It happens that in the context of a divorce, one of the ex-spouses may not wish to request alimony, whether for personal reasons or for the common children.
It also happens that a few years later, due to a soured relationship or a changed financial situation, the person who would have been entitled to alimony wants to reverse their decision and retroactively request the grant of the alimony initially not claimed.
How does the law address such a situation?
The Principle
In principle, it seems logical that the creditor can no longer receive alimony they failed to claim. The maxim “alimony cannot be claimed retroactively” reflects this reality.
Alimony is intended to meet present and future needs, not to reimburse past expenses. This is what the maxim “alimony cannot be claimed retroactively” signifies. Thus, it seems logical that the creditor cannot later claim the alimony they did not initially request.
Indeed, there is a double presumption. The inaction of an alimony creditor suggests a lack of need at the time when the alimony could have been requested and implies a tacit renunciation of the alimony.
If you did not request alimony for personal reasons, it is very likely that you will be barred from doing so later.
The Exception for Child-Related Alimony
However, this maxim does not apply to contributions toward the maintenance and education of children.
Indeed, alimony to be paid for minor children can be recovered retroactively because minors cannot validly renounce their rights, being incapable of doing so.
Moreover, minors are always presumed to be in need, so the inaction of the child or their parent does not imply an absence of need.
Similarly, the parent with custody of the child cannot renounce alimony either, as they are not the holder of the said alimony and, furthermore, minors are always presumed to be in need.
The inaction of the child and that of the parent cannot, therefore, suggest that the child was not in a state of need.
Prescription
Under Article 2277 of the Civil Code, actions to claim periodic debts, including arrears of alimony, are subject to a five-year limitation period.
It is, therefore, better not to wait too long if you regret not having requested alimony for your children!
CERNO LAW FIRM has the necessary expertise to advise and assist you in your family law-related processes and procedures
