Alimony-2018: Changes in the legislation
Oleksandr Dovbysh, lawyer at the Vinnitsa Office of the Legal Development Network at the non-profit organization “Podillya Center for Human Rights”, prepared a consultation on the changes in the legislation concerning child support payments. In particular, it refers to the restrictions for persons who owe the alimony payments, changes in the minimum amount of alimony and the procedure for organizing community work for those in debt. An important addition to the consultation is an example of a decision* on the public works for the debtor, issued by one of the city councils of Vinnytsia.
The size of alimony
Given the latest changes, the minimum alimony has been increased. The court can not determine the amount of alimony for a child less than 50% of the subsistence minimum for a child of a certain age (before it was 30%).
In 2018, for a child under 6 years of age, the minimum alimony will be 746 UAH / month, for a child 6 years old – 930 UAH / month.
When appointing the alimony, the court takes into account the sources of income, movable and immovable property of the payer of alimony, the payee and the child him-/herself.
When determining the amount of the alimony, the court takes into account the expenses of the alimony payer, for which the payer has not proven the source of the origin of these funds. So, if the payer is officially not employed, he does not have an “official” income, but, for example, he buys a car, then such expenses may be taken into account by the court when determining the amount of the alimony. Such expenses are taken into account by the court only if the payer of alimony can not reasonably prove the source of the funds.
Simplified review procedure
The new addition to the family and procedural legislation is the expansion of the possibility to apply a simplified procedure to obtaining a court decision to appoint alimony.
Thus, the collection of alimony can be carried out in the enforcement proceedings. In particular, it is determined that one of the parents with whom the child lives has the right to apply to the court with a claim for the court to appoint alimony.
The simplified procedure is much easier and takes much less time in comparison with the standard appeal to a court with a lawsuit. Thus, after the court decides to start the enforcement procedure, the court order is issued within three days. The court order is issued without presence of the applicant the debtor and other persons, as well as without a court session.
In the enforcement proceedings, the alimony can be set at a rate of 1/4 income per child, 1/3 of income – for two children, 1/2 – for three or more children. In any case, the amount of alimony charged in the enforcement proceedings is limited to 10 subsistence minimum per child of the corresponding age for each child.
Change the amount of alimony
According to the Family Code of Ukraine, the amount of alimony, determined by court decision or by agreement between parents, may be amended.
The reasons for changing the amount of alimony are the following:
- Change in the economicconditions of the payer or recipient of alimony (for example, change of a job for a better paid one, or vice versa – dismissal from work, loss of a stable source of income).
- Change in the maritalstatus of the payer or the recipient of alimony (for example, second marriage, the birth of a child in the new marriage).
- Other cases definedby the Family Code of Ukraine.
Therefore, the decision of the Verkhovna Rada of Ukraine to introduce the latest amendments to the legislation in relation to the establishment of a new minimum level of alimony should be considered the case that gives the ground to appeal to the court to change their amount.
Both the payer and the recipient of the alimony can initiate the change in the amount of the alimony.
Division of common property in case of non-supporting a child
For the first time in Ukrainian legislation a mechanism has been introduced that made it possible to change the presumption of equality of shares in common property in case when one of the spouses doesn’t support the children.
When deciding on the division of property between spouses, the court has the right to reduce the share of the jointly owned property of the spouse who has been avoiding the obligation to support their children.
In other words, with the help of the redistribution of shares between spouses in favour of the parent who independently provides for the child, the legislation allows to provide additional material compensation to such person.
Changes in liability of debtors for non-payment of alimony
In the event of non-payment of alimony for the maintenance of a child, one of the spouses, parents or other family members, which resulted in debt, the total amount of which exceeds the amount of the corresponding payments for six months from the date of submission of the enforcement document to be carried out, the state executive service body has the right to:
1) set up a report on the commission of an administrative offence by the debtor and send it to the local court of the state executive service.
The Code on Administrative Offences was supplemented with a new type of administrative sanction – public service works (Article 31-1), which, unlike community works, are paid and allow the debtor to gradually repay the debts by his work.
2) issue a certificate within ten days upon request of the collector confirming the debt. The certificate is valid for one month.
One of the parents with whom the child lives under the court’s decision (most often, taking into account the case-law, it is the mother), can use the certificate issued by the executive service to take unilateral decisions on the travelling abroad for the purpose of medical treatment, education or leisure.
3) take motivated decisions:
3.1) on the establishment of a temporary limitation of the debtor’s right to travel outside Ukraine;
The decision to establish a temporary restriction of the debtor’s right to travel outside Ukraine is sent directly to the Administration of the State Border Guard Service of Ukraine and does not require any appeals to the court. The said resolution in accordance with clause 8 part 1 of Art. 19 and clause 5 part 1 of Art. 6 is a temporary restriction on the right of departure from Ukraine.
3.2) on the establishment of a temporary restriction of the debtor in the right to drive vehicles, except when such a restriction deprives the debtor of the main legitimate source of means of subsistence or it is necessary in connection with the disability or caring for persons with disabilities or it is necessary for the debtor’s military service, carrying out a service in the ATO, or there is a deferment or deferral of payment of arrears for alimony;
3.3) on the establishment of a temporary limitation of the debtor’s right to use firearms for hunting, pneumatic weapons etc;
3.4) on the establishment of a temporary restriction of the debtor’s right to hunt.
Public service work of the alimony debtor
In accordance with the novelties of the family law, new ways to call the debtor to account have been established. Those who have debts of alimony payments in the amount exceeding that what should have been paid in 6 months can be assigned “public service works” (Article 31-1 Code of Ukraine on Administrative Offenses)
So debtors are assigned to public service works lasting from 120 to 240 hours (Article 183-1 Code of Ukraine on Administrative Offenses).
At the same time the duration of such works should not exceed 8 hours, and for minors – 2 hours a day. According to p.31-1 Code of Ukraine on Administrative Offenses, public service works are not assigned to persons with disability of the 1st or 2nd group, pregnant women and men over 60 years old, women over 55 years of age.
Unlike community work, public service works are aimed to become a payable administrative penalty. The funds received by the debtor for the completion of such works will be directed to the repayment of the alimony debt (st.325-1 Code of Ukraine on Administrative Offenses).
If the debtor avoids carrying out public service works, their established term may be replaced by an administrative arrest calculated according to the formula “one day of arrest equals 15 hours of public service works” but such arrest can not exceed 15 days.
P.S. Offices of the Legal Development Network are created and operate with the support of the program “Human Rights and Justice” initiative of the International Renaissance Foundation.
The views reflected in this material belong to its authors and may not coincide with the opinion of the International Renaissance Foundation.
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