Decision of the Federal Court on the active legitimacy of the child in the procedure on his maintenance in case of receipt of public benefits and on the right to the maintenance contribution for the care of the child in case of marriage of the parent who takes care of him

Facts

The case concerns the daughter B.C., born in 2012 from the non-marital relationship between D.E. and A. In the first six months after birth and from November 2014 to August 2017, B.C. was financially supported by the social services. By decision of June 18, 2014, the District Court of Werdenberg-Sarganserland ordered [A.] to pay monthly maintenance contributions for B.C. from birth until the completion of her first training, and granted D.E. an amount of CHF 4,880.- for her rights under Art. 295 para. 1 no. 2 and 3 CC. [A.] appealed against this decision to the Cantonal Court of St. Gallen. In October 2017, D.E. married F.E. and on November 14, 2017 gave birth to daughter G.E. By decision of March 23, 2021, the Cantonal Court redetermined the maintenance contributions for B.C., also taking into account the care contribution from January 1, 2017 to September 30, 2028. [A.] filed a civil appeal with the Federal Court, requesting a reduction of the maintenance contributions for B.C. The Federal Court partially upheld the appeal and reformed the contested decision, denying B.C. the care contribution from the time of D.E.'s marriage.

Considerations

4.1 When the public community takes over the maintenance of the child, the right to maintenance passes to it with all rights (Art. 131a para. 2 and Art. 289 para. 2 CC). These provisions apply not only to advances of maintenance contributions based on a final maintenance judgment (advance benefits under Art. 293 para. 2 CC), but also to benefits provided by the public administration for the maintenance of the child before or during a (first) procedure for obtaining a maintenance title, such as social assistance. Even if the public community fulfills a public law obligation, it satisfies in advance a civil law right where, according to civil law, a private individual would be obliged to provide for the maintenance of the person concerned. Consequently, the public community must be subrogated to the civil law claim and the maintenance beneficiary must be relieved of his obligation to repay based on public law. 4.3 The considerations made in ATF 148 III 270, according to which the subject of the maintenance claim is the quantification of the original right and consequently the active legitimacy always belongs to the child regardless of any advance, also apply in the case where the public community has provided social assistance benefits in the absence of an enforceable maintenance title. Therefore, B.C. was actively legitimized not only…