Recovery of Child Support (Alimony) for Minor Children When Children Remain with Each Parent

For example, by the decision of the Gabit Musrepov District Court of the North Kazakhstan Region dated December 22, 2022, the claim of K.A. against Zh.B. for divorce was satisfied. The parties did not file a claim for the recovery of alimony. The court determined that two minor children would reside with their father and one child with their mother, and ordered Zh.B. to pay alimony to K.A. for the maintenance of the two children in the amount of one-third (1/3) of her income, while K.A. was ordered to pay alimony to Zh.B. for the maintenance of one minor child in the amount of one-fourth (1/4) of his income.

It should be noted that, pursuant to Paragraph 4 of Article 141 of the Code, if children remain with each parent, the amount of alimony payable by one parent to the other, less financially secure parent, shall be determined as a fixed monetary amount.

Since, in such cases, the issue of recovering alimony in a fixed monetary amount must be resolved, the parties should be informed that if children remain with each parent, the less financially secure spouse has the right to apply to the court with a claim, providing the relevant evidence.

Jurisdiction

As a general rule of jurisdiction, a claim for divorce shall be filed at the place of residence of the defendant in accordance with Article 29 of the Civil Procedure Code (CPC).

If minor children reside together with the plaintiff, the claim may be filed at the plaintiff’s place of residence (Part 7 of Article 30 of the CPC).

Issues concerning the determination of jurisdiction in this category of cases generally do not cause difficulties for courts; however, a number of judicial errors still occur.

A place of residence is recognized as the locality where a citizen permanently or predominantly resides.

State Duty

Pursuant to Subparagraph 5) of Paragraph 1 of Article 610 of the Tax Code, a state duty (hereinafter referred to as the “state duty”) in the amount of 0.3 Monthly Calculation Indexes (MCI) is charged for filing a divorce claim with the court.

Payment of the state duty and submission of proof of such payment together with the statement of claim are mandatory requirements for the court to accept and consider the claim.

The plaintiff is the payer of the state duty.

However, there are cases where courts accept claims accompanied by a receipt showing payment of the state duty by the defendant rather than the plaintiff.

For example, the Taiynsha District Court of the North Kazakhstan Region accepted for proceedings a divorce claim filed by B.K. against B.N. Although the claim was submitted by B.K., the state duty was paid by the defendant, B.N.

A review of cases showed that the state duty paid by the plaintiff upon filing the claim is, pursuant to Part 1 of Article 109 of the CPC, awarded to the plaintiff and recovered from the defendant when the claim is satisfied.

At the same time, there are cases where, despite the satisfaction of the claim, the court costs related to the payment of the state duty for filing a divorce claim were not recovered from the defendant in favor of the plaintiff.

Return of a Claim Due to Failure to Comply with the Pre-Trial Dispute Resolution Procedure

On September 30, 2021, the Supreme Court adopted the Regulatory Resolution “On Amendments and Additions to Certain Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan on Civil and Civil Procedure Legislation,” which introduced amendments and additions to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated April 28, 2000, “On the Application by Courts of Legislation When Considering Divorce Cases” (hereinafter referred to as the “Regulatory Resolution”).

These amendments were prompted by the courts’ consideration of divorce cases involving spouses who had no common minor children and no property or other disputes, whereas under the Code, if such spouses mutually consent, the divorce must be processed through the civil registration authority.

According to Paragraph 6 of the Regulatory Resolution, as amended, spouses who have no property or other claims against each other and no common minor children must provide evidence confirming that the defendant refused to dissolve the marriage through the civil registration authority or evaded the dissolution of the marriage despite having no objections.

Providing such evidence is the responsibility of the plaintiff. In the absence of such evidence, the claim shall be returned pursuant to Subparagraph 1) of Part 1 of Article 152 of the CPC due to failure to comply with the mandatory pre-trial dispute resolution procedure established by law for this category of cases.

The Resolution also clarifies what documents may be submitted by the plaintiff as evidence of the defendant’s refusal to dissolve the marriage through the civil registration authority or his/her evasion of the divorce procedure.

Preparation of the Case for Trial

Pursuant to Paragraph 3 of the Regulatory Resolution, courts are obliged to thoroughly prepare divorce cases for judicial proceedings.

Upon accepting the statement of claim, the judge should, as a rule, summon the other spouse and ascertain his or her attitude toward the claim, determine whether the spouses have any other disputes requiring judicial resolution, and explain which claims may be considered simultaneously with the divorce claim.

Compliance with Time Limits for Consideration of the Case

According to Paragraphs 3 and 4 of Article 19 of the Code, a marriage shall be dissolved by a court no earlier than one month after the spouses submit an application for divorce to the court.

In exceptional cases, the court may dissolve the marriage before the expiration of the period specified in Paragraph 3 of this Article.

The review revealed that some judges, in violation of the above legal requirements, issued divorce judgments before the expiration of the one-month period.

Conciliation Procedures

Pursuant to Article 20 of the Code and Paragraph 10 of the Regulatory Resolution, courts take measures to reconcile spouses only when one of them does not consent to the dissolution of the marriage. In such cases, the court adjourns the proceedings and grants the spouses a reconciliation period of up to six months.

The review showed that the majority of divorce claims were left without consideration at the plaintiff’s request pursuant to Subparagraph 8) of Article 279 of the Civil Procedure Code (CPC) due to the reconciliation of the parties. Courts also accepted withdrawals of claims in cases where the parties reconciled and terminated the proceedings.

According to Parts 1 and 2 of Article 174 of the CPC, the court takes measures to reconcile the parties and assists them in resolving the dispute at all stages of the proceedings. The parties may settle the dispute in whole or in part by concluding a settlement agreement, a mediation agreement for dispute (conflict) resolution, an agreement reached through a participatory procedure, or by using other methods provided for by the CPC.

In accordance with Article 1 of the Law “On Mediation,” mediation may be applied to disputes arising from civil legal relations, as well as disputes arising from labor and family legal relations.

Judicial Practice in Divorce Cases

According to Paragraph 11 of the Regulatory Resolution, courts should, as a rule, consider divorce cases with the participation of both spouses. It is necessary to comprehensively examine the relationship between the parties, the reasons for seeking the dissolution of the marriage, and the actual causes of the marital breakdown.

However, where spouses who have common minor children mutually agree to the dissolution of the marriage, have no property or other claims against each other, or where one spouse files for divorce and the other spouse, despite having no objections, evades the dissolution of the marriage through action or inaction, the court dissolves the marriage without investigating the reasons for the divorce.

In such cases, the marriage is dissolved within a period of up to two months (Article 183 of the CPC).

Pursuant to Paragraph 2 of Article 22 of the Code, if there is no agreement between the spouses on the issues specified in Paragraph 1 of this Article, or if such an agreement is found to violate the interests of the children or one of the spouses, the court is obliged to:

1. Determine with which parent the minor children will reside after the dissolution of the marriage;
2. Determine which parent will pay child support (alimony) and in what amount;
3. Upon the request of the spouses, divide the property that is jointly owned by them, taking into account the interests of the minor children and/or the interests of the spouses themselves;
4. Upon the request of a spouse entitled to maintenance from the other spouse, determine the amount of such maintenance;
5. Determine the procedure for communication between a parent and the child (Subparagraph 5 was added by the Law of March 27, 2023, and entered into force on April 8, 2023).

According to Paragraph 13 of the Regulatory Resolution, where no agreement exists between the spouses on the above issues, or where the agreement submitted to the court violates the interests of the children, the court must determine with which parent the minor children will reside after the divorce and from which parent, and in what amount, child support shall be recovered.

The court must also explain that a parent living separately from the children is obliged to participate in their upbringing and has the right to communicate with them, while the other parent is not entitled to obstruct such communication. A corresponding record shall be made in the minutes of the court hearing.

Judicial practice indicates that, in the vast majority of completed cases resulting in judgments, divorce claims were granted by the courts.

Courts refused to grant divorce claims pursuant to Paragraph 2 of Article 16 of the Code, which provides that a marriage cannot be dissolved without the wife's consent during her pregnancy and within the first year of the child’s life.

Regulatory Framework

The principal legal acts applicable to disputes concerning the dissolution of marriage are:

1. The Constitution of the Republic of Kazakhstan;
2. The Civil Code of the Republic of Kazakhstan (CC);
3. The Civil Procedure Code of the Republic of Kazakhstan (CPC);
4. The Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family” (the Code);
5. The Code of the Republic of Kazakhstan “On Taxes and Other Mandatory Payments to the Budget (Tax Code)” dated December 25, 2017, No. 120-VI (the Tax Code);
6. The Law of the Republic of Kazakhstan “On the Rights of the Child in the Republic of Kazakhstan” dated August 8, 2002, No. 345-II;
7. The Law of the Republic of Kazakhstan “On Mediation” dated January 28, 2011, No. 401-IV;
8. Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated April 28, 2000, “On the Application by Courts of Legislation When Considering Divorce Cases”;
9. Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 15 dated November 29, 2018, “On the Application by Courts of Legislation in Resolving Disputes Related to Child Upbringing”;
10. Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 6 dated November 29, 2019, “On the Application by Courts of Legislation in Cases Related to the Recovery of Alimony”;
11. Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003, “On Court Judgments in Civil Cases”;
12. Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 9 dated December 25, 2006, “On the Application by Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases”;
13. The Convention on the Rights of the Child (ratified by the Resolution of the Supreme Council of the Republic of Kazakhstan dated June 8, 1994).

Legal relations involving citizens of the Commonwealth of Independent States (CIS) are also governed by the provisions of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993 (the Minsk Convention), and the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of October 7, 2002 (the Chisinau Convention).

If an international treaty ratified by the Republic of Kazakhstan establishes rules different from those provided by national legislation, the provisions of the international treaty shall prevail.

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