Lawyers of the “Repeshko and Partners” Bar Association continue to comment on the issue of responsibility for non-payment of child support, which was discussed in detail in previous material.
Although the law contains clear provisions regarding the obligation to pay child support, the reality shows that many parents avoid their obligations, which causes new legal challenges.
Once upon a time, there was a period in the country’s life when the issue of alimony arrears was, without exaggeration, catastrophic. At that time, in addition to collection of accumulated debts, a person could only be held criminally liable. But even this was almost unreal, since the most cunning debtors transferred 5-10 hryvnias of alimony per child every month, and then waved their hands, and said that there was no work, and they helped with everything they could. In such a case, there was no criminal element in the debtor’s actions – they say, he is trying, but there was no point in doing so. Taking into account all the mistakes and dishonesty of citizens, the state took a different path.
We would like to note right away that currently the “excuse” “I don’t have a job, so I can’t pay alimony, so I don’t owe anything” doesn’t work. If the alimony payer does not have an official place of work, the executive service will calculate the amount based on the average salary in the region. So, if the person paying alimony works unofficially, for example, for 15,000 UAH per month, and the average salary in the region is 20,000 UAH, then alimony will be calculated from the amount of exactly 20,000 UAH, until the debtor is officially employed and provides a certificate about the real amount of wages.
Administrative responsibility
In addition to the sanctions that were discussed in our previous comment, the Law of Ukraine “On Enforcement Proceedings” provides its own sanctions in the event of alimony arrears.
If there is arrears for the payment of alimony, the total amount of which exceeds the sum of the corresponding payments for four months, the state executor issues reasoned resolutions:
1) on the establishment of a temporary restriction of the debtor’s right to travel outside Ukraine – until repayment of alimony arrears in full;
2) on establishing a temporary restriction of the debtor’s right to drive vehicles – until repayment of alimony arrears in full;
3) on the establishment of a temporary restriction of the debtor’s right to use firearms, hunting, pneumatic and cooled weapons, devices of domestic production for shooting cartridges, equipped with rubber or similar in their properties metal projectiles of non-lethal action, – until repayment of arrears for the payment of alimony in full;
4) on the establishment of a temporary restriction of the debtor’s right to hunt – until repayment of alimony arrears in full.
If alimony is paid for the support 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 severe injuries, needs an organ transplant or palliative care, the regulations specified in points 1-4 of the law, are issued by the state executor in the presence of arrears for the payment of alimony, the total amount of which exceeds the sum of the corresponding payments for three months.
Moreover, the temporary restriction of the debtor’s right to drive vehicles cannot be applied in the case of:
1) if the establishment of such a restriction deprives the debtor of the main legal source of livelihood (for example, the person works officially as a driver);
2) the debtor’s use of a vehicle in connection with a disability or the debtor’s being dependent on a person with a disability of the I, II group, recognized in the established procedure, or a child with a disability;
3) the debtor’s completion of fixed-term military service, military service by conscription of officers, military service by conscription during mobilization, for a special period, military service by conscription of reservists in a special period, or if the debtor completes military service and performs combat tasks of the military service in a combat situation or in the area of an anti-terrorist operation, implementation of measures to ensure national security and defense, repel and deter armed aggression of the Russian Federation in the Donetsk and Luhansk regions;
4) deferment or postponement of payment of alimony arrears in accordance with the procedure established by law (in this case, the debt actually exists, but the order of payment has been determined before it and the debtor has officially received a postponement or installment).
But that’s not all! If there is arrears for the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for one year, the executor issues a resolution imposing a fine on the debtor in the amount of 20 percent of the amount of arrears for the payment of alimony.
In the case of existing alimony arrears, the total amount of which exceeds the amount of the corresponding payments for two years, the executor issues a resolution imposing a fine on the debtor in the amount of 30 percent of the amount of alimony arrears.
If there is arrears for the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for three years, the executor issues a resolution imposing a fine on the debtor in the amount of 50 percent of the amount of arrears for the payment of alimony.
The specified amounts of fines are collected from the debtor in the manner prescribed by the Law of Ukraine “On Enforcement Proceedings” and transferred to the debt collector. This is a kind of hybrid of administrative and civil liability, since it is a fine, but its amount is transferred not to the state, but to the collector of alimony.
Criminal liability
If there is arrears for the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for three months, the executor explains to the debt collector the right to apply to the pre-trial investigation authorities with a statement (notification) about the criminal offense committed by the debtor, which consists in evading the payment of alimony. Therefore, bringing the debtor to criminal responsibility is not automatic and depends entirely on the will of the recipient of alimony.
The Criminal Code of Ukraine (CPC of Ukraine) has several articles that can be used to influence the debtor. According to Article 164, malicious evasion of the payment of child maintenance funds (alimony) established by a court decision, as well as malicious evasion of parents from the maintenance of minor or disabled children dependent on them, is punishable by community service for a period of eighty to one hundred and twenty hours or probationary supervision for a term of up to two years, or restriction of freedom for the same term.
The same act, committed by a person previously tried for a criminal offense provided for in this article, is punishable by community service for a period of one hundred twenty to two hundred and forty hours or probation supervision for a period of two to three years, or restriction of freedom for the same period.
Note that in Article 164 of this Code, malicious evasion of the payment of child support (alimony) is defined as any actions of the debtor aimed at non-compliance with a court decision (concealment of income, change of place of residence or place of work without notifying the state executor, private executor, etc.), which led to arrears from the payment of such funds in the amount that collectively make up the amount of payments for three months of the corresponding payments.
There is another article in the Criminal Code of Ukraine, but it is a norm of general application. Thus, Article 328 “Non-execution of a court decision” specifies that deliberate non-execution of a judgment, decision, resolution, court resolution that has entered into force, or obstruction of their execution, is punishable by a fine of five hundred to one thousand non-taxable minimum incomes of citizens or imprisonment for term up to three years.
In monetary terms, the amount of the punishment will be from UAH 8,500 to UAH 17,000, but even a fine in the criminal aspect is a criminal record, which will be visible in all the certificates of bringing a person to criminal responsibility.
What needs to be done to open criminal proceedings?
In order to attract this type of liability, several conditions must be met, namely:
- the person must apply to the court on the issue of alimony collection, obtain a court order or writ of execution based on the results of consideration of a claim for the collection of alimony, and transfer such an order or writ of execution to the relevant executive service or a private executor, who, on the basis of this, opens enforcement proceedings;
- the existence of arrears from the payment of alimony under executive proceedings in the amount that collectively make up the amount of payments for three months of relevant payments;
- malicious evasion of the payment of alimony takes place, which is expressed in the debtor’s deliberate actions (constant change of place of residence, work and not notifying the executor, concealment of income, etc.)
Therefore, after receiving a certificate from the executor about the existence of arrears in payment of alimony, it is necessary to contact the police station at the place of registration or residence of the debtor with a corresponding statement, which must state:
- the name of the body and the name of the official to whom the application is submitted;
- Full name of the citizen submitting the application, his place of residence, contact information;
- the essence of the issue with which the person addresses and what evidence is supported;
- the presence of evidence, witnesses (a copy of the decision, an order on the collection of alimony, a certificate from the executor on the amount of the debt, etc.);
- all available information about the debtor that you have (place of residence, work, contact data, where the executive proceedings are located regarding the collection of alimony, etc.)
- a request to enter information into the EDPR and start a pre-trial investigation;
- date and signature.
According to Part 4 of Art. 214 of the Criminal Procedure Code of Ukraine an investigator, a prosecutor, another official authorized to accept and register statements and notifications about criminal offenses are obliged to accept and register such a statement or notification. Refusal to accept and register an application or notification of a criminal offense is not allowed.
We emphasize once again that the crime provided for by the first part of Article 164 (evasion of payment of alimony for the maintenance of children without aggravating circumstances) according to Art. 477 of the Criminal Procedure Code of Ukraine is a criminal proceeding in the form of a private prosecution, that is, it can be initiated by an investigator, investigator, prosecutor only on the basis of the victim’s statement regarding criminal offenses. Therefore, the first step must be taken by the person who receives alimony.
We remind you that for non-payment of alimony, a person can be held to three types of responsibility:
- civil;
- administrative;
- criminal
It should be noted that the recipient of alimony does not need to choose which type of liability to bring the negligent payer to. It is possible and necessary to attract all types of responsibility at the same time! At the same time, the more active the person who receives child support will be, the more effective his actions will be.
We will also remind you that depriving a person of parental rights does not relieve him of his obligation to pay alimony. Therefore, everything that we indicated fully applies to the person against whom there is a court decision to deprive the child of parental rights.
