What is the share of both parents under the maintenance obligation?

Maintenance contribution between the parents (contributio)

The relationship between the parents is called the contributio aspect. Each parent must contribute to the child's maintenance in proportion to its respective share in the combined resources of both parents ( art. 203, §1 old Civil Code). The amount the parent must pay is thus determined by adding up the income and resources of both parents and then determining their share therein.

By ‘resources’ is meant, for example, professional income, movable and immovable income, all benefits and other resources that determine the standard of living of the parents and that of the children ( art. 203, §2 old Civil Code). This includes the proceeds of their right of enjoyment, family allowance, professional income, but also ‘unofficial’ income such as undeclared work. The judge not only looks at the actual income, but also at the possibilities available to the parents and their ability to pay. For example, he also looks at what the parent could earn in case the parent deliberately did not work with the intention of paying a lower maintenance contribution.

In addition, when determining resources, the judge will also take into account the parent's exceptional burdens, such as a mortgage loan burden, rent, maintenance contributions from other children or medical expenses of the parent.

Ordinary costs versus extraordinary costs

To determine the child maintenance contribution, the law distinguishes between ordinary and extraordinary costs.

Ordinary costs mean all the usual costs necessary for the child's daily maintenance (art. 203bis, §3, 1st paragraph old Civil Code).

Extraordinary costs are the exceptional, necessary or unforeseeable expenses resulting from chance or unusual events. These are costs that exceed the daily maintenance budget, the extent and existence of which cannot be predicted (art. 203bis, §3,2nd paragraph old Civil Code). All costs that do not meet these criteria then fall under ordinary costs.

When determining the maintenance contribution, one should not forget that the child is entitled to the average standard of living of both parents.

The maintenance contribution for ordinary costs to be paid by one parent to the other is set out in an agreement or by judgment. This is a lump sum amount. To determine this amount, they will first establish a ratio between the parents, and then look at what the child needs. The parents will then divide this amount among themselves based on this ratio. An example will make this clearer: if parent A is responsible for 1/3 of the total income and the child needs €900 a month, parent A will have to pay €300 and parent B €600. When determining the maintenance contribution, contributions in kind, such as accommodation, will also be taken into account.

In contrast, the maintenance contribution for extraordinary costs is not fixed at a flat rate. These extraordinary costs are not literally listed in the law, but the RD of 22 April 2019 included a restrictive list of the following four categories:

• medical and paramedical costs;
• costs relating to schooling;
• costs related to the development of the child's personality and development;
• all other costs which the parents, by mutual agreement, consider extraordinary or which are qualified as such by the court.

Parents can deviate from this list with a contrary agreement, or the court can deviate by a contrary ruling. Each parent's share of these extraordinary costs is calculated in the same way as for ordinary costs.

The RD further stipulates that these extraordinary costs must always be the subject of prior consultation and agreement, unless there is urgency or proven necessity.

Maintenance contribution between the parents and the child (obligatio)

The relationship between the parents and the child is the obligatio aspect of the maintenance obligation. Each parent is indebted to his child for the entire maintenance contribution. The parents are held in solidum and jointly and severally liable to third parties. As a result, creditors of the child can recover their entire debt from a parent.

If one of the parents has paid something in full itself, it can reclaim part of it from the other parent. This obligatio ratio stops as soon as the court has fixed the maintenance obligation in a maintenance contribution payable on behalf of one parent.