Facts
The parties are the unmarried parents of two children born in 2006 and 2008. The father undertook to pay maintenance contributions for each child. The mother requested an advance on the maintenance contributions, which was granted by the social services. The father filed a request to reduce the maintenance contributions. The cantonal court dismissed the request for the period from the date of the advance, due to the lack of passivity of the maintenance beneficiary. The father appealed against this decision.
The Federal Court was seized of the question of the passivity of the maintenance beneficiary in the context of an action for modification of child maintenance, when during the proceedings, an advance on the maintenance contributions was granted. The Federal Court considered that the maintenance beneficiary remains passive in the proceedings, even after the grant of the advance.
Considerations
The Federal Court examined the question of the passivity of the maintenance beneficiary in the context of an action for modification of child maintenance. It considered that the passivity of the maintenance beneficiary is a procedural issue that must be examined in light of the circumstances of the case.
The Federal Court recalled that, according to case law, the maintenance beneficiary is passive in the proceedings, even after the grant of the advance. It also considered that art. 289 al. 2 CC, which provides that the advance on maintenance contributions is subrogated to the rights of the beneficiary, does not modify the passivity of the beneficiary in the proceedings.
The Federal…