On the application of legislation by courts when considering cases related to the recovery of alimony

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2019 No. 6.

  The footnote. throughout the text: the words "statement of claim", "statement of claim" should be replaced, respectively, with the words "claim", "claim"; the words "notarized", "notarized" should be deleted; in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/07/2023 No. 4 (effective from the date of its first official publication).

     In order to ensure the uniform application of legislation by courts when considering cases related to the recovery of alimony, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.

     1. When considering disputes related to the recovery of alimony, courts should be guided by the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution), the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the Administrative Procedural Code of the Republic of Kazakhstan (hereinafter referred to as the CPC). - APPC) and other regulatory legal acts. If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those contained in the Code, the rules of the international treaty shall apply.

     The grounds for the occurrence and termination of alimony obligations, as well as the list of persons entitled to alimony and persons obligated to pay them, the procedure for paying and collecting alimony, and other relations related to the establishment and fulfillment of alimony obligations are regulated by section 5 of the Code.

     The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

     2. In accordance with part three of Article 27 of the CPC, claims for the recovery of alimony, for changing the amount of alimony, for exemption from payment of alimony, from payment of arrears on alimony collected for the maintenance of minor children, and other claims related to the recovery of alimony, including claims for amendment, termination, or invalidation of an agreement on the payment of alimony are subject to consideration and resolution in specialized inter-district juvenile courts.

     In accordance with part four of Article 30 of the CPC, claims for the recovery of alimony may be filed by the plaintiff at his place of residence, with the exception of claims in cases under the jurisdiction of district (city) courts located within cities of republican significance and the capital, regional centers.

     Since claims for an increase in the amount of alimony and for the recovery of penalties due to late payment of alimony arise from the claimant's rights to receive alimony, such claims may also be filed at the plaintiff's choice either at his place of residence or at the defendant's place of residence, in compliance with the requirements of part three of Article 27 of the CPC.

     Claims of persons who are obliged to pay alimony for exemption from paying alimony or from paying alimony arrears are subject to consideration at the defendant's place of residence, with the exception of claims in cases under the jurisdiction of district (city) courts located within cities of republican significance and the capital, regional centers.

     The footnote. Paragraph 2 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/07/2023 No. 4 (effective from the date of its first official publication).

     3. 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, heads of organizations for orphaned children, children left without parental care, the body performing the functions of guardianship or the adoptive parent, if the adoption was made by one person while preserving the personal non-property and property rights and obligations of the child with the other parent.

     4. The person who is obliged to pay alimony and the recipient of alimony have the right to conclude a written agreement on the payment of alimony. In case of incapacity of the person who is obliged to pay alimony and (or) the recipient of alimony, an agreement is concluded between their legal representatives.

     In the absence of a notarized agreement on the payment of alimony, the person entitled to alimony has the right to apply to the court with a claim for the recovery of alimony.

     The voluntary payment of alimony in the absence of a notarized agreement on their payment does not prevent the claimant from applying to the court with a claim for the recovery of alimony.

     The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/07/2023 No. 4 (effective from the date of its first official publication).

     5. Claims for the recovery of alimony for minor children are resolved by the court in the order of writ or claim proceedings.

     Claims for the recovery of alimony for the maintenance of minor children that are not related to the establishment of paternity (motherhood) or the need to involve third parties are considered by the courts in writ proceedings in accordance with subparagraph 4) of Article 135 of the CPC, regardless of the type of legal proceedings indicated in the application.

     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.

     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 claim: evidence confirming that the person from whom alimony is to be collected is the parent of the child (birth certificate of the child, marriage certificate (matrimony) or divorce (marriage), and if the child was born out of wedlock (marriage) before November 25, 2019 - a certificate of paternity); evidence confirming the child's residence with the applicant.

     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 is outside the Republic of Kazakhstan; documents confirming the claimed claim have not been submitted.; there is a dispute about the law, 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.

     In writ proceedings, alimony for the maintenance of minor children for the past period cannot be collected within a three-year period, as well as in a fixed amount of money, since the fact of the debtor's evasion from paying alimony must be established in court proceedings with the summoning of the parties and the presentation of appropriate evidence, and the decision on the recovery of alimony in a fixed amount requires verification of the availability of or the absence of the circumstances specified in Article 141 of the Code.

     The footnote. Paragraph 5, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication); dated 07.12.2023 No. 4 (effective from the date of its first official publication).

     6. According to the first part of Article 142 of the CPC, a judge cancels a court order if the debtor objects to the stated claim within the prescribed period, or if another person, whose rights and obligations are affected by the court order, submits a statement about the inconsistency of the court order with the requirements of the law.

     In the ruling on the cancellation of the court order, the judge clarifies that the claim claimed by the claimant may be brought in the order of the claim proceedings.

     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 indicated in the application for a court order (for example, judicial acts that have entered into force challenging paternity or excluding information about the father).

     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.

     The footnote. Paragraph 6, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication); dated 07.12.2023 No. 4 (effective from the date of its first official publication).

7. If there is a notarized written agreement on the payment of alimony between the person obligated to pay alimony and their recipient, then the claim for recovery of alimony may be considered by the court only if, simultaneously with the said claim, a claim for termination of the alimony agreement is filed and the plaintiff provides evidence confirming compliance with the pre-trial dispute resolution procedure (paragraph 3 of Article 159 of the Code, paragraph 2 of Article 402 of the Civil Code of the Republic of Kazakhstan (hereinafter - Civil Code)), or a claim has been made to invalidate the alimony payment agreement.

     If the plaintiff in a claim for termination of the alimony agreement does not provide evidence confirming compliance with the pre–trial dispute resolution procedure, the judge returns the 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 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 specified a question to the party of the alimony payment agreement.

     8. In accordance with subparagraph 4) of Article 616 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", plaintiffs on alimony claims are exempt from paying state duty in courts.

     Considering that claims for an increase in the amount of alimony and for the recovery of penalties due to late payment of alimony arise from the claimant's rights to receive alimony, the plaintiffs are exempt from paying the state fee for such claims.

     According to the first part of Article 117 of the CPC, the state fee, from which the plaintiff was exempted, is collected from the defendant, who is not exempt from paying court costs, to the state's income in full or in proportion to the satisfied part of the claim.

     The State fee to be collected from the defendant in the event of satisfaction of these claims shall be calculated in accordance with subparagraph 1) paragraph 1 of Article 610 of the Tax Code as for a property claim subject to valuation.

     The same rules for calculating the amount of the state fee apply to claims of persons who are obliged to pay alimony, for reduction of the amount of alimony, for exemption from payment of alimony or from payment of arrears of alimony.

     By virtue of subparagraph 5) of the first part of Article 104 of the CPC, the price of a claim is determined in claims for the recovery of alimony - by the totality of payments for one year; subparagraph 8) of the first part of Article 104 of the CPC in claims for reduction or increase of payments or disbursements - by the total amount claimed by the applicant, but not more than one year. a year; subparagraph 9) of the first part of Article 104 of the CPC in claims for termination of payments and disbursements - the totality of the remaining payments or disbursements, but not more than one year.

     The price of the claim is determined by the court on the basis of information about the debtor's income (for example, a certificate of average earnings, information from state revenue authorities, etc.). In the absence of documents confirming the debtor's income, the amount of cumulative payments for the year should be determined from the average monthly salary in the Republic of Kazakhstan as of the date of the claim.

     The filing of claims by persons obligated to pay alimony for reduction of the amount of alimony, for exemption from payment of alimony or from payment of alimony arrears is not related to the violation of their rights by the claimants, and therefore the legal costs incurred by the applicants for such claims are not reimbursable.

     The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

     9. When preparing cases related to the recovery of alimony for trial, the courts should correctly identify the circumstances relevant to the resolution of the dispute and subject to proof by the parties, and resolve the issue of the composition of persons.

     If it is established that the defendant pays alimony to other persons on the basis of enforcement documents, then these persons are involved in the case as third parties who do not make independent claims on the subject of the dispute.

     Other persons may be involved in the case as third parties who do not make independent claims on the subject of the dispute, who are required to pay alimony for which no claims have been made.

     As part of the preparation of the case for trial, the judge assigns to the parties the obligation to provide evidence indicating their financial and marital status.

     By virtue of subparagraph 24) of paragraph 1 of Article 1 of the Code, financial status should be understood as the presence or absence of wages, pensions, and other income; their size; the presence of property; and receiving or not receiving financial assistance from other family members.

     When determining the financial situation of the parties, the courts should take into account all types of their income (wages, income from entrepreneurial activities, from the use of intellectual property, pensions, allowances, health compensation and other payments), as well as any property belonging to them (including securities, shares, deposits, to credit organizations, shares in the authorized capital of a limited liability company).

     When deciding whether a person claiming alimony is in need of assistance, it is necessary to find out whether the financial situation of this person is sufficient to meet his life needs, taking into account his age, health status and other circumstances (expenses for the purchase of necessary food, clothing, medicines, payment for housing and utilities services, etc.), whether pensions and other social assistance received at the expense of the state are sufficient to meet these needs, and what other income the plaintiff has.

     Marital status refers to the conclusion or dissolution of a marriage (matrimony), widowhood, the presence or absence of children or other family members.

     When establishing the marital status of an alimony payer, it should be clarified whether he has other minor or disabled adult children or other persons whom he is legally required to support. Courts should proceed from the need to ensure a balance of interests between both sides of the alimony relationship.

     The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/07/2023 No. 4 (effective from the date of its first official publication).

     10. The requirement to collect alimony for a minor child is subject to satisfaction by the court, regardless of the parents' ability to work, as well as the child's need for alimony.

     When determining the amount of alimony in proportion to the earnings and (or) other income of the parents, the court should proceed from the provisions of paragraph 1 of Article 139 of the Code, according to which 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, three or more children - half of their parents' earnings and/or other income.

     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.

     If a claim for the recovery of alimony for a minor child is filed against both parents of the child, the court determines the amount of alimony to be recovered from each parent.

     11. The court has the right to determine the amount of alimony collected monthly in a fixed amount of money or both in shares and in a fixed amount of money if the parent who is required to pay alimony has irregular, changing earnings and (or) other income, or this parent receives earnings and (or) other income in whole or in part in kind or in in foreign currency, or he has no earnings and (or) other income, as well as in other cases when it is impossible to collect alimony in proportion to the parent's earnings and (or) other income., it is difficult or significantly violates the interests of one of the parties.

     If each parent has children, the court determines the amount of alimony in a fixed amount of money payable monthly and collects it from one parent in favor of the other, less well-off (paragraph 4 of Article 141 of the Code).

     The high level of income of a parent who is obliged to pay alimony does not in itself relate to the circumstances established by Article 141 of the Code, in which it is possible to collect alimony in a fixed amount of money, and not in proportion to earnings. However, if the court finds that the recovery of alimony in proportion to the parent's earnings and/or other income significantly violates the interests of one of the parties, alimony may be collected in a fixed amount of money.

     By virtue of the provisions of Article 72 of the CPC, the burden of proving the circumstances related to the possibility of collecting alimony for a minor child in a fixed amount of money in connection with a violation of the interests of the alimony payer is placed on the person who is obliged to pay alimony.

13. Paragraph 4 of Article 109 of the Code grants the court the right, in case of cancellation of an adoption, based on the interests of the child, to oblige the former adoptive parent to pay funds for the maintenance of the child in the amount established by Articles 139 and 141 of the Code.

     Issues related to determining the amount of funds for the maintenance of a child to be recovered from former adoptive parents, changing the amount of these funds or exempting them from payment, as well as other issues arising from the performance by former adoptive parents of the obligation to pay child support, are resolved by the court according to the same rules as in the case of the recovery of maintenance children with their parents.

     14. Claims for the recovery of alimony for adult children studying in the system of general secondary, technical and vocational, post-secondary education, in the system of full-time higher education under the age of twenty-one (paragraph 2 of Article 138 of the Code) are filed by adults themselves.

     In this category of cases, the court should involve the parent with whom the adult child lives as third parties who do not make independent claims.

     The amount of child support to be collected in this case is established by the court in accordance with paragraph 2 of Article 141 of the Code in a fixed amount of money, based on the size of the monthly calculation index (hereinafter referred to as the MCI), to the extent possible to preserve the child's previous level of security, taking into account the material and marital status of the parties and other circumstances worthy of attention.

     At the same time, it is necessary to take into account the costs necessary for the purchase of clothing, food, tuition fees for paid education, rental costs, etc.

     In each case, the court must proceed from the necessity of these costs.

     The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

     15. Under disabled adults who are entitled to alimony (articles 143, 145, 147, 148, 153, 154, 155 Persons who are recognized in accordance with the established procedure as persons with disabilities of group I or II, as well as persons who have reached the generally established retirement age, should be understood.

     By virtue of paragraph 2 of Article 143 of the Code, the amount of alimony for disabled adult children is determined by the court as a multiple of the minimum wage established by law at the time of payment of alimony, based on the financial and marital status and other interests of the parties that deserve attention.

     Taking into account the circumstances of the case, the court may collect alimony by setting a period during which they are recoverable (for example, for the period when the plaintiff's disability is established, if the deadline for the medical and social examination institution is set) and specify the date before which alimony is recoverable from the defendant on a monthly basis.

     The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/07/2023 No. 4 (effective from the date of its first official publication).

     16. In accordance with paragraph 1 of Article 145 of the Code, parents who are unable to work and in need of assistance have the right to demand maintenance from their able-bodied adult children.

     Courts should find out whether parents have other able-bodied adult children, which of them provides them with assistance and in what form and amount. The court has the right, on the basis of paragraph 4 of Article 145 of the Code, to determine the amount of alimony, including taking into account the circumstances mentioned, regardless of whether the parents have filed a claim against all children, one or several of them.

     If the court finds that the plaintiffs are deprived of parental rights in relation to the defendant, the court refuses to satisfy the claim for the recovery of alimony. If circumstances are established confirming the fact that the plaintiffs evaded the duties of parents, the court may refuse to satisfy the claim for the recovery of alimony. Parents' avoidance of fulfilling their responsibilities for the upbringing and maintenance of children should be understood as a lack of concern for their moral and physical development, education, preparation for socially useful work, and malicious evasion of alimony payments.

     The duties of adopted children who have reached the age of majority are determined by the content of the adoptive parents in the same way as the duties of children to their parents.

     17. Other family members eligible for alimony include: minor brothers and sisters, minor grandchildren, disabled grandparents, disabled persons in need who actually raised and supported minor children, disabled stepfather and stepmother (Articles 151, 152, 153, 154, 155 of the Code).

     When considering the claims of other family members for the recovery of alimony by the courts, it should be borne in mind that the right to receive alimony from family members named in articles 151, 152, 153, 154, 155 of the Code arises if the plaintiffs are unable to work and need assistance and they cannot receive maintenance from parents, able-bodied adult children, grandchildren. or spouses (former spouses). When deciding whether it is possible to receive maintenance from family members, the court needs to investigate whether they are able to work, as well as the reasons why alimony cannot be obtained from them.

     The obligation of able-bodied brothers and sisters, provided for in article 151 of the Code, to support their minor relatives, as well as the disabled relatives of adult brothers and sisters in need of assistance, applies to both full-born and half-born brothers and sisters.

     18. Persons who actually raised and supported minor children, the responsibility for the maintenance of which is assigned to their pupils (Article 154 of the Code), should be understood as both relatives of the child and persons who are not related to him, who carried out the upbringing and maintenance of the child, without being the adoptive parent, guardian (trustee), foster the parent or foster carer of the child.

     In accordance with paragraph 2 of Article 154 of the Code, the court has the right to release pupils from the obligation to support the persons who actually raised them, if the latter supported and educated them for less than five years, if they supported and educated their pupils improperly. Legally significant circumstances to be established when resolving claims of persons who actually raised them for the recovery of alimony include: the period during which the actual upbringing and maintenance of children was carried out, the reasons why the educators stopped their upbringing and maintenance (for example, due to the illness of the actual educator, the return of children to their parents, the children reaching the age of eighteen years), as well as whether the upbringing and maintenance of the students was carried out in good faith.

     19. The court has the right to collect alimony from stepsons and stepdaughters for the stepfather and stepmother who are disabled and in need of help, who raised and supported them for at least five years (if these duties were performed by them properly), including in the case when the parent living separately from the child participated in the maintenance and upbringing of the child during the specified period.

     If the marriage (matrimony) between the stepfather (stepmother) and the parent of the stepson (stepdaughter) was terminated due to the death or declaration of the deceased parent of the stepson (stepdaughter), then this circumstance cannot serve as a basis for refusing to satisfy the claim of the stepfather (stepmother) for the recovery of alimony from the stepson (stepdaughter).

     20. Based on the provisions of paragraph 3 of Article 156 of the Code, if a claim for recovery of alimony for a family member specified in Articles 151, 152, 153, 154, 155 of the Code is filed against all persons who are obliged to support him at the same time, the court determines the amount of alimony payable by each of the obligated persons, taking into account their material, family regulations, as well as other circumstances that deserve attention. In the case of a claim against one or more of the obligated persons, the court may take into account all persons who are required to support the plaintiff and determine the amount of alimony to be collected, taking into account these persons.

     21. When resolving the claim of one spouse against the other spouse for the recovery of alimony, it must be borne in mind that the rights and obligations of spouses, including the obligation to financially support each other, arise from the date of state registration of marriage (matrimony).

     The circle of persons entitled to claim alimony in court from another spouse (ex-spouse) who has the necessary funds for this is established by the Code (paragraph 2 of Article 147, paragraph 1 of Article 148 of the Code).

     If the marriage (matrimony) is declared invalid, the bona fide spouse has the right to file a lawsuit against the former spouse for the recovery of alimony (paragraph 4 of Article 28 of the Code).

     Since, in accordance with paragraph 2 of Article 147 and paragraph 1 of Article 148 of the Code, a spouse has the right to demand alimony only from a spouse (ex-spouse) who has the necessary means for this, a claim for the recovery of alimony from a spouse (ex-spouse) may be satisfied by a court if the recovery of alimony from the defendant does not lead to the impossibility of meeting the vital needs of this a person and members of his family, whom he is legally obliged to support, at the expense of funds remaining after paying alimony.

22. In accordance with subparagraph 2) paragraph 2 of Article 147 and subparagraph 1) paragraph 1 of Article 148 of the Code, the spouse (ex-spouse) has the right to demand maintenance from the spouse (ex-spouse) during pregnancy and within three years from the date of birth of the common child.

     The plaintiff's earnings or other income during the specified periods may be taken into account by the court when determining the amount of alimony to be collected from the defendant.

     If the care of the spouses' common child before the age of three is carried out by the child's father, and the child's mother has withdrawn from his upbringing and maintenance, based on the analogy of the law (paragraph 2 of Article 5 of the Code), the said spouse (former spouse) has the right to file a lawsuit against the spouse (former spouse) for the provision of maintenance until the child reaches the age of three.

     23. When applying the provisions of article 150 of the Code, which establishes the grounds on which a court may release a spouse from the obligation to support another disabled spouse in need of assistance or limit this obligation to a certain period both during the marriage (matrimony) and after its dissolution, it must be borne in mind that the onset of disability of the spouse due to abuse of gambling, betting, alcoholic beverages, narcotic drugs, psychotropic substances, and their analogues must be confirmed by appropriate medical documents., and the fact that the spouse committed an intentional criminal offense, as a result of which he became disabled, is a court verdict that has entered into legal force, or a court order or a decision of the criminal prosecution authority to terminate the criminal case on non–rehabilitating grounds.

     The court may release the spouse from the obligation to support the other spouse due to the short duration (up to five years) of their stay in marriage (matrimony) and in case of establishing the fact of improper behavior in the spouse's family requiring alimony payments.

     The plaintiff's abuse of gambling, betting, alcoholic beverages, narcotic drugs, psychotropic substances, and their analogues, or other behavior contrary to the interests of the family, can be considered as improper behavior.

     When considering cases in this category, it is necessary to take into account when a criminal offense was committed or there were facts of misconduct in the family, the nature, severity and consequences of their commission, as well as the subsequent behavior of the plaintiff.

     The rules provided for in article 150 of the Code may be applied by a court if a claim for alimony is made by a disabled ex-spouse in need of assistance.

     The footnote. Paragraph 23 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).

     24. The courts should bear in mind that, by virtue of paragraph 5 of Article 47 of the Code, a different procedure is provided for the maintenance of the mother of a child who is not married to the defendant, in respect of whom paternity has been established.

     The amount of funds and the frequency of payments are determined by the court based on the financial and marital status and other noteworthy interests of the parties in multiple ratio to the MCI established by law at the time of payment of funds.

     25. An agreement on the payment of alimony, concluded out of court, is drawn up in writing in the form of:

     agreements on the payment of alimony – by a notary;

     dispute (conflict) settlement agreements – by the mediator;

     agreements on the settlement of a dispute on the payment of alimony in a participatory procedure – by lawyers, persons who are members of the Chamber of Legal Advisers (Article 158 of the Code)

     An agreement on the payment of alimony must contain the amount, method and procedure for the payment of alimony.

     According to the alimony agreement, alimony can be paid in the following way::

     in shares to the earnings and (or) other income of the person who is obliged to pay alimony;

     in a fixed amount of money, paid periodically;

     in a fixed sum of money, paid in a lump sum;

     by providing property;

     in other ways, on which an agreement has been reached (performance of work, provision of services, etc.).

     The alimony payment agreement may provide for a combination of different ways of paying 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 apply to the conclusion, execution, modification, termination and invalidation of civil law transactions.

     The norms of paragraph 2 of Article 401 of the Civil Code are subject to the application of the legal relations on the amendment and termination of the agreement on the payment of alimony, according to which, at the request of one of the parties, the contract may be amended or terminated by a court decision only:

     1) in the event of a material breach of contract by the other party;

     2) in other cases stipulated by the Civil Code, other legislative acts or an agreement.

     Courts should bear in mind that the provisions of paragraph 3 of Article 159 of the Code apply to other cases provided for by law.

     Thus, in the event of a significant change in the material or marital status of the parties and failure to reach an agreement on the amendment or termination of the agreement on the payment of alimony, the interested party has the right to apply to the court with a claim for amendment or termination of this agreement.

     The footnote. Paragraph 25 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 07.12.2023 No. 4 (effective from the date of its first official publication).

     26. 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: the conclusion of an agreement with a person recognized as legally incompetent, the conclusion of an agreement under the influence of deception, violence, threat or adverse circumstances, imaginary and pretended agreements (Articles 159, 160 GK).

     In accordance with article 160 of the Code, the court 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 their interests. In particular, when the amount of alimony for a minor child 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).

     27. Courts should keep in mind that the alimony payment agreement is not included in the list of enforcement documents for which enforcement proceedings are initiated (Article 9 of the Law of the Republic of Kazakhstan dated April 2, 2010 No. 261-IV "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law on Enforcement Proceedings)), in connection with in order to enforce the alimony payment agreement, the recoverer has the right to apply to a notary public, who makes an executive inscription on the agreement, which is an executive document.

     The recoverer has the right to submit an executive order for enforcement to the bailiff, who determines the alimony arrears on the basis of an agreement on the payment of alimony (paragraph 3 of Article 169 of the Code).

     28. By virtue of part seven of Article 240 of the CPC, if, after the entry into force of the decision by which periodic payments are collected from the defendant, the circumstances affecting the determination of the amount of payments or their duration change, each party has the right to demand changes in the amount and timing of periodic payments by filing a new claim.

     The recovery of alimony for a minor child by a court decision (court order) in proportion to the earnings and (or) other income of the alimony payer does not prevent the recipient of alimony, if there are grounds provided for by law (Article 141 of the Code), to demand the recovery of alimony in a fixed amount of money and (or) simultaneously in shares and in a fixed amount of money.

     The specified claim is considered by the court in the order of the claim proceedings, and not according to the rules provided for in Article 246 of the CPC, since in this case the issue of changing the amount of alimony must be resolved, and not about changing the method and procedure for executing the court decision.

29. 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. When changing the amount of alimony, the court has the right to take into account other interests of the parties that deserve attention.

     If the debtor pays alimony to several claimants, in which the proportion ratio provided for in paragraph 1 of Article 139 of the Code is not maintained, for example, the debtor pays alimony to one claimant for the maintenance of one child in the amount of one quarter of the earnings and (or) other income of the parents and to another claimant for the maintenance of one child in the amount of one quarter, and The debtor files a claim for a reduction in the amount of alimony, arguing only that he must pay alimony in the amount of one third for two children., without indicating a change in financial or marital status, the amount of alimony is not subject to reduction.

     If the amount of alimony for children and other family members previously established by the court is changed, they will be collected in the newly established amount from the date of entry into force of the court decision.

     The court that changed the amount of the alimony payments being collected is obliged to send a copy of the decision to the court that issued the decision on the recovery of alimony.

     When revoking an enforcement document on the recovery of alimony in the amount previously established, the court should simultaneously indicate that if there is a debt under the specified enforcement document, the bailiff informs the court about this and continues to execute the enforcement document until the debt is repaid. After debt collection in full, the executive document is returned to the court that revoked it.

     The Regulatory resolution of the Constitutional Court of the Republic of Kazakhstan dated 12/24/2024 No. 58-NP recognized paragraphs two, three and four of paragraph 29 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11/29/2019 No. 6 "On the application of legislation by courts when considering cases related to the recovery of alimony" as corresponding to the Constitution of the Republic of Kazakhstan.      The footnote. Paragraph 29 as amended by the regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication); dated 05/29/2025 No. 3 (effective from the date of the first official publication).

     30. If there is evidence indicating a deterioration in the debtor's financial situation and (or) a change in his marital status, the court has the right to decide to satisfy his claim for exemption in whole or in part from payment of alimony arrears, if it is established that the non-payment of alimony took place for valid reasons, and the change in material and (or) The debtor's marital status led to the impossibility of paying off the alimony arrears.

     When considering such cases, the courts should clarify the validity of the reasons for the debt that affects his financial situation, for example, the illness of a person who is required to pay alimony, a decrease in earnings or other income for reasons beyond the debtor's control, or loss of work due to illness, an increase in the number of persons to whom he is legally required to provide maintenance. and others, in which he does not have the opportunity to repay the debt.

     At the same time, it should be borne in mind that in order to release a person who is obliged to pay alimony from paying debts, a combination of two circumstances is necessary: the formation of debt for reasons recognized by the court as valid, and the inability to repay the debt due to difficult financial and marital status. The presence of only one of these circumstances prevents exemption from debt payment.

      If adults receiving alimony are provided with inpatient social services in social service organizations for free (for example, when they live in boarding schools for the elderly and disabled, war and labor veterans, or other organizations providing inpatient social services), or such persons are transferred to the care of a public or other organizations or citizens (in particular, in the case of concluding lifelong maintenance contracts with them), These circumstances may serve as grounds for exempting the alimony payer from paying them if there are no exceptional circumstances entailing additional costs (special care, treatment, nutrition, etc.), since by virtue of subparagraph 3) of paragraph 2 of Article 176 of the Code, the right to receive monetary support is lost if the recipient of alimony ceases to need assistance.

     The court's exemption of an alimony payer in whole or in part from paying alimony arrears on the basis of paragraph 2 of Article 170 of the Code does not entail recognition of the bailiff's decision on determining alimony arrears as illegal.

     The footnote. Paragraph 30 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

     31. The amount of alimony arrears paid for minor children in accordance with article 139 of the Code is determined by the bailiff based on the salary and other income of the person who is required to pay alimony for the period during which the alimony was not collected. In cases where the person obligated to pay alimony did not work during this period or if documents confirming his salary and other income are not provided, monthly payments and (or) alimony arrears are determined in accordance with paragraph 3 of Article 99 of the Law on Enforcement Proceedings based on the average monthly salary in the Republic of Kazakhstan for the moment of debt collection. For debtors who are persons with disabilities, monthly payments or alimony arrears are determined from their monthly wages and other income, and if they do not work, from monthly allowances and (or) social benefits paid from budgetary funds and (or) the State Social Insurance Fund.

     For persons serving sentences in places of deprivation of liberty, if the debtor did not work during this period, the alimony arrears are determined in the amount of one MCI.

     If either party does not agree with the determination of the amount of alimony arrears based on the provisions of paragraph 4 of Article 169 of the Code, it may appeal against the actions of the bailiff in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan (paragraph 4 of Article 136 of the CPC, article 127 of the Law on Enforcement Proceedings).

     The footnote. Paragraph 31, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication); dated 07.12.2023 No. 4 (effective from the date of its first official publication).

     32. In accordance with article 171 of the Code, when arrears arise due to the fault of a person who is obliged to pay alimony under an agreement on the payment of alimony, and (or) a person who is obliged to pay alimony by a court decision, the guilty person pays the alimony recipient a penalty in the amount of one tenth of one percent of the amount of unpaid alimony for each day of delay. The recipient of alimony shall also have the right to recover from the person guilty of late payment of alimony all losses caused by the delay in fulfilling the obligation to pay alimony in the part not covered by the penalty.

     When considering cases of this category, it is necessary to find out why the person who is obliged to pay alimony does not pay them, what measures have been taken by bailiffs to execute the judicial act, and whether the person who is obliged to pay alimony has evaded payment.

     The debtor's guilt in the formation of alimony arrears is a prerequisite for collecting penalties and losses from him.

     Such responsibility cannot be assigned to the payer if the alimony arrears were caused by other persons, in particular, due to late payment of wages, delay or incorrect transfer of alimony amounts, etc.

     The penalty established by article 171 of the Code is a special measure of family legal responsibility that guarantees the exercise of the rights of needy family members to receive maintenance, and is levied in the amount of one tenth of one percent of the amount of unpaid alimony for each day of delay. Reduction of the penalty for late payment of alimony on the basis of Article 297 of the Civil Code is not allowed.

     When calculating the penalty, it must be borne in mind that the obligation to pay alimony is monthly in nature and, therefore, the penalty for non-payment of alimony must be determined for each overdue monthly payment, based on the amount of this payment and the number of days of its delay, determined on the day of the court's decision on the recovery of the penalty.

     The footnote. Paragraph 32 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/07/2023 No. 4 (effective from the date of its first official publication).

     33. 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.

34. Subject to the requirements of paragraph 1 of Article 144 of the Code, in the absence of an agreement on the payment of alimony, each parent may be brought by the court to participate in additional expenses caused by exceptional circumstances.

     Such circumstances include, for example, serious illness, injury to minor children or disabled adults in need of assistance, requiring, in particular, payment for outside child care, other expenses necessary for the treatment or maintenance of children's health, as well as for their social adaptation and integration into society (expenses for prosthetics, for the purchase of medicines, special care products, transportation or training, etc.).

     The procedure for parents' participation in additional expenses and the amount of these expenses are determined by the court based on the financial and marital status of the parents, other children and the interests of the parties that deserve attention in multiple ratio to the MCI established by law at the time of payment of alimony payable monthly (paragraph 2 of Article 144 of the Code).

     Taking into account the specific circumstances of the case, additional expenses may be collected from the defendant once (for example, in the case when the plaintiff claims to recover the expenses actually incurred by him).

     The footnote. Paragraph 34 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/07/2023 No. 4 (effective from the date of its first official publication).

     35. By virtue of the second part of Article 140 of the CPC, in a court order for the recovery of alimony for minor children, it is necessary to indicate the name and date of birth of each child for whose maintenance alimony was awarded, the amount of payments collected monthly from the debtor, and the time period for their recovery. The same information should be indicated in the operative part of the decision.

     In the case of recovery of alimony on the basis of paragraph 1 of Article 139 of the Code, in proportion to the earnings and (or) other income of parents for two or more children, the court should indicate in the operative part of the decision (in the court order) the amount of the recovered share, as well as the subsequent change in this share and the periods of recovery of alimony in a new amount, depending on achievements of each of the children of legal age.

     By virtue of article 173 of the Code, the indexation of alimony collected by a court decision in a fixed amount of money is carried out by the administration of the organization at the place of alimony retention in proportion to the amount of the MCI. The operative part of the court's decision, which satisfies the claim for the recovery of alimony in a fixed amount of money, must also contain information about the amount of the fixed amount of alimony in numbers and words.

     The footnote. Paragraph 35 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/07/2023 No. 4 (effective from the date of its first official publication).

     36. According to article 4 of the Constitution, this normative resolution is included in the current law, is generally binding and comes into force from the date of the first official publication.

 

Chairman of the Supreme Court of the Republic of Kazakhstan

J. Asanov

Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session

G. Almagambetova

President    

Republic of Kazakhstan     

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