Enforcement of Judicial Acts on the Recovery of Alimony

Paragraph 2 of the Law on Enforcement Proceedings regulates the procedure for enforcing enforcement documents concerning the recovery of alimony.

Typical errors made by judicial enforcement officers when enforcing enforcement documents concerning the recovery of alimony include:

• failure to act (failure to take effective measures) in enforcing an enforcement document;
• incorrect calculation of alimony arrears;
• incorrect assessment of whether obligations to make monthly payments have been fulfilled or remain unfulfilled.

Pursuant to Article 99 of the Law on Enforcement Proceedings, where it is impossible to recover alimony payments from wages or other income for a period of three months, the judicial enforcement officer shall issue a resolution determining the amount of arrears, take measures to secure the enforcement of enforcement documents in accordance with Article 32 of this Law, and levy execution on the debtor's property, except for property that is exempt from enforcement pursuant to Article 61 of this Law.

The amount of alimony arrears shall be determined by the judicial enforcement officer at the place where the decision is enforced, based on the actual wages (income) received by the debtor during the period for which recovery was not carried out or the wages (income) received by the debtor at the time the arrears are determined, at the claimant's discretion. If the debtor was unemployed during that period or documents confirming the debtor's earnings and other income have not been submitted, the alimony arrears shall be determined based on the average monthly wage in the Republic of Kazakhstan as of the time the arrears are recovered.

The Law on Enforcement Proceedings and Order No. 372 of the Minister of Justice of the Republic of Kazakhstan dated 24 December 2014, “On Approval of the List of Types of Wages and/or Other Income from Which Alimony Is Withheld for the Maintenance of Minor Children,” establish an exhaustive list of income types from which alimony may be recovered.

In particular, paragraphs 7 and 11 of the above-mentioned List classify as income of a parent obliged to pay alimony income received for performing work or providing services under civil-law contracts that are not of a one-off nature, as well as income derived from entrepreneurial activities carried out without establishing a legal entity.

In this category of cases, disputes most frequently concern the actions of judicial enforcement officers in determining alimony arrears where the debtors, by virtue of their professional activities, are individual entrepreneurs or founders of limited liability partnerships.

Determining arrears for these categories of debtors presents particular difficulties for judicial enforcement officers. Consequently, judicial enforcement officers frequently make errors when calculating alimony arrears.

For example, a private judicial enforcement officer determined the amount of alimony arrears based on the average monthly wage in the Republic of Kazakhstan. Disagreeing with the calculation, the debtor submitted certificates of wages and documents confirming employment. However, the private judicial enforcement officer did not accept those documents.

The debtor filed a complaint with the court. In refusing to grant the claim insofar as it sought to determine the alimony arrears based on the submitted wage certificate, the courts concluded that the documents submitted by the claimant contained inconsistencies that had not been resolved during the court hearing.

In particular, the debtor submitted to the court a service agreement, an extract from an order, and a certificate of wages and other income. The court established that the debtor had been employed under a service agreement, whereas the wage certificate indicated that it had been issued on the basis of an employment contract. Thus, the submitted documents contained inconsistencies.

In these circumstances, the judicial enforcement officer's refusal to determine the alimony arrears based on the aforementioned certificate was lawful (6001-22-00-6ап/584).

Debtors also express disagreement because judicial enforcement officers do not accept receipts confirming the transfer of monetary funds to the claimant's bank accounts as proof of alimony payments.

When considering disputes concerning the determination and calculation of alimony arrears, it is advisable to assess the legality of the judicial enforcement officer's actions in determining such arrears.

When considering this category of disputes, the interests of minor children for whose maintenance alimony has been recovered through compulsory enforcement must be taken into account.

When assessing evidence of the fulfilment of alimony payment obligations, a private judicial enforcement officer should consider the following:

• the source of the transferred funds (the alimony payer or a third party);
• the frequency and regularity of the transfers;
• whether the amounts transferred are identical;
• whether the parents have other monetary obligations between them (credit obligations, debts, etc.);
• whether the amounts transferred are proportionate to the debtor's income.

For example, a court order was issued for the recovery of alimony for the maintenance of minor children. Previously, the court order had been under enforcement by a state judicial enforcement officer, who determined the arrears for the period from March 2016 to April 2019.

In October 2021, a private judicial enforcement officer initiated enforcement proceedings and determined the arrears for the period from 3 April 2019 to 3 September 2021, including the amount of arrears previously determined.

The Judicial Collegium for Administrative Cases of the Supreme Court of the Republic of Kazakhstan indicated that the private judicial enforcement officer had reasonably taken into account not only the arrears determined at that time but also all arrears previously determined by the state judicial enforcement officer, since the claimant had not repaid them.

This does not indicate that the defendant exceeded the three-year period established by law. Accordingly, the conclusions of the courts of first instance and appellate instance that the private judicial enforcement officer had violated the applicable time limits were incorrect (6001-22-00-6ап/1035).

Judicial enforcement officers must carefully examine the documents submitted by debtors, including documents concerning their wages.

Establishing and calculating the actual amount of arrears does not fall within the scope of consideration of an administrative case. When resolutions determining alimony arrears are challenged, the court must examine whether the judicial enforcement officer's calculation is correct. The court should not assume the functions of a private judicial enforcement officer and independently calculate the correct amount of arrears.

Pursuant to paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, judicial acts that have entered into legal force are binding on all state bodies, local self-government bodies, legal entities, officials, and citizens and are subject to enforcement throughout the territory of the Republic of Kazakhstan.

The purpose of enforcement proceedings is to ensure the effective restoration of violated or disputed rights and legally protected interests.

Challenging the actions or inaction of a judicial enforcement officer constitutes a form of judicial supervision over enforcement proceedings. Its purpose is to protect the rights and interests of the parties to the enforcement proceedings.

The principal regulatory legal acts governing enforcement proceedings are:

• The Constitution of the Republic of Kazakhstan;
• The Administrative Procedural and Process-Related Code of the Republic of Kazakhstan;
• The Civil Code of the Republic of Kazakhstan;
• The Civil Procedure Code of the Republic of Kazakhstan;
• The Law on Enforcement Proceedings;
• The Law of the Republic of Kazakhstan “On Appraisal Activities in the Republic of Kazakhstan”;
• Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated 31 March 2017, “On the Application by Courts of Certain Provisions of Legislation on Enforcement Proceedings”;
• Regulatory Resolution No. 12 of the Supreme Court of the Republic of Kazakhstan dated 19 December 2003, “On Liability for Failure to Enforce Judicial Acts”;
• The Rules approved by Order No. 100 of the Minister of Justice of the Republic of Kazakhstan dated 20 February 2015;
• Resolution No. 437 of the Government of the Republic of Kazakhstan dated 4 May 2014, “On Approval of the Amounts of Remuneration for the Activities of Private Judicial Enforcement Officers.”

Abbreviations Used

APPC — Administrative Procedural and Process-Related Code of the Republic of Kazakhstan;

CPC — Civil Procedure Code of the Republic of Kazakhstan;

CC — Civil Code of the Republic of Kazakhstan;

Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Judicial Enforcement Officers” — the Law on Enforcement Proceedings;

RS SC — Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan;

Rules for the Sale of Seized Property, Including at Auctions in the Form of Electronic Auctions — the Rules;

AIAS — Automated Information and Analytical System of the Judicial Bodies of the Republic of Kazakhstan, “Torelik”;

JCAA SC — Judicial Collegium for Administrative Cases of the Supreme Court of the Republic of Kazakhstan;

JCAA or the Collegium — Judicial Collegium for Administrative Cases;

IAC — Interdistrict Administrative Court;

DJ — Department(s) of Justice;

SJE — State Judicial Enforcement Officer(s);

PJE — Private Judicial Enforcement Officer(s).

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