When child support is set in favor of a minor child, an obligation arises between the child (claimant) and the parent who exercises parental responsibilities and is obliged to pay support (debtor).
Failure to pay this obligation constitutes non-compliance, and the debtor (the parent obliged to provide support) may be compelled to do so through judicial enforcement mechanisms.
Not infrequently, the parent obliged to pay support fails to comply and, in court, alleges that the statute of limitations for the obligation in question has already elapsed; that is, by the mere passage of time, they would no longer have to pay what should have been paid.
Indeed, Article 310(f) of the Civil Code provides that arrears of maintenance (support) payments are time-barred after five years.
This rule does not apply during the child’s minority, insofar as Article 318(b) of the Civil Code provides:
“The limitation period does not begin to run or is suspended:
…
(b) Between the person exercising parental authority and those subject to it …”
This provision entails a suspension of the limitation period, meaning that when a child reaches the age of majority and is no longer subject to the exercise of parental responsibilities, the suspension ceases and a five-year limitation period begins to run, as follows from the aforementioned Article 310(f) of the Civil Code.
Practically speaking, this means that if a child who reached majority in January 2020 wishes to bring non-compliance proceedings against the parent obliged to pay support that was unpaid during the period of minority, such proceedings may be brought at any time up to January 2025.
Note that, as regards support owed after majority, such amounts are, from the outset, subject to the five-year statute of limitations.
It is common knowledge that children face a heightened difficulty in bringing legal actions against their parents, not least because, often, over the years parents who have not fulfilled their support obligations nonetheless give gifts, hand over money and pay expenses for their children (for example, driving lessons, clothing, etc.), which places the children in an ambivalent position.
Under Articles 1880 and 1905(2) of the Civil Code, parents are under an obligation to continue contributing to the maintenance of their children after they reach majority and until they complete their professional training or reach 25 years of age. It must always be noted, however, that in this situation the five-year limitation period does run, since although the child continues to have a right to support, they are no longer subject to the exercise of parental responsibilities and thus no longer benefit from the suspension laid down in Article 318 referred to above.
It is on the basis of this obligation to contribute to the maintenance of adult children that the parent who, during the child’s minority, was designated to receive, on the child’s behalf, the support due has standing to bring non-compliance proceedings against the other parent, even if doing so during the child’s majority. Such proceedings may only be brought within the five-year period set out in Article 310(f) of the Civil Code, as mentioned above, failing which the defaulting parent may rely on limitation and avoid payment.
Finally, it should be noted that, since support is payable to the child and constitutes the child’s right and the debtor parent’s duty, the other parent also has a duty to pursue effective collection, ensuring that the child receives what they are entitled to, and can and should do so even after the child reaches majority.
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