Alimony obligations of family members in the family law of ukraine: problematic issues of theory and practice

Problematic issues of recovery of alimony from adult children for parental support

In accordance with Part 1 Article 202 of the Family Code of Ukraine Family Code of Ukraine. (2020, July). Retrieved from https://zakon.rada.gov.ua/laws/show/2947-14#Text an adult daughter and son are obliged to support parents who are unable to work and need financial aid. The obligation of children to support their parents in need of financial aid is also known to other legal systems in the world. Thus, K. S. Pearson notes that the Virginia Parental Support Act is a typical law, the existence of which can be traced back to the history of the adoption of social security laws in colonial times. The law, codified in the Annotated Code of Laws of the State of Virginia, section 20-88, begins with a statement of general obligation, stating that “it should be...an obligation of all able-bodied persons over 18 years of age, once that person has sufficiently provided for their family, to help and support their mother/father if she/he finds himself in a difficult situation”. This law gives courts the power to determine and oblige to make payments to parents, including the distribution of costs among several children [36].

Alimony obligations of adult children for the maintenance of their parents under the laws of Ukraine arise in the presence of legal composition, which includes the following legal facts: 1) determination of the origin of an adult child from specific mothers, fathers, 2) incapacity of the mother, father; 3) the need of the mother or father for financial aid.

The most problematic issue of modern law enforcement practice is the definition of mother or father in need of financial aid. The approach reflected in the decision of the Civil Court of Cassation of the Supreme Court of December 5, 2018 in case No. 570/3274/15-ц has been established for a long time: the need for financial aid is determined in each case depending on the financial situation of parents. The court considers the parents' receipt of pensions, state benefits, subsidies, the presence of parents' property that can bring income, etc. The mere fact of the incapacity of the parents does not presuppose that the children have the obligation to provide them with maintenance - the state of incapacity for work must be accompanied by the need to receive third-party financial aid. Evidence of this need is the receipt by the mother or father of income below the subsistence level. According to the current legislation, the state provides the necessary maintenance for disabled people - old-age pension, disability pension, state aid, etc. Therefore, when issuing a court decision, the amount of such state maintenance should be considered and made dependent on the subsistence level [37].

However, at present the judicial practice departs from this approach, as evidenced by the decision of the Supreme Court of the Joint Chamber of the Civil Court of Cassation of September 5, 2019 in case No. 212/1055/18-ц, which states that in the case, the court of first instance, having correctly established the circumstances of the case and applied the rules of substantive law, came to the reasonable conclusion that the plaintiff is a pensioner, incapable of work, has a serious illness, needs treatment, and therefore needs financial aid, which the defendant, her son, does not provide, although he is able to work, is officially employed and has the opportunity to pay child support. The appellate court's reference to the fact that the plaintiff, although incapable of work, nevertheless receives a pension in the amount significantly exceeding the subsistence level established by law for persons who have lost their ability to work and therefore does not require third-party financial aid is unfounded, since Articles 202, 203 of the Family Code of Ukraine, which regulate the disputed legal relations, do not make provision for consideration only of the subsistence level established by law, as an absolute condition for recovery or refusal to collect alimony [38].

It is considered that such an interpretation of family law on the maintenance obligations of adult children to support their parents will lead to a lack of unity of judicial practice in this category of family disputes. It would be expedient for the legislator to determine more specifically which of the parents can be considered in need of financial aid. In this category of family law disputes, similar provisions could be applied to the recognition of a person in need of financial aid as to one of the spouses, as discussed above in this study.

Problems of alimony obligations of other family members and relatives

The Family Code of Ukraine in the provisions of Chapter 22 also regulates the alimony obligations of other family members and relatives, making provision for a fairly wide scope of alimony payers, which allowed some lawyers, in particular L. V. Afanasieva, to classify them as alimony obliged subjects of the second group. Thus, spouses (exspouses), parents and children are obliged to support each other in cases established by law, regardless of the obligations of other persons to provide maintenance. The law imposes maintenance obligations on other family members and relatives only in the absence of first-degree alimony payers [2].

Notably, the changes to the family legislation of Ukraine in terms of strengthening the protection of the child's right to maintenance did not affect the second group of alimony obligations of persons. In particular, the legislator did not amend Article 272 of the Family Code of Ukraine Family Code of Ukraine. (2020, July). Retrieved from https://zakon.rada.gov.ua/laws/show/2947-14#Text, which prescribes that the amount of alimony collected from other family members and relatives for children and disabled adults in need of financial aid is determined as a share of earnings (income) or in a fixed amount. In determining the amount of alimony, the court takes into account the material and family status of the payer and recipient of alimony. If the claim is not filed against all liable persons, but only against some of them, the amount of alimony is determined with consideration of the obligation of all liable persons to provide maintenance. In this case, the total amount of alimony to be collected may not be less than 30 percent of the subsistence level for a child of the appropriate age. The court may determine the period during which alimony will be collected.

Thus, the minimum amount of alimony collected from other family members and relatives per child is 30 percent of the subsistence level for a child of the appropriate age. Therewith, Part 2 Article 182 of the Family Code of Ukraine already refers to the minimum guaranteed amount of alimony for one child, which cannot be less than 50 percent of the subsistence level for a child of the appropriate age. These legal provisions indicate unequal opportunities for the child to exercise its right to maintenance. In this regard, it is proposed to amend Part 2 Article 272 of the Family Code of Ukraine and to prescribe that the total amount of alimony to be collected from other family members and relatives may not be less than 50 percent of the subsistence level for a child of the appropriate age.

Conclusions

Thus, the alimony obligation of family members is a legal relationship in which one party (the debtor - the payer of alimony) is obliged to perform in favour of the other party (creditor - the recipient of alimony) a certain action - to pay alimony in cash, and the creditor has the right to demand from the debtor to perform their duty. In this meaning, the alimony obligation is by its nature a monetary obligation, and by its essence - a family law obligation. It is proposed to extend the provisions of Article 625 of the Civil Code of Ukraine on liability for breach of monetary obligation in terms of the possibility of recovery of the amount of debt, taking into account the established inflation index for the entire period of delay, as well as three percent per annum of the overdue amount. It is proved that the recognition of one of the spouses as in need of financial aid, depending on its provision at the subsistence level for the recovery of alimony from the other spouse, no longer meets the needs of today. It is proposed that one of the spouses be considered in need of financial aid if their monthly income (salary, pension, income from the use of property, other income) is less than the minimum wage established by law. It is proposed to apply similar provisions to identify parents in need of financial aid in alimony obligations for adult children to support their disabled parents in need of financial aid.

It is established that the legislator's change of the minimum amount of alimony to be collected from the alimony payer per child is not a basis for changing the amount of alimony in accordance with Article 192 of the Family Code of Ukraine, but is the basis for changing the minimum amount of alimony specified in the writ of execution in the procedure for executing and collecting alimony, and is taken into account when determining the amount of alimony or debt. It is argued that the form of education of an adult child who continues its studies and therefore needs financial aid does not matter for collecting alimony from a mother or father, and also that parents are not exempt from the obligation to support an adult daughter/son continuing education, including during the holidays.

It was proposed to amend the Family Code of Ukraine and stipulate the obligation of parents deprived of parental rights to support both adult disabled children in need of material aid, if parents can provide such material aid, and adult children who continue their education and, in this regard, need material aid, until they reach the age of 23, provided that parents can provide such material aid.

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