In a recent decision, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with questions of a child’s ability to support itself.
The father of a minor child applied to be released from the obligation to pay monthly maintenance on the grounds that his child was already capable of self-support and therefore no longer entitled to maintenance.
Although the court of first instance slightly reduced the amount of maintenance to be paid, it rejected the father’s application for exemption from the obligation altogether. The court of second instance shared the legal opinion of the court of first instance and stated that, when assessing the ability to support oneself, it had to be taken into account, among other things, that the situation on the labor market had worsened during the assessment period due to the COVID-19 pandemic and that a minor had to be granted a longer period of time to look for an apprenticeship due to the circumstances at that time. The Supreme Court rejected the appeal against the decision of the second instance and stated that a fictitious ability to support oneself is to be assumed if the child entitled to support does not pursue any further purposeful school, occupational or gainful employment after completion of compulsory schooling, i.e. the person entitled to support is unwilling to work and to undergo training without lacking the ability to support himself/herself due to illness or development. However, a prerequisite for the fictitious ability to support oneself is that the child is at fault for not pursuing an appropriate education or activity, the Supreme Court continued. This was not the case here.
The father must therefore continue to pay maintenance to his child.
(Decision OGH 5 Ob 225/20d, 13.04.2021)
I will be happy to advise and support you in questions of family and maintenance law as well as in the enforcement or defense of claims.
