✅ Responsibility for non-payment of alimony

Responsibility for non-payment of alimony in Ukraine

Scriabin Alexey Nikolaevich

family lawyer

Our family lawyers are often asked the following questions: can they be imprisoned for non-payment of alimony in Ukraine? What is the responsibility for non-payment of alimony in Ukraine? How to avoid criminal liability for non-payment of alimony?

On our website advokat-skriabin.com you can familiarize yourself with the topic: “Responsibility for non-payment of alimony” and, if you have any questions, seek legal advice from our family lawyers and lawyers who will provide you with legal services in family matters.

Reasons for establishing responsibility for non-payment of alimony in Ukraine

In the event of a debt arising through the fault of a person obliged to pay alimony by a court decision or by agreement between the parents, the recipient of the alimony has the right to recover a forfeit (penalty) in the amount of one percent of the amount of unpaid alimony for each day of delay from the date of delay in the payment of alimony to the day of its full repayment or until the day the court makes a decision on the collection of penalties, but not more than 100 percent of the debt.

In the case of applying to a person who is obliged to pay alimony by a court decision, the measures provided for in part fourteen of Article 71 of the Law of Ukraine “On Enforcement Proceedings”, the maximum amount of the penalty should be equal to the difference between the amount of debt and the amount of the applied enforcement measures provided for by part fourteen of the 71 Law Of Ukraine “On Enforcement Proceedings”.

The amount of the penalty for non-payment of alimony in Ukraine

The amount of the forfeit may be reduced by the court, taking into account the financial and marital status of the alimony payer.

The penalty is not paid if the payer of the alimony is a minor.

In the event of a delay in payment of additional expenses for a child through the fault of the payer, such a payer is obliged, at the request of the recipient of additional expenses, to pay the amount of debt for additional expenses, taking into account the established inflation index for the entire period of delay, as well as three percent per annum of the overdue amount.

The payer of additional costs is considered to be late in payment if he has not fulfilled his duty to pay additional costs within the time period established by the court decision or by agreement between the parents, and in the event of their absence or in case of failure to establish such a time limit, upon expiration of seven days after the recipient has made a corresponding request additional costs, actually paid for them.

Parents or persons replacing them are liable for violation of the rights and restriction of the child’s legitimate interests in health protection, physical and spiritual development, education, failure to fulfill and evasion of parental responsibilities in accordance with the law.

Legal regulation of liability for non-payment of alimony in Ukraine

According to 1 part 1 of Art. 196 of the Family Code, it is noted that in the event of a debt due to the fault of a person obliged to pay alimony by a court decision or by agreement between the parents, the recipient of alimony has the right to recover a penalty (penalty) in the amount of one percent of the amount of unpaid alimony for each day of delay from the date of delay payment of alimony until the day of its full repayment or until the day the court makes a decision to recover the penalty, but not more than 100 percent of the debt.

According to Part 1 of Art. 196 of the Family Code, it can be concluded that the collection of a forfeit (penalty) for late payment of alimony is possible only in cases where the alimony debt arose through the fault of a person obliged to pay alimony by a court decision or by agreement between the parents.

The limitation period is not applied to the collection of a forfeit (penalty interest) for late payment of alimony. This conclusion can be made on the basis of Part 1 of Art. 20 of the Family Code. This approach is also accepted by judicial practice.

The cost of solving a case for non-payment of alimony in Ukraine

According to clause З of h. 1 of Art. 5 of the Law of Ukraine “On Court Fee” from paying court fees when considering a case in all courts, plaintiffs are exempted – in cases of collecting alimony, payment of additional costs for a child, collecting a penalty (penalty) for late payment of alimony, indexing alimony or changing the way it is foreclosure, as well as applicants when filing an application for the issuance of a court order for the recovery of alimony.

In judicial practice, there are different approaches regarding the procedure for calculating the amount of the forfeit (penalty) for late payment of alimony.

Our lawyers are often asked the following questions: what is the procedure for collecting alimony by the Executive Service in 2021? What is the administrative responsibility for non-payment of alimony? The amount of the penalty for non-payment of alimony? In this article we will try to answer all the questions about non-payment of alimony.

Judicial practice in cases of liability for non-payment of alimony in Ukraine

In the decision of the Grand Chamber of the Supreme Court of April 25, 2018 on civil case No. 572/1762/15-c, it is noted that the Grand Chamber of the Supreme Court considers it necessary to deviate from the legal position expressed in the decision of the Supreme Court of Ukraine dated July 1, 2015 in the case No. 6-94ts15.

A forfeit (penalty) is a way to ensure the performance of an obligation. Its task is to promote the proper performance of the obligation, to encourage the debtor to behave appropriately. However, the penalty performs this function until the debtor breaches the obligation.

After the debtor violates his debt, the forfeit begins to perform the function of property liability.

These are additional losses of the improper debtor, property punishment for his failure to fulfill or untimely fulfillment of the obligation to pay alimony.

In Art. 196 of the Family Code does not set any restrictions on the period for calculating penalties, on the contrary, it states that penalties are charged for each day of delay.

The rule on the recovery of a forfeit for non-payment of alimony in Ukraine

The rule on the collection of a forfeit (penalty) in the amount of one percent of the amount of unpaid alimony for each day of delay means that when calculating the total amount of penalty for late payment of alimony, the amount of unpaid alimony and the number of days of delay are taken into account.

Since alimony is calculated on a monthly basis, the term for fulfilling this obligation will be different, therefore, the number of days of delay will also be different depending on the number of days in a month.

That is, a penalty for late payment of alimony should be charged on the entire amount of unpaid alimony for each day of delay in its payment, and its accrual is not limited only to the month in which collection was not carried out.

Calculation of penalties for non-payment of alimony in Ukraine

Thus, the total amount of interest for non-payment or late payment of alimony should be calculated using the formula:

р = (AI X 1% X Ql) + (А2 X 1% X Q2) +…(An х 1% х Qn),

where:

• p – the total amount of penalties for non-payment or delay in the payment of alimony, calculated by the plaintiff at the time of filing the claim;
• AI – the accrued amount of alimony for the first month;
• Q1 – the number of days of delay in the payment of the alimony amount for the first month;
• A2 – the accrued amount of alimony for the second month;
• Q2 – the number of days of delay in the payment of alimony for the second month;
• An is the accrued amount of alimony for the last month before filing a claim;
• Qn is the number of days of delay in the payment of alimony for the last month.

Penalty for arrears in the payment of alimony is charged on the entire amount of unpaid alimony for each day of delay in its payment, and its accrual is not limited only to the month in which collection was not carried out.

An example of calculating a penalty for non-payment of alimony in Ukraine

In the decision of the Grand Chamber of the Supreme Court of April 3, 2019 in case No. 333/6020/16-c, it is noted that the amount of the penalty on the lunar payment is calculated as follows: the debt on the payment of alimony for a specific month (monthly payment) must be multiplied by the number of days of debt deducted from the first day of the month following the month in which the alimony must be paid, but not paid, until the day of their actual payment (in this case, the day of fulfillment of the obligation is not included in the debt period), and multiply 1 percent.

That is, the debt for the month x the number of days in debt x 1%. For these, a penalty is calculated for each overdue monthly payment.

The total amount of the penalty is the sum of the amount of the penalty calculated for each monthly (periodic) payment.

Recovery of penalties for non-payment of alimony when paying in installments in Ukraine

In the case of the payment of alimony in installments, it should be noted that if such partial payments are made during the month in which the alimony is to be paid, and their total amount is the monthly payment determined in the court decision on the recovery of alimony, it is considered that the parent who must pay alimony, fulfilled these obligations.

If the monthly payment is not paid in full, then a penalty will be charged from the first day of the month following the month of payment of the next payment, for the difference between the amount that must be paid for the maintenance of the child and the amount of alimony actually paid, taking into account the delay and interest rates – 1%.

The overdue period is calculated taking into account the previously specified rule and starts the course from the first day of the month following the month of making the periodic payment until the day preceding the day of payment of the debt.

If the debt on the payment of alimony is partially paid off in another month, then the determination of the penalty on the debt on the payment of alimony is calculated taking into account the amount of the unpaid share of the alimony for a certain month from the day of payment of the share of the monthly payment and until the day preceding the day of repayment of the debt for the corresponding monthly payment, multiplied by 1%.

Similarly, the issue was resolved in the decision of the Grand Chamber of the Supreme Court of April 25, 2018 in case No. 572/1762/15-c, however, the formula was erroneously given according to which the calculation of penalties for non-payment or late payment of alimony involves accounting for each month separately, and not on every day late payment of alimony.

Maximum amount of penalty for late payment of alimony in Ukraine

It should be noted that the maximum amount of the penalty for late payment of alimony is no more than 100 percent of the alimony debt.

In case of application to a person who is obliged to pay alimony by a court decision, the measures provided for in Part 14 of Art. 71 of the Law of Ukraine “On Enforcement Proceedings”, the maximum amount of the penalty should be equal to the difference between the amount of the debt and the amount of the applied enforcement measures provided for in Part 14 of Art. 71 of the Law of Ukraine “On Enforcement Proceedings”.

Part 14 of the Law of Ukraine “On Enforcement Proceedings” provides that if there is a debt on the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for one year, the executor shall issue a resolution to impose a fine on the debtor in the amount of 20 percent of the amount of the debt on the payment of alimony.

If there is a debt in the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for two years, the executor shall issue a resolution to impose a fine on the debtor in the amount of 30 percent of the amount of the debt in the payment of alimony.

If there is a debt in the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for three years, the executor shall issue a resolution to impose a fine on the debtor in the amount of 50 percent of the amount of the debt in the payment of alimony.

In the future, the decision on the imposition of a fine in the amount specified in the first paragraph of this part is made by the executor in the event of an increase in the amount of the debtor’s debt by an amount, the aggregate amount of which exceeds the amount of the corresponding payments for one year.

The amounts of fines provided for by this part are collected from the debtor in the manner prescribed by this Law and transferred to the recoverer.

Reduction of the amount of the penalty for non-payment of alimony in Ukraine

It is noted that the amount of the forfeit can be reduced by the court, taking into account the material and marital status of the alimony payer.

Before the legislator established the maximum amount of penalties for late payment of alimony, this provision of legislation was quite often applied in judicial practice.

However, even today, the court has the right to reduce the amount of the penalty for late payment of alimony, taking into account the financial and marital status of the alimony payer.

It should be noted that when the amount of alimony changes by a court decision, the material or marital status of the payer or recipient of the alimony is taken into account.

It is stipulated that the forfeit will not be charged if the alimony payer is a minor.

Responsibility for non-payment of additional costs for the child in Ukraine

It is noted that in the event of a delay in payment of additional expenses for a child through the fault of the payer, such a payer is obliged, at the request of the recipient of additional expenses, to pay the amount of arrears for additional costs, taking into account the established inflation index for the entire period of delay, as well as three percent per annum of the overdue amount.

The payer of additional costs is considered to be late in payment if he has not fulfilled his duty to pay additional costs within the time period established by the court decision or by agreement between the parents, and in the event of their absence or in case of failure to establish such a time limit, upon expiration of seven days after the recipient has made a corresponding request additional costs, actually paid for them.

The specified provisions on liability for late payment of additional costs for a child through the fault of the payer in the form of debt collection for additional costs for a child, taking into account the established inflation index for the entire period of delay in payment of additional costs for a child and three percent per annum of the overdue amount is provided by the family legislation of Ukraine from 8 July 2017, when the Law of Ukraine dated May 17, 2017 No. 2037-eighth “On Amendments to Certain Legislative Acts of Ukraine Concerning Strengthening the Protection of the Child’s Right to Proper Maintenance by Improving the Procedure for Collecting Alimony” came into force.

Accounting for inflation when determining the amount of the penalty for non-payment of alimony in Ukraine

The inflation index is calculated by the State Statistics Service of Ukraine and is published monthly, in particular, in the newspaper “Uryadovy Kuryer”.

The inflation index is an indicator that characterizes the dynamics of the general level of prices for goods and services purchased by the population for non-productive consumption, and its smallest period of determination is a month.

The provisions of Part 2 of Art. 196 of the Family Code on the right of the court to reduce the amount of the penalty, taking into account the material and family status of the alimony payer.

Types of liability to persons in arrears in the payment of alimony in Ukraine

It should be noted that the current legislation of Ukraine provides for other measures that are applied to persons in arrears in the payment of alimony.

In particular, Part 9 of Art. 71 of the Law of Ukraine “On Enforcement Proceedings” stipulates that if there is a debt on the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for four months, the bailiff shall issue motivated decisions:

1. on the establishment of a temporary limitation of the debtor’s right to leave Ukraine – to repay the debt for the payment of alimony in full;
2. on the establishment of a temporary limitation of the debtor in the right to drive vehicles – until the payment of the alimony debt is paid in full;
3. on the establishment of a temporary limitation of the debtor in the right to use hunting firearms, pneumatic and hollowed out weapons, devices of domestic production for shooting cartridges equipped with rubber or similar in their properties non-lethal projectiles – until the payment of alimony arrears is paid in full;
4. on the establishment of a temporary limitation of the debtor’s right to hunt – until the payment of the alimony debt is paid off in full.

Responsibility for non-payment of alimony for a child with a disability in Ukraine

If alimony is paid for the maintenance of a child with a disability, a child who has such diseases as:

• severe perinatal lesions of the nervous system;
• severe congenital malformations, rare organ diseases;
• oncological, onco-hematological diseases;
• cerebral palsy;
• severe mental disorders;
• type I diabetes mellitus (insulin dependent)
• acute or chronic kidney disease IV degree;

Or for the maintenance of a child who:

• was seriously injured;
• requires organ transplant;
• requires palliative care;

Resolutions made by a state executor in the presence of a debt on the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for three months.

📍Temporary restriction of the debtor’s right to drive vehicles in Ukraine

According to Part 10 of Art. 71 of the Law of Ukraine “On Enforcement Proceedings”, a temporary restriction of the debtor’s right to drive vehicles cannot be applied in the case of:

• if the establishment of such a restriction deprives the debtor of the main legal source of livelihood;
• the use of a vehicle by the debtor due to disability or being supported by the debtor of a person with a disability of I, II groups, recognized in the prescribed manner, or a child with a disability;
• the debtor’s military service, military service when conscripted by officers, military service when conscripted for mobilization, for a special period or if the debtor is undergoing military service and performs combat missions of military service in a combat situation or in the area of ​​an anti-terrorist operation, taking measures to ensure national security and defense, resistance and containment of the armed aggression of the Russian Federation in the Donetsk and Luhansk regions;
• payment by installments or deferral of payment of alimony arrears in the manner prescribed by law.

Family Support Lawyer in Ukraine

To effectively resolve the case of responsibility for non-payment of alimony, you should contact professional family lawyers.

Alimony lawyer:

• provide legal advice on family matters;
• will help to determine the best option for solving a family case;
• prepare all the necessary documents;
• accompanies the course of the entire trial.

Our family lawyers will do everything necessary for a quick and high-quality completion of a legal case!

Scriabin Alexey Nikolaevich

family lawyer

Contacting us is a way to save time and money in resolving the issue of responsibility for non-payment of alimony.

If you do not know how to do the right thing to decide the case in your favor – write or call our family lawyers!

The first step on the road to success in resolving the case of responsibility for non-payment of alimony is to contact good family lawyers!

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Frequently asked questions to a lawyer in Ukraine

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4. Exemption from payment of alimony arrears
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