Penalty for non-payment of alimony under the agreement of parents on child support

Abstract

The article examines new approaches to the application of liability in case of non-payment of child support under the agreement of parents on the maintenance of their joint minor children. The legal nature and peculiarities of the child support agreement in the family law of Ukraine are investigated. Considerable attention is paid to the issues of determining the conditions of liability for non-payment of alimony, the form and amount of maintenance, performance and termination of the agreement, and recovery of penalties in case of arrears.
 Based on the analysis of the provisions of the current family law of Ukraine, the author concludes that in accordance with the amendments to Part 1 of Article 196 of the Family Code of Ukraine, a penalty may be recovered if maintenance is provided on the basis of an alimony agreement and it does not expressly provide for liability for late performance of the obligations imposed on the parties, i.e. provision of maintenance. Thus, in accordance with part 1 of Article 196 of the Family Code of Ukraine, a penalty for non-payment of alimony may be collected both in the case of a court decision and in the case of an alimony agreement, even if the agreement does not contain any penalty provisions.
 As regards the grounds for liability, the article proves that in case of breach of the alimony agreement, the provisions of the Civil Code of Ukraine governing civil law contracts with due regard for the specifics of family law regulation apply.
 The author examines two components for the application of this liability:
 - The debt arose from the payment of child support established by a court decision or by agreement between the parents (a notarised child support agreement under Part 1 of Article 189 of the Family Code of Ukraine);
 - The existence of guilty actions of the person obliged to pay alimony by court decision or by agreement between the parents, which led to the debt.
 In other words, if the debt arose due to circumstances beyond the control of the latter (illness, accountant's error, actual inability to make payments for other valid reasons), no penalty can be charged. At the same time, the form of the payer's fault (intent or negligence) does not matter to the court.