Procedure for collecting alimony in Ukraine

How to cancel the court order, according to which the recovery of alimony was awarded?

It is difficult in judicial practice to appeal against such a court order.

According to Part 3 of Art. 167 of the Code of Civil Procedure of Ukraine, the court order is not subject to appeal on appeal, but it can be canceled in the manner prescribed by this chapter.

In turn, in accordance with Part 1 of Art. 170 of the Code of Civil Procedure of Ukraine, the debtor has the right, within fifteen days from the date of delivery of a copy of the court order and the documents attached thereto, to submit an application for its cancellation to the court that issued it, except for the issuance of a court order in accordance with paragraphs 4, 5 of part one of Article 161 of this code.

According to part 7, 8 part 170 CK of Ukraine, in the event of a court order in accordance with paragraph 4 of part one of Article 161 of this Code, the debtor has the right to apply to the court with a claim to reduce the amount of alimony.

Consequently, the current legislation does not provide for the appeal of court orders on appeal, nor does it provide for the possibility of debtors submitting applications for their revision (in cases of alimony).

But if the debtor disagrees with the court order for the recovery of alimony, there are two possible options for changing their size: re-consideration of the court order on newly discovered circumstances and going to court with a claim to reduce the amount of alimony.

We draw your attention to the fact that it is possible to reduce the amount of alimony if an order is issued to collect alimony in a share of the alimony payer’s earnings.

In turn, the alimony payer does not have the right to raise the issue of reducing the amount of alimony determined in accordance with paragraph 5 of Part I of Art. 161 Code of Civil Procedure of Ukraine in the amount of 50 percent of the minimum subsistence level for a child of the appropriate age, which is explained by the fact that in accordance with Part 2 of Art. 182 of the SK of Ukraine, this amount is the minimum guaranteed amount of alimony.

During the order proceedings, the debtor is deprived of the opportunity to present his arguments (for example, about the presence of a second child, the child’s living with him, etc.).

Can such circumstances be considered newly discovered for the court, which is the basis for revising the court order?

In the event that a court order is issued in accordance with paragraphs 4 and 5 of part one of Article 161 of the Code of Civil Procedure of Ukraine, the court order may be revised due to newly discovered circumstances in the manner prescribed by Chapter 3 of Section V of this Code.

As for the consideration of an application for a reconsideration of the order due to newly discovered circumstances, in accordance with Part 2 of Art. 423 of the Civil Procedural Code of Ukraine, the grounds for reconsidering a court decision on newly discovered circumstances are:

• circumstances significant for the case that were not established by the court and were not and could not be known to the person who filed the application at the time of the consideration of the case;
• established by a verdict or resolution to close criminal proceedings and release a person from criminal liability, which entered into legal force, the fact of providing a knowingly false expert opinion, knowingly false testimony of a witness, knowingly mistranslation, falsity of written, material or electronic evidence that led to the adoption of illegal decisions in this matter;
• cancellation of the court decision, which became the basis for the adoption of the court decision, is subject to revision.

The conditions for determining the relevant circumstance newly discovered is that, firstly, it was at the time of the consideration of the case; secondly, this circumstance could not have been known to the applicant during the examination of the case; thirdly, it is included in the subject of proof in the case and can affect the conclusions of the court on the rights and obligations of the participants in the case.

In its jurisprudence, the Supreme Court points out that the following circumstances do not fall under the signs of newly revealed circumstances in the case of collecting alimony:

• the fact of joint residence of the debtor by the claimant and their children at the time of filing an application for the issuance of a court order for the recovery of alimony;
• the fact that the debtor is supporting the family, including the daughter;
• the fact that the parties are married;
• voluntary provision by the father of assistance and maintenance of children at his expense;
• obstruction by the wife in the performance of his parental duty; the presence of an unresolved dispute between the parties at the place of residence of children and the participation of parents in their upbringing.

Decision of the Supreme Court of 18.12.2018 case No. 264/1739/18 (http://www.reyestr.court.gov.ua/Review/78750476), decision of the Supreme Court of 19.11.2018 case No. 359/3012/18 (http://www.reyestr.court.gov.ua/Review/78011318).

In this case, the alimony payer should raise the issue of reducing the amount (termination of collection) of alimony and, in some cases, on the return of unjustifiably collected funds (by analogy with part 2 of article 82 of the IC of Ukraine).

In general, the position of the legislator on limiting the payer of alimony in the possibility of appealing a court order for the recovery of alimony corresponds to the purpose of the adopted law – to protect the interests of the child and to prevent lengthy litigation to recover alimony in the minimum amount.

At the same time, in practice, such an approach can create certain difficulties for the alimony payer.

The first of them is the specified case when the child actually lives with the wrong parent who applied for the recovery of alimony and who has no grounds for filing such an application.

Moreover, a situation is possible when, having the right to an alternative jurisdiction, one of the parents will collect alimony on two orders.

In such situations, the alimony payer will be forced to raise the issue of stopping the recovery of alimony and recovering the funds received unjustifiably.

How are cases in cases involving claims for the recovery of alimony considered if the location of the defendant is unknown?

• Part 11 of Art. 128 Code of Civil Procedure – the Defendant, a third party, a witness, a registered place of residence (stay) whose location or place of work is unknown, as well as an interested person in cases of issuing a restraining order, are summoned to court through an announcement on the official website of the judicial authority of Ukraine;
• Art. 132 Code of Civil Procedure – If the location of the defendant in cases for claims for the recovery of alimony or for compensation for harm caused by injury, other damage to health or death of an individual is unknown, the court declares him wanted by a ruling.

In this case, Art. 132 of the Code of Civil Procedure of Ukraine is a special rule in cases of the recovery of alimony.

Thus, in cases of the recovery of alimony, in case of failure to appear at the hearing of the defendant, whose location is unknown, the court must declare him on the wanted list.

How is the price of a claim in disputes for the recovery of alimony determined?

According to clause 2.3 of part 1 of Art. 176 of the Civil Procedure Code of Ukraine, the price of the claim is determined for claims for the recovery of alimony – the totality of all payments, but not more than six months.

Pay attention to the fact that in the case of collecting alimony, the court decides the property claim.

Therefore, depending on the nature of the claims presented (collection of alimony, an increase in the amount of alimony, etc.), the court must determine the price of such a claim (based on the essence of the claim made for a period of 6 months), on the basis of which to decide on the distribution of court costs.

For example, in the case of increasing the amount of alimony from UAH 3000 to UAH 5000, the price of the claim should be determined using the following formula: (5000-3000) * 6 = UAH 12000.

Is the debtor exempted from paying court fees in case of filing a claim for changing the method of collecting alimony, reducing the amount of alimony?

In accordance with paragraph 3 of Part 1 of Art. 5 of the Law of Ukraine “On Court Fee” from the payment of court fees when considering a case in all courts of law, plaintiffs are exempted – in cases of collecting alimony, increasing its amount, paying additional costs for a child, collecting a penalty (penalty) for late payment of alimony, indexing alimony or changing the method of collecting them, as well as applicants when submitting an application for the issuance of a court order for the recovery of alimony.

According to the norms of the current IC, the issues of changing the method of collecting alimony are the exclusive right of their recipient, and therefore the corresponding benefits in paying court fees apply only to this person.

In addition, the norm of paragraph 3 h. 1 of Art. 5 of the Law of Ukraine “On court fee” concerns exclusively the increase in the amount of alimony.

A debtor who applies for a reduction in the amount of alimony is not exempt from paying court fees.

Does the court have the right to independently determine the method of collecting alimony?

The new edition of the IC of Ukraine clearly indicates that the choice of the method for collecting alimony belongs to the parents or other legal representatives, and not the court (part 3 of article 181 of the IC).

Consequently, an independent decision by the court of the issue of changing the method of collecting alimony for a child is a violation of the principle of dispositiveness.

How should the court determine the financial status of the alimony payer?

In the new edition of the IC of Ukraine, the list of circumstances that are taken into account by the court when determining the amount of alimony has been supplemented with clauses 3-1, 3-2.

So, clause 3-1 obliges the court to establish that the alimony payer has ownership, possession and / or use rights for the alimony payer of property and property rights, including movable and immovable property, cash, exclusive rights to the results of intellectual activity, corporate rights …

Clause 3-2 obliges the court to establish the expenses of the alimony payer brought by the alimony recoverer, including for the acquisition of immovable or movable property, the amount of which exceeds ten times the subsistence level for an able-bodied person, unless the source of the funds is proven by the alimony payer.

This norm corresponds to Part 3 of Art. 182 of the SK of Ukraine, which provides that the court is not limited to the amount of earnings (income) of the alimony payer if it is established that he has expenses in excess of his earnings (income), and in respect of which such a payer of alimony has not proven the source of the funds for their payment.

An analysis of these provisions of the law gives grounds for such conclusions.

In the previous edition of the IC rule, the court was sent to assess the property status of the alimony payer for “dynamic” indicators – his real income.

The new edition of the SK obliges the court to assess not only the real, but also the “hidden” income of the alimony payer by calculating expenses in excess of his earnings (income), and in respect of which the source of the funds for their payment has not been proven by such an alimony payer.

The amount of real and “hidden” income should become the basis for calculating alimony.

In addition, the legislator directs the court to assess not only the “dynamic”, but also the “static” indicators of the alimony payer – whether he has property.

To do this, the court must assess the property status of the alimony payer in two aspects:

• determine the amount of the property of the alimony payer;
• determine the amount of “potential” income from the use of this property.

So, the financial status of the alimony payer should be assessed in the context of:

• real income;
• hidden income that was spent on the acquisition of property;
• potential income that can be obtained from the use of the property.

Who is the owner of the alimony that is assigned in favor of a minor child?

In accordance with the Law of Ukraine No. 2037-UIN dated 05/17/2017, the approach to determining the owner of alimony has been changed.

After the entry into force of the Law, alimony is the property of the child.

According to Part 2 of Art. 179 SK alimony is paid in the name of one of the parents, however, in case of misappropriation of alimony, the payer has the right to go to court with a claim to reduce the amount of alimony or to make part of the alimony to the child’s personal account at the branch of the State Savings Bank of Ukraine (part 2 of article 186 SK).

In addition, the new version of Article 179 of the IC regulates the issue of the use of funds by a minor child (according to Article 32 of the Civil Code of Ukraine), at the same time, the issue of the use of funds by a minor in accordance with Art. 31 of the Civil Code of Ukraine, which, in our opinion, is a gap.

How is it necessary to determine the alimony, which is assigned in a share of the income of the alimony payer, for two (or more) children?

The legislator obliges to determine alimony for two or more children as the only share of earnings until the older child reaches the age of majority.

In judicial practice, there are cases when, in violation of the specified requirements of the law, the court collects alimony in a share for each child separately (for example, 1/4 for each child).

According to Part 3 of Art. 183 SK upon reaching the age of majority of the older child, alimony is collected minus an equal share of such a child (1/3 – 1/6). A parent who wants to increase the proportion of alimony for a child who has not reached the age of majority, for example, in 1/4, must go to court with a corresponding claim.

The position of the Armed Forces of Ukraine on this matter is set out in the decision of 10/19/2016 in case No. 6-1798ts16 (http://www.reyestr.court.gov.ua/Review/62323983).

Do you need to go to court to increase the amount of alimony in case of an increase in their minimum amount?

Changes in legislation in terms of determining the minimum amount of alimony per child is not a basis for revising previous court decisions on their recovery (paragraph 17 of the Resolution of the Plenum of the Supreme Court of Ukraine No. 3 dated May 15, 2006 “On the application of certain norms of the Family Code of Ukraine by courts when considering cases on paternity, maternity and alimony collection ”(https://zakon.rada.gov.ua/laws/show/v0003700-06).

A similar approach was applied in the decision of the Supreme Court on case No. 536/1557/17 dated 04.07.2018 (http://reyestr.court.gov.ua/Review/75781770).

How to return the alimony paid by the court if the next court found that the payer of the alimony is not the child’s own father?

In paragraph 14 of the Resolution of the Plenum of the Supreme Court of Ukraine dated May 15, 2006 No. 3 (https://zakon.rada.gov.ua/laws/show/v0003700-06/print) “On the application of certain norms of the Family Code of Ukraine by the courts” explain, that in accordance with Art. 140 IC of Ukraine, the recovery by a court decision from a person recorded by the father or mother of child support is not an obstacle to going to court with a claim to exclude information about them as a father or mother from the record of the birth of this child.

Satisfaction of these requirements by the court may be the basis for reconsideration of the decision on the recovery of alimony in connection with newly discovered circumstances (clause 1 of part 2 of article 361 of the Code of Civil Procedure of Ukraine).

This position is set out in the decision of the Supreme Court of Ukraine dated October 21, 2015 in case No. 6-32012sk 15 (http://revestr.court.gov.ua/Review/52807571).

According to Part 3 of Art. 444 of the Code of Civil Procedure, the court decides the issue of turning the execution, if, based on the results of the review of the court decision on newly discovered or exceptional circumstances, it:

• terminates the proceedings on the case;
• leaves the claim without consideration;
• rejects the claim in full;
• satisfies the claim in a smaller amount.

At the same time, according to Part 2 of Art. 445 of the Code of Civil Procedure of Ukraine in cases of the recovery of alimony, the reversal of execution is not allowed regardless of the order in which the decision was made, except for cases when the decision was based on forged documents or on knowingly false information of the plaintiff.

Thus, in the absence of information that at the time of the consideration of the case for the recovery of alimony, the mother knew that the defendant was not the child’s father, return the paid alimony on the basis of Art. 444, 445 Code of Civil Procedure of Ukraine is not possible.

In this case, it is advisable to raise the question of the return of unjustified funds received by analogy with Part 2 of Art. 82 SK of Ukraine.

Useful site materials divorce.com.ua:

1. Recovery of alimony for an adult in Ukraine
2. Recovery of alimony for parents and wife in Ukraine
3. Method of appointment and arrears of alimony in Ukraine
4. Alimony in firm cash in Ukraine
5. Procedure for collecting alimony in Ukraine
6. Application for the recovery of child support in Ukraine
7. Reducing and increasing the amount of child support in Ukraine