Recovery of alimony for the maintenance of parents

 

145 of the Code "On Marriage (Matrimony) and the Family" provides for the duties of adult children to support their parents. It follows from this rule that able-bodied adult children are obliged to support and take care of their disabled parents who need help.

In the absence of an agreement on the payment of alimony, alimony for disabled parents in need of assistance is collected from able-bodied adult children in court.

The amount of alimony collected from each of the children is determined by the court based on the financial and marital status of the parents and children and other noteworthy interests of the parties as a multiple of the monthly calculation index at the time of payment of alimony.

When determining the amount of alimony, the court has the right to take into account all able-bodied adult children of this parent, regardless of whether a claim is made against all children, one or more of them.

Children may be relieved of the obligation to support their parents who are disabled and in need of assistance if the court finds that the parents had previously evaded the duties of parents in relation to these children. Children are exempt from paying alimony to parents deprived of parental rights.

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.

From the literal meaning of the above-mentioned article, it follows that the obligation of children to support their parents can arise only if there are conditions at the same time: the parents' disability and their need for help.

The recipient's disability is determined by medical criteria (disability) or age characteristics (reaching retirement age). Persons with disabilities of groups I and II are considered to have completely lost their ability to work professionally on a regular basis.

Neediness means a lack of funds necessary to maintain a person's normal functioning in the prevailing socio-economic conditions. It is determined by the court in relation to the subsistence minimum, that is, the lower level of material security of a person, which preserves the conditions for restoring his vitality. All relevant factors are taken into account (marital status, medical expenses, outside care, etc.).

The concept of neediness includes the fact that when filing a claim for alimony, the parent does not have property and income to ensure his existence. At the same time, the minimum subsistence level is considered to be the starting point for sufficient funds.

Thus, the decision of the appeal judicial board for civil and administrative cases of the Karaganda regional Court changed the decision of the district court No.2 of the Kazybekbiysky district of Karaganda dated 03.03.2015, issued on the claim of Dr. G. to Dr. O., Dr. A. for the recovery of alimony for the maintenance of an incapacitated parent, who partially satisfied the plaintiff's claims, it was decided to collect maintenance from the defendants in favor of the plaintiff in the amount of 10 monthly calculation indices from each, monthly from the date of the appeal to the court, from 30.01.2015

The Court of First Instance concluded that Dr. G.V. has the right to receive assistance from her children, since due to her age and acquired illnesses, she needs financial assistance from her able-bodied children.

In accordance with Parts 1,2 of Article 145 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", able-bodied adult children are required to support and take care of their parents who are unable to work. In the absence of an agreement on the payment of alimony, alimony for disabled parents in need of assistance is collected from able-bodied adult children in court.

It follows from the meaning of the above article that able-bodied adult children are required to support their parents who are unable to work and need help. Thus, the subject of the evidence under this article is the need for the assistance of an incapacitated parent in maintenance.

The Court of Appeal considered that the plaintiff had not provided evidence of her need to receive maintenance from the defendant, Dr. O.V., since the monthly pension received by the plaintiff amounts to 69,294 tenge. In addition, Dr. G.V. receives 35,000 tenge from the latter under the housing lease agreement dated 08/20/2014, concluded with the defendant.

In accordance with paragraph 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation and the moral principles of society. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.

In this case, the plaintiff, contrary to the above-mentioned rule of the law, exercises her rights in bad faith, since the plaintiff's claim against Dr. O.V. allows her to evade responsibility for the execution of the judicial act of 04/26/2010 that entered into force to recover from her and her son Dr. A.V. 3,000,005 tenge in solidarity. in favor of Dr. O.V., by canceling this amount with the funds of Dr. O.V. himself.

In addition, the funds collected by this court decision for the maintenance of the plaintiff from Dr. A.V. in the amount of 10 MCI fully compensate the plaintiff's costs for the execution of the judicial act of 04/26/2010 that entered into force. This situation is fair, since they have joint responsibility to Dr. O.V.

In the above circumstances, the appellate judicial board overturned the court's decision regarding the recovery from Dr. O.V. in favor of the disabled parent and in this part issued a new decision to dismiss the claims. The rest of the court's decision remains unchanged.

 

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