How to force the defaulter to pay child support: 7 new tools were analyzed by the attorney of Skliarenko, Sydorenko & Partners

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How to force the defaulter to pay child support: 7 new tools were analyzed by the attorney of Skliarenko, Sydorenko & Partners

In the past few years, Ukraine has actively engaged in alimony non-payers: fines, ban on traveling abroad, deprivation of the right to drive a car, forced social work.

How effective were the state-introduced mechanisms of influence on negligent fathers, the publication Segodnya found out with Tetiana Borysenko, lawyer of Skliarenko, Sydorenko & Partners, attorneys at law.

The expert recalled three key legislative changes in this area:

- Law of May 17, 2017 No. 2037-VIII “On Amending Certain Legislative Acts of Ukraine Regarding the Protection of the Rights of the Child, Provided Proper Improvement of the Procedure for Sanctions is Ensured” (entry into force July 8, 2017);

- Law of December 7, 2017 No. 2234-VIII “On Amending Certain Legislative Acts of Ukraine Regarding Strengthening the Protection of the Right of the Child to Proper Maintenance by Improving the Procedure for Compulsory Collection of Alimony Debt” (entered into force on February 6, 2018);

- Law dated 03.07.2018 No. 2475-VIII “On Amending Certain Legislative Acts of Ukraine Regarding the Creation of Economic Prerequisites for Strengthening the Protection of the Right of the Child to Proper Maintenance” (entered into force on August 28, 2018).

T. Borysenko identifies 7 innovations that generally positively influenced the resolution of existing problems.

1. Changes were made to the Family Code of Ukraine, which stipulate that when determining the amount of alimony, the court takes into account the presence on the right of ownership, possession and / or use of the alimony payer's property and property rights, including movable and immovable property, exceptional funds rights to the results of intellectual activity, corporate rights, as well as the expenses of the alimony payer proved by the claimant, including the purchase of real estate or movable property, the amount of which exceeds ten times the subsistence level for the able-bodied person, if the payer of the alimony has not proven the source of the funds (Article 182 of the Family Code of Ukraine).  It is also important that, in accordance with part 3 of this article, the court is not limited to the amount of earnings (income) of the alimony payer in the event that it establishes the existence of expenses exceeding its earnings (income), and for which such source of alimony does not prove the source of origin funds for their payment.

These changes can be assessed positively, since the practice of hiding income in order to minimize the amount of alimony is quite common. However, the situation remained unresolved when the payer of alimony draws up his property to other persons, in particular to relatives. Therefore, in this part of the norms of family law to determine the amount of alimony should be improved.

2. There was also settled the question of responsibility for the delay in payment of additional expenses for the child due to the fault of the payer. Such payer is obliged at the request of the recipient of additional expenses to pay the amount of debt at additional costs, taking into account the established inflation index for the entire delay period, as well as three percent per annum of the overdue amount. And although judicial practice to recover interest per annum and inflation losses on the basis of Art. 196 of the Family Code, there are few, these changes are also constructive, since before they were adopted, the issue of liability for late payment of the said amounts was decided on the basis of the general rule of Art. 625 of the Civil Code of Ukraine, and the practice here was mixed.

3. The appearance of an opportunity to receive child support, by claimants, in a simplified manner, by applying to a court for issuing a court order to recover child support  in the amount of: for one child - one quarter, for two children - one third, for three or more children - half, the income of the payer of alimony, but not more than ten living wages per child, the corresponding age for each child, or in the amount of 50 percent of the living wage for a child of the corresponding age. The relevant changes were made to Art. Art. 183, 184 of the Family Code.

In addition, gaps existing in the current legislation were eliminated (exemption from the payment of court fees for applicants when applying for a judicial order to collect alimony).

4. Given the current judicial practice, restrictions on the rights turned out to be quite effective: driving a vehicle, traveling outside Ukraine, using firearms, pneumatic and cold steel, devices of domestic manufacture for shooting cartridges equipped with rubber or similar in their properties projectile shells of non-lethal action, in the right to hunt until repayment of arrears in the payment of alimony in full. Such restrictions can be applied by the state executor in the presence of debt for four or more months.

The restrictions imposed by state executives prompt alimony payers to take a more responsible attitude towards fulfilling their parental responsibilities for the maintenance of children. The situation was very unfair when the debtor, who's having a six-month debt, found the opportunity to go on vacation abroad.

On the other hand, one of the parents with whom the child lives (this fact should be confirmed by documents) is given the right to independently decide on the issue of temporarily leaving the child outside Ukraine for up to one month. Moreover, in the case of having debts of paying alimony now you can not ask for consent and to leave for a longer period.

With regard to driving, the specified changes to Art. 71 of the Law "On Enforcement Proceedings" are formulated quite successfully. In particular, the temporary restriction of the debtor in the right to drive vehicles cannot be applied if the establishment of such a restriction deprives the debtor of the main legal source of livelihood. Therefore, if the debtor’s main source of income does not directly depend on the right to use a car, he will use public transport or walk while he has debt.

5. Amendments to the Code of Ukraine on Administrative Offenses introduced the possibility of sending the debtor to community service, as well as the responsibility for evading their serving. These norms are aimed at those debtors in respect of whom other measures of influence turn out to be ineffective (who do not have a vehicle, do not go abroad and do not hunt, do not have work and, as a rule, do not want to look for it). For malicious evasion of socially useful work of the debtor expects criminal liability established by Art. 389-2 of the Criminal Code of Ukraine.

6. Filing claims for recognizing paternity, changing the child’s place of residence, about the participation of one of the parents or relatives in raising a child, communicating with the child has ceased to be the basis for the suspension of proceedings for the recovery of alimony. These changes were made to the Code of Civil Procedure. This helped to reduce the time for consideration of claims for the recovery of alimony, which is also a positive point.

7. And finally, it is worth noting the introduction of changes regarding special financial sanctions provided for in part 14 of the Law on Enforcement Proceedings, namely, in the amount of 20, 30 and 50 percent of the amount of debt that after collection is transferred to the collector. The additional financial burden undoubtedly contributes to a more conscientious fulfillment by parents of their obligations to pay child support.

As for the further improvement of legal regulation, T. Borysenko is convinced that it is necessary to solve the issue of collecting child support from income received by debtors outside Ukraine, and to expand the list of countries with which Ukraine has relevant international agreements on legal assistance.

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