As it is commonly known, in December 2017 the Verkhovna Rada of Ukraine passed the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Strengthening Child’s Right to Proper Maintenance by Improving the Procedure for Enforced Recovery of Child Support Debts” (the Law), which became effective on February 6, 2018.
The Law, as it is obvious from its name, aims at at least partial resolution of a socially significant issue such as avoiding obligation to maintain a child by one of the parents.
Performance of obligation
Although the relevant Law contains certain legal drawbacks (in particular, version drafted for the second reading), which were emphasized back in the day by, in particular, the Main Legal Department of the Apparatus of the Verkhovna Rada of Ukraine (inter alia, it concerns the lack of certain regulated aspects related to the enforcement mechanism proposed by the Law on Enforcement Procedures, as well as despite it contains a number of amendments to all existing codes of procedure not in fact related to the subject regulated by the specified Law), in general, the above Law introduces a number of novelties, which might have a positive impact on the situation on reneging on child support payment in Ukraine.
At the same time, it causes no doubt that the situation emerged in child support payment sphere required response from legislator, since the relevant statistics is rather disappointing. In particular, according to the Ministry of Justice of Ukraine (the data specified in a relevant explanatory note to draft law), approximately 540 thousand writs of execution related to child support recovery were handled by bodies of the State Bailiff Service as of September 2017. In addition, nearly one fifth of such writs of execution were issued for debts, which in aggregate exceed the amount of relevant payments for three months. It proves that legitimate right of more than half a million children to proper maintenance by parents was violated.
Furthermore, violation of obligations to pay child support in many cases does not result from objective reasons such as, for instance, actual financial insolvency, but rather subjective ones, i.e., simple unwillingness to pay child support and, accordingly, the use of all possible measures by a debtor to avoid such payment. Such non-payment may be caused by various reasons, but in general they are mostly due to conflicts that usually occur between parents during divorce proceedings and establishing guardianship of a child. However, since a child is the main victim of such a situation, conflicts and difficulties with resolving them may in no way justify parents’ avoidance of their obligation to properly maintain a child, and, therefore, the above subjective factors must be certainly regulated by legislation in a corresponding way. The most significant innovations introduced by the above Law include introduction of a number of new penalties for child support debts and relevant mechanisms for application thereof.
For example, the above Law amended Article 71 of the Law of Ukraine “On Enforcement Proceedings”. Such amendments, in particular, authorize state enforcement bodies to apply a number of restrictive measures to a debtor whose debts exceed the amount of payments for six months based on own reasoned resolution without applying to court, namely:
- temporary abridging a debtor’s right to travel outside Ukraine – until the child support debt is paid in full;
- temporary abridging a debtor’s right to drive vehicles – until the child support debt is paid in full;
- temporary abridging a debtor’s right to use firearms hunting weapons, air and inert guns, domestically produced devices for releasing cartridges equipped with rubber or similar non-lethal projectiles – until the child support debt is paid in full;
- temporary abridging a debtor’s right to hunt – until the child support debt is paid in full.
It should be noted that such measures as temporary abridging a debtor’s right to travel abroad, especially abridging the right to drive vehicles for obvious reasons may be quite a leverage when enforcing unscrupulous debtors to perform their obligation. After all, while abridging the right to hunt and use firearms fail to cover significant number of persons and do not entail particularly critical inconveniences should they be applied, impossibility to travel outside Ukraine (for example, on vacation) and let alone impossibility to use own car significantly restricts a debtor in using goods vital for many people. Furthermore, efficiency of these measures will be ensured by a relatively simple mechanism for applying them introduced by the Law – by resolution of a state enforcement body without applying to court.
However, legislator provided for possibility to challenge relevant actions of a state enforcement body, as well as to protect rights of certain categories in terms of abridging their right to drive vehicles.
Thus, relevant amendments stipulate that temporary abridging a debtor’s right to drive vehicles may not be applied in a number of cases, in particular:
- if such an abridgement deprives a debtor of the main legal source of livelihood;
- use by a debtor of vehicle due to disability or being supported by a debtor with group I-II disability recognized in accordance with established procedure, or due to having a child with disability;
- doing by a debtor of active military service, conscription of commissioned staff, conscription during the mobilization, for a special period, or if a debtor does military service and performs military service missions in a military zone or within the anti-terrorist operation zone;
- instalment or postponement of payment of child support debts in accordance with the procedure established by law.
Mechanism to be developed
Furthermore, the above Law introduced a new Article – Article 1831 “Non-Payment of Child Support”, into the Code of Administrative Offenses of Ukraine. It is provided by this Article on non-payment of child support by one of spouses, parents or other family members, which led to a debt, the aggregate amount of which exceeds the amount of relevant payments for six months starting from the date of serving a writ of enforcement execution, for liability in the form of doing community service for the period of 120 to 240 hours. The issue of holding liable for the specified offense shall be considered by court based on administrative offense record drawn up by a relevant state enforcement body pursuant to provisions of part 12 Article 71 of the Law of Ukraine “On Enforcement Proceedings” and sent to court at the State Bailiffs’ Service’s location.
This form of liability, i.e. community service, is also a novelty introduced by the above Law, by introducing Article 311 into the Code of Administrative Offenses of Ukraine, providing that community service means performance by a person who committed an administrative offense of paid work, the type of which is to be determined by a relevant local self-government body.
In turn, Chapter 31a introduced into the Code of Administrative Offenses of Ukraine establishes the relevant procedure for enforcing a resolution on community service, which regulates the procedure and manner of doing community service, calculating the terms thereof, accruing payments, etc.
This Law also introduces a number of minor amendments to laws of Ukraine, such as the Law of Ukraine “On Road Traffic”, “On State Border Guard Service of Ukraine”, “On the Procedure for Leaving and Entering Ukraine by Citizens of Ukraine”, “On the National Police”, which generally aim at ensuring the possibility of de facto enforcement of the above debtors’ liability for failure to pay child support.
In addition, applicants shall be exempted from court fees by relevant amendments to the Law of Ukraine “On Court Fees”, if an application is filed for the issuance of a court order on child support recovery.
In general, despite certain legal imperfection of the specified Law mentioned above and some uncertainty of merely practical mechanisms of applying specific measures introduced thereby, we believe that this Law, while being unable to fully resolve the issue of reneging on child support, will nevertheless have a positive impact on the current state of enforcing decisions on the recovery of child support debts and will result in positive dynamics in this issue.
Oleksandr Savchenko, Associate, Dispute Resolution practice, exclusively for “Sudovyi Visnyk” №5 (145), 25.05.2018