The parental agreement dividing the burden of children in alternate residence cannot be dismissed

By decision of January 24, 2018, the Council of State specified that when a parental agreement homologated by the Family Judge divided the burden of the children between the two parents, this distribution could not be discarded by the demonstration that the taking effective care of children differed from that provided for in the Convention.

In the present case, the parties had agreed to fix the habitual residence of the children alternately at home, that the mother would receive the family allowances alone and that the father would reimburse half of the expenses relating to the children. Since then, the mother had included in her tax return the children's shares as her dependents.

However, the tax authorities considered that she could not claim the family quotient shares of the children in the context of their tax return insofar as they were in the charge of their father. The Administrative Court of Appeal, approved by the Council of State, also considered that the terms of the parental agreement had the consequence that the children, although in alternating residence, were financially dependent on their father, since he did not benefit from family allowances and reimbursed the mother for half of the expenses incurred.

The Council of State thus clarifies the provisions of Article 194 of the General Tax Code. This text provides that, in the absence of agreement between the parents or judicial decision, the minor children are deemed to be at the equal expense of both parents, but this presumption may be dismissed if it is justified that one of them assumes the main responsibility of the children. In the present case, however, the terms of the parental agreement homologated by the Family Judge had the effect of overturning the presumption of equal division between the parents and placing the children solely on the father's side. The State has thus made it clear that it is not possible to exclude said terms by showing proof of a different actual distribution of the children's burden.

It should be noted that it is not possible to include in the agreement the distribution of family quotient shares insofar as the tax administration is not bound by this clause, as it operates its own classification of the distribution of the children’s quotient shares with regards to the elements of the convention and the tax law.