Initiating enforcement proceedings is not the only way to discipline alimony debtors and get at least some of the money owed to us or our children. After all, failure to meet alimony obligations, regardless of the source of the obligation (court order, settlement, agreement) constitutes a crime. Thus, according to the wording of Article 209 § 1 of the Penal Code, a person who evades the fulfillment of a maintenance obligation defined in amount by a court decision, a settlement concluded before a court or other authority, or another agreement, if the total amount of arrears arising therefrom is the equivalent of at least 3 periodic payments, or if the delay of an overdue payment other than periodic payments is at least 3 months, is subject to a fine, restriction of liberty or imprisonment of up to one year. Consequently, if the obligee is obliged to pay alimony in the amount of, for example, PLN 1,000.00 per month, while he pays only PLN 500.00 each, after six months of persistence of such a state of affairs there will be grounds for reporting the case to the police and, consequently, grounds for initiating pre-trial proceedings.
As indicated in the case law, the introduction of the crime of evasion of maintenance obligations in the Criminal Code was intended to provide criminal protection for the family. However, the main object of this crime, and at the same time the good attacked by the perpetrator, is the duty of care, one of the elements of which is precisely the provision of maintenance (so, for example, the Supreme Court in its decision of April 20, 2001, ref. V KKN 47/01). If the perpetrator's attitude of not fulfilling the maintenance obligation exposes the entitled person to the impossibility of satisfying the basic needs of life, then the consequences of such behavior will be more severe - in such a case, the legislator has provided for, in addition to a fine or restriction of liberty, imprisonment for up to two years.
It should be remembered that the prosecution of the crime of non-alimony is carried out at the request - of the victim, the social welfare authority or the authority taking action against the alimony debtor. If the aggrieved party is a minor child, which in practice happens most often, then the notification of the crime along with the request for prosecution is submitted by his legal representative - usually the other parent.
However, the offender who has committed the crime of nonpayment has a chance to avoid punishment. This is because the legislator assumes that the primary goal of penalizing this type of behavior is to discipline the obligee and make him pay the arrears. If the offender, no later than 30 days from the date of the first interrogation as a suspect, has paid in full the overdue alimony, he will not incur criminal liability. However, if the perpetrator's behavior of evading alimony has resulted in the failure to meet the basic needs of life of the beneficiary, the court's waiver of punishment will occur only if the degree of guilt of the perpetrator and the degree of social harmfulness of the act do not oppose it.
It is worth noting that, according to the position of the Supreme Court, evasion of the obligation to pay maintenance to a person entitled to alimony occurs when the obligee, having an objective possibility of performing this obligation, fails to do so out of malice - to put it simply - intentionally disregards it. Therefore, no crime will be committed if the failure to pay alimony is the result of circumstances over which the obligee could not have had control.
It is worth remembering that a lawyer, in addition to acting as a defense attorney in the course of criminal proceedings, can also act in them as a representative of the victim. A lawyer can accompany us during interrogation at the Police or Prosecutor's Office, as well as represent our interests before the court.
