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14.03.2023

The principle of the best interests of the child must be taken into account in cases regarding the termination of alimony collection – Olha Stupak

Disputes about the termination of the collection of alimony, as well as about their collection, are quite long, complex, and emotionally intense. And the number of such disputes is growing every time. Cases with demands for termination of alimony collection are not included in clause 3, part 6 of Article 19 of the Code of Civil Procedure of Ukraine. This means that the cases of this category are not insignificant and are subject to cassation appeal, unlike, for example, cases about the collection of alimony, increasing its amount, indexation of alimony, etc.

During the online event of the Committee of the Association of Lawyers of Ukraine on Civil, Family and Inheritance Law on the topic "Stopping the collection of alimony in connection with the change of the child's place of residence", Judge of the Supreme Court in the Civil Court of Cassation Olha Stupak told about this.

Regarding the direct legal regulation of this issue, the speaker noted that the Criminal Code of Ukraine does not contain a rule on when the collection of alimony for a child is stopped. Therefore, in most cases, courts use Part 4 of Art. 273 of the Code of Civil Procedure of Ukraine. This provision stipulates that if, after the court's decision awarding periodic payments to the defendant becomes final, the circumstances affecting the specified amounts of payments, their duration or termination, change, each party has the right to request a change in the amount by filing a new lawsuit. payment terms or exemption from them.

Analyzing the relevant judicial practice of the Supreme Court, Olha Stupak focused on the decision of the Supreme Court of September 4, 2019 in case No. 711/8561/16-ts (proceedings No. 61-21318св18). In this case, the Supreme Court agreed with the decision of the court of first instance, which suspended the collection of alimony from the plaintiff in favor of the defendant for the maintenance of minor children, which was collected by the court's decision. The Supreme Court noted that alimony is money aimed at providing the child with everything necessary for full-fledged development, therefore they can be collected only for the benefit of the parent who lives with the child and takes a more active part in his upbringing. In this aspect, it is precisely those circumstances that must be proven that the children permanently, and not temporarily, live with the parent who paid alimony.

The existence of a decision on the collection of alimony is not an obstacle to resolving the dispute about the termination of such collection and the collection of alimony in favor of the other parent, because it is precisely in the change of circumstances that existed at the time of the first decision that a new dispute lies. An unresolved dispute between the child's parents regarding the determination of the child's place of residence also cannot be a reason for refusing to collect alimony in favor of the parent with whom the child actually lives at the time of the filing of a claim for the collection of alimony. The judge illustrated this on the example of the decision of the Supreme Court of February 3, 2021 in case No. 520/21069/18 (proceedings No. 61-1347св20).

In the resolution of the Supreme Court of June 29, 2022, in case No. 596/826/21-ts (proceedings No. 61-3738св22), attention was drawn to the application of the principle of the best interests of the child in cases regarding the termination of alimony. "International norms establish that in every matter concerning children, all bodies must be guided by the principle of the best interests of the child. In matters of alimony, child maintenance, etc., this principle is also applicable, so the courts are obliged to take it into account," emphasized Olha Stupak.

In addition, the speaker pointed out that the suspension of alimony collection is possible when the recipient of alimony does not spend the alimony received by him on the child, the child lives with another parent who fully supports him. In this case, the collection of alimony in the name of the recipient is terminated (Supreme Supreme Court decision of September 28, 2022 in case No. 686/18140/21 (proceedings No. 61-6611св22)).

Olga Stupak's presentation can be found at https://bit.ly/3ZKdwKL .

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