Both parents are required to contribute proportionately to the maintenance of their children, each according to their means. Child maintenance is one of the most serious matters arising upon the breakdown of marital cohabitation. The lawyers of our firm have long-standing experience in family disputes and particularly in matters of child maintenance. It is a rule for us to handle family cases with sensitivity and understanding, striving for the best and most equitable outcome.
Pursuant to the Civil Code (AK), in the event of divorce or separation, spouses are obliged to provide maintenance for their minor children, as well as for adult children where the latter are in studies. Maintenance is also provided for between spouses, but in that case specific conditions must be met.
Where the spouses do not settle the issue of maintenance amongst themselves, including the amount to be paid and the time of payment, the civil courts have jurisdiction to determine the amount of maintenance. In setting maintenance, the court takes into account the number of children, their age and their usual monthly expenses, the expenses and income of the parent who has custody, and the expenses and income of the parent liable for maintenance. Usually the parent liable for maintenance is the father, since custody is generally held by the mother.
The procedure followed is the filing of an application for interim measures with a temporary restraining order before the Single-Member Court of First Instance. The temporary restraining order procedure is swift: the amount and the maintenance obligation are determined within 2-3 days from the filing of the application, and the obligation to pay maintenance commences immediately, with all the legal consequences analysed below.
Subsequently, the application for interim measures is heard in the ordinary course, followed by the hearing of the lawsuit, the effects of which last for 2 or more years depending on what is sought in the pleading. If the ordinary lawsuit is not filed or not heard, the decision on interim measures, as a provisional remedy, ceases to apply and the liable party no longer has the maintenance obligation.
From the issuance of the judgment determining maintenance — whether it derives from the interim measures procedure or from the ordinary lawsuit — and its notification to the parent liable for maintenance, rights and obligations arise on both sides.
More specifically, once the judgment determining the amount of maintenance has been served on the liable parent together with an enforcement writ (epitagi pros pliromi) attached to the judgment, and the liable parent fails to pay the maintenance to the child, the parent who has custody of the child may initiate enforcement proceedings. That is, they may proceed to attach the immovable and movable property of the liable party and then proceed to a public auction in order to satisfy the monetary claim for maintenance. A faster and more economical method is third-party garnishment: if the liable party is employed, garnishment may be effected against the employer over the liable party’s salary, and if they hold a bank account, garnishment may be effected over the funds in their bank account.
Where the parent who owes maintenance has neither income nor movable or immovable property against which attachment may be effected, the maintenance obligation does not cease. The court, that is, even if the liable party declares unemployment and lack of assets, will award maintenance in any event, albeit reduced, because it is held that the liable party is required to take steps to secure some income in order to support their children. However, even with a court judgment in hand, the other parent will unfortunately be unable to satisfy the claim for the benefit of the children so long as there are no income or assets to attach.
However, if the parent liable for maintenance subsequently acquires income or assets (typically by inheritance), then on the basis of the judgments concerning maintenance owed for previous years, enforcement proceedings will go forward. It is noted that an established maintenance claim remains valid for 20 years. For this reason it is meaningful to file the relevant maintenance lawsuit every two years, so that even where collection is not feasible, at least the claim is preserved.
Even where there are no income or assets, the liable party still bears criminal liability, which in certain cases is used as a means of pressure where no other means of compulsion exists, particularly where the liable party declares unemployment but has hidden income.
Breach of the maintenance obligation by the liable parent constitutes the criminal offence of Article 358 of the Penal Code (PK), punishable by imprisonment of up to one year, and constitutes a continuing offence. The continuing offence has the particularity that the time-limits of the formal flagrante delicto procedure (which apply for the entire day of commission of the offence plus the whole following day until 24:00) do not apply, which means that, once a criminal complaint has been filed, the liable party may be arrested and tried under the flagrante delicto procedure even several days after the filing of the complaint.
Pursuant to Article 358, the following is provided: “Whoever maliciously breaches the maintenance obligation imposed on them by law and recognised, even provisionally, by the court, in such a manner that the beneficiary suffers deprivation or is forced to accept assistance from others, shall be punished by imprisonment of up to one year”. The legislator thus, by means of the above criminal provision, sought to protect the financially weaker spouse from the spouse who has the financial means and yet maliciously fails to comply with the obligations to pay maintenance, and in this way the criminalisation of the offence functions as a “lever of pressure”, since the Criminal Court may impose imprisonment of up to 1 year if the liable party fails to pay maintenance. To establish the offence of non-payment of maintenance, there must be a demonstrated omission by the party liable for maintenance, provided for by law and recognised by court judgment, even provisionally. The case-law of Areios Pagos (AP) accepts that service of the maintenance judgment is not even required, but it suffices to prove knowledge of the existence of the judgment and of the maintenance obligation. Of course, it is advisable to effect at least a formal service of the judgment so that knowledge of the maintenance obligation is fully proven.
This article essentially punishes the malicious liable party who, motivated by retaliation and ill will, while their financial situation permits compliance, is obstinate in paying maintenance. Criminal prosecution of the offence is brought ex officio, following a report, complaint or other notice that the punishable act has been committed, and once criminal prosecution is brought, the case is brought before the courtroom. Where the perpetrator (liable party) repeatedly and over different time periods breaches the maintenance obligation, they may be punished multiple times.
The criminal complaint may be filed at any police station or with the Public Prosecutor’s Office, whereupon the police officer/Public Prosecutor requests the judgment requiring the liable party to pay maintenance, as well as the service report from which it appears that the liable party became aware of their obligation to pay maintenance.
Commission of the act is deemed to have taken place once the time stipulated by the civil court’s judgment has elapsed and the liable party has not paid the maintenance (e.g. judgments usually provide that maintenance is payable within the first five days of each calendar month, so after the 5th day of each month a completed offence exists if maintenance has not been paid). Likewise, if the liable party is first arrested and is then forced by circumstances to pay the maintenance for which they were arrested and tried under the flagrante delicto procedure, they will normally still be convicted — possibly with mitigating circumstances — because their malice is not removed.
Finally, if the liable party is not arrested and not tried under the flagrante delicto procedure, then the Public Prosecutor who receives the filed criminal complaint will set a specific hearing date (the same procedure of setting an ordinary hearing date is followed in many cases where someone is arrested under the flagrante delicto procedure, due to the workload of the Public Prosecutor’s Offices, or owing, for instance, to the standing practice of the relevant Court of First Instance, or to the decision of the duty Public Prosecutor) and the ordinary procedure will be followed, in which the liable party will be summoned to be tried in the ordinary course.
The Criminal Court, provided that the perpetrator (the party liable for maintenance) has not previously been convicted to imprisonment exceeding 1 year and is convicted to a sentence of less than 3 years, orders the suspension of execution of the sentence for a period typically of 3 years. This means that if the liable party has not previously been convicted to a sentence exceeding 1 year and is convicted to a sentence not exceeding 3 years, the Court suspends the execution of the sentence for 3 years and the liable party does not serve it (i.e. they do not go to prison/pay money). However, if during the period of suspension (i.e. within the three years) the convicted person is again convicted to a custodial sentence for a felony or misdemeanor committed during the period of suspension, the suspension is lifted as soon as the new conviction becomes final and irrevocable.
The practical consequence in such a case (where someone has prior convictions on their criminal record exceeding 1 year, such that suspension cannot be granted) is that they are forced either to pay their sentence (sums which are usually unbearable owing to the conversion rate per day of imprisonment, as well as 95% surcharges), or to go to prison, something which most of course wish to avoid. For this reason, in very many cases, debtors of maintenance attempt to reach an arrangement with the maintenance creditor (after exhausting all margins of legal remedies, adjournments etc.) in order to, in common parlance, “work things out” and avoid conviction. Each case, of course, is distinct and requires a different approach.
The difference between a lawsuit and a criminal complaint is that in a lawsuit the proceedings concern property — that is, we are seeking money — whereas in a criminal complaint the proceedings concern the offender’s criminal punishment by imprisonment for having breached a civil court judgment. Therefore, through the criminal complaint we do not seek money, but the conviction of the party liable for maintenance for failing to pay the sums awarded by the civil court. Accordingly, we do not receive maintenance funds from the liable party if they are convicted by judgment of the Criminal Court.
- See also article Tenant Eviction
- See also article Change of Name
- See also article Payment Order
- See also article Divorce
- See also article Certificate of Inheritance
- See also article Renunciation of Inheritance by a Minor
- See also article Joint Custody of a Child
- See also article Custody and Child Abduction
FREQUENTLY ASKED QUESTIONS ON CHILD MAINTENANCE – METHODS OF COLLECTION
1. What can I do if my former spouse fails to pay maintenance?
Where there is already a court judgment determining maintenance and it is not being paid as required, the parent who has custody has two principal avenues that operate in parallel. The first is civil: initiation of enforcement on the basis of the judgment and the enforcement writ, with attachments on salary, bank accounts, or immovable and movable property. The second is criminal: filing a criminal complaint for breach of the maintenance obligation (Article 358 of the Penal Code (PK)), which functions as a powerful means of pressure. In practice, the combination of the two procedures significantly increases the prospects of collection, particularly where the liable party declares unemployment but has undeclared income.
2. How is attachment of salary or a bank account effected?
Third-party garnishment is regarded as the fastest and most economical method of collection. On the basis of the judgment awarding maintenance and the enforcement writ, a garnishment writ is served on the employer of the liable party or on the bank where they hold an account. The third party is required to remit the amounts directly to the creditor parent. For maintenance claims, more favourable garnishment thresholds apply compared with other claims, since the interest of the child is protected. Investigation is required to identify the employer and bank accounts, carried out through the competent authorities and the lawyer.
3. When is the criminal offence of non-payment of maintenance established?
The offence under Article 358 of the Penal Code (PK) presupposes a maintenance obligation that has been judicially recognised, even provisionally by interim measures or a temporary restraining order, as well as a malicious omission to pay by a liable party who has the means to pay. According to the case-law of Areios Pagos, it suffices to prove the liable party’s knowledge of the judgment, although formal service is advisable for certainty. This is a continuing offence, which means that the flagrante delicto rule is not limited to a 48-hour window. The penalty reaches one year of imprisonment and may be imposed repeatedly for different periods of non-payment.
4. How long do maintenance collection proceedings take?
The time varies depending on the procedure. A temporary restraining order before the Single-Member Court of First Instance is issued within 2-3 days of filing the application for interim measures and imposes an immediate obligation to pay. The hearing of interim measures is usually scheduled within a few months, while an ordinary lawsuit takes longer. Enforcement following service of an enforcement writ may commence within a few weeks. On the criminal side, where the flagrante delicto procedure applies, the trial takes place immediately; otherwise a hearing date is set by the Public Prosecutor. An established maintenance claim remains enforceable for 20 years.
5. What documents do I need in order to commence the procedure?
The necessary documents are the court judgment awarding maintenance (from interim measures, a temporary restraining order, or an ordinary lawsuit), proof of its service on the liable parent, and the enforcement writ drafted by the lawyer. Birth certificates of the children, a family status certificate, evidence of living and educational expenses of the children, and any information on the liable party’s financial situation (payroll, bank accounts, real estate via the E9 form) are also required. The criminal complaint for breach of Article 358 of the Penal Code (PK) is filed with the Public Prosecutor’s Office of the Court of First Instance, together with the same documents and a detailed calculation of the sums owed.
6. What is the role of the lawyer in maintenance cases?
The lawyer represents the parent who has custody at all stages: from filing an application for interim measures with a temporary restraining order and bringing an ordinary lawsuit, through to enforcement and the filing of a criminal complaint for breach of Article 358 of the Penal Code (PK). The lawyer drafts the enforcement writ, serves garnishment writs on employers or banks, monitors the progress of enforcement, and participates in criminal proceedings. They also handle negotiations with the liable party for the settlement of debts, particularly where the latter is at risk of a custodial sentence. The firm’s experience in family cases ensures the protection of the child’s interests with sensitivity and effectiveness.