The fundamental prerequisite for the creation of a maintenance obligation is the existence of a certain family law relationship, in our case the relationship between a father and his child. A biological father is considered by the Family Act (zákon o rodině) to be a man to whom one of three statutory presumptions of paternity applies. From the perspective of the existence of a maintenance obligation, a relationship established by adoption has the same significance as the relationship between a biological father and his child.

Another important prerequisite for the existence of a maintenance obligation of parents to a child is the fact that the child is not capable of supporting itself. There is no age limit upon reaching which the maintenance obligation would cease – a child may acquire the capacity to support itself upon completion of secondary vocational school at, for example, seventeen years of age; equally, however, it is possible that a child will study until thirty years of age and that during this time it will not objectively be capable of satisfying its needs from its own income.

Maintenance for minor children means the means to cover all their living needs. This concerns the satisfaction of all material needs of the child, i.e. covering the costs of food, clothing, housing, and cultural needs of the child, i.e. covering the costs of education, hobbies, visits to artistic performances, etc.

Court decision-making on maintenance The Family Act assumes and prefers voluntary performance of the maintenance obligation of parents to their children. If the child’s parents therefore live together, i.e. in a common household, the court as a rule does not regulate the maintenance obligation of parents to children. A court decision is only considered if one of the parents living together does not voluntarily perform their statutory maintenance obligation to their child. The court as a rule decides upon application (most frequently upon application of the other parent); however, in the case of maintenance for a minor child, it may decide on maintenance even without an application.

Most frequently, courts regulate the maintenance obligation of parents to children in connection with divorce (according to Section 25 of the Family Act, a marriage cannot be divorced until a decision on the regulation of the circumstances of minor children for the period after the divorce takes legal effect). The need to regulate the circumstances (i.e. upbringing and maintenance) of a minor child also arises in a situation where the parents of the minor child do not live together.

Amount of maintenance When determining the amount of maintenance, the court proceeds from the justified needs of the person entitled and from the abilities, possibilities and property circumstances of the person obliged. This is a general rule which is applied when determining all types of maintenance obligation.

However, in the case of maintenance for minor children, the Family Act contains certain other provisions regulating the scope of the maintenance obligation of parents to minor children, the purpose of which is to protect the interests of minor children. Above all, it applies that a child has the right to participate in the standard of living of its parents. This provision gains significance particularly when a minor child is entrusted to the care of that parent whose standard of living is significantly lower than the standard of living of the parent who is to pay maintenance. Furthermore, it is stipulated in the Family Act that where the property circumstances of the parent obliged permit, the justified needs of the child may also include the creation of savings securing in particular the preparation of this child for a future profession. The Family Act then, in cases worthy of special consideration, permits the court, when deciding on maintenance for minor children, to decide on the obligation to deposit a sum of money for maintenance payable in the future. Maintenance for the child is then paid from such deposited sum in the future. The purpose of this provision is to protect the child, for example, when the person obliged has irregular income, demonstrably undertakes disproportionate property risks, plans a long-term stay abroad, etc. The provision prohibiting set-off against claims for maintenance for minor children is intended to protect minor children. The obligation to pay maintenance is thus not affected by the fact that the person obliged may have some claim against the minor child. A significant means of protecting minor children is furthermore the possibility of claiming maintenance for minor children retrospectively for up to three years before submission of the application for determination of maintenance.

Proving the income of entrepreneurs I consider proving the income of these entrepreneurs to be a fundamental question when determining the maintenance obligation for the children of entrepreneurs. Proving their actual income is often difficult because these entrepreneurs are often, according to their tax return, making a loss or have only minimal income. It is also frequent that a partner in a trading company is employed in his business and declares the minimum wage as his income.

The income of entrepreneurs obliged to pay maintenance may be proved, inter alia, by their tax return. In the case of partners in trading companies, it is appropriate to also take evidence of the tax return of the relevant trading company. The court should always also take into account that by increasing the assets of a trading company of which the father obliged to pay maintenance is a partner, the assets of this father will also increase. The data stated in tax returns may be misleading and often not reflecting the actual income of either a natural or legal person. It happens that entrepreneurs include in the costs serving to achieve taxable income, for example, costs serving for the purchase of equipment for their household; they may acquire a luxury automobile, expensive computer equipment, etc., within the framework of their business. In such a case, it is often not an expense necessary to achieve taxable income, and maintenance for minor children should take precedence over such expenses. Even if, however, it is an expense necessary to achieve income, it must be taken into account that in some cases, by purchasing things serving for business, the entrepreneur’s assets are substantially expanded and thereby his property circumstances improve.

To prove the income of entrepreneurs, it is therefore as a rule appropriate to also take evidence of the accounting records of the entrepreneur obliged, or of the trading company of which he is a partner. From these accounting records, it is then often possible to better discern what the actual income and property circumstances of the entrepreneur are.

Because proving the actual income of entrepreneurs depends on whether these entrepreneurs document their income, Section 85a(1) was incorporated into the Family Act to deepen the protection of children of entrepreneurs. According to this provision, a parent who has income from activity other than dependent activity subject to income tax is obliged to prove his income to the court, submit documents for the assessment of his property circumstances, and enable the court to ascertain other facts necessary for the decision. In order that entrepreneurs do not avoid this obligation of theirs, it is stipulated in Section 85a(1) of the Family Act that if the parent obliged does not fulfil this obligation of his, it shall be deemed that his average monthly income is fifteen times the amount of the subsistence minimum necessary to secure the sustenance and other basic personal needs of this parent according to Act No. 463/1991 Coll., on the Subsistence Minimum. At the present time, therefore, in cases where the person obliged does not prove his income in a sufficient manner, the courts proceed from the assumption that the parent obliged has a net monthly income of CZK 34,800.

In practice, I have encountered a situation where a father – entrepreneur, although he did submit his tax returns during the proceedings, according to which his income amounted to approximately CZK 10,000 per month, refused to document his accounts upon the court’s summons. He behaved in this manner both in the proceedings before the court of first instance and in the appellate proceedings. The court therefore, in accordance with Section 85a(1) of the Family Act, proceeded from the assumption that his monthly income amounted to the said CZK 34,800 and imposed upon him the obligation to pay maintenance in the amount of CZK 8,000 per month. Thereafter, the father in question decided to document his accounts to the court. In this case, however, a final decision of the court on the amount of maintenance already existed. The fact that the father was ultimately willing to prove his income to the court cannot, in my opinion, be regarded as a change of circumstances which, in accordance with the law, would justify a new decision on maintenance. In order for the court to be able to decide again on maintenance, a certain change of circumstances would have to occur, either on the part of the person entitled (transfer to a new school, restriction of certain hobbies, improvement of health condition, etc.) or the person obliged (actual reduction of income, deterioration of health condition, creation of a new maintenance obligation, etc.).

Brief assessment of the legal regulation I consider the statutory protection of minor children when determining maintenance by their fathers – entrepreneurs to be fundamentally sufficient. Courts currently have sufficient means at their disposal to ascertain in an exhaustive manner the income and property circumstances of these entrepreneurs and thus to determine maintenance for minor children in such an amount that they participate in a sufficient manner in the standard of living of both their parents.

This text was translated from Czech to English using an AI translator.