What responsibility awaits a person who does NOT pay child support

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A third of all proceedings that are considered in Ukrainian courts are claims for the recovery of alimony.

Failure to pay alimony is a sore point for a large number of Ukrainian families. If someone today thinks that in Ukraine this problem is invented or clearly exaggerated, then he is greatly mistaken. According to various estimates, about three million children currently live with only one parent, of whom more than half a million do not receive assistance.

At the same time, a third of all proceedings that are considered in Ukrainian courts are claims for the recovery of alimony. Therefore, we can say with confidence that we are not talking about internal family problems, but about a serious social problem from which children suffer most.

Child support is a form of support for a father or mother who lives separately from the child, paid in cash on a periodic basis. The legislation in force today notes that a child has the right to a standard of living sufficient for his physical, intellectual, moral, cultural, spiritual and social development.

According to Part 2 of Art. 51 of the Constitution of Ukraine, parents are obliged to support their children until they come of age. A similar provision is spelled out in Art. 180 of the Family Code of Ukraine. The rights and obligations of the mother, father and child are based on the child’s descent from them, regardless of whether they were married to each other. That is, the stay of the parents in marriage or its dissolution does not affect the obligation of the parents to support the child.

In turn, Articles 18, 27 of the UN Convention “On the Rights of the Child” of November 20, 1989, ratified by Ukraine, clearly states that the participating States recognize the right of every child to a standard of living necessary for the physical, mental, spiritual, moral and social development of the child and make every effort to ensure that the principle of common and equal responsibility of both parents for the upbringing and development of the child is recognized.

Child support may be paid at the initiative of the payer on the basis of his voluntary application, on the basis of an agreement concluded by the parents by mutual consent, or on the basis of a court decision on the claim of the recipient of the alimony.

It is worth noting that the amount of alimony depends on the cost of living, which increased on December 1, 2020. Next year, they will increase twice on July 1 and December 1, when the planned increase in the cost of living. In general, the amount of alimony for children is determined by a court decision, however there is a minimum guaranteed amount of material support for one child, which cannot be less than 50% of the subsistence minimum for a child of the corresponding age (paragraph 2 of part 2 of article 182 of the Family Code of Ukraine), then there is for children under 6 years old – UAH 960.50, and for children aged 6 to 18 – UAH 1,197.50.

At the same time, the minimum recommended amount of alimony for one child is the subsistence minimum for a child of the corresponding age and can be sentenced by the court if the payer’s earnings (income) are sufficient.

As practice shows, some parents conscientiously and voluntarily fulfill this obligation, while others, unfortunately, are forced. So, in most cases, one of the parents or other legal representatives of the child with whom the child lives are forced to go to court for enforced recovery of alimony.

Recently, the state has been trying to strengthen the protection of the rights of the child and is actively fighting against persistent non-payers of alimony by reforming family legislation. The last step was taken in this matter – strengthening of responsibility for non-fulfillment by parents of obligations to pay alimony and simplification of the procedure for bringing to justice those responsible. Today, a wide range of measures can be applied to non-paying parents, which, as practice shows, well remind of the presence of parental obligations. In particular, we are talking about both civil, administrative and criminal liability.

So, in accordance with Art. 196 of the Family Code, in the event of a debt due to the fault of a person obliged to pay alimony by a court decision or by agreement between the parents, the recipient of alimony has the right to recover a forfeit (penalty) in the amount of one percent of the amount of unpaid alimony for each day of delay from the date of delay in the payment of alimony to the day of their full repayment or until the day the court makes a decision to collect the penalty, but not more than 100 percent of the debt.

But the Code of Administrative Offenses provides for Art. 183-1, which provides for punishment in the form of performing socially useful work for a period of one hundred twenty to two hundred and forty hours for failure to pay alimony for the maintenance of a child, one of the spouses, parents or other family members, has led to a debt, the aggregate amount of which exceeds the amount of the corresponding payments six months from the date of presentation of the executive document to theobligatory execution.

In addition to this provision of Art. 183-2 of the same code already provide for liability for evading a person from serving an administrative penalty in the form of community service, punishable by administrative arrest for up to ten days.

A defaulter of alimony can also be prosecuted by the verdict of the appropriate court, but only for malicious evasion of payment (Article 164 of the Criminal Code of Ukraine), that is, for any actions aimed at non-compliance with a court decision (for example, hiding income or changing the place of residence or work), which led to the arrears in the payment of such funds in the amount of, cumulatively, the amount of payments for three months of the corresponding payments.

In addition to the indicated types of liability, one should also remember about the temporary restrictions applied to the person who was entered in the register of alimony debtors. Such a person will not be able to sell real estate or a share in a business, obtain a bank loan, or work in a civil service.

Such measures may also apply to restrictions on the right to travel abroad to use firearms, hunting, pneumatic and some other types of weapons; hunting, receiving subsidies and the like. The public resonance also has a great effect, since all counterparties of a defaulter have the opportunity to think before entering into personal or business relations with such a person.

Finally, it should be noted that the recipient of alimony is endowed with the current legislation of Ukraine with a wide arsenal of means and guarantees for the recovery of alimony, which only grows over time. In such realities, a correct understanding of the features of using the available opportunities is necessary, and the ability to choose the most optimal procedure for actions can be decisive for the real receipt of alimony and determining their amount. Therefore, obviously, it will be justified in such cases to involve a specialist (lawyer) with the necessary knowledge in the field of both substantive and procedural law.

Andriy Shevchuk, Ph.D., lawyer at the law firm “Revealing Information”

Chernivtsi, Nezalezhnosti avenue, 68-A, room 1, 58005, tel.: +38 068 836 53 30, e-mail: office@shvab.com.ua

m. Kiev, st. Degtyarevskaya, 25-A, building L, 04119, tel.: +38 (095) 868-35-90, e-mail: revealing@ukr.net