Sometimes the court, deciding on the obligation to pay child support, awards a certain amount of benefit, while indicating its equivalent in foreign currency. This happens, in particular, when the obliged parent works abroad and is paid in that currency. The problem arises when the exchange rate begins to rise and the actual value paid by the parent no longer corresponds to that ordered in the judgment, significantly exceeding it. In such a situation, can the overpaid alimony be claimed back?
It seems that the basis for the demand for the return of overpaid amounts could be the provisions on unjust enrichment and return of undue benefit. According to Article 410 of the Civil Code, a benefit is undue if the one who rendered it was not under any obligation at all or was not under any obligation to the person to whom he rendered the benefit, or if the basis for the benefit fell away or the intended purpose of the benefit was not achieved, or if the legal act obliging the benefit was invalid and did not become valid after the benefit was rendered.
Given the described facts, it should be considered that the demand for the return of overpaid alimony is not based on any of the above-mentioned grounds. This is because the alimony pension is paid on the basis of a final judgment, and we also assume that in the meantime there have been no proceedings to modify or declare the termination of the alimony obligation. It is worth noting that if several years have passed since the judgment and the amount of our obligation has not been changed, it may turn out that the amount actually paid, higher than its equivalent indicated in the judgment, will still be adequate due to the child's needs increasing with age. Such a counter-argument from the opposing side would certainly have to be reckoned with.
Another „obstacle” to the return of overpaid alimony is the provisions under which the legislature has excluded the possibility of claiming the return of an undue benefit. As a result, even if we succeeded in convincing the court that the alimony we paid in excess constituted an undue benefit, we cannot demand its return if its payment satisfied the principles of social intercourse. It is also worth noting that the obligation to return an undue benefit also ceases if the one who obtained it has used it up or lost it in such a way that he is no longer enriched. Given the nature of the alimony benefit, which, according to the statutory definition, is an obligation to provide means of maintenance and, if necessary, means of upbringing, it would certainly not be difficult for the other party to demonstrate this circumstance.
The analysis presented leads to the conclusion that the demand for the return of overpaid alimony has no legal basis. In such a situation, it would be appropriate to consider an action under Article 138 of the Family and Guardianship Code, i.e. to amend the judgment on the obligation of alimony. It would then be on our side to show that, due to a change in circumstances, the benefit we pay exceeds our earning capacity, being inadequate to the justified needs of the entitled person.
