Liability for failure to pay child support is an issue that is important not only from a legal point of view, but also from a moral point of view. Every child has the right to adequate financial support from both parents, regardless of their personal relationship or life circumstances. Unfortunately, however, many debtors neglect their duty, which can have serious consequences for the child’s welfare. Within the Ukrainian legislation, there is a clear mechanism of responsibility for non-payment of alimony, including both administrative and criminal measures.
Lawyers from the “Repeshko and Partners” Bar Association comment on what consequences await those who ignore their duties, and how the state controls this process.
Family life usually starts off great – butterflies in the stomach, flowers, kisses, late-night walks, then a wedding, the birth of a baby…. But in the future, everyone has their own story, which happens in completely different ways.
An interesting case happened in our practice. At 8 o’clock in the morning, a client called us, who was interested in only one question – what, do I have to pay alimony now?! I was thinking when my wife will sue… Well, not only that, apparently such a global and urgent question could not possibly wait until ten o’clock in the market or until lunch, I also want to ask such a man – what if the child does not want to eat until the mother applies to the court for alimony? Will the illness wait until dad calculates the alimony…
As you know, according to Article 180 of the Family Code of Ukraine (SC of Ukraine), parents are obliged to maintain a child until he reaches the age of majority. The only case when parents are exempted from the obligation to maintain a child is provided for in Article 188 of the Civil Code of Ukraine, which states: “Parents may be exempted from the obligation to maintain a child if the child’s income far exceeds the income of each of them and fully provides for his needs.” Therefore, the duty to maintain a minor child rests on the parents automatically. If one of the parents evades such an obligation, a coercive mechanism is activated – an order for the collection of alimony or a writ of execution is obtained through the court based on the result of consideration of the claim for the collection of alimony.
But some citizens even after that continue to avoid paying alimony for various reasons. To a greater extent, this applies to men, but now there are many court decisions on determining the place of residence of the child with the father or on depriving the mother of parental rights, so not only the father, but also the mother of the child can be a debtor.
For non-payment of alimony, a person can be held to three types of liability:
- civil;
- administrative;
- criminal
It should be noted that the recipient of alimony does not need to choose which type of responsibility to bring the negligent payer to. It is possible and necessary to attract all types of responsibility at the same time!
Civil liability
According to the Civil Code of Ukraine, in the event of arrears arising due to the fault of a person who is obliged to pay alimony by a court decision or by agreement between the parents, the recipient of alimony has the right to collect a penalty (penalty) in the amount of one percent of the amount of unpaid alimony for each day of delay from from the day of the alimony payment delay to the day of their full repayment or to the day of the court’s decision on the collection of fines, but not more than 100 percent of the arrears. The amount of the penalty may be reduced by the court, taking into account the financial and family status of the alimony payer.
In the event of the application of the measures provided for in Part Fourteen of Article 71 of the Law of Ukraine “On Enforcement Proceedings” to a person who is obliged to pay alimony by a court decision, the maximum amount of the fine must be equal to the difference between the amount of the debt and the amount of the applied enforcement measures provided for in this article .
In case of delay in payment of additional expenses for the child due to the fault of the payer, he is obliged, at the request of the recipient of additional expenses, to pay the amount of debt for additional expenses, taking into account the established inflation index for the entire period of delay, as well as three percent per annum of the overdue amount. In addition, the payer of additional costs is considered to be in arrears if he has not fulfilled his obligation to pay additional costs within the period established by the court decision or by agreement between the parents, and in the absence of them or in the case of failure to establish such a period – after the expiration seven days after presentation of a corresponding claim by the recipient of additional expenses, who actually paid them.
Unfortunately, this type of responsibility does not arise automatically. In order to receive payments in connection with the debt, you need to apply to the court with an appropriate statement of claim. It should be noted that during the consideration of the case in all court instances, plaintiffs are exempted from paying a court fee in cases of penalty (penalties) for late payment of alimony or their indexation. At the same time, it is necessary to have a certificate from the relevant executive service on the amount of the debt and preferably a copy of the order or court decision on the collection of alimony. A certificate of alimony arrears is issued by a state executive service body, a private executor at the request of the debt collector within three working days. This, as they say, is a hryvnia punishment. Other types of responsibility are already stricter.
Administrative responsibility
The Code of Ukraine on Administrative Offenses contains Article 183-1, which states:
“Non-payment of alimony for child maintenance,…. that led to the emergence of debt, the total amount of which exceeds the amount of the corresponding payments for six months from the date of presentation of the executive document to enforcement, – entails the performance of socially useful works for a period of one hundred twenty to two hundred forty hours.
Failure to pay alimony for the maintenance of a child with a disability, a child suffering from severe perinatal damage to the nervous system, severe congenital malformations, a rare orphan disease, oncological, oncohematological diseases, cerebral palsy, severe mental disorders, type I diabetes (insulin-dependent), acute or chronic kidney diseases of the IV degree, or for the maintenance of a child who received serious injuries, needs an organ transplant, needs palliative care, which led to the emergence of debt, the total amount of which exceeds the sum of the corresponding payments for three months from the date of presentation of the executive document to the compulsory performance – entails the performance of socially useful works for a period of one hundred and twenty to two hundred and forty hours.
Repeated commission of the prescribed offense within a year in parts first or the second of this article, – entails the performance of socially useful works for a period of two hundred and forty to three hundred and sixty hours”.
Re-commitment of the offense in this article should be understood as the person’s failure to take measures to pay alimony within two months from the date of serving the administrative fine in the form of community service imposed on the grounds provided for in this article.
If the debtor’s actions contain signs of an administrative offense, provided Article 183-1 of the Code of Ukraine on Administrative Offenses, the state enforcer draws up a protocol on an administrative offense and sends it for consideration to the court at the location of the state executive service body.
Community service consists in the performance by a person who has committed an administrative offense of paid work, the type of which and the list of objects on which offenders must perform this work is determined by the relevant local self-government body. These jobs are assigned by the district, district in the city, city or city-district court (judge).
Taking into account the military actions on the territory of Ukraine, there is an approximate list of socially useful works performed under martial law conditions, which is contained in the appendix to the Procedure for the involvement of able-bodied persons in socially useful works under martial law conditions, approved by the resolution of the Cabinet of Ministers of Ukraine dated 07.13.2011 No. 753, namely:
- Repair and restoration works, first of all, works performed at the objects of life support.
- Clearing of rubble, clearing railway tracks and highways.
- Construction of protective structures of civil protection, quickly constructed protective structures of civil protection and creation of the simplest shelters, anti-slide, anti-flood, anti-slide, anti-avalanche, anti-erosion and other engineering structures of special purpose.
- Repair and construction of residential premises.
- Works on maintaining the readiness of protective structures of civil protection for their intended use and operation, adaptation of existing above-ground or underground premises for the simplest shelters.
- Loading and unloading operations performed on railways, ports, etc.
- Agricultural work (spring field work, harvesting, haying).
- Providing assistance to the population, primarily to persons with disabilities, children, senior citizens, the sick and other persons who do not have the opportunity to independently counteract adverse factors of man-made, natural and military nature.
- Organization of life support for citizens affected by hostilities.
- Works to ensure the stable functioning of high-security facilities in case of emergencies.
- Works related to maintaining public order.
- Arrangement, restoration and beautification of coastal strips, natural springs and reservoirs, riverbeds, strengthening of dams, bridge structures.
- Harvesting firewood for the heating season.
- Liquidation of spontaneous landfills and arrangement of landfills for solid household waste.
This list is indicative, and specific types of socially useful works depend on the needs of a particular region. There are rare cases when most often people are involved in the unloading of humanitarian aid; procurement of firewood for the population; arrangement of basements in high-rise buildings, schools for shelter; repair and restoration works in the premises of the social sphere, etc. At the same time, the specified type of work is more relevant for the country than ever and there is always a demand for workers.
Another unpleasant sanction for “alimony evaders” is contained in the Resolution of the Cabinet of Ministers of Ukraine from October 21, 1995 No. 848 “On simplifying the procedure for providing subsidies to the population to reimburse the costs of paying for housing and communal services, the purchase of liquefied gas, solid and liquid stove fuel” with the following additions and changes:
“Housing subsidy is not assigned (including for the next period) if there are persons in the household or in the family of a member of the household who, according to the data of the Unified Register of Debtors, owe more than three months of alimony enforcement proceedings (except persons whose arrears due to enforcement proceedings for the recovery of alimony are repaid in parts by court decision, persons who are considered to be missing by court decision or have the legal status of persons who have disappeared, persons who are alcohol or drug addicts, as confirmed by a doctor’s certificate, persons , to whom criminal proceedings are applied in the form of suspension from work (position), persons to whom precautionary measures are applied in the form of house arrest or detention)”.
Therefore, in such a case, even members of the family of the alimony debtor are subject to sanctions.
It is possible to check whether a person is in the Register of Debtors link
So far, we have talked about only half of the sanctions that can be imposed on a person who does not pay alimony. In addition to criminal liability, we will further comment on other administrative levers contained in the Law of Ukraine “On Executive Proceedings”. There are both restrictions and financial impact measures.
