The legal term maintenance (historically sustentation ) describes the legal or contractual obligation of a legal entity to secure the existence of another person in whole or in part. The term alimony (from Latin alimentum "food, alimony") stands for financial alimony in this context; mostly for their own children who cannot or may not be cared for directly. Maintenance is one of the cornerstones of social welfare and social security .
Already at the time of the Roman Emperor Trajan there was financial support from the state for large families, the "alimenta". On the back of a denarius coined under Trajan , the Abundantia , the goddess of abundance of food, is depicted with a child. In the section of the coin the letters ALIM ITAL stand for alimenta italia (see image on the right). Maintenance, as a term translated literally from the Latin sustentatio into German in the 16th century , is one of the fundamentals of social security based on family members supporting each other materially and financially. The maintenance is based both on the principle of solidarity as a state on the principle of and intrafamily care and defines the family as a community of need . In addition to the maintenance guidelines, the amount of maintenance is also given in the Düsseldorf table , which is updated regularly. For those called up for military service, military exercises or community service, the type and amount of maintenance security is regulated by the Maintenance Security Act (USG).
Financial maintenance, maintenance in kind, care maintenance
Maintenance includes all benefits to safeguard the essential needs of a person.
The term alimony , which means something like “food” or “food” in French, refers to financial support (cash support) in today's legal language , while the term support also includes support in kind and care support .
- Cash maintenance (cash maintenance) is the regular payment of a total budget
- Maintenance in kind (care maintenance) includes:
- Care maintenance - the term care maintenance defines two different situations in maintenance law:
On the one hand, care maintenance is the maintenance that a person who is obliged to provide cash maintenance to the underage child must pay the person who provides the caring and educational maintenance in kind if the child is unable to take care of the child who lives with him or her is to make a living yourself. On the other than care maintenance in - - in contrast to the Barunterhalt care , health and medical care , and education existing maintenance obligation towards the minor viewed themselves.
Beneficiaries of maintenance
The basic social security through maintenance relate to:
- Child support towards the children
- Maintenance of the (ex) spouse or (ex) partner of a registered partnership
- Child care maintenance of the father of a child born out of wedlock for the mother who cannot be gainfully employed because of the child's care (if the father is caring for it, the other way around, the mother's child care maintenance)
- Parents Maintenance against parents
- Maintenance of other family members
- Maintenance of the people for whom you child custody and guardianship holds
- Maintenance of the state towards those called up for military or community service and their family members (spouses, children, etc.)
Any party in need of maintenance has a right to information from the party liable for maintenance about his income and other financial circumstances, as long as these are necessary to calculate the maintenance claim. Conversely, every maintenance party has the right to be informed about the disposable income or assets of the maintenance party. In this case, one speaks about the obligation to provide information or the right to information (§ 1605 BGB).
Maintenance obligations exist in different cultures due to:
- Custody duties of heads of household for family relationships and relationships - in European systems, especially child-parent ( child support , parental maintenance ) , and marriage (spousal support) and other partnerships - and other care arrangements
- for minors also custody in educational institutions , orphan institutions or by the teacher
- Community maintenance obligations on the part of institutions such as secular and faith-based communities , the state , communities of all kinds, oath-bound fraternities and religious communities , cooperatives and Allmend communities, and other systems of collective social protection
- Service obligations to the state, such as military service or community service in accordance with the Maintenance Assurance Act (USG)
Performance and need
In the case of a maintenance claim, the person claiming maintenance must be in need and must also provide evidence of this need. In this sense, needy means that the person who demands maintenance is unable to finance his or her living without this benefit. Conversely, it is important that the person from whom maintenance is required is also able to pay it and is thus demonstrably productive. The person paying maintenance must have enough left to cover their own living costs (see deductible).
Breach of maintenance obligation according to § 170 StGB
Anyone who does not comply with his maintenance obligation makes the violation of the maintenance obligation liable to prosecution according to § 170 StGB. This party faces a prison sentence of up to three years or a fine.
In Germany , maintenance is regulated in the civil code , particularly in family law . The maintenance law of marriage applies accordingly to life partners . The maintenance guidelines issued by the individual higher regional courts , which may well differ in detail, must also be observed. There are also a number of maintenance regulations in social law (for example SGB II , SGB VIII or SGB XII ).
Maintenance claims of divorced people were regulated from 1976 to 2007 by the First Law on the Reform of Marriage and Family Law. In 2008, the law amending maintenance law comprehensively redefined the claims of divorced, single parents and children.
Real splitting can be used for separation maintenance and after-marital / partnership maintenance .
Maintenance includes benefits for the following groups of people:
- The maintenance obligations of parents / grandparents and their heirs towards children, as well as the "wrong" maintenance of children for their parents and grandparents are regulated by the Austrian child law , a part of family law.
- In marriage, there is a mutual support obligation according to ABGB , which also includes marital maintenance. The spouse who runs the household without their own income is entitled to one third, the less-earning 40 percent of the family income. If possible, also in cash. In the event of divorce , if no mutual agreement is reached in this regard, a fault-based claim for maintenance against the former spouse may arise. In the case of an illegitimate cohabitation , there may be a living together, but no maintenance claim against the partner in the event of separation.
Civil Codeobliges the other spouse to pay alimony in the event of “great need” of one spouse after the divorce.
- Elmar Kalthoener, Helmut Büttner , Birgit Niepmann, Werner Schwamb: The case law on the amount of maintenance. 11th edition. Beck, Munich 2010, ISBN 978-3-406-59914-9 .
- Information on maintenance , family law working group in the German Lawyers' Association
- The care maintenance according to the current case law of the BGH (PDF; 62 kB) in the series Current Term of the Scientific Services from November 29, 2011, publisher: German Bundestag, author: Gerhard Deter, Saskia Wielpütz
- The criterion of sufficient maintenance in the Austrian settlement procedure (Eberwein / Jessner FABL 2/2010-I 60) (PDF; 457 kB)
- Bettina Beer : Culture and Ethnicity. In: Bettina Beer, Hans Fischer (ed.): Ethnology. An introduction. 7th revised and expanded edition, Reimer, Berlin 2011, p. 60.
- Michael Grant: The Roman Emperors . Bergisch Gladbach 1989, p. 99
- NN: Civil Code § 1605. In: dejure.org. Oliver García, accessed April 6, 2020 .
- upkeep. In: Citizens »Finances. HELP.gv.at , January 1, 2009, accessed April 19, 2009 .
- Legal clause RS0012492. RIS , February 17, 2012, accessed on March 1, 2012 : "The 40 percent share of the poorer-earning spouse in the family net income, which is usually used as a basis for the maintenance assessment by the prevailing case law of the courts of second instance, is to be approved as a basic guide for the maintenance assessment, likewise the third share of the incomeless spouse in the net income of the other spouse. "