Olena Sibirtseva, lawyer of AGA Partners, Chair of the Committee on Civil, Family and Inheritance Law of the APU, explained in the material for "LIGA:LAW" what you need to know about the collection of alimony during the war.
New realities
According to the Decree of the President of Ukraine No. 64/2022 of February 24, 2022, martial law was introduced in Ukraine in connection with the military aggression of the Russian Federation, which continues to operate until August 23, 2022.
The war in the country definitely affected all spheres of citizens' lives and did not bypass any category of the population. Both in peacetime and especially in today's realities, children need special attention and care, additional guarantees for the protection of their rights and legitimate interests.
During the martial law, the state actively responded to various challenges, adapting the current legislation to unexpected changes. The issue of protecting the rights and interests of children was also repeatedly the focus of such changes. At the same time, both in peacetime and currently, one of the most pressing issues is child support (alimony).
What has changed?
The Law of Ukraine dated March 15, 2022 No. 2129-IX , which entered into force on March 26, 2022, supplemented the Law of Ukraine "On Executive Proceedings" with a number of provisions related to the military aggression of the Russian Federation on the territory of our state.
In continuation of the Law adopted by the Ministry of Justice of Ukraine on April 1, 2022, an explanation was published regarding alimony obligations during martial law. In particular, it is stated that the Verkhovna Rada adopted the Law, which stipulates that, temporarily for the period until the termination or abolition of martial law on the territory of Ukraine, the application for collection of wages and other income of the debtor is suspended.
However, this rule has an exception and does not apply to decisions on the collection of alimony, as well as decisions for which debtors are citizens of the Russian Federation.
At the same time, the Ministry of Justice drew attention to the fact that it is prohibited to open executive proceedings and take measures to enforce decisions on the territory of administrative-territorial units that are temporarily occupied as a result of the military aggression of the Russian Federation, during the period of such occupation.
Along with the above, it is worth paying attention to the fact that after the introduction of martial law on the territory of Ukraine, a number of actions aimed at preventing unauthorized access to state registers were carried out. Such measures included the temporary restriction of access to the Automated System of Executive Proceedings and the Unified Register of Debtors, which made it impossible for state and private executors to work. This, accordingly, affected executive proceedings in cases of alimony recovery, which were actually blocked.
However, currently , the Order of the Ministry of Justice dated April 4, 2022 No. 1310/5 "Some issues of access to the automated system of executive proceedings and the Unified Register of private executors of Ukraine during the period of martial law" establishes the procedure for restoring access of state executors to the specified systems.
Thus, the issue of alimony collection during the war did not undergo drastic changes, except for the execution of decisions on the temporarily occupied territories of Ukraine by the aggressor state.
Is it possible to obtain a decision on the collection of alimony during the war?
There are quite a few cases when, at the time of the introduction of martial law in Ukraine, one of the parents intended to apply to the court for the purpose of collecting alimony for the maintenance of the child, or such a need arose already after the start of the war. What in this case?
The law in this part has not undergone any changes, and therefore the mother or father, who supports the child alone, has the right to apply to the court with an application for the issuance of a court order or with a claim for the collection of alimony.
Yes, one of the parents or other legal representatives 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, one third for three and more children – half of the earnings (income) of the payer of alimony, but no more than ten subsistence minimums per child of the appropriate age for each child (Part 5 of Article 183 of the Family Code of Ukraine ).
The advantage of this method of protection is the speed of obtaining a decision, since the application for the issuance of a court order is considered within five days from the date of its receipt. Based on practical experience, it can be expected in advance that it will still be possible to obtain a court order no earlier than 30 (thirty) days after submitting the application. However, compared to the collection of alimony on the basis of a claim, these terms are extremely short.
The only disadvantage of collecting alimony on the basis of a court order is the upper limit of the amount of alimony that is collected – ten subsistence minimums per child of the appropriate age. Today, the maximum amount is 21,000.00 hryvnias for children under 6 (six) years old and 26,180.00 hryvnias for children from 6 (six) to 18 (eighteen) years old.
However, it should be borne in mind that the legislation provides for the possibility of changing the amount of alimony (both upwards and downwards) if the life circumstances of the parties change. Prerequisites for initiating legal proceedings in this regard may be a change in the financial or family status of the parties, deterioration or improvement in the health of one of them, etc.
If the collection of alimony on the basis of a court order does not allow ensuring the proper maintenance of children, one of the parents has the right to apply to the court with a claim for the collection of alimony. This form of protection allows you to determine the amount of alimony in a fixed monetary amount or as a share of the father's (mother's) income, but the law does not provide for a limit on the amount of recovery. In such a case, the amount of alimony awarded by the court will depend on the evidence provided to confirm the expenses incurred for the maintenance of the child and the ability of the alimony payer to participate in the maintenance of the child at the level stated in the lawsuit.
In the conditions of martial law, a problem that parents may face is the functioning of the courts in certain territories. Thus, an application for the issuance of a court order is submitted at the defendant's registered place of residence, and a claim is filed at the plaintiff's place of registration. There are quite a few cases when active hostilities take place in the specified territories or the territory is occupied.
Such cases in no way limit the right of citizens to judicial protection and are regulated by a temporary change in the territorial jurisdiction of individual courts. Thus, in the event that the court at the place of registration of the parties' residence cannot function as a result of the war, the cases pending before it are transferred to another court. Up-to-date information on such changes in the activity of courts can be obtained on the official website "Judicial Power of Ukraine" and individual pages of courts, including the Supreme Court.
Are sanctions applied to alimony debtors during wartime?
A separate issue that arises at the moment is the prosecution of debtors who do not pay alimony.
We would like to remind you that Article 196 of the Family Code of Ukraine provides for liability for late payment of alimony, in particular, in the form of a penalty (penalty) in the amount of 1% of the amount of unpaid alimony for each day of delay. The calculation is carried out from the day of the alimony payment delay until the day of its full repayment or until the day of the court's decision on the collection of a penalty, but not more than 100 percent of the arrears.
In addition, it should be remembered that non-payment of alimony is subject to administrative (Article 183-1 of the Code of Ukraine on Administrative Offenses ) and criminal (Article 164 of the Criminal Code of Ukraine ) liability.
All the above types of responsibility are valid and have not undergone changes during the war. Accordingly, failure to pay alimony during martial law does not exempt the alimony payer from liability.
Are alimony collected from military personnel?
One of the urgent issues that arose in the conditions of martial law was also the issue of collecting alimony from payers who are in the Armed Forces of Ukraine.
In this regard, the legislation clearly states that there are no restrictions on the collection of alimony from military personnel.
Thus, the Resolution of the CMU dated February 16, 2022 No. 122 "On Amendments to the Resolution of the Cabinet of Ministers of Ukraine dated February 26, 1993 No. 146" establishes that from the servicemen of the Armed Forces of Ukraine, other military formations formed in accordance with the laws of Ukraine, State Special Communications , the State Border Guard Service, police officers, members of the ranks and senior ranks of internal affairs bodies and divisions, the National Anti-Corruption Bureau, the State Bureau of Investigation, the State Security Service, the Civil Protection Service and the State Criminal Enforcement Service, employees of the Court Protection Service, maintenance of alimony is carried out from all types of financial support, except non-permanent financial support and other cases provided for by law.
Thus, servicemen pay alimony on a general basis and from all types of financial support (except for those that are not permanent in nature).
Is alimony collected from a person who lost his job during the war?
A separate aspect of military aggression was the loss of many jobs and all types of income. However, both before the introduction of martial law on the territory of Ukraine and after, the regulation of this issue in terms of alimony has not changed.
In particular, part 2 of Article 195 of the Family Code of Ukraine stipulates that alimony arrears of the alimony payer, who was not working at the time of the arrears, is determined based on the average salary of an employee for a given area.
In view of the above, regardless of whether a person lost his job before the introduction of martial law or after, the obligation to pay alimony remains for him.
Contractual settlement of alimony obligations
Last, but not least, it is worth paying attention to the fact that the issue of alimony can be settled on the basis of a notarized contract. In the conditions of war and relocation of parents and children, including abroad, this method is considered particularly relevant.
Yes, the father and mother have the right to enter into an agreement on participation in child support (an alimony agreement) in which to establish the amount, terms and order of payment of alimony and additional expenses for the child. Such an agreement is subject to notarization.
An alternative option is the conclusion of a notarized agreement on the termination of the right to alimony for a child in connection with the transfer of ownership of real estate. Under such an agreement, the alimony payer transfers real property to the child and is released from paying alimony. At the same time, the obligation to pay additional expenses for child maintenance remains unchanged.
Instead of summaries
Despite the introduction of martial law on the territory of Ukraine and the course of a full-scale war, the issue of child support is one of the priorities.
In general, the state of war did not have a significant impact on the procedure for collecting alimony and, on the contrary, in special normative acts, alimony appeared as a mandatory payment.
The temporary blocking of state registers did suspend the actual execution of already existing court decisions, but in no way canceled the obligation to maintain children in all other possible ways (for example, by paying alimony directly to the other parent).
Also, martial law is not an obstacle for initiating new legal proceedings and continuing existing disputes, since the functioning of the judicial system is carried out. The exception was cases at the beginning of hostilities, when courts considered cases of certain categories as a matter of priority. And even in such a period, the right to appeal to the court was not abolished. The situation when such a court is physically destroyed, or active hostilities are taking place at its location, or it is located in a temporarily occupied territory, can be considered as a separate issue of appeal to the court. Under such conditions, the territorial jurisdiction of these courts changes, cases are transferred to another court for consideration.
The war on the territory of Ukraine in some areas resulted in the application of benefits, the absence of penalties and fines, and the reduction of the financial burden of citizens on various issues. An example of this was the introduction of credit holidays under credit agreements. At the same time, maintaining children is a separate obligation, regarding which the law clearly established the absence of any preferences. In the event that the alimony payer ignores his duty and does not comply with the court's decision, all types of liability are applicable to him (penalties, fines, administrative, criminal liability, etc.).
A separate issue that arose in the existing conditions was the collection of alimony from military personnel. The law does not contain any exceptions in this regard and imposes on them the obligation to consistently maintain children. At the same time, alimony is collected on a general basis and from all types of income of such payers.
As a result of military operations, a significant number of citizens lost not only their property, but also their jobs and incomes. Under such conditions, the question similarly arises: how should children be supported by parents who have become unemployed? The law does not single out unemployment as a circumstance under which alimony may not be paid. At present, as in the pre-war period, unemployed debtors are obliged to pay alimony, based on the average wage for workers in the area where they live (stay).
Finally, like any issue arising from family legal relations, alimony can be settled between parents voluntarily on the basis of a contract. Such an agreement is currently particularly relevant in the light of the change of places and countries of residence of parents and children, and allows to regulate the financial support of the child as broadly and equally as possible.