Recovery of alimony for an adult in Ukraine

Recovery of alimony for an adult in Ukraine

What are the grounds for collecting alimony for an adult son and daughter?

The obligation of parents to support their adult daughter, son, who continue to study after reaching the age of majority (regardless of the form of education), arises with the obligatory combination of such legal facts:

  • the daughter or son reaches the age of over 18, but is less than 23 years old;
  • continuing their education;
  • the need in connection with this in material assistance;
  •  the ability of parents to provide such assistance.

According to Part 3 of Art. 199 SK the right to go to court with a claim for the recovery of alimony must be the adult daughter, the son who continues to study, and the parent with whom they live. In the event of a claim filed by one of the parents, the court may involve in the case (if, depending on its circumstances, it deems it necessary) an adult daughter, a son who continues to study and in whose favor alimony is levied (paragraph 20 of the Resolution of the Plenum of the Supreme Court of Ukraine dated 15.05.2006 No. 3 “On the application by courts of certain norms of the Family Code of Ukraine when considering cases concerning paternity, motherhood and the recovery of alimony” (https://zakon.rada.gov.ua/laws/show/v0003700-06/print))

Additional costs provided for by Art. 185 SK, for an adult son, daughter?

In cases where the recovery of alimony for an adult is a problem and the child needs material assistance in connection with education until he reaches twenty-three years of age, the rules of Article 185 of the IC of Ukraine do not apply, these legal relations are governed by Article 199 of this Code. This article provides for the recovery of child support for an adult.

Resolution of the Armed Forces of Ukraine dated February 24, 2016 on case No. 6-1296tss15 (http://reyestr.court.gov.ua/Review/56454666).

A similar approach for the collection of alimony for an adult should be applied to the costs associated with the treatment or injury of an adult son or daughter.
In this case, Art. 185 SK does not apply, however, the reimbursement of such costs in accordance with Art. 198 SK for the recovery of alimony for an adult.

Are alimony for an adult son or daughter subject to recovery from a parent deprived of parental rights?

To collect alimony for an adult in accordance with Part 2, 3, Art. 166 SK a person deprived of parental rights is not released from the obligation to support the child.
When the claim for the deprivation of parental rights is satisfied, the court simultaneously makes a decision on the recovery of alimony for the child. This article also deals with the recovery of child support for an adult.

The specified norm provides for the recovery of alimony specifically for the child, that is, for the child to reach the age of majority. In this case, the legislator provides for a “duty to support the child” and refers to Chapter 15 of the Criminal Code, while there is no reason to extend its effect to Chapter 16 of the Criminal Code, which provides for “the obligation to support an adult daughter, son”.

This is also confirmed by the fact that the simultaneous consideration of the issue of deprivation of parental rights (a person may be deprived of parental rights only in relation to a child under eighteen years of age) and the recovery of alimony for an adult child (a person who has reached 18 years of age) is impossible.

Is it necessary, when resolving a dispute on the recovery of alimony for an adult son, daughter, to indicate in the operative part of the decision the period of recovery “but not more than until reaching 23 years of age”?

In their decisions, the courts, determining the period for collecting alimony, mainly use the following wording: “for the period of study, but no later than reaching 23 years of age.” And if the period of study is not in doubt, then the restrictions “until the age of 23” is debatable (the collection of alimony for an adult).
Opponents of this position point out that the operative part does not contain information about the date of graduation, and therefore it is impossible to establish which event will come earlier – the end of school or the 23rd birthday of the child.

Arguing their position regarding the application of the 23-year limitation, the courts refer to the fact that when collecting alimony for an adult, education may be completed later (academic leave (for health reasons, conscription for military service in case of loss of the right to a deferral from it, family circumstances and etc.)) or extended (continuation of studies in the magistracy), therefore, alimony is subject to collection during the period of study, but no more than until reaching 23 years of age.

In the decision of 02/08/2018 in case No. 205/1302/16-ts VS (http://reyestr.court.gov.ua/Review/72199190) stated the legal position, according to which alimony was recovered by the court precisely for the period of study, the duration of which may be changed (in particular, in the case of expulsion from the university or other grounds) and monitored within the framework of the enforcement procedure, and the period for collecting alimony established by the court for the 23rd birthday of the child is exclusive and aims to protect the rights of the defendant in the event that the child continues to study after reaching the specified age.

Thus, when collecting alimony for an adult, the aircraft is of the opinion that the period for collecting alimony should be determined before the 23rd birthday of the child.
At the same time, when collecting alimony for an adult, there can be no question of any kind of training, but only training in the same educational institution under the same conditions.
The collection of the intended alimony for an adult cannot continue if the child enters another educational institution, since in this case the initial data for calculating alimony (the cost of training, the possibility of obtaining a scholarship, dormitory, etc.) are automatically changed. This issue is subject to separate resolution in court.

The accompanying question of whether the alimony payer retains the obligation to pay alimony for the period during which he is temporarily studying (vacation, academic leave, etc.).
In the decision of 23.01.2019 in case No. 346/103/17 VS (http://reyestr.court.gov.ua/Review/79516702) noted that the legislator defined the obligation of parents to support adult children who continue to study, that is, for the entire period of study, which covers the period from entry to graduation or expulsion from training.

Thus, when collecting alimony for an adult, the conclusion of the court of first instance, with which the court of appeal agreed, to release the defendant from the obligation to pay alimony while the child is on vacation is such that it does not comply with the norms of substantive law.
Taking into account this position of the Armed Forces, vacations and academic leave do not stop the payment of alimony, since they do not mean the end of training, but only a break in training when collecting alimony for an adult.

However, the Ministry of Justice adheres to a different opinion in its explanations: “If a daughter or a son is studying full-time, alimony can be awarded to them monthly, but without taking into account the time of holidays” (http://old.minjust.gov.ua/29374).

Thus, when collecting alimony for an adult, it is possible to predict the presence of litigation with the GIS authorities on the execution of a court decision on the recovery of alimony for adults.

When collecting alimony on an adult during academic leave, alimony must not be paid. The condition for the appointment of alimony for an adult is a combination of such circumstances as the education of an adult and his need for material assistance, which is the subject of research in the court and which the court takes into account when determining the specific amount of alimony.
Granting an adult an academic leave significantly affects his need for material assistance (during this period, a person does not need to purchase textbooks, living in a hostel stops, and therefore its payment, the payment of a scholarship stops, etc.).

Consequently, the court decision on the appointment of such an adult alimony loses its relevance.

How to determine the possibility of parents to collect alimony for an adult son, daughter?

In the decision of the Supreme Court on case No. 766/47/16-c of February 28, 2018 (http://reyestr.court.gov.ua/Review/72938559), he determined the formula on the basis of which the court must establish “the parents have the opportunity to provide assistance “.

The calculation must be made by deducting from the average salary of the alimony payer his proven expenses and the amount of the living wage.

“The average salary of the defendant is UAH 5041 76 kopecks. The incurred expenses are UAH 2860 44 kopecks. The subsistence minimum for able-bodied persons has been set from January 1, 2016 at UAH 1378.

Thus, the Supreme Court concludes that PERSON 4 has the opportunity to pay alimony for his wife in the amount of 1/8 of all types of earnings; since after the payment of these expenses the defendant’s income remains above the subsistence level. ”

Who is the proper plaintiff in a dispute on the recovery of child support for an adult son or daughter?

According to Part 3 of Art. 199 SK the right to go to court with a claim for the recovery of alimony has the parent with whom the daughter, son lives, as well as the daughter, son themselves, who continue their education.

So, the proper plaintiff in this case is both an adult son, daughter, and one of the parents with whom he (she) lives.
The circumstance about the residence of an adult son, daughter and mother was disclosed in the Resolution of the Supreme Court of 11/21/2018 in case No. 583 / 664/17 (http://reyestr.court.gov.ua/Review/78110761).

“The arguments of the applicant that PERSON_4 has no right to file a claim, since their daughter lives separately from her parents, were rejected by the Supreme Court, since the courts of first and appeal instances established that the mother and daughter were registered at the same address, and the daughter’s residence at a different address due to full-time study at a higher educational institution and has a temporary character. “

Is the “minimum guaranteed amount of alimony” applied in disputes about the recovery of alimony for an adult son, daughter?

The category “minimum guaranteed amount of alimony” is provided for in Chapter 15 of the SK and refers to alimony for the maintenance of a child.This value is established by the legislator, based on the fact that the parents have an unconditional obligation to support the child until he reaches the age of majority.

In turn, upon reaching the age of majority, there is no unconditional obligation of parents to support their son or daughter.The latter must prove the existence of additional circumstances (for example, training), justify the required amount of material assistance.

When calculating, it can be established that their size is less than 1/4 of the subsistence minimum.

Thus, the extension of the category of “minimum guaranteed amount of alimony” to collect alimony for the maintenance of an adult son and daughter (Chapter 16) is groundless.
In addition, according to Part 2 of Art. 182 SK, the minimum guaranteed amount of alimony is 50 percent of the subsistence minimum for a child of the corresponding age.

According to Part 1 of Art. 6 SK the legal status of a child has a person until he reaches the age of majority.The law establishes subsistence minimum for children under 6 years old, from 6 to 18 years old and for able-bodied persons.

The law does not provide for a living wage for an adult daughter and son.

Thus, to dock Part 2 of Art. 182 SK to alimony for an adult daughter and son is physically impossible, since in this case it is impossible to calculate the amount of such a value.
What norm of the SK (Article 185 or Article 199) must be applied to reimburse the cost of training an adult son, daughter?

This issue was actually disclosed in the section “Additional costs under Art. 185 SK, for an adult child? “

In cases where a child needs material assistance in connection with education until he reaches twenty-three years of age, the rules of Article 185 of the IC of Ukraine do not apply, these legal relations are governed by Article 199 of this Code. Resolution of the Armed Forces of Ukraine dated February 24, 2016 in case No. 6-1296tss15 (http://reyestr.court.gov.ua/Review/56454666).

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
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