Alimony payment agreement
According to articles 157 and 158 of the Code, an agreement on the payment of alimony is understood to be a notarized written agreement between the person obligated to pay alimony and their recipient, and in case of incapacity of the person obligated to pay alimony and (or) the recipient, between the legal representatives of these persons regarding the amount, conditions and procedure for the payment of alimony. By virtue of paragraph 1 of Article 159 of the Code, the norms of the Civil Code governing the conclusion, execution, modification, termination and invalidation of an agreement on the payment of alimony shall apply to the conclusion, execution, modification, termination and invalidation of civil law transactions. A dispute on the amendment or termination of an agreement on the payment of alimony may be considered by the court on its merits only if the plaintiff provides evidence confirming that he has taken measures to resolve the dispute with the defendant, provided for in paragraph 2 of Article 402 of the Civil Code. If the plaintiff does not provide such evidence, the judge returns the statement of claim on the basis of subparagraph 1) of the first part of Article 152 of the CPC, and if the case is initiated, leaves the statement of claim without consideration on the basis of subparagraph 1) of Article 279 of the CPC and explains to the plaintiff his right to address the issue to the party to the alimony agreement.
However, the courts accepted claims without providing evidence confirming that the plaintiffs had taken measures to resolve such disputes. Thus, on January 31, 2018, the judicial board for civil cases of the Supreme Court of the Republic of Kazakhstan overturned the decision of the Tekeli City Court of April 6, 2017 and the decision of the judicial board for Civil cases of the Almaty Regional Court of May 30, 2017 on the claim of K. to L. on termination of the agreement and recovery of alimony for the maintenance of minor children, with referral for a new review due to non-compliance with the pre-trial dispute settlement procedure. The grounds for changing and terminating the alimony payment agreement, in addition to the circumstances specified in Article 401 of the Civil Code, by virtue of paragraph 3 of Article 159 of the Code, are also a significant change in the material or marital status of the party. When deciding on the amendment or termination of the alimony agreement, the court has the right to take into account any noteworthy interest of the parties. A change in the material or marital status of the parties may be recognized by the court as significant and may be the basis for satisfying the requirement to change or terminate the alimony agreement if the material or marital status of the parties has changed so much that if such a situation had occurred at the time of the agreement, it would not have been concluded in connection with the violation the interests of either party to the agreement, or the parties would have concluded it on significantly different terms. The concepts of financial and marital status are disclosed in the law. By virtue of sub-paragraphs 24) and 30) of Article 1 of the Code: - financial status should be understood as the presence or absence of wages, pensions, and other income; their size; property; receipt or non-receipt of financial assistance from other family members; - marital status is understood as the state or failure in marriage (matrimony) or dissolution marriage, widowhood, the presence or absence of children or other family members. The question of whether or not a particular interest deserves attention is decided by the courts, depending on the justification of the circumstances cited by the party. For example, G. filed a lawsuit against A. for termination of the agreement and recovery of alimony for minor children.: Born in 2017, 2012 and 2010, indicating that prior to the dissolution of the marriage, the parties had concluded an agreement on the order of residence of the children, two of whom remain living with the plaintiff, and one child with the defendant. At the same time, the spouses exempt each other from paying alimony.
However, these terms of the agreement were not fulfilled by the defendant. In satisfying the claim, District Court No. 2 of the Kazybekbiysky district of Karaganda city indicated that the defendant had significantly violated the terms of the agreement, in which the plaintiff was largely deprived of what she had the right to expect when concluding the disputed agreement, since she brings up and supports three children alone, while not receiving alimony from the defendant for their maintenance. It should be borne in mind that if the alimony payment agreement is changed or terminated in court, the obligations of the parties are considered changed or terminated from the moment the court decision on the amendment or termination of this agreement enters into force. In this regard, the courts should indicate in the operative part of the decision that the obligations of the parties are considered amended or terminated from the moment the court decision enters into force. By virtue of paragraph 1 of Article 159 of the Code, an agreement on the payment of alimony may be declared invalid by a court on the grounds provided for by the Civil Code, which, in particular, include: entering into an agreement with a person recognized as legally incompetent, entering into an agreement under the influence of deception, violence, threat or adverse circumstances, imaginary and pretended agreements (Articles 159-160 of the Civil Code). In accordance with article 160 of the Code, the court also has the right, at the request of the legal representative of a minor child or an adult incapacitated family member, as well as the body performing guardianship or trusteeship functions, or the prosecutor, to invalidate a notarized alimony payment agreement if the conditions stipulated by the agreement for providing maintenance to a minor child or an adult incapacitated family member significantly violate them. interests, in particular, when the amount of alimony for a minor established by the agreement is lower than the amount of alimony that he could receive when collecting alimony in court (paragraph 2 of Article 161 of the Code).
Example: Due to non-compliance with the requirements of paragraph 2 of Article 161 of the Code, the court invalidated the agreement on the payment of alimony for the maintenance of minor children concluded between A. and R., since the conditions provided for in the agreement on the payment of alimony for minor children significantly violate their interests, namely: the amount of alimony for minor children established by the agreement is several times lower than the amount of alimony which the children could receive when collecting alimony from their father in court. The creditors of the alimony payer also filed claims for invalidation of the alimony payment agreement. Such appeals, as a rule, were based on the fact that the concluded agreement, in accordance with Article 160 of the Civil Code, is an imaginary transaction. In cases of establishing circumstances indicating the alleged nature of the concluded agreement, the courts satisfied the requirements for invalidation of the agreement. Example: By the decision of the court No. 2 of the city of Petropavlovsk, North Kazakhstan region, the claim of JSC K. to Ch., Ya., notary P. I am satisfied that the agreements on the payment of alimony and the cancellation of the executive inscription are invalid. The court found that defendant Ch. was insolvent at the time of the conclusion of the agreement on the payment of alimony for the maintenance of a minor son in the amount of 9,600,000 tenge, which Ch. He undertook to pay within five working days, and therefore the execution of the agreement was possible only by force, for which an executive order was received, which was submitted for enforcement. Since alimony debt is a priority for repayment, when distributing the amounts received from the sale of property, first of all, funds should be used to repay the alimony debt. That is, Ch. I intended to evade responsibility for paying off the debt owed to the Bank, and the defendant, Ya., was reliably aware of this. Some courts have considered claims for debt collection under alimony agreements. Example: On April 17, 2018, the Almaty District Court of Astana satisfied M.'s claim against S. for recovery of alimony arrears. It was established that under the terms of a notarized agreement on the payment of alimony for the maintenance of a minor child, the defendant undertook to pay 100,000 tenge each month. However, the terms of the settlement agreement are not being fulfilled, and therefore arrears have been incurred. No enforcement agreement was presented.
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