Contribution to the maintenance of a child

Contribution to the maintenance of a child

 "According to my divorce decree, I have to pay maintenance for my son to his mother. I've been retired for a few months now and receive an old-age pension as well as a supplementary pension for my child. My ex-wife has asked for this additional pension to be paid directly to her, which has been accepted. Can she continue to claim the full maintenance contribution in addition to what is paid to her by the AHV fund? " 

T, Geneva

The contribution to a child's maintenance is set by the divorce judge on the basis of the child's needs and the situation and resources of the father and mother.

When a parent liable for maintenance reaches retirement age and receives an old-age pension, article 22ter of the Federal Law on Old-Age and Survivors' Insurance (LAVS) provides, in certain circumstances, for the granting of a pension in favour of the child. This supplementary benefit is normally paid to the parent receiving the old-age pension, who is responsible for paying it to the child.

However, when the father and mother are no longer married, Article 71ter of the Old Age and Survivors' Insurance Regulations (RAVS) provides that the parent with whom the child lives and who has parental authority may obtain payment of the supplementary pensions received by the other parent. It makes no difference whether parental authority is exclusive or exercised jointly.

In such circumstances, the cumulative financial claims for the child's maintenance could exceed the amount set by the divorce judge, even though the income of the parent liable for the contribution often decreases with the arrival of retirement. This was not the intention of the Swiss legislature, so since 1 January 2017 article 285a paragraph 3 of the Civil Code (CC) stipulates that when the parent liable for the maintenance contribution receives a pension to replace income from gainful employment, the amount of the contribution paid up to that point is automatically reduced accordingly.

Your ex-wife now receives directly the supplementary pension that you were required by law to pay to your child, and she was indeed entitled to request that this be the case. However, it is not possible for her to receive this pension while demanding payment in full of the maintenance contribution awarded for your son as part of your divorce. You are therefore entitled to ask the divorce judge to set a new maintenance contribution for your child, taking into account what is currently paid directly by the AHV fund to his mother.