Mutual support is one of the fundamental principles of married life, enshrined in both traditions and legislation. But what to do if this principle disappears from the relationship and the need for financial support of one of the spouses becomes a legal matter? Can one of the spouses claim alimony in his favor? How to act if the relationship cracks, but the obligations before the law remain?
This topic often raises many questions, because the legislation on alimony for spouses has its subtleties, which not everyone knows about. Does a formal divorce affect the right to financial support? Journalists of IA “FACT” turned to the lawyers of the “Repeshko and Partners” bar association to understand how the law regulates these issues, and to provide clear answers to those who find themselves in difficult life circumstances.
The fact that a child has the right to alimony from his parents is known to the general public and this norm is actively used. However, few people know that one spouse can demand from the other spouse to pay alimony in his favor, and such a claim is completely acceptable, but under certain conditions.
According to the current norms of the Family Code (SC) of Ukraine, a wife or a husband must financially support each other. By law, the spouse who:
- is incapacitated,
- needs financial assistance,
- provided that the other spouse can provide financial assistance.
Note that all three components must be present in order to receive a positive decision in court.
At the same time, the spouse who:
- has reached the retirement age established by law,
- is a person with a disability of group I, II or III.
If everything is clear with disability, then the terms “needs financial assistance” and “can provide financial assistance” are evaluative and subject to proof and justification, because the wife may be disabled of the 1st group, but own three apartments in the city of in Kyiv, which are rented and bring a monthly or small profit. In turn, the husband is unable to work and needs financial assistance, but the wife is a pensioner with a pension of UAH 4,500 and has numerous benefits according to her age and visual impairment. In such cases, there is no question of alimony.
The right to alimony does not belong to the spouse who behaved unworthily in the marital relationship. At the same time, the concept of “misbehaved” is also quite loose, and this fact must be proven with proper evidence (not only the testimony of witnesses, such as “apparently Katria went to see her lover”).
But the spouse who became unable to work due to the illegal behavior of the other spouse has the right to alimony regardless of the right to compensation for damages in accordance with Civil Code of Ukraine.
It is essential that alimony can be levied in favor of the second spouse during the marriage or after its dissolution. Divorce does not terminate a person’s right to maintenance that arose during the marriage. Therefore, if during the marriage the court made a decision to collect alimony from the husband in favor of the wife, then even in the event of a divorce, such a decision is still binding. If the husband does not fulfill it voluntarily, it is subject to compulsory execution through the system of public or private executors.
Note that after the dissolution of marriage, a person has the right to maintenance if:
- she became unable to work before the divorce;
- or within one year from the date of divorce;
- needs financial assistance;
- if her ex-husband, the ex-wife can provide financial support.
A person has the right to maintenance even when he became a person with a disability after the expiration of one year from the date of dissolution of marriage, if his disability was the result of illegal behavior towards him by his ex-husband or ex-wife during the marriage.
However, few people know about the following norms of the SC of Ukraine. If, at the time of divorce, a woman or a man has no more than five years left before reaching the statutory retirement age, she or he has the right to maintenance after reaching this retirement age, provided that they have lived together in marriage for at least ten years .
If in connection with raising a child, running a household, taking care of family members, illness, or other circumstances of significant importance, one of the spouses did not have the opportunity to receive an education, work, or occupy a relevant position, he or she has the right to maintenance in connection with the dissolution of the marriage and then, if able to work, on the condition that he needs financial assistance and that the ex-husband, ex-wife can provide financial assistance. The right to maintenance in this case lasts for three years from the date of divorce.
Regarding the method of providing maintenance (alimony). It can be carried out both in kind and in monetary form (as alimony is provided voluntarily with the consent of the parties), but usually the decision is made in monetary terms. At the same time, alimony is paid monthly, but by mutual agreement, alimony can be paid in advance.
A significant point is that if the payer of alimony moves to a permanent place of residence in a state with which Ukraine does not have an agreement on the provision of legal aid, alimony can be paid in advance for a time determined by the agreement of the spouses, and in case of a dispute – by a court decision.
By types of payment, alimony can be:
- contractual (the contract is concluded in writing and notarized and it is in it that the spouses determine the terms, amount and terms of payment of alimony);
- judicial (based on the claim of one of the spouses, the court makes a decision on the collection of alimony.
Both options are subject to compulsory enforcement, because in case of non-fulfilment of one of the spouses’ obligations under the maintenance agreement, alimony may be collected on the basis of a notary’s writ of execution. If the court decision is ignored, a writ of execution is issued, and in the future both documents end up in the enforcement service.
It should be borne in mind that alimony is awarded by a court decision from the day the claim is filed. There is a rule in the law according to which if the plaintiff took measures to receive alimony from the defendant, but could not receive it due to the defendant’s evasion of their payment, the court, depending on the circumstances of the case, may issue a decision on the collection of alimony for the past time, but no more than in one year, but in fact the courts never use it, because it is very difficult to prove the fact of trying to get alimony.
If one of the spouses receives alimony due to disability, payment of alimony continues during the period of disability. In the case of submission of the relevant document on the extension of the term of disability, the collection of alimony is extended for the relevant term without an additional court decision on this.
Finally, the most interesting question is how much can be received as alimony from the second spouse? Unlike child alimony, the law does not specify minimum or approximate amounts, stating only that alimony is awarded to one of the spouses:
- in a share of the earnings (income) of the second spouse
- in a fixed amount of money.
The amount of alimony for one of the spouses is determined by the court taking into account the possibility of obtaining support from the adult daughter, son, parents and taking into account other circumstances of significant importance. It should be noted that judicial practice follows the path that alimony levied in favor of spouses is usually smaller than the amount of child alimony and is 1/5, 1/6 of earnings (income).
The amount of alimony, determined by the court, may be subsequently changed by a court decision based on a lawsuit filed by the payer or recipient of alimony in the event of a change in their financial and (or) family status.
But nothing can last forever. This statement, like nothing else, applies to alimony. The right of one of the spouses to maintenance, as well as the right to maintenance that a person has after the dissolution of the marriage, is terminated in the case of:
- restoration of its working capacity,
- registration of remarriage with him.
The right to maintenance ceases from the date of occurrence of these circumstances. So, as we can see, sometimes it is more profitable not to get married, but we note once again that each situation is purely individual.
The right of one of the spouses to alimony, which was awarded by a court decision, may be terminated by a court decision, if it is established that:
- the recipient of alimony ceased to need financial assistance;
- the alimony payer is unable to provide financial assistance.
Article 83 states that the court may deprive one of the spouses of the right to maintenance or limit its term if:
- the spouses were in a marital relationship for a short time;
- the inability to work of the spouse in need of financial assistance arose as a result of his or her committing an intentional criminal offense;
- disability or serious illness of one of the spouses in need of financial assistance was hidden from the other spouse when registering the marriage;
- the recipient of alimony knowingly put himself in a position of needing financial assistance.
The provisions of this article also apply to persons whose right to alimony arose after the dissolution of marriage.
The general public already knows more about the following reason for receiving alimony – the wife has the right to maintenance from her husband:
- during pregnancy;
- until the child reaches the age of three, as the child lives with the mother;
- until the child reaches the age of six, in the event that the child has physical or mental disabilities and lives with the mother.
A pregnant wife, as well as a wife with whom a child lives, has the right to maintenance, regardless of whether she works and regardless of her financial situation, provided that the husband can provide financial assistance.
Alimony awarded to the wife during pregnancy is paid after the birth of the child without an additional court decision.
A pregnant wife, as well as a wife with whom a child lives, also has the right to maintenance in the event of a divorce. Many citizens forget about this, collecting alimony in case of divorce only for the child, but these legal norms apply regardless of whether the marriage continues or the parties have already divorced. A woman’s right to alimony in this case is terminated as soon as the pregnancy is terminated, the child is stillborn or if the child is transferred to another person for upbringing, as well as in the case of the child’s death. Also, the wife’s right to maintenance is terminated if, by a court decision, information about the husband as the father is excluded from the act record of the child’s birth.
An interesting point is that a separate norm in the law defines that the man with whom the child lives has the right to maintenance from his wife – the child’s mother:
- before the child reaches the age of three (general rule);
- before the child reaches the age of six, if the child has disabilities of physical or mental development.
The husband with whom the child lives has the right to support regardless of whether he works or regardless of his financial situation, provided that the wife can provide financial assistance. The husband with whom the child lives has the right to support even after the divorce. The grounds for termination of the right to alimony in this case are the same as for women.
And the last nuance. If one of the spouses, including the able-bodied one, lives with a child with a disability who cannot do without constant external care, and takes care of him, he has the right to maintenance, provided that the other spouse can provide financial assistance.
The right to maintenance lasts for the entire period of living with a child with a disability and taking care of it and does not depend on the financial situation of the parent with whom the child lives. The amount of alimony for the spouse with whom a child with a disability lives is determined by a court decision, respectively, without taking into account the possibility of receiving alimony from their parents, adult daughter or son.
However, the law provides an opportunity, as they say, to “part gracefully” so that monthly payments do not hang over the wallet. Spouses, as well as persons whose marriage has been dissolved, have the right to conclude an agreement on the termination of the right to maintenance instead of acquiring the right of ownership of a residential building, apartment or other immovable property or receiving a one-time cash payment. The contract for the transfer of ownership of real estate must be notarized. Ownership of immovable property transferred under such a contract arises from the moment of state registration of this right in accordance with the law. If the persons agreed on the termination of the right to maintenance in connection with the receipt of a one-time cash payment, the specified amount of money must be deposited into the deposit account of the notary office or private notary before the contract is certified.
Surprisingly, the law did not ignore the rights of the so-called “civil spouses”. If a woman and a man, who are not married to each other, have lived together for a long time as one family, the one of them who became unable to work while living together has the right to maintenance in accordance with the rules governing the right to maintenance after the dissolution of marriage. Also, a woman and a man who are not married to each other have the right to maintenance if their child lives with her or him (during pregnancy; until the child reaches the age of three, until the child reaches the age of six).
So, be brave and don’t be afraid to exercise your rights!
