Legal Principle
In general terms, the Swiss Civil Code states that the obligation to provide maintenance for a minor child takes precedence over other family law maintenance obligations (Art. 276a para. 1 CC). This priority covers the entire adequate maintenance of the minor child and thus also includes the possible maintenance contribution (Art. 285 CC).
However, the judge may deviate from this principle in certain configurations. This may be the case, for instance, when an adult child is entitled to maintenance, and it is appropriate not to disadvantage them (Art. 276 para. 2 CC). The aim is to prevent a child who turns 18 and is in education at the time of the divorce from suddenly finding themselves in a situation of need. However, this nuance will not place the adult child on an absolute equal footing as they might be able to find part-time work or a scholarship, whereas a minor child cannot.
Priority order in a deficit situation
Minor child and spouse
If the available means of the maintenance debtor are insufficient to cover the family’s needs, the maintenance of the minor child will take precedence over that of the divorced spouse. The maintenance contribution will also take precedence over the maintenance of the former spouse. These priorities also apply to children from the debtor’s other possible relationships.
In terms of calculation method, it is appropriate first to cover the debtor’s essential living minimum under the enforcement law, then that of the minor child, followed by the maintenance contribution (also established according to the enforcement law’s essential living minimum), and finally the spouse’s living minimum under the enforcement law.
Once the essential living minimum of each under the enforcement law has been covered, it is appropriate to check if there are remaining resources and, if so, some charges of the essential living minimum of family law may be covered, observing the same order of priority as before.
The maintenance of the minor child also takes precedence over the maintenance of the spouse with whom the debtor cohabits. Therefore, the new spouse’s expenses must not be included in those of the debtor of the child’s maintenance contribution. This remains the rule even if the new spouse does not themselves provide for their own maintenance.
Adult child and spouse
The contribution to the ex-spouse always prevails over the maintenance of the adult child in education.
Despite the enactment of Article 276a paragraph 2 of the Civil Code, the existing case law still applies, and the priority given to the ex-spouse is maintained.
Minor child and adult child
Article 276a paragraph 2 of the Civil Code allows for the primacy of maintenance for the minor child to be qualified in motivated cases.
This is a margin of discretion left to the judge based on the concrete circumstances of the case. Therefore, this provision allows the judge to deviate from the basic legal principle that gives priority to the maintenance of the minor child.
Recent case law
On April 20, 2022, the Federal Court made a decision in the case of a blended family (TF 5A_382/2021).
This was a case where a first child was born out of wedlock. After the parents of this child separated, the mother remarried and gave birth to another child.
The Federal Court had to decide on the competition between the obligation of the first father to provide maintenance and the maintenance obligation of the mother’s husband, under the principles of family maintenance during the marriage. In its decision, it considered that the father of the first child no longer had the obligation to provide maintenance for that child, as the father of the second child was covering the mother’s subsistence expenses through his earnings from gainful activity. To reach this conclusion, the Federal Court stated that since the mother and her new husband had agreed on a traditional division of tasks, whereby the husband provided money to the mother who, in return, took care of the household and the common child, the maintenance expenses of the latter were covered. Thus, since she was not suffering from a deficit, it was not appropriate to set a maintenance contribution in favor of the child from the first marriage.
By this jurisprudence, the Federal Court did not respect the purpose of the maintenance contribution, which aimed to ensure that the child had the necessary resources, even if there was a change in the personal situation of the parent responsible for their upkeep. Thus, it is not excluded that in the long term the Federal Court may revise this jurisprudence.
