The judicial system is a dynamic organism that constantly develops and adapts to new realities. However, sometimes changes happen unexpectedly, when courts interpret and apply existing legislation in a way that significantly affects the rights and responsibilities of citizens. This issue is especially acute in family law, where every court decision can radically change people’s lives. One of these issues, which causes a lot of discussion, is the collection of alimony. Court decisions in this area indicate that even such seemingly stable legal relations can undergo significant transformations. Similar situations can arise in other areas of law.
Lawyers of the “Repeshko and Partners” Bar Association spoke about cases from court practice where courts unexpectedly interpreted the legislation in their own way when making decisions.
Indeed, sometimes well-known and stable things cease to be so simply as a result of one court decision. A classic example of such an unexpected turn is the decision of the Supreme Court of Ukraine regarding the procedure for compensation for damage caused as a result of a traffic accident. Thus, a few years ago, the Supreme Court passed a decision according to which, in the event of a traffic accident, the victim has the right to choose either directly to the culprit of the accident, or to his insurance company for compensation for the damage caused, even if the culprit has a motor insurance policy. The question is, why have a car insurance policy, if you will be charged anyway? It was quite rhetorical for about two years, but then the Supreme Court came to its senses and corrected its own practice. It should be noted that during this entire period, the law itself, which regulates these legal relations, was not changed in any way.
The next creativity of the Supreme Court of Ukraine affected relations related to the payment of alimony for children. The fact is that the Code on Marriage and Family, which was in force in Ukraine until 2004, contained the following norm: “Alimony for minor children is collected from their parents in the amount: for one child – a quarter, for two children – a third, for three and more children – half of the earnings (income) of the parents, but not less than 1/2 of the tax-free minimum income of citizens for each child, and from persons working under a contract in in foreign countries, – at least twenty-five tax-free minimum incomes of citizens for each child.
The size of these shares and the minimum amount of alimony can be reduced by the court if the parent who is obliged to pay alimony has other minor children who, if alimony is collected in the amount established by this article, would be less financially secure than the children who receive alimony, as well as in cases when the parent from whom alimony is collected is a disabled person of the first or second group, or when children work and have sufficient
earnings, or for other valid reasons.”
The new Family Code of Ukraine (SC of Ukraine), which replaced it in 2004, stated:
“1. The share of earnings (income) of the mother, father, which will be collected as alimony for the child, is determined by the court.
- If alimony is charged for two or more children, the court determines a single share of the earnings (income) of the mother and father for their support, which will be charged until the oldest child reaches the age of majority.
- The parent or other legal representative of the child, with whom the child lives, has the right to apply to the court for the issuance of a court order for the collection of alimony in the amount of one quarter for one child, one third for two children, and one third for three or more children – half of earnings (income) of the alimony payer, but no more than ten subsistence minimums per child of the appropriate age for each child.”
That is, in fact, court practice followed the path that according to the claim for the collection of alimony, the fate was determined in the same way – for one child – one quarter, for two children – one third, for three or more children – half of the earnings (income) of the payer of alimony.
At the same time, the Civil Code of Ukraine contains a clear norm – Article 182, according to which, when determining the amount of alimony, the court takes into account:
1) the state of health and financial situation of the child;
2) the state of health and financial situation of the alimony payer;
3) the presence of the payer of alimony for other children, disabled husband, wife, parents, daughter, son;
- the presence of property and property rights, including movable and immovable property, cash, exclusive rights to the results of intellectual activity, corporate rights, in the right of ownership, possession and/or use of the payer of alimony;
- expenses of the alimony payer proved by the alimony collector, including for the purchase of immovable or movable property, the amount of which exceeds ten times the subsistence minimum for an able-bodied person, if the alimony payer has not proven the source of the funds;
4) other significant circumstances.”
How did it usually work in practice? After the divorce, alimony was awarded to the child in the amount of ¼ of the father’s earnings. In the next marriage, the father had another child, and the father went to court with a claim to reduce the amount of alimony for the first child, motivating it by the fact that, either by agreement or according to a previously received court decision, he already pays alimony in the amount of 1/6 for the second child part (according to the law, for two children, for example, 1/3 of the earnings, that is, 1/6 for each child).
However, the Civil Court of Cassation as part of the Supreme Court of Ukraine, in its ruling dated September 16, 2024 in case No. 591/6388/22, noted that the birth of a second child in another marriage is not an unconditional basis for reducing the amount of alimony. It is this position that the courts will now focus on when the question arises, how much alimony should be charged from a husband in the presence of several minor children.
It should be noted that the conditions of this case are very classic and did not foreshadow anything unforeseen. In December 2022, the citizen filed a lawsuit against his ex-wife for a reduction in alimony. The lawsuit was motivated by the fact that alimony for their joint minor child in the amount of 1/4 of the earnings (income), but not less than 50% of the subsistence minimum for the corresponding age and no more than ten subsistence minimums per a child of the appropriate age, until the child reaches the age of majority, starting from March 12, 2018.
The plaintiff noted that there were changes in his family and property status due to the conclusion of a new marriage, the birth of another child in this marriage and the payment of alimony for this, second, child in the amount of 1/6 share of all types of earnings (income). but not less than 50 percent living wage for a child of the appropriate age. The plaintiff believed that children born in different marriages from different mothers have absolutely equal rights to financial assistance. At the time of the appeal to the court, the plaintiff did not own any movable or immovable property.
The plaintiff requested: to reduce the amount of alimony charged to him in favor of his ex-wife for the first minor child, from 1/4 to 1/6 of the taxpayer’s earnings (income). The court of first instance refused to satisfy the full demands. The appellate court also rejected the husband’s claims, the court decisions were motivated by the fact that the plaintiff did not prove with proper and admissible evidence, except for the change in marital status, which consists in the birth of a child in another marriage, the circumstances of the deterioration of the property condition after the decision and the issuance of a court order for the collection of alimony on the joint child of the parties.
Instead, the husband is officially employed, receives income, which has improved since the alimony collection order was issued. The amount of alimony for the first child determined by the court meets the requirements of family legislation, is not excessive, meets the requirements of prudence, reasonableness, justice and the interests of the child, who has the right to a decent level of financial support.
Disagreeing with the mentioned decisions, the man turned to the Supreme Court of Ukraine and noted that he considers the court’s conclusions that the plaintiff’s property status has improved significantly compared to what it was on the day of the alimony award for the first child to be erroneous, because, as at the time of application to court, and to date, the plaintiff does not own vehicles or other real estate. However, he had changes in his marital status due to the birth of another child and the payment of alimony for her.
A change in marital status is independent, independent of a change in financial status, a reason for changing the amount of alimony, as indicated by the Supreme Court in case No. 303/369/20; the courts did not take into account that the determination of alimony for the second child in the amount of 1/6 of the plaintiff’s income, the collection of alimony for the first child in the amount of 1/4, does not indicate the equality of child maintenance.
The position of the Supreme Court was as follows:
- the plaintiff did not provide proper and admissible evidence to confirm the circumstances that may be the basis for reducing the amount of alimony for the minor son from the first marriage, or that indicate the impossibility of providing financial support to the son;
- the birth of a second child in another marriage is not an unconditional basis for reducing the amount of alimony;
- in view of the above, the conclusion of the court of first instance, with which the appellate court agreed, is correct, that there are no grounds for satisfying the claim, since the plaintiff did not confirm the deterioration of his property status with proper and admissible evidence.
Thus, now, if children are born from different women, they have the right to demand alimony from the husband in the amount of ¼ part of the earnings for one child, or 1/3 part for two children.
But in connection with this, there is an interesting point for men who have more than two children. According to the Law “On Executive Proceedings”, the total amount of all deductions during each payment of wages and other income of the debtor cannot exceed 50 percent of the wages to be paid to the employee, including in the case of deductions based on several executive documents. This limitation does not apply to deductions from wages in the event that the debtor serves a sentence in the form of correctional labor and collects alimony for minor children. In such cases, the amount of deductions from wages cannot exceed 70 percent. So, quite logically, the question of collecting alimony for three children at ¼ of the earnings for each arises. And if there are more than three children? From this point of view, men who already have children from previous marriages become not quite attractive brides.
In general, previously, in order to reduce alimony for previous children, lawyers actively used the rule that the payer of alimony has other children, disabled husband, wife, parents, daughter, son. The court’s decision to collect alimony was obtained not only for the second or third child, but also for one of the parents or both parents, if possible. The latest practice of the Supreme Court actually cancels this clause. 3 Art. 182 of the Civil Code of Ukraine, according to which, when determining the amount of alimony, the court takes into account: the presence of the payer of alimony with other children, disabled husband, wife, parents, daughter, son, and says that the birth of a second child in another marriage is not an unconditional basis for reducing the amount of alimony, although the rule of law remains unchanged and valid.
Does the husband still need to file a lawsuit to reduce alimony in the event of the birth of another child? We believe that it is worth trying, because sometimes seemingly similar cases actually have significant nuances, which will affect the final decision on the case. Plus, sometimes the defendant may not appear in court or unexpectedly agree to a statement of claim. But it should be noted that the least protected persons, namely children, benefit from this unexpected judicial practice.
