The fact that there really is a big problem with non-payment of alimony in Ukraine is confirmed by official figures. So, according to the Ministry of Social Policy, last year in Ukraine, more than 500,000 executive proceedings for non-payment of alimony were opened. The amount of funds that children received is 2.4 billion hryvnia.
February 6, 2018 The Law of Ukraine “On Amending Certain Legislative Acts of Ukraine on Strengthening the Protection of the Right of the Child to Proper Maintenance by Improving the Procedure for Forced Recovery of Arrears in Paying Alimony” came into force. It should be noted that increased liability is also provided for non-payment of alimony for the maintenance of one of the spouses, parents or other family members.
The law amended the Code of Ukraine on Administrative Offenses, the Family Code of Ukraine, the Civil Procedure Code of Ukraine, the Laws of Ukraine “On Road Traffic”, “On the Procedure for Departure from Ukraine and Entry into Ukraine of Ukrainian Citizens”, “On the State Border Service of Ukraine” On judicial collection “,” On the National Police “,” On Enforcement Proceedings “and an improved procedure for the collection of alimony.
The law provides for new mechanisms for enforcement of decisions against a debtor who does not pay child support for more than six months. Non-payment of alimony, led to the emergence of debt more than six months from the date of presentation of the enforcement document to enforceability, entails the imposition of an administrative penalty in the form of performing public works for a period of 120 to 240 hours. In the presence of such debt, the state executor draws up a record of the administrative offense committed by the debtor provided for in Art. 1831 of the Code of Ukraine on Administrative Offenses, and sends it for consideration to the court at the location of the body of the state executive service.
The amendments provide for the right of the parent with whom the child lives with the decision of the court to decide independently the issue of the temporary departure of the child from Ukraine for the purpose of treatment, the education of the child abroad, rest – in the presence of a certificate issued by the body of the state executive service, payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for six months. Such certificate is issued by the body of the state executive service at the demand of the collector within ten days and is valid for one month from the date of its issue.
In other words, if the child’s father has been provided with alimony, and he does not pay them for more than 6 months, the mother can get a certificate from the executive service, which will be the basis for traveling with a child who has not reached the age of 16 abroad without the consent of the father. The corresponding basis for crossing the border was reflected in paragraph 4 of the Resolution of the Cabinet of Ministers of Ukraine “On the Approval of the Rules for the Crossing of the State Border by Citizens of Ukraine”. So the child’s departure abroad without a notarized second parent’s consent is possible if there is a certificate of the ICE on the existence of an arrears in the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for six months.
Unfortunately, such a certificate will be valid for a month from the date it was issued, that is, for every planned trip for rest or recovery, you will have to receive a new one.
If there is an arrears in the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for six months, the state executor shall issue motivated decisions on:
Violation of the debtor’s restriction in the right to drive means the imposition of an administrative penalty in the form of deprivation of the right to drive vehicles for a period of three to six months.
However, lawyers argue that the temporary restriction of the debtor in the right to use the vehicle until the payment of alimony in full is repaid is a direct violation of Art. 41 of the Constitution, which guarantees the right of everyone to own, use and dispose of his property. That is, if a citizen owns a car, the Constitution guarantees his right to dispose of and use it. And this law limits this right. Thus, in this case the norm of the Constitution is violated. In addition, the debtor, in respect of whom a temporary restriction in the right to drive a vehicle, may appeal the decision to the court, for example, from the grounds that it is his job to use the car for permanent business trips to other cities, and consequently such restriction will lead to dismissal, and as a consequence of the main legal source of livelihood. It is also not a difficult undertaking for the debtor to install a payment plan for alimony payments, which in turn may be grounds for repealing the restriction order in the right to use the vehicle. Other reservations when the temporary limitation of the debtor in the right to drive means can not be applied is the use of the vehicle by the debtor in connection with a disability or the presence on the maintenance of the debtor of a person with a disability of Groups I, II; the passing by the debtor of urgent military service, military service on conscription of officers, military service on call for mobilization, for a special period.
It should be noted that the restrictions will not always apply, not for life to one of the parents, but only for the period until the parent who has the debt will not fully pay this debt to his child.
The aforementioned legal norms do not provide for all cases. As you know, there are exceptions from each rule and situations are quite different. Of course, in order to obtain qualified legal assistance, one should consult a lawyer who can advise or even try to reduce the amount of alimony or bring the debtor to justice.
In accordance with Art. 164 of the Criminal Code of Ukraine established criminal liability for malicious evasion of payment of funds for maintenance of children (alimony) established by the court decision, as well as malicious evasion of parents from the maintenance of minors or disabled children who are dependent on them. The sanction of the article provides for public works for a period of 80 to 120 hours or arrest for up to three months, or restriction of freedom for up to two years.
In this case, malicious evasion from payment of alimony for children or disabled parents should be understood as any actions of the debtor aimed at non-fulfillment of the court decision (concealment of income, change of residence or place of work without notification to the state executor, private performer, etc.) that led to the emergence of arrears in the payment of such funds in an amount that collectively amounts to the payment for three months of the relevant payments.
Along with criminal liability, the Code of Ukraine on Administrative Offenses is supplemented by Article 1831. According to the qualifications, the composition administrative offense is the failure to pay maintenance for the child, one of the spouses, parents or other family members, which led to the emergence of debt, the aggregate amount of which exceeds the amount of the relevant payments for six months from the day the enforcement document was submitted for enforcement.
Thus, the criterion for dividing into administrative and criminal responsibility is in the first case the existence of the fact of the debt for six months, and in the second case, the deliberate actions of the debtor to conceal income, change the place of residence or place of work without notifying the state executor. We are convinced that such circumstances of the debtor’s life as a lack of official income and not registering as a person looking for work can not be evidence of malicious evasion. At the same time, not notifying the state executor of a change in the place of employment, not notifying the new employer about the need to withhold alimony, not arriving at the officially received call of the performer and changing the place of residence without notifying the performer, may indicate the presence of a crime.
It is worth noting that the Ministry of Justice has already launched a public register of malicious non-payers of alimony (https://erb.minjust.gov.ua/#/search-debtors). The registry does not allow public disclosure of personal data of people, and the search term is the last name, first name, patronymic and date of birth. Information about a person entered in the register is a public “board of shame” of malicious defaulters of alimony and debtors for other obligations. In addition to the condemnation by the public, information entered into a single register of debtors may be a bar to notarization of the property of such a debtor. So a notary who, in order to make a transaction on alienation in any way, applied to the debtor on the day of the application to the register, in the absence of information on arrest by the executor on the funds or property of the debtor must refuse to do the registration actions and on the day of the debtor’s request to notify the body specified in the register of the state executive service or the private executor of the property regarding the alienation of which the debtor applied. The Contractor shall, not later than the next business day from the day of receipt of the notification, be obliged to make a decision on attachment to the property and to submit the relevant resolution of the notary, to the bodies that are registering the property, not later than the next working day from the day of their issue. A conclusion regarding the property of the debtor within the period specified in paragraph 3 of this article that led to the impossibility of satisfying the claimant’s claim due to such property is the basis for the recognition of such a transaction invalid.
According to the law on amendments, the minimum amount of child support per child has increased from 30% to 50% of the subsistence minimum for a child of the corresponding age. Recall, from January 1, 2018, the cost of living is: for children under 6 years – 1492 hryvnia, for children from 6 to 18 years – 1860 hryvnia. Minor increases will take place from July 1 and December, respectively.
The method of collecting alimony is determined by the parent with whom the child lives.
The document also notes that alimony is the property of the child, and the parent, in whose name they are paid, disposes of child support exclusively for the special purpose in the interests of the child. In case of their misuse, we advise you to contact the Service for Children with complaints and relevant evidence.
In the end, do not forget about such a measure of civil liability as a penalty for delay in the payment of alimony. In accordance with art. 196 of the Family Code of Ukraine established that the right of the recipient of alimony to claim 1% of the penalty for each day of the amount of debt on alimony. However, in any case, the aggregate such compensation should not exceed the size of the debt itself. Pay attention to the period of accrual from the day of delay until the day of repayment, that is, the general rule of civil law about six months of application does not work.
To date, such a law is an effective mechanism for resolving the issue of payment of alimony. Thus, for the month the representatives of the Executive Service of the Ministry of Justice have issued almost 75 thousand decisions on the restriction of debtors in the right to travel outside Ukraine, 72 thousand decrees on the prohibition of driving, more than 70 thousand prohibitions to use weapons and hunt.