Supreme Court agrees with UHHRU lawyer on child maintenance
Your former husband is living from dividends yet paying 100 UAH (around 20 USD) in maintenance for his child. Not fair and Ukrainian Helsinki Human Rights Union lawyer Oleksy Kinebas set out to change court practice on this. What is more, he succeeded, with the Supreme Court deciding that dividends are a form of income from the point of view of deducting alimony.
Oleksy explains that this question is regulated by a “List of types of income taken into consideration when determining the amount of maintenance for one of the couple, children and parents of other people” in the version of the Cabinet of Ministers Resolution from 1 July 2002 No. 869. Since the list doesnt directly refer to dividends, some courts have refused to take them into account for stipulating maintenance.
In the case of the UHHRU client, this resulted in the absurd situation where the persons former husband was receiving a large income from ownership of corporate rates, but paying around 100 UAH a month in maintenance.
UHHRU argued that this contravened Article 27 of the UN Convention on the Rights of the Child and Article 51 of the Ukrainian Constitution binding parents to support their underage children, as well as Article 3 of the UN Convention and Article 7 § 7 of the Family Code which stipulate that the first priority for the authorities and private institutions must be ensuring the interests of the child.
The Supreme Court has agreed that dividends are a form of income, and with the UHHRUs argument that the above-mentioned List is not exhaustive. This means that maintenance can be ordered from other forms of income than those listed, including payments if a shareholder cashes in his or her shares in a joint stock company.
Although there is as yet no court precedent, this Supreme Court judgment can be used as a weighty argument during judicial examinations. Oleksy stresses that it is too early to assume that all is resolved, since the Supreme Court has sent the case back for new consideration in a first instance court. UHHRU will be seeking arrears in maintenance payments. “This will also serve to stress the duty of parents to support underage children enshrined in both the Constitution and in the UN Convention on the Rights of the Child.”
Oleksy Kinebas points out also that this case also highlighted the shortcomings in the system of enforcement of court rulings. While the case was under consideration in the Supreme Court, the joint stock company which the respondent was a member of made a payment to him of his share on leaving. This was despite a first instance court ruling prohibiting such a payment. Although that ruling had later been revoked by the same court, the second ruling had not come into force because of an appeal against it. Again, when the appeal failed, the prohibition was still in force since the Supreme Court had suspended the force of the court of appeals ruling. Despite the UHHRU appeal to the first instance court which did freeze the relevant assets, it would seem that the money from the account vanished a few days ago.
Oleksy Kinebas says that UHHRU still hopes that the State will fulfil its duty and notes dryly that the number of cases which Ukraine has lost in the European Court of Human Rights is already pretty large.