On 8 July 2017, Law of Ukraine "On Amendments to the Certain Legislative Acts of Ukraine on Increasing Protection of the Child's Right to Proper Maintenance by Improving the Alimony Recovery Procedure" dated 17 May 2017 No. 2037-VIII (the "Law") became effective.
The Law is aimed at eliminating gaps and conflicts in the legislative regulation of the procedure for the recovery of alimony and additional child care expenses in order to minimize payer's possibilities of evading from child's maintenance obligation. The changes, inter alia, concern the following:The legal status of alimony is now changed: the alimony is recognized as child's property. A minor has a right to receive and command the alimony at his/her discretion. The minimum alimony is increased from 30 to 50 percent of the subsistence minimum for a child of the corresponding age. The evasion of child maintenance is added to the list of circumstances giving the court the right to waive the principle of equality of spouses' shares while deciding on the partition of marital property. The person seeking the recovery of alimony is granted an exclusive right to choose and initiate a subsequent changing through the court of the method of such recovery (based on the established share of payer's income or the fixed amount of money). The payer of the alimony cannot choose the method of the alimony recovery; however, he/she may file a request with the court for decreasing the alimony. The list of circumstances influencing the determination of the amount of alimony was extended. In particular, the court shall consider payer's movable and immovable property, his/her monetary funds and expenses exceeding the ten-fold size of the subsistence minimum for the able-bodied person. The Law grants the parent or other legal representative of the child with whom he/she resides, a right to apply to the court using the writ proceedings in order to seek the recovery of alimony in the amount of one fourth – for one child, one third – for two children and half of the payer's income – for three or more children, but not more than ten subsistence minimums for a child of the corresponding age. New rules are introduced for determining the alimony arrears that are to be awarded as a share of payer's income. As a general rule, the alimony arrears are determined on the basis of actual income received by the payer during the recovery period, both in Ukraine and abroad. At the same time if (i) the alimony payer did not work at the time of incurring of debt, or (ii) he/she is a private entrepreneur under a simplified tax system or (iii) he/she receives income in a state with which Ukraine doesn't have any legal assistance treaty, the alimony arrears are determined based on the average salary of an employee for a given region. The Law forbids suspending the alimony recovery proceeding on the basis of existence of a paternity (maternity) lawsuit or a child's residence place determination dispute or a dispute regarding participation in the upbringing and communication with the child of one of the parents or relatives. The responsibility for delay in payment of additional child care expenses is introduced. The Law provides for that at the request of the recipient, the payer is obliged to pay the amount of the debt adjusted for inflation for the entire period of delay, as well as three percent per annum of the overdue debt amount. The Law sets forth the procedure for calculating the alimony arrears. The recipient is entitled to collect a 1% penalty of the amount of unpaid alimony per each day of delay until the payment is made in full or the court decides the penalty has to be recovered, but the penalty amount cannot be more than 100 % of the debt. The Law provides for an alternative jurisdiction in disputes over the payment of additional child care expenses or/and indexation of alimony or/and changing the recovery method. The person seeking the recovery has the right to file a claim either in his/her place of residence or in the defendant's place of residence. From now the plaintiffs are exempt from payment of the court fee for filing claims for: the recovery of additional child care expenses, recovery of penalty for the delay in alimony payment, recovery of alimony indexation sum, or changing the recovery method.
For further information please contact
Asters' managing partner Oleksiy Didkovskiy and associate Olga Lepikhina.