BGH decision on power of representation for child maintenance in the alternating model

BGH (XII. Civil Senate), decision of 10/04/2024 - XII ZB 459/23

Background

The Federal Court of Justice (BGH) has made an important decision on the power of representation when claiming child maintenance. This specifically concerns parents who are not married to each other and share the care of their children (alternating model).

Key points of the decision

1. Sole power of representation with custody of one parentIf a child is mainly with one parent, this parent alone is authorised to represent the child. This means that this parent can claim maintenance for the child without the consent of the other parent.
2. Joint power of representation in the alternating modelIf the children live alternately with both parents, both parents are authorised to represent them. Each parent can assert maintenance claims against the other parent on behalf of the child.
3. No supplementary carer necessaryContrary to previous case law, parents in the alternating model do not need a supplementary guardian to enforce the child's maintenance claims.

Background to the dispute

The unmarried parents of the children concerned had agreed to split childcare between both parents. The children's father applied for maintenance payments from the mother on behalf of the children. The local court rejected the application as the father was allegedly not authorised to represent the children. The appeal to the Higher Regional Court was also unsuccessful, whereupon the father lodged an appeal with the Federal Court of Justice.

Decision of the BGH

The Federal Court of Justice overturned the decisions of the lower courts and referred the case back to the Higher Regional Court. The BGH ruled that the father was authorised to represent the children, irrespective of whether the children were in his care or whether there was an alternation model.

This decision makes it clear that in the alternating model, both parents are entitled to assert maintenance claims for the child without the need for a court-appointed supplementary guardian.

Conclusion

The decision of the Federal Court of Justice strengthens the rights of parents in the alternating model by clarifying that both parents have equal rights when it comes to enforcing maintenance claims for their children. This makes it easier for separated parents to flexibly organise the care and financial support of their children.

Chain of standards

• BGB § 1629 para. 1, 2
• BGB § 1824

This decision has far-reaching implications for the practice of claiming child maintenance and the powers of representation of parents in the alternating model.

 

Dr Magdalena Dittmann

Lawyer

Specialist lawyer for family law