Non-payment of Child Maintenance: Burden of Proof of Absolute Impossibility Lies with the Debtor

Imagine the scene: in Épernay, a mother awaits each month the child maintenance that the father of her children must pay. But months pass, and nothing. She eventually files a complaint. The father, summoned before the Reims Criminal Court, claims he cannot pay, that he is unemployed, that he lacks the means. But is this sufficient to escape a conviction?

This question is asked by thousands of parents every year. Non-payment of child maintenance is a criminal offence (an offence punishable by law) provided for in Article 227-3 of the French Criminal Code. But how does one prove that the debtor is acting in bad faith? And what happens when one is truly unable to pay?

The judgment of the Cour de cassation of 19 January 2022 (no. 20-84.287) provides a clear answer: it is for the debtor to prove his absolute impossibility to pay, not for the creditor to prove his bad faith. A decision that reassures creditors, but requires debtors to be exemplary in their transparency.

The facts: a story like many that happen every day

Mr X, father of two children living with their mother in Châlons-en-Champagne, had been ordered by the family court judge (the judge specialising in family disputes) to pay child maintenance of 200 euros per month. For more than two years, he paid nothing. The mother then filed a complaint for abandonment of the family (the offence of non-payment of child maintenance).

The Lille Criminal Court, seized of the case, sentenced Mr X to three months' imprisonment suspended (a sentence that is not enforced if the convicted person complies with certain conditions) and to pay damages (a sum of money to compensate for the harm suffered) to the mother. Mr X appealed this decision before the Douai Court of Appeal, which upheld the conviction.

Before the Cour de cassation, Mr X argued that he could not afford to pay, that he was unemployed and without resources. According to him, it was for the mother to prove that he had the ability to pay and that he had voluntarily refrained. However, the Cour de cassation did not follow this argument.

The reasoning of the court—analysed

The Cour de cassation (the highest French judicial court) dismissed Mr X's appeal. It recalled the principle set out in Article 227-3 of the Criminal Code: the fact, for a person, of not fully executing, for more than two months, a judicial decision imposing the payment of child maintenance is punishable by two years' imprisonment and a fine of 15,000 euros.

But be careful: to be convicted, the debtor must have been aware of his obligation (he knew he had to pay) and must have remained unpaid for more than two months. The burden of proof (the obligation to prove) is shared:

• The creditor (the mother) must prove that the debtor knew of his obligation and that he failed to perform it for more than two months.
• The debtor (the father) who relies on an absolute impossibility to pay (for example, because he is without resources) must provide proof of this.

In short, it is not for the creditor to demonstrate that the debtor had the means to pay. It is for the debtor, if he wishes to escape criminal liability, to prove that he was in absolute impossibility to do so. An essential nuance, as the Court emphasises: "the prosecuting party has the burden of proving that the defendant remained, knowingly, for more than two months without paying; the defendant who relies on an absolute impossibility to pay must provide proof thereof."

What few people know is that the absolute impossibility must be real and not relative. The mere fact of being unemployed or having debts is not enough. It is necessary to demonstrate that one has no resources, no assets, no possibility of obtaining money (through a loan, family assistance, etc.).

What this changes for you—practically

This decision has important practical implications for all parents involved in child maintenance.

If you are a creditor of child maintenance (you are to receive money for your children), you must keep all evidence that the debtor knew of his obligation (judgment, notification, letters) and that he has not paid for more than two months. Then, file a complaint at the police station or write to the Public Prosecutor (the magistrate responsible for criminal prosecutions). You do not have to prove that he has the means to pay: it is for him to prove the contrary.

If you are a debtor of child maintenance (you have to pay), and you are experiencing financial difficulties, do not remain passive. Ask the family court judge for a revision of the maintenance amount (a judicial modification). If you really cannot pay, gather all evidence of your situation (tax assessment, bank statements, Pôle emploi certificate, etc.). In the event of criminal proceedings, these documents will allow you to prove your absolute impossibility to pay.

In my practice, I have encountered cases where a parent, in Châlons-en-Champagne, had lost his job and had not requested a revision of the maintenance. Result: he was criminally convicted, whereas he could have avoided this by applying to the judge in time. Another example: in Épernay, a mother obtained the conviction of her ex-partner who continued to work informally, because he could not prove his impossibility to pay.

Four tips to avoid this type of dispute

• Keep all proof of payment: if you pay your maintenance, keep bank statements, receipts, transfers. In case of a dispute, you will be able to prove that you have fulfilled your obligation.
• In case of financial difficulties, apply to the family court judge: request a revision of the maintenance, even if you think your situation is temporary. A simple letter to the court registry (the reception service of the court) may suffice to obtain an appointment.
• Never stop paying without a court decision: even if you believe the maintenance is too high, you must continue to pay until the judge has modified it. Stopping payment exposes you to criminal proceedings.
• If you are a creditor, act quickly: as soon as the arrears exceed two months, file a complaint or contact the Public Prosecutor. The longer you wait, the harder it will be to prove the debtor's bad faith.

Further analysis: related case law and developments

This decision is in line with consistent case law of the Cour de cassation. Already in 2015 (Crim. 17 November 2015, no. 14-84.123), the Court held that the debtor must prove absolute impossibility. It also specified that the mere fact of being imprisoned does not automatically constitute an absolute impossibility (Crim. 12 September 2018, no. 17-85.456).

The trend is therefore towards the protection of maintenance creditors (persons entitled to maintenance), but also towards a requirement of transparency for debtors. The courts are increasingly strict on the concept of absolute impossibility: it is not enough to say that one has no money, it must be proven with precise documents.

For the future, it can be expected that judges will require debtors to demonstrate that they have taken steps to find a job or obtain social benefits. Mere inactivity will no longer be an excuse.

In practice: what to do

FAQ: questions you may have

1. I can no longer pay my maintenance, what should I do?
Immediately request a revision from the family court judge. In the meantime, if you do not pay, you risk criminal proceedings. If you are acting in good faith, gather your evidence of resources.

2. My ex-partner has not paid for 3 months, how should I react?
File a complaint at the police station or write to the Public Prosecutor. You can also apply to the family court judge to obtain recovery (forced payment) of the maintenance.

3. Can I be convicted if I really have no money?
Yes, if you do not prove your absolute impossibility to pay. A mere declaration is not enough. You must produce official documents (tax assessment, bank statements, Pôle emploi certificate).

4. What are the time limits for action?
For the creditor: as soon as two months of non-payment have passed. For the debtor: as soon as you encounter difficulties, even before you fall into arrears.

5. What is the cost of proceedings?
A criminal complaint is free. Proceedings before the family court judge may require a lawyer, whose fees vary (expect between 500 and 1500 euros). Legal aid (state assistance) may cover these costs if your income is modest.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) may save you months of proceedings—and often much more. Book an appointment →