Challenges for family solidarity in private and public financial care

Against the background of an aging population and declining welfare state, citizens in many European countries are faced with a shifting balance between private and public support for their maintenance. This setting invites scrutiny of potential imbalances that arise between relatives who – according to private law – are required to take (financial) care of each other, while public law provisions are applied on a different basis.
In the Netherlands, like in most jurisdictions, every adult is, in principle, responsible for his or her own maintenance. Here the question rises, who is (financially) responsible if someone is not able to provide for him of herself? Which family members have a responsibility towards other family members and to what extent do family relationships play a role with regard to state support? In other words, how do family support and state support interact?
Our research shows inconsistency between Dutch private and public law with regard to (financial and care) responsibilities between family members. This inconsistency will be illustrated by three examples. First, when determining access to state support as well as the amount of support, the degree of kinship (verwantschap) plays a crucial role. However, the degree of kinship between family members as recognised in public law is not always recognised in civil law. Second, the scope of ‘family solidarity’ seems to be broader in civil law than in public law with regard to the recovering of maintenance obligations concerning social assistance benefits. Finally, in contrast to the first and second example, Dutch law on leave (which ensures care in natura) seems to provide for a broader definition of ‘family solidarity’ than Dutch civil law does. Under public law, employees may request for a leave in order to care for certain family members, while in civil law care obligations in natura exist only towards relatives in the first degree.
This research not only discusses the similarities and differences in private and public law concerning (financial) responsibilities between family members, but will also shed light on possible consequences of the inconsistent legislation, and formulate recommendations for improving the inconsistencies.