Disputes arising from marital and family relations on the recovery of alimony for the maintenance of children

 

The requirements provided for in Articles 153, 154,155 of the CPC RK are respected by the courts and the parties.

At the same time, the definition clarifies that the return of the application does not prevent a second appeal to the court with a claim against the same defendant, on the same subject and on the same grounds, if the violation is eliminated. Also, applications are lawfully returned on the basis of paragraph 7) paragraph 1 of art. 154 of the CPC RK, that is, if the plaintiff has stated this.

According to the claims that were accepted by the court for proceedings and a civil case was initiated, it is clear that the courts correctly applied the legislation regulating marriage and family relations.

The study showed that the consideration of claims in this category of disputes was both with the participation of the defendants and without their participation in absentia proceedings.

The practice of considering cases of this category in the courts of the Republic shows that claims of this category of cases, when the requirements are confirmed by the necessary documents, are usually satisfied.

Thus, the acceptance of S.Zh.M.'s statement of claim against N.S.A. for the recovery of alimony arrears in the amount of 210,964 tenge was refused (Bostandyk District Court of Almaty) on the basis of subclause 2, clause 1, Article 153 of the CPC, since the court order of 23.112001 recovered alimony from N. S.A. in favor of S.J.M. for the maintenance of the minor daughter of N.D.S. in the amount of 1/4 of all types of earnings or other income monthly, starting on 11/23/2001 and until she reaches the age of majority.

According to Article 169 of the Code "On Marriage (Matrimony) and Family", the amount of alimony arrears paid for minor children in accordance with Article 139 of this Code is determined by the bailiff based on the salary and other income of the person obligated to pay alimony for the period during which alimony was not collected.

Thus, the determination of the amount of debt falls within the competence of the bailiff. In case of disagreement with the determination of alimony arrears by the bailiff, either party may appeal against his actions in accordance with the procedure provided for by law (art.169).

Thus, the acceptance of S.Zh.M.'s statement of claim against N.S.A. for the recovery of alimony arrears in the amount of 210,964 tenge was refused (Bostandyk District Court of Almaty) on the basis of subclause 2, clause 1, Article 153 of the CPC, since the court order of 23.112001 recovered alimony from N.S.A. in favor of S.J.M. for the maintenance of the minor daughter of N.D.S. in the amount of 1/4 of all types of earnings or other income monthly, starting on 11/23/2001 and until she reaches the age of majority.

According to Article 169 of the Code "On Marriage (Matrimony) and Family", the amount of alimony arrears paid for minor children in accordance with Article 139 of this Code is determined by the bailiff based on the salary and other income of the person obligated to pay alimony for the period during which alimony was not collected.

Thus, the determination of the amount of debt falls within the competence of the bailiff. In case of disagreement with the determination of alimony arrears by the bailiff, either party may appeal against his actions in accordance with the procedure provided for by law (art.169).

Article 138 of the Code "On Marriage (Matrimony) and the Family" provides for the duties of parents for the maintenance of minor children.

It follows from this rule that 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 maintenance of their minor children, as well as adult children studying in the system of general secondary, technical and vocational education, after secondary education, in the system of full-time higher education (an agreement on the payment of alimony).

If parents voluntarily do not provide funds for the maintenance of their minor children, as well as adult children studying in the system of general secondary, technical and vocational education, after secondary education, in the system of full-time higher education under the age of twenty-one, these funds are recovered from them in court.

In the absence of an agreement between the parents on the payment of alimony, if maintenance is not provided to minor children and if a claim is not filed with the court, the body performing the functions of guardianship or guardianship has the right to file a claim for the recovery of alimony for minor children against their parents.

The amount of alimony collected for the maintenance of minor children is regulated by article 139 of the said Code.

In the absence of an agreement, 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 parents' earnings and (or) other income for three or more children.

The size of these shares may be reduced or increased by the court, taking into account the material or marital status of the parties and other circumstances worthy of attention.

In the overwhelming majority of cases, the grounds for refusing to collect alimony are the existence of a court order to collect alimony that has not been canceled and is legally binding.

Thus, the Zhetysu District Court of Almaty denied the claim of M.R.T. to M.J.M. for the recovery of additional expenses for the maintenance of children due to the lack of evidence of the plaintiff's arguments.

In accordance with the provisions of paragraph 1 of Article 144 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", in the absence of an agreement on the payment of alimony and in the presence of exceptional circumstances (serious illness, injury to minor children or disabled adults in need of assistance, the need to pay for outside care for them and other circumstances), each parent may be involved by the court to participate in incurring additional expenses caused by these circumstances.

It follows from the circumstances of the case that by the decision of the Zhetysu District Court of Almaty dated 13.01.2014, the marriage registered between the parties was dissolved, the place of residence of their minor children was determined by the place of residence of the mother. By a court order of the Zhetysu District Court of Almaty dated 11/15/2013, alimony payments for the maintenance of minor children in the amount of 1/3 of earnings and other income per month are collected from the defendant in favor of the plaintiff. ½ part of apartment No. 52 of house No. 12 in the MKR. Kulager, Almaty, according to the decision of the Zhetysu district Court. Almaty dated 08/12/2014 belongs to the plaintiff.

It follows from the explanations of the parties that the eldest of the children is Aysana's daughter, born on July 18, 2003, who has actually been living with her father since November 2014. The defendant shall independently bear all expenses related to the upbringing, development and growth of the child. The defendant himself pays monthly payments on two loans to the bank received by the former spouses during the marriage, although 1/2 of this apartment belongs to the plaintiff.

Under the circumstances, the court considered the plaintiff's demands to recover from the defendant part of the expenses spent on renting an apartment, for babysitting and tutoring services, as well as for paying for a kindergarten, to be unfounded, since the plaintiff has the right to own and use part of her apartment without renting an apartment, to coordinate with the defendant, who has the same rights as a parent. in relation to children when deciding on the hiring of a nanny, tutor and kindergarten. In addition, there are no exceptional circumstances: serious illness, injury to minor children or disabled adults in need of assistance, the need to pay for outside care for them, and other circumstances.

In accordance with paragraph 2 of Article 176 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", the payment of alimony collected in court is terminated: upon the child reaching the age of majority or in the case of acquisition by minors of full legal capacity before they reach the age of majority or the age specified in the agreement on the payment of alimony; 2) upon adoption of a child, the maintenance of which alimony was collected; 3) upon recognition by the court of the restoration of the ability to work or the termination of the need for the assistance of the recipient of alimony; 4) upon the entry into a new marriage (matrimony) of a disabled former spouse in need of assistance; 5) upon the death of the person receiving alimony or the person obligated to pay alimony.

By virtue of Article 149 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", in the absence of an agreement between the spouses (former spouses) on the payment of alimony, the amount of alimony levied on the spouse (former spouse) in court is determined by the court based on the material and marital status of the spouses (former spouses) and other noteworthy the interests of the parties as a multiple of the monthly calculation index in effect at the time of alimony payment.

Alimony can be collected only in the absence of the financial support of the due person. The filing of a claim for the recovery of alimony from the defendant, who provides financial assistance for the subsequent reduction of the amount of other alimony, indicates the unfair use by the plaintiff of his procedural right and the use of the right against his appointment, which is a violation of the above-mentioned norms and grounds for rejecting the claim.

141 of the Code, in the absence of an agreement between the parents on the payment of alimony for minor children and in cases where the recovery of alimony in proportion to earnings and (or) other income of the parent is impossible, difficult or significantly violates the interests of one of the parties, the court has the right to determine the amount of alimony collected monthly in a fixed amount of money or simultaneously in in shares and in a fixed amount of money.

In accordance with article 164 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", a person entitled to receive alimony has the right to apply to the court for recovery of alimony, regardless of the period that has expired since the right to alimony arose, if alimony was not paid earlier under an agreement on the payment of alimony.

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.

According to Articles 65, 66 of the CPC, each party must prove the circumstances to which it refers as the grounds for its claims and objections. From the literal interpretation of the law, it follows that before applying to the court, the plaintiff should have taken measures to obtain funds for the maintenance of the child, but the alimony was not received due to the evasion of the person obligated to pay alimony from their payment.

According to paragraph 2 of Article 176 of the Law "On Marriage (Matrimony) and the Family", the payment of alimony collected in court is terminated: upon the child reaching the age of majority or in the case of minor children acquiring full legal capacity before they reach the age of majority or the age specified in the agreement on the payment of alimony; upon the adoption of a child for whose maintenance alimony; if the court recognizes the restoration of the ability to work or the termination of the need for assistance from the recipient of alimony; upon the entry into a new marriage (matrimony) of a disabled former alimony recipient spouse in need of assistance; upon the 15th death of the person receiving alimony or the person obligated to pay alimony.

It follows from this rule that the termination of the obligation to pay alimony occurs in specified cases that are exhaustive. In cases stipulated by the marriage and family legislation, the amounts of alimony paid may be claimed back. These cases are provided for in paragraph 2 of Article 172 of the Law "On Marriage (Matrimony) and Family".

In accordance with Art.116 of the CPC, the costs associated with the proceedings and the state fee, from which the plaintiff was exempt, are collected from the defendant, who is not exempt from paying court costs to the state revenue.

By virtue of P.3) Article 102 of the Civil Procedure Code of the Republic of Kazakhstan, the price of a claim in claims for the recovery of alimony is determined by the totality of payments for one year. The courts comply with the specified provisions of the legislation, and in each case the state duty was collected from the defendants to the state revenue.

According to paragraph 1) of Article 237 of the CPC RK, decisions on the award of alimony are subject to immediate execution.

 

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