is not only a violation of ethics and morals, but also a violation of laws and regulations, in the face of non-payment of child support, resorting to the court and applying for enforcement is itself a legal right, and it is also the best and most comprehensive means of rights protection.
The healthy growth of children has a bearing on the happiness and tranquility of thousands of families, on social harmony and stability, on the future of the motherland, and on the hope of the nation. The people's courts have always attached great importance to the protection of the rights and interests of minors, illuminating the path of juveniles' growth with the light of the rule of law, and building strong barriers to the judicial protection of minors.
Links to legal provisions
Article 1068 of the Civil Code of the People's Republic of China stipulates: "Parents have the right and duty to educate and protect their minor children. Where minor children cause harm to others, parents shall bear civil liability in accordance with law. ”
Article 1067 of the Civil Code of the People's Republic of China stipulates: "If parents fail to perform their obligation to support them, minor children or adult children who are unable to live independently shall have the right to demand that their parents pay child support. ”
Article 1084 of the Civil Code of the People's Republic of China stipulates: "The relationship between parents and children shall not be extinguished by the divorce of parents. After divorce, the children are still the children of both parents, regardless of whether they are raised directly by the father or the mother. After divorce, parents still have the right and obligation to raise, educate and protect their children. ”
Article 1085 of the Civil Code of the People's Republic of China stipulates: "After divorce, if the children are directly raised by one party, the other party shall bear part or all of the maintenance. The amount of the expenses to be borne and the length of the time limit shall be agreed upon by both parties; if the agreement is not reached, the people's court shall make a judgment. The agreement or judgment provided for in the preceding paragraph does not prevent the child from making a reasonable demand to either parent in excess of the amount originally set forth in the agreement or judgment when necessary. ”
<中华人民共和国民法典>Article 42 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Section stipulates that: "The term 'child support' as used in Article 1067 of the Civil Code includes expenses such as children's living expenses, education expenses, and medical expenses. ”
Article 49 of the Interpretation (I) of the Supreme People's Court on the Application of the <中华人民共和国民法典>Marriage and Family Section stipulates that: "The amount of alimony may be determined on the basis of the actual needs of the children, the affordability of both parents and the actual living standards of the locality. For those with a fixed income, maintenance can generally be paid at the rate of 20 to 30 per cent of their total monthly income. Where two or more child support expenses are paid, the proportion may be appropriately increased, but generally must not exceed 50 percent of the total monthly income. If there is no fixed income, the amount of child support may be determined on the basis of the total income of the year or the average income of the same industry, with reference to the above proportions. Where there are special circumstances, the above proportion may be appropriately increased or decreased. ”
<中华人民共和国民法典>Article 55 of the Interpretation (1) of the Supreme People's Court on the Application of the Marriage and Family Section stipulates that: "After divorce, if one of the parents requests to change the child support relationship, or if the child requests an increase in child support, a separate lawsuit shall be filed. ”
Article 58 of the Interpretation (1) of the Supreme People's Court on the Application of the <中华人民共和国民法典>Marriage and Family Section stipulates that: "In any of the following circumstances, if a child requests an increase in child support from a parent who can afford it, the people's court shall support it: (1) the original amount of child support is not sufficient to maintain the actual local standard of living; (2) the actual amount has exceeded the original amount due to the child's illness or schooling; (3) there are other legitimate reasons for the increase. ”
Article <中华人民共和国民法典>61 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Section stipulates that: "The people's courts may take compulsory measures in accordance with Article 111 of the Civil Procedure Law against parties or other persons who refuse to perform or obstruct others from performing their obligations related to child support in effective judgments, rulings or mediation documents. ”
[Source: Lancang Lahu Autonomous County People's Court]