Alimony payments for minor children
By virtue of 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. Parents have the right to conclude an agreement on the payment of alimony. In the absence of an agreement on the payment of alimony, alimony for minor children is collected by the court from their parents on a monthly basis 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 (Article 139 of the Code). Persons who have the right to file claims for the recovery of alimony for minor children may be: one of the parents with whom the child lives, the child's guardian (trustee), foster carer, foster parents, adoptive parent, if the adoption was made by one person while preserving the personal non-property rights and property rights and obligations of the child with the other parent, the administration a child's educational institution at the child's location, performing the duties of a guardian and trustee, or a body performing the functions of guardianship or guardianship. Claims for the recovery of alimony for minor children are considered in the order of writ or claim proceedings. According to subparagraph 4) of Article 135 of the CPC, a court order is issued on claims for the recovery of alimony for the maintenance of minor children not related to the establishment of paternity (motherhood) or the need to involve third parties. On the basis of court orders, alimony is collected in the amount established by Article 139 of the Code, in proportion to the earnings and/or other income of the parents. Alimony for minor children in a fixed amount of money cannot be collected in writ proceedings, since the solution of this issue involves the need to verify the presence or absence of circumstances with which the law links the possibility of such a recovery (Article 141 of the Code). The study of the cases showed that when deciding on the possibility of accepting an application for a court order, judges take into account the norms of the current CPC (Articles 134-143), as well as the explanations given in paragraph 2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Decision" dated July 11, 2003 No. 5. By virtue of Article 136 of the CPC, the application for a court order must specify the circumstances on which the claim is based and a list of attached documents confirming the stated claim. Such documents in cases of recovery of alimony for the maintenance of minor children are: a child's birth certificate, a marriage or divorce certificate, and if the child was born out of wedlock, a certificate of paternity, that is, evidence confirming that the person from whom alimony is being collected is the child's parent.
Evidence confirming the child's residence with the applicant should also be provided. In accordance with the first part of Article 138 of the CPC, the judge refuses to accept or returns the application for a court order on the grounds provided for in Articles 151, 152 of the CPC, as well as in cases where the claimed claim is not provided for in Article 135 of the CPC; the debtor's place of residence or location is outside the Republic of Kazakhstan; documents are not submitted, confirming the stated claim; there is a dispute about the right, which is subject to consideration in the order of claim proceedings; the form and content of the application do not meet the requirements of Article 136 of the CPC; the application has not been paid by the state fee. Example: By a ruling of the Karasai District Court dated January 23, 2018, the acceptance of I.'s application for a court order to collect alimony from A. for the maintenance of two minor children was refused, since earlier, on February 17, 2017, at the request of the same claimant, a court order was issued for similar requirements. In cases where there is a dispute about the law, which is subject to consideration in the order of the claim proceedings, the judge also returns the application. For example, when an application for a court order contained a request for the recovery of alimony by virtue of paragraph 2 of Article 164 of the Code for the past period within a three-year period, the courts returned the application, indicating that the claim in this part could not be considered indisputable, and the fact of the debtor's evasion from paying alimony should be established in court proceedings with summoning the parties and presenting the relevant evidence. Given that the application for a court order must be accompanied by documents confirming the stated claim, in their absence, the judges returned the applications. However, there are cases where courts have issued court orders in the absence of evidence confirming the debtor's paternity. Example: A court order of the Almaty District Court of Astana with T. in favor of S. alimony has been collected for the maintenance of a minor child. At the same time, there is no evidence attached to the application confirming that the person from whom alimony is to be collected is the parent of the child.
In the child's birth certificate, the "father" column does not indicate T., but S., that is, the child is recorded by the mother's last name at her direction, by virtue of paragraph 5 of Article 63, subparagraph 2) of paragraph 4 of Article 192 of the Code. Subsequently, this court order was cancelled at the request of the debtor, whose paternity was not established in accordance with the procedure provided for by law. According to the first part of Article 142 of the CPC, the judge cancels the court order if the debtor, within the prescribed period, objects to the stated claim or the statement of another person, whose rights and obligations are affected by the court order, about the inconsistency of the court order with the requirements of the law. At the same time, the courts should keep in mind that not every objection by the debtor can be the basis for revoking a court order to collect alimony for the maintenance of minor children. Thus, by virtue of the third part of Article 141 of the CPC, the debtor's objections must be confirmed by appropriate evidence of the existence of the subject of the dispute specified in the application for a court order. Such evidence may include judicial acts that have entered into legal force challenging paternity, excluding information about the father, or, as in the above example, when the debtor's paternity is not recognized in accordance with the established procedure. In other cases, when the debtor in the objection indicates only disagreement with the court order without providing evidence of the existence of the subject of the dispute, the courts should return such objections in accordance with the fifth part of Article 141 of the CPC. A study of court practice has shown that judges often cancel court orders for the recovery of alimony only on the basis of objections from debtors, which indicate only disagreement with the order. Example: Court order of the Karmakshinsky district Court of the Kyzylorda region dated December 20, 2017 on the recovery of alimony from D. in favor of A. The detention of a minor child was cancelled by the ruling of the same court dated January 11, 2018 on the basis of the debtor's objection of disagreement with the court order. The debtor did not provide any other arguments or evidence about the existence of the subject of the dispute in the objection. Subsequently, the claimant was forced to apply to the court with the same claim in the order of the claim proceedings, which the defendant D. acknowledged and asked to consider the case in his absence. The decision to satisfy the claim was made on February 9, 2018. This example shows that the judges did not study the norms of the CPC, effective from January 1, 2016, and did not apply the norms of part five of Article 141 of the CPC, by virtue of which objections that do not comply with the requirements of parts three and four of Article 141 of the CPC are returned by court ruling. At the same time, the possibility of revoking a court order only on the basis of the debtor's objection to the stated claim was provided for in Article 148 of the CPC, which became invalid on January 1, 2016. There are cases in the practice of courts of cancellation of court orders for the recovery of alimony after several years from the date of their issuance based on the objections of debtors who indicated that they did not know about the issuance of court orders, without providing any evidence.
Example: A judge of the Rudnensky City Court of the Kostanay region, at the request of debtor A., after more than 14 years, canceled a court order dated July 5, 2002 on the recovery of alimony for the maintenance of a minor child. In the application for cancellation of the court order, the debtor did not dispute his paternity, stating only that he did not know about the court order. The cancellation of the court order led to the termination of enforcement proceedings for the recovery of alimony for the maintenance of a minor child and the repeated appeal of the plaintiff K. to apply to the court for the recovery of alimony for the maintenance of a minor child. The court found that the applicant was aware of the court order, as from July 2002 to November 1, 2003, the debtor had been paying alimony on it. The court, guided by paragraph 2 of Article 164 of the Code, decided to recover alimony starting only on April 12, 2014, that is, within a three-year period from the date of filing a claim with the court. Judicial acts in this case were reviewed twice by the Supreme Court at the request of the recoverer, who did not agree with the start of the alimony recovery period and indicated that the order had been unreasonably canceled, and the debtor was in arrears for 10 years. During the last review by the court of appeal, the mediation agreement was approved. Thus, the unjustified cancellation of the court order led to lengthy court proceedings, violation of the rights of a minor child to receive timely maintenance from his parent. Since the requirements for the recovery of alimony for the maintenance of minor children, as a rule, are indisputable, therefore they were considered by order. In the lawsuit, disputes about the recovery of alimony for the maintenance of minor children were considered mainly after the cancellation of the court order. The courts do not have any difficulties considering such cases. However, courts have developed different practices regarding the determination of the period from which alimony is awarded for claims for recovery of alimony filed after the cancellation of the court order. Thus, by virtue of paragraph 2 of Article 164 of the Code, alimony is awarded from the moment of applying to the court. Alimony for the past period may be collected within a three-year period from the date of applying to the court, if the court finds that measures were taken to obtain funds for maintenance before applying to the court, but the alimony was not received due to the evasion of the person obligated to pay alimony from their payment. Example: Atyrau city Court recovered from M. in favor of D. child support payments, starting from the moment of the plaintiff's initial appeal to the court for a court order, that is, from November 23, 2017. At the same time, the court indicated that the recoverer had taken measures to obtain alimony by applying to the court for a court order, which was cancelled at the request of the debtor. Other courts, despite the fact that the order was canceled at the request of the debtor, awarded alimony from the date of filing the lawsuit, after the cancellation of the court order. Example: Karmakshinsky district Court of the Kyzylorda region on the claim of A. collected from D. alimony for the maintenance of a minor child from the moment of filing a claim with the court after the cancellation of the court order.
As a result, the claimant was deprived of receiving child support for one month. In this regard, it should be clarified to the courts that applying to a court for a court order to collect alimony for the maintenance of a minor child, if the court order was subsequently revoked at the request of the debtor, should be recognized by the courts as a measure taken by the claimant in order to obtain alimony. In addition, the adoption of such measures may be indicated by the plaintiff's appeal to the defendant with a demand for the payment of alimony or with a proposal to conclude an agreement on the payment of alimony when the debtor refused to conclude an agreement and voluntary payment of alimony. In cases where the child's mother, applying to the court for alimony for the past period within a three-year period, indicates that the defendant, despite her demands, did not pay alimony during this time, avoiding the maintenance of the child, and the defendant did not prove the fulfillment of the child's maintenance obligations, the courts demanded alimony over the past period, based on the interests of the minor child. Example: Rejecting the claim of A. Regarding the recovery of alimony for the maintenance of a minor child for the past period within a three-year period, the Yenbekshinsky District Court of Shymkent reasoned that A. had not previously made such a claim to the defendant. The court of appeal, changing the court's decision in this part and satisfying the demands for recovery of alimony for the past period within a three-year period, indicated that the defendant had not taken any measures to maintain the child during this time, which led to a violation of the rights of a minor child to receive maintenance from a parent, for whose protection A. appealed to the court. At the same time, if the defendant, objecting to the recovery of alimony for the past period, confirms his participation in the maintenance of the child (transfer of funds to the plaintiff, purchase of clothes, food, etc.) with appropriate evidence, and the plaintiff, in turn, has not proved the fact of the defendant's evasion from paying alimony, then in these cases it seems correct making a decision to dismiss a claim for recovery of alimony for the past period. It should be clarified that when considering claims for the recovery of alimony filed jointly with a claim for establishing paternity, the claim for the recovery of alimony for the past period in accordance with paragraph 2 of Article 164 of the Code is not subject to satisfaction, since prior to the satisfaction of the claim for establishing paternity, the defendant was not recognized as the father of the child in accordance with the established procedure. In this regard, the beginning of the recovery of alimony must be determined from the date of the appeal to the court. During the generalization, it was found that some courts misinterpret the content of articles 139, 163 of the Code, which provide that alimony is collected by the court in the absence of an agreement on the payment of alimony. Example: The Ridder City Court denied the claim of E. to D. for the recovery of alimony, arguing that the defendant voluntarily supports the child by paying for kindergarten services, buying necessary things, shoes, books and meals during periods of communication with the child.
The court of appeal, overturning the court's decision and satisfying the claim, pointed out that since there was no notarized agreement between the parents on the payment of alimony that meets the requirements of articles 157-158 of the Code, and the procedure and form of providing maintenance to the son was chosen by the defendant independently, which the plaintiff did not agree with, the dispute was subject to court resolution. The conclusions of the court of appeal that in the absence of a notarized agreement on the payment of alimony, alimony must be recovered in court in favor of the parent with whom the child lives, comply with the norms of marriage and family legislation. In this regard, the courts should keep in mind that the basis for applying to the court for the recovery of alimony is the absence of a notarized agreement on the payment of alimony, made in compliance with the requirements of Chapter 22 of the Code, 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 of alimony - between the legal representatives of these persons .
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
