The authors examine the constitutional position of child support claims in
comparison to the claims of other creditors, within both individual enforcement
and personal bankruptcy proceedings. The analysis covers two important
questions: (1) what is the constitutionally permissible relative position of
children’s maintenance claims vis-à-vis other creditors, and (2) to what extent
are different legal rules for individual enforcement and personal bankruptcy
proceedings constitutionally permissible, as well as logically consistent from
legal and economic perspectives. The discussion is based on two decisions of
the Constitutional Court of the Republic of Slovenia—U-I-47/15 of 24 September
2015, in which the Constitutional Court intervened in a regulation that
prioritised child support payments overdue by more than one year at the time
of a court order transferring real estate to a buyer in enforcement proceedings;
and decision U-I-21/16-14 of 5 December 2018, which determined that the
different treatment of a child’s position as a preferred creditor in individual
enforcement proceedings and personal bankruptcy is not unconstitutional.
The authors argue that there is no valid legal or legal-economic rationale for
the different position of child support claims and that such differentiation indicates
a non-systemic approach in regulating two closely related processes
of compulsory debt recovery. The authors also believe that the reasoning of
the Constitutional Court in the case U-I-21/16-14, which was unanimously
adopted, is weak and based on a wrong logical premise, while contradicting
the findings of insolvency theory of the last 50 years.
Key words: alimony, individual enforcement, personal bankruptcy, secured
claim, preferential claim.