Should children born in marriage put on an equal footing with illegitimate ones when calculating child support respectively distributing the excess cash? In its decision of July 19, 2023, the Federal Supreme Court of Switzerland comments on this for the first time: children of formerly married and unmarried parents do not give point to financial equality.
Facts
A and C were not wedded to each other. They never lived together. A son was born on 18 March 2016. He was under joint parental custody and maternal responsibility. The parents could not agree on child support contributions. The court set these, as the son – assisted by a lawyer – sued the father. The father appealed, requesting lower maintenance contributions.
Sticking point
The only issue before the Swiss Federal Tribunal was how the “large and small heads” were to be counted when distributing the surplus funds in the case of unmarried parents.
Leading case
Child support is to be calculated according to the two-tier concrete method with surplus distribution. Surplus funds are in principle allotted according to large and small heads. In individual cases, this may be deviated from at the judicial discretion, which must be justified (cf. BGE 147 III 265). According to the doctrine, parents are considered as large head and children as small head. A double surplus share is allocated to a large head.
Other considerations
In the case of unmarried parents, it is a debatable point whether the parent providing care without paying child support should be regarded as large head when distributing the surplus funds. The Federal Supreme Court of Switzerland has commented on this for the first time (cf. decision 5A_668/2021 of July 19, 2023, Consideration 2.4).
The child is entitled to childcare maintenance or maintenance for caretakership (in German Betreuungsunterhalt) regardless of the parent’s civil status as coupled or unmarried, if the infant is personally cared for by one parent. This means that children born in wedlock and children born out of wedlock are generally treated equally in terms of care. However, there is no question of financial equality irrespective of civil status (Consideration 2.5).
The legislator provides the following concerning child support: The child maintenance contribution shall correspond to the child’s needs as well as to the parents’ circumstances and resources; factoring in the child’s assets and income (Art. 285 para. 1 CC).
However, the legislator leaves it up to the courts to decide how to determine child support. According to the Federal Supreme Court, the living costs must be ascertained, based on the concrete circumstances of the individual case. The child support due is a dynamic variable. It can vary considerably. The child’s maintenance claim depends on the parent’s means, on the resources to be distributed, on the number of households to be financed, on further (half) siblings entitled to child support and furthermore on whether also spousal maintenance or post-marital spouse support must be paid (Consideration 2.6.).
In the case of unmarried parents, it must be ensured that the child’s surplus share does not cross-subsidize the parent providing care, because the latter has no claim to maintenance of his or her own against the other parent. Any childcare maintenance (economically intended for him or her …) is limited to the minimum subsistence level (MSL) under family law, not containing a surplus share. (…). The surplus share shall only enable the child to participate in the living situation of the parent liable to pay child support. The unmarried parent providing care shall not additionally be co-financed (…) (cf. Consideration 2.6).
However, according to Article 289 para 1 of the Swiss Civil Code, the child support contribution is paid to the child’s legal representative or the person with whom the child resides. In principle, there is shared money and no dutch treat.
From the excess cash the need for leisure activities, hobbies and vacations is financed. In the case of favorable circumstances, the age and the increased need should be considered. However, even in the case of above-average circumstances, the need should not extend immeasurably; it should be stint appropriately for educational reasons (Consideration 2.6.).
Conclusion
To sum up: When distributing the surplus funds, consider whether the parents are married to each other or not. In the case of married or divorced parents, a total account with mutual maintenance obligation is made. In the case of parents who are unwed and one parent has sole custody, only one parent is liable to support the child. Therefore, the calculation takes place only between the parent and the child, and the surplus is distributed only between them. The other parent cares for the child which is equivalent to monetary maintenance (Consideration 2.7).
Court Ruling
Specifically, the father intended to allot only 20% instead of 33% of the surplus to the son, arguing the mother should have been virtually counted as a large head. However, the Federal Court dismissed the appeal, reasoning that virtually no large head should be used for a parent in charge of the son, because the mother has no own maintenance claim. Thus, she was not entitled to participate in the surplus. There is no way to virtually credit the mother with a share of the excess, while actually allotting the share of the surplus to the maintenance obligor. This would violate the child’s entitlement to appropriate maintenance (Consideration 2.7).