In general, the Swiss Civil Code stipulates that the obligation to maintain a minor child takes precedence over other family law maintenance obligations (Art. 276a para. 1 CC). This priority extends to all the needs necessary for the proper maintenance of the minor child, which also includes any eventual custodial contribution (Art. 285 CC).
However, in certain situations, the judge may deviate from this principle. For example, if an adult child is entitled to maintenance and it is appropriate not to prejudice them (Art. 276 para. 2 CC). The aim is to prevent an 18-year-old in training at the time of divorce from suddenly finding themselves in a situation of need. However, this exception does not place the adult child on an equal footing with the minor child. Indeed, the adult child may be able to find a part-time job or a scholarship, which is impossible for the minor child.
Order of priority in deficit situations
Minor child and spouse
In the event of a lack of financial resources from the maintenance debtor, the Swiss Civil Code establishes that the maintenance of the minor child is prioritized over that of the ex-spouse. Furthermore, the custodial contribution is also prioritized over the maintenance of the former spouse. It is important to note that these priorities also apply to children from other relationships of the debtor.
The calculation method consists first of covering the debtor’s vital minimum according to debt enforcement law, followed by the minor child’s vital minimum, then the custodial contribution (also calculated according to the vital minimum of debt enforcement law), and finally the vital minimum of the spouse’s debt enforcement law.
Once the vital minimum of each person’s debt enforcement law has been met, it is necessary to examine if additional resources are available to cover certain charges of the vital minimum of family law, following the previously established order of priority.
Priority is given to the maintenance of the minor child compared to that of the spouse with whom the debtor cohabits. The charges of the new spouse should not be taken into account in the debtor’s maintenance obligations towards the minor child, even if the new spouse is not able to provide for their own needs. This rule remains valid at all times.
Adult child and spouse
The maintenance contribution of the ex-spouse remains a priority over that of the adult child in training, despite the addition of Art. 276a para. 2 CC. Therefore, existing case law continues to apply.
Minor child and adult child
Art. 276a para. 2 CC offers some flexibility regarding the primacy of maintenance for the minor child, under certain conditions.
This provision gives the judge leeway to consider the particular circumstances of each case. It thus allows the judge to deviate from the legal principle that the maintenance of the minor child is prioritized.
Recent case law on the matter
The Federal Court issued a decision on April 20, 2022, in a case involving a blended family (TF 5A_382/2021). This case concerns a child born out of wedlock whose parents separated. The mother then remarried and gave birth to a second child.
In this case, the Federal Court was called upon to decide on the competition between the obligation of the first father to pay a custodial contribution for his child born out of wedlock, and the maintenance obligation of the mother’s husband, under the principles of family maintenance during the marriage. In its decision, it ruled that the father of the first child was no longer required to pay a custodial contribution for the child, as the father of the second child was covering the mother’s living expenses with his income from gainful activity.
The Federal Court explained that the mother and her new husband had agreed on a traditional division of tasks, where the husband gave money to the mother who, in return, took care of the household and the common child. According to the Court, this arrangement covered the mother’s maintenance costs and therefore, as she did not suffer a deficit, it was not necessary to set a custodial contribution in favor of the first child.
In making this decision, the Federal Court did not achieve the goal of the custodial contribution, which is to ensure the necessary resources for the child, even if the personal situation of the parent providing care were to change. Therefore, it is possible that the Federal Court will revise this case law in the future.