Lawyer Family Lawyer - reduction of alimony
According to paragraph 1 of Article 175 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", if, in the absence of an agreement on the payment of alimony after the court has established the amount of alimony, the financial or marital status of one of the parties has changed, the court has the right, at the request of either party, to change the established amount of alimony or to release the person obligated to pay alimony, on their payment, K. appealed to the court with a claim to T., A. for a reduction in the amount of alimony. By the decision of the specialized inter-district juvenile Court of May 24, 2019, the claim was partially satisfied. The amount of alimony collected from K., based on the decision of the Burlinsky District Court of the West Kazakhstan region dated March 7, 2019 in favor of T. for the maintenance of N.'s son, born on January 25, 2012, was reduced from 1/4 to 1/6 of all types of earnings and (or) other income of K., until the child comes of age. The rest of the claim was denied. By the decision of the Judicial Board for Civil Cases of the West Kazakhstan Regional Court dated August 13, 2019, the court's decision was changed. The amount of alimony collected from K. in favor of T. for the maintenance of N.'s son, reduced from 1/4 part to 1/8 part of earnings and (or) other income.
Lawyer Family Lawyer - reduction of alimony
The court's decision regarding the rejection of the claim against A. was overturned and in this part a new decision was made to reduce the amount of alimony collected from K. based on the decision of the Burlinsky District Court of the West Kazakhstan region dated January 25, 2019 in favor of A. for the maintenance of minor children.: Nurken, born on October 11, 2013, Neili, born on March 14, 2016, Nurily, born on September 24, 2018, from 1/2 part to 3/8 part of earnings and (or) other income. In the petition, the representative of the defendant T. – G., referring to violations of the norms of substantive and procedural law, requests that the decision of the court of appeal be overturned and the decision of the court of first instance be upheld. The plaintiff K, his representative N., and the defendant A., duly notified of the time and place of consideration of the case by the court of cassation instance, did not participate in the court session, which, according to part 3 of Article 445 of the CPC, is not an obstacle to the consideration of the case. The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance on the following grounds. It follows from the case file that by a court order of the Burlinsky District Court of the West Kazakhstan region dated May 14, 2018, alimony was collected from K. in favor of T. for the maintenance of N.'s son, born on January 25, 2012, in the amount of 1/4 of earnings and (or) other income, starting from January 14, 2019 until adulthood. the child. According to A.'s objection, the court's ruling of December 21, 2018 cancelled the court order. By the decision of the Burlinsky District Court of the West Kazakhstan region dated January 25, 2019 with K. in favor of A. alimony was collected for the maintenance of minor children: E., born on October 11, 2013, J., born on March 14, 2016, B., born on September 24, 2018, in the amount of 1/2 of earnings and (or) other income, starting from January 3, 2019, until the children reach adulthood.
According to the decision of the same court dated March 7, 2019, alimony was collected from K. in favor of T. for the maintenance of N.'s son, born on January 25, 2012, in the amount of 1/4 of earnings and (or) other income, starting from January 14, 2019, until the child reaches the age of majority. The court of first instance, partially satisfying K.'s claims and reducing the amount of alimony collected from him in favor of defendant T. from 1/4 to 1/6 of earnings, proceeded from the family and financial situation of the plaintiff. The Court considered that A. the application for the recovery of alimony was submitted formally, in order to reduce the amount of alimony collected in favor of T. The Appeals board, changing the decision of the court of first instance, justified its legal position by the fact that for two writ of execution, in violation of the norms of current legislation, the monthly deduction exceeds fifty percent, whereas in accordance with the norms of Article 139 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code) alimony for three and more children are charged by the court from their parents monthly in the amount of half of the earnings and (or) other income of the parents. However, it is impossible to agree with such conclusions of the appeals board. According to paragraph 1 of Article 175 of the Code, if, in the absence of an agreement on the payment of alimony, the financial or marital status of one of the parties has changed after the court has established the amount of alimony, the court may, at the request of either party, change the established amount of alimony or release the person obligated to pay alimony from their payment.
When changing the amount of alimony or exempting them from payment, the court has the right to take into account other noteworthy interests of the parties. Paragraph 29 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 29, 2019 No. 6 "On the application of legislation by courts when considering cases related to the recovery of alimony" clarified that when resolving the claim of a parent paying alimony for a minor child to reduce the amount of alimony, it should be borne in mind that a change in the parent's financial or marital status does not This is an absolute basis for satisfying the claim, since it is necessary to establish that such changes do not allow him to maintain the alimony payment in the same amount. Considering that the third child was born in the plaintiff's family, and his wife A. is on parental leave, the court of first instance reasonably reduced the amount of alimony in favor of T. to 1/6 of all types of income. There were no grounds to reduce the amount of alimony collected to 1/8 of earnings, since the financial situation of the plaintiff had not changed significantly, his salary minus pension and tax deductions is about 866,000 tenge. With the second claimant A. The plaintiff lives with one family, runs a joint household, and the alimony collected from him goes to the general budget of the family.
The court of appeal allowed the incorrect application of Article 39 of the Code, since when considering the claim for reduction of alimony already collected by the court, it had to be guided by the norms of Article 175 of the Code and take into account the financial, marital status of the parties and other circumstances indicating the impossibility of paying alimony in the previously established amount.
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