When we speak of maintenance of children, we are referring to a very precise legal obligation, which falls on both parents, even in case of separation or divorce. But what happens if neither of the two is able to meet this duty?
Who pays the maintenance of the children if the parents cannot? It is a question that arises more and more often in legal practice, especially in times of economic uncertainty. The answer is not automatic, but the law provides clear indications.
What the law provides in the case of parents without income
First of all, the maintenance obligation always falls primarily on the parents. If one of the two is in default or is not in an economic position to comply, the other must meet the entire maintenance obligation. Only when both find themselves in a situation of real economic difficulty is it possible to activate the principle of subsidiarity provided by the codice civile.
This means that those required to maintain in subordinate manner, such as grandparents, can be involved under certain conditions. However, it is not enough to show that one of the parents does not contribute: it must clearly emerge that both are unable to support the child, and that there is an actual state of need.
When and how grandparents intervene
In the Italian legal system, grandparents and maintenance of grandchildren are linked by a subsidiary obligation. Only after ascertaining the insufficiency of the parents can the judge assess whether to request family support from ascendants. Such intervention is not automatic: a specific procedure is required, and the contribution is assessed in proportion to the economic resources of each grandparent.
The Corte di Cassazione has clarified on several occasions that the intervention of ascendants is legitimate only if the absolute impossibility of the parents to meet maintenance is demonstrated. Voluntary non-compliance is not enough: objective proof of the state of difficulty and of the necessity to ensure adequate means for the minor is required.
Are there public aids in such cases?
Our legal system does not provide for an automatic intervention by the State as a “substitute” for parents. However, there can be indirect support tools, such as economic aids for minor children in situations of fragility. These are, however, welfare measures (bonuses, parenting support, municipal contributions) that do not replace the maintenance obligation, but accompany it in the most disadvantaged cases.
In some situations, it is also possible to apply for legal aid from the State to start a procedure aimed at ascertaining responsibilities and defining those obliged to provide maintenance. The judge has a central role in the ascertainment and apportionment of the burdens.
How to act if neither parent can pay
Where there are parents without income, it is essential to gather the documentation that attests to the actual impossibility of complying. The first step is to turn to the court with the assistance of a lawyer to assess whether and how to activate the maintenance obligation on the part of the ascendants.
In any event, every situation must be assessed individually, taking into account the actual economic resources and the concrete needs of the minor. The law recognises as a priority the interest of the child, but requires rigorous proof before involving third parties in the duty of maintenance.
Studio Legale Boschetti, with consolidated experience in family law, is available for those who wish to address with clarity and competence these delicate family situations.
