Alimony obligations of parents and children

 

The Law of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code) has a separate chapter - "Alimony obligations of parents and children".

According to Part 1 of Articles 138, 139 of the Law, parents are obliged to support their minor children. The procedure and form of providing maintenance for minor children are determined by the parents themselves. At the same time, the father and mother are equally responsible for the maintenance of minor children, regardless of whether they are (were) married to each other. Parents act as alimony payers for their minor children without taking into account the criteria of their legal capacity and ability to work. Parents deprived of parental rights or restricted in them by a court decision are not exempt from the obligation to maintain children. The alimony obligation of parents is not related to whether the child has his own property sufficient for self-sufficiency or not.

In the absence of actual or contractual maintenance of children by their parents, alimony is collected from the parents in court (Part 2 of Article 138 of the Law).

The child has the right to file a claim with an alimony-obligated parent.:

a) the other parent;

b) the child's guardian or trustee;

e) an educational, medical institution, a social protection institution and a similar institution in which the child is located (art. 142 of the Law).

Since the right of claim in the alimony obligation belongs to the minor himself, his representative (the recoverer) does not have the right to waive the most subjective right to receive alimony, as well as to recover or receive alimony. The guardianship and guardianship authorities have the right to protect the interests of a child in the absence of an alimony agreement, failure to provide maintenance and failure to submit a claim to the court, which in such cases have the right to file a claim for the recovery of alimony for minor children (art. 142 of the Law).

The amount of alimony levied on minor children in court is defined in Article 139 of the Code. When establishing it, the Legislator proceeded from the principle of dependence of the standard of living of children on the financial condition of their parents, therefore, the amount of alimony is determined as a general rule in proportion to the earnings and (or) other incomes of the alimony-obligated person.

According to Article 138 of the Code, parents are required to support their minor children. The procedure and form of providing maintenance for minor children are determined by the parents themselves. In the absence (Article 139 of the Code) of an agreement between parents on the payment of alimony for minor children, they are collected by the court from their parents in the amount of: one quarter for one child, one third for two children, and half of the earnings and (or) other income of the parents for three or more children.

In accordance with art. 143 of the CPC RK, the judge is obliged to consider the issue of refusal to accept and or return the application within three days from the date of receipt of the application to the court.

A court order is issued if a claim is made for the recovery of alimony for minor children that is not related to establishing paternity, challenging paternity, or the need to involve other interested parties.

It follows from the content of Article 143 of the CPC RK that the judge refuses to accept the application for a court order or returns it on the grounds provided for in Articles 153 and 154 of the CPC RK, in cases where:

- the applicant did not comply with the general rules of jurisdiction established by the CPC RK;

- upon the stated request, there is a court decision or court ruling that has entered into legal force to terminate the proceedings in connection with the acceptance of the plaintiff's waiver of the claim or the approval of a settlement agreement between the parties.;

- the application is signed or submitted to the court by an unauthorized person or an incapacitated person;

- in the proceedings of this or another court, or an arbitration or arbitration court, there is a case on a dispute between the same parties, on the same subject and on the same grounds;

- the recoverer has submitted an application for the return of the application to him (before the court's ruling on the acceptance of the application for court proceedings);

- the judge returns the application if a claim is made that is not provided for in Article 140 of the Civil Procedure Code of the Republic of Kazakhstan.;

- the debtor is outside the jurisdiction of the courts of the Republic of Kazakhstan;

- the claimant has not submitted documents confirming the stated claim;

- there is a dispute about the law, which cannot be resolved on the basis of the submitted documents;

- the form and content do not meet the requirements of Article 141 of this Code;

- the state duty has not been paid.

 

In all cases where the judge does not have grounds to accept an application for a court order (for example, if claims are made for the recovery of alimony for adult disabled children or other family members, if the debtor pays alimony by court order to other persons, or payments are made to them under other executive documents), the judge within three months within 30 days from the date of receipt of the application to the court, the court refuses to accept or returns the application for a court order, which it issues a ruling on.

According to Article 144 of the Code, a judge has the right to accept an application for a court order and, by his ruling, set a period of no more than three working days for the recoverer to eliminate deficiencies if the application does not meet the requirements of Article 141 of this Code.

Judges do not always use this rule of law.

For example, gr. Zh.M. appealed to the court of the Yenbekshinsky district Court of Shymkent with an application to I.B. for the recovery of alimony for two minor children. By a ruling dated March 14, 2014, the judge of the Yenbekshinsky District Court of Shymkent left the application without motion, giving a deadline for the elimination of deficiencies until 03/17/2014, since, in accordance with paragraph 3, part 2, Article 141 of the CPC RK, the application must specify: the name of the debtor, his date of birth, place of residence or location, details of the legal entity.

However, the application did not specify the full details of the debtor, namely: date of birth, IIN, place of residence. In cases where his place of residence is unknown, it is necessary to indicate his last known place of residence.

Since the applicant had not eliminated these shortcomings, the judge, by ruling on March 17, 2014, reasonably returned this application to the applicant with all the attached documents.

Another example: Mrs. B.D. applied to the court to recover alimony from B.A. for the maintenance of B.V.'s minor child on 04/27/2013. The judge of the same court, in a ruling dated March 14, 2014, referred to paragraph 3 of Part 2 of Article 141 of the CPC RK, indicating that the application should include the name of the debtor, his date of birth, place of residence or location, and the details of the legal entity, but they were not specified, so he returned the application to the applicant.

At the same time, the judge did not apply the requirement of Article 144 of the CPC RK and did not provide time to eliminate the shortcomings.

 

 

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