Advance Maintenance Act

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Basic data
Title: Law on securing the maintenance of children of single mothers and fathers through maintenance advances or deficit payments
Short title: Advance Maintenance Act
Abbreviation: UhVorschG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Social law , maintenance law
References : 2163-1
Original version from: July 23, 1979
( BGBl. I p. 1184 )
Entry into force on: January 1, 1980
New announcement from: July 17, 2007
( BGBl. I p. 1446 )
Last change by: Art. 38 G of December 12, 2019
( Federal Law Gazette I p. 2451, 2490 )
Effective date of the
last change: 		March 1, 2020
(Art. 39 G of December 12, 2019)
GESTA : D043
Please note the note on the applicable legal version.

The Advance Maintenance Act regulates the conditions under which a child of a single parent receives an advance maintenance payment as a state social benefit if the parent who is not dependent on the family, e.g. B. is unknown or deceased or he pays no or not full child support.

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The child's livelihood is to be partially secured through the maintenance advance payment if the parent is distant from the family

  • completely or partially evades the obligation to pay maintenance,
  • is not able to do this or is not able to do so in full or
  • died.

Although this law is not yet embedded in the Social Security Code , it is already considered a special part of Section 68 Number 14 SGB ​​I and should be incorporated. The role models were Austria and Sweden, which had a similar law for a long time.

Advance maintenance payments

general requirements

It is not one of the parents who is eligible, but the child themselves if they are

  • has not yet reached the age of twelve and
  • lives with one of his parents in Germany.

According to a decision by the Federal Administrative Court on December 18, 2017, the requirement that the child must live in Germany violates the free movement of workers in the European Union. The court therefore allowed children living in other EU countries to receive advance maintenance payments if the single parent is not only marginally employed in Germany.

According to Section 1 (1a) of the Act, children up to the age of 18 receive the benefit if

  • it does not receive any benefits under SGB ​​II or such benefits can be avoided through the maintenance advance or
  • the parent with whom the child lives has a monthly income of at least EUR 600 (not including child benefit and the deductible amounts according to Section 11b SGB ​​II).

The parent himself must

  • be single, widowed or divorced or
  • live permanently separated from his or her spouse or partner. A permanent separation is to be assumed if there is no longer any domestic community between the spouses and at least one of the two no longer wants to establish this because he rejects it. This is to be equated with this fact if the spouse of the parent is placed in an institution (e.g. in prison) for at least six months due to illness or disability or due to a court order.

When the term “life partner” is mentioned in the Maintenance Advance Act, then this means the registered life partnership under the Life Partnership Act . If, on the other hand, the parent lives with a partner in a so-called "wild marriage" and the partner is not a parent of the child, this is no reason to refuse public maintenance.

A further eligibility requirement must be that the child does not or does not receive maintenance regularly

  • from the other parent or
  • if this person or a step-parent has died, orphan's benefits at least as high as the benefit would be measured under the Maintenance Advance Act

receives.

Requirements for foreign nationals

If the child or the parent with whom they are living is a national of a member state of the European Union, the legal situation is the same as for German citizens. The same applies if the child or the parent is a national of another privileged state. These states include Iceland, Liechtenstein, Norway and Switzerland.

If none of the mentioned in the previous paragraph to conditions, needs the child or the parent after the residence law a residence permit or a temporary residence permit have the currently authorized for employment purposes. There are also exceptions to this.

Exclusion of benefits

The claim is excluded if

  • both parents live in the same household (regardless of whether they are married to one another or not) or
  • the child lives with both parents in one apartment, even if the parents live separately in this apartment, or
  • the household community also includes a stepfather or stepmother, or
  • as far as the child's livelihood is covered in the context of youth welfare according to Book 8 of the Social Code (SGB VIII). This is the case, for example, when the parent receives help in bringing up their child in a home or in a full-time care facility. The same applies if the child and one parent share the same form of residence for mothers / fathers and children ( Section 19 of Book VIII of the Social Code).

The claim is also excluded if the parent refuses to provide the necessary information. If the paternity of the child has not yet been established, the mother must initiate measures so that paternity can be established. If she does not feel able to do so, she must hire a lawyer to do so or arrange for assistance at the youth welfare office in whose area she lives . Otherwise there is no entitlement.

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Advance maintenance payments (staggered according to years of age)
Period nominal
maintenance advance		 Advance maintenance
after deduction of child benefit		 Advance maintenance
including child benefit
0-5 years 6-12 years 13-17 years 0-5 years 6-12 years 13-17 years 0-5 years 6-12 years 13-17 years
east west east west east west east west east west east west
July 1, 2005 to June 30, 2007 188 204 228 247 - 111 127 151 170 - 265 281 305 324 -
July 1 to December 31, 2007 186 202 226 245 - 109 125 149 168 - 263 279 303 322 -
January 1, 2008 to December 31, 2008 279 322 - 125 168 - 279 322 -
January 1, 2009 to December 31, 2009 281 322 - 117 158 - 281 322 -
January 1, 2010 to June 30, 2015 317 364 - 133 180 - 317 364 -
July 1, 2015 to December 31, 2015 328 376 - 144 192 - 332 380 -
January 1, 2016 to December 31, 2016 335 384 - 145 194 - 335 384 -
January 1, 2017 to June 30, 2017 342 393 - 150 201 - 342 393 -
July 1, 2017 to date 342 393 460 150 201 268 342 393 460

The monthly maintenance payment corresponds to the minimum maintenance under civil law ( § 1612a BGB, § 2 UhVorschG). If the parent with whom the child lives is entitled to full child benefit , which is usually the case, this must be taken into account in full. If the child no longer attends a general education school, half of the child's income is offset. As long as an apprenticeship is being pursued, the first 100 euros of income will not be offset.

In the years 2008 and 2009 the amounts were slightly higher, as can be seen in detail in the table above. Until December 31, 2007, the minimum amount was based on Sections 1 and 2 of the standard amounts specified in the Ordinance on Standard Amounts, which apply to children of the first and second age bracket. This was accompanied by a distinction between the level of benefits from east and west. If the parent is entitled to state child benefit for their child - which is usually the case - the maintenance benefit is reduced by half of the amount paid for the first child.

Allowance for maintenance, orphan's pension, etc.

If the other parent already pays maintenance regularly for their child or if the child receives an orphan's pension because the other parent or a stepparent has died, the amounts listed in the previous table are reduced by the maintenance payment or the orphan's pension. The amount to be paid is always rounded up to the next higher full euro amount. If the result is an amount that is less than five euros, no maintenance can be considered (minor case).

Advance maintenance and benefits according to SGB II

The advance maintenance payment is a subordinate benefit after reaching the age of 12 and is only granted if the child is not dependent on social benefits or the single parent has a gross monthly income of at least 600 euros (Section 1 (1) and (2) UhVorschG).

Duration

Public maintenance is granted up to the age of 18 at the latest, as long as the eligibility requirements are met. Two examples:

In principle, the public maintenance payment is only granted from the month in which the application is received by the competent authority. Exception: It can also be paid retrospectively for the previous month if the other parent was already in arrears or was demonstrably ineffective during that month.

Procedure and method of payment

The benefit is only granted upon written application from the single parent. The application form can be obtained from all municipal and district administrations. They are also obliged to accept the application and - if they are not responsible themselves - to forward it to the responsible body ( Section 16 SGB ​​I). Such bodies are the so-called advance maintenance funds that exist in all urban and rural districts that have a youth welfare office.

If the responsible advance maintenance fund has decided on the application - in addition to granting benefits, a rejection or partial rejection is also conceivable - it must send the single parent a written notification. If this does not meet his expectations, he can i. d. Depending on the specific configuration of the local government regulations - - as R. appeal in writing contradiction insert it. If the advance maintenance fund considers the objection to be justified, it will help it by approving the benefit. Otherwise, the advance maintenance fund must submit the objection to the next higher authority - this is usually the regional council. Insofar as specific states of exception, no contradiction process takes place, is used as remedy a commitment action into consideration. Which legal remedy is relevant in the respective individual case results from i. d. R. information on legal remedies contained in the rejection notice ( § 36 SGB ​​X).

If a positive decision has been taken on an application, the public maintenance payment is transferred monthly in advance to the account of the single parent.

Obligation to report changes

It happens again and again that the situation changes over time. For example, the single parent can suddenly no longer be a single parent because they got married or entered into a same-sex registered civil partnership. This then has the consequence that the requirements for public maintenance no longer exist. In this case, the parent with whom the child lives is obliged under Section 6 of the Advance Maintenance Act to notify the advance maintenance fund immediately of what has changed or what will soon change. If he does not fulfill this obligation, he acts improperly and can be fined ( § 10 Maintenance Advance Act).

Replacement and repayment obligation

Occasionally there is also the case that changes in the circumstances that triggered the entitlement to public maintenance were not reported to the advance maintenance fund, or that the parent intentionally or negligently provided false information in his application. This then has the consequence that the public maintenance payment - in whole or in part - was wrongly granted. In such cases, the parent is obliged to reimburse the maintenance advance fund for the public maintenance payment insofar as he should not have received it ( Section 5 UhVorschG).

A replacement and repayment obligation also applies if the child has received maintenance payments from the other parent after the application has already been made, and this fact was not known to the advance maintenance fund when it approved the public maintenance payment.

The reclaim is a public law claim that the administration asserts with a written notice ( administrative act ).

There is also the possibility for the maintenance debtor to replace the maintenance advance with a currently low-interest private bank loan.

Transfer of Claims

If and as long as the child receives the public maintenance payment, the civil-legal maintenance claim that it has against the other parent is not lost. However, the child can no longer dispose of this claim himself up to the amount of the public maintenance payment; because as soon as he receives the public maintenance, his civil-legal maintenance claim is transferred by law ("automatically") to the responsible federal state, represented by the respective advance maintenance fund (cessio legis, § 7 UhVorschG). However, if the maintenance claim has been transferred, the other parent can no longer pay maintenance to their child with discharging effect. “With discharging effect” means that he will only be released from his maintenance debt for the respective month if he makes his maintenance payment to the maintenance advance fund. In other words: if he or she pays maintenance payments to the child for the months during which the child receives benefits under the UhVorschG (e.g. by transferring the amount to the mother), his maintenance obligation still remains for the respective months consist. He would then have to pay his maintenance payments primarily to the maintenance advance fund, as this has been made in advance for child maintenance.

If the debtor does not voluntarily comply with his maintenance obligation, the maintenance advance fund has the legal option of obtaining an enforcement title with which it can then carry out foreclosure .

As long as the person liable for maintenance receives benefits according to SGB II and has no income within the meaning of Section 11 (1) sentence 1 SGB II, the repayment claim that has been transferred to the maintenance advance fund will not be pursued. ( § 7a UhVorschG)

Unknown child father

The legislature had designed the maintenance advance as an advance payment. He was looking at the case that a single mother does not receive any support from the child's father because he is evading his obligations. In this case, the state should step in and get the benefits back from the child's father.

The Federal Administrative Court ruled in 2013 that a child conceived from an anonymous sperm donation was not entitled to an advance maintenance payment because the mother deliberately caused the child's father to be ignorant of the anonymous sperm donation. Some courts apply this case law analogously to cases in which the child was conceived during a one-night stand and the child's mother does not know the father's name, for example the Lower Saxony Higher Administrative Court in a decision from 2014.

Reform in 2017

By Art. 23 of the Law Amending the federal revenue sharing system from 2020 and amending budget legislation , the maintenance advance was changed primarily to July 1, 2017. The main changes are:

  • the maximum age of eligible children has been increased from 12 to 18 years
  • the maximum subscription period of 72 months has been deleted without replacement
  • Resting the pursuit of repayment claims in case of lack of funds
  • Change in the federal-state distribution of funds.

The effects of the changes must be determined by the federal government by July 31, 2018 and communicated to the Bundestag.

See also

Individual evidence

  1. ↑ Federal Administrative Court, press release No. 88/2017 of December 18, 2017
  2. ↑ a b For 2015, there is a special regulation in § 11a UhVorschG due to the retrospective increase in child benefit and minimum maintenance . As a result, the advance maintenance payment is not also increased retrospectively, but only with effect for the future; Conversely, however, the increase in child benefit for the entire year 2015 is not taken into account, so that for this year the aggregation of the maintenance advance paid and the child benefit results in a higher amount than the nominal amount.
  3. ↑ § 2 Abs. 4 UhVorschG
  4. ↑ BVerwG, May 16, 2013, AZ 5 C December 28
  5. ↑ Lower Saxony OVG, January 16, 2014, AZ 4 LA 3/14
  6. ↑ Process flow of the legislative procedure in the documentation and information system for parliamentary processes
  7. ↑ Changes to the Maintenance Advances Act on July 1, 2017

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