Recovery of alimony often becomes a painful issue for former spouses. Especially the problem is complicated if the alimony payer permanently resides abroad, is a foreigner or has dual citizenship.
There is an erroneous opinion that it is almost impossible to recover alimony from a foreigner or a person who lives abroad. However, domestic legislation, numerous international agreement, developed judicial practice prove the opposite.
In general, there are three ways for recovery of alimony from the payer spouse who lives abroad, each of which has its own legal peculiarities in implementation.
The first step will be a clarification whether concluded an international agreement on legal assistance between Ukraine and the state where the payer spouse lives. Whether this state is a party to the Convention on the Recovery Abroad of Maintenance. The method and the order of collecting the alimony will depend on it.
Out of court
If parents have a dialogue, the best way to resolve this issue is the peaceful resolution of the dispute and the signing of a child support agreement. Such an agreement allows to quickly solve the existing problem, deprives the lengthy litigation and is better in the child’s interests.
When you sign child support agreement, we recommend prescribing the obligation to fulfill the obligation by providing the child with real estate or fulfilling the entire obligation in one payment. That is, do not use the bindings for monthly or any other urgent payments, systematic obligations, because this will significantly complicate the process of paying alimony payments in the future.
Please note that in case when the payer spouse is a citizen of Ukraine and has permanent residency in a state with which Ukraine does not have a legal assistance agreement, he (she) is obliged to pay all child support in advance. So, the father (mother) who leaves Ukraine must submit a document confirming the fulfillment of alimony obligations to the passport authority at the place of permanent residence in Ukraine, as well as a notarized statement that the child support recipients do not have requirements for collecting alimony payments or a notarized copy the state executor’s decree on of the end of the enforcement proceedings (if the recovery of alimony was carried out by a court decision).
The decision of the Ukrainian court on the recovery of alimony
The provisions of the Law of Ukraine “On International Private Law” provide an opportunity for the Ukrainian courts to consider cases on the recovery of alimony from foreign citizens, if the plaintiff has a residence in Ukraine.
In order to further enforce the decision of the Ukrainian court abroad, the requirements in claim for the recovery of alimony are preferably set in a solid monetary form, and not in a share (percentage form).
After receiving the decision of the Ukrainian court and its entry into force, it must be recognized on the territory of the state where the payer spouse lives. That is it will be impossible that is to execute it in Ukraine due to the absence of the payer spouse’s property (if it is really absent).
It is necessary to submit the received court decision together with the application and the petition for its recognition and execution, adding a certain list of documents to the petition, to the territorial department of justice at the place of registration of the claimant. All documents are submitted with the translation into the language of the country where it should be performed.
The representative of the territorial department of justice sends the received documents to the relevant authority of the foreign state for its implementation. However, it should be borne in mind that not all decisions of the Ukrainian courts can be recognized by another state and are subject to execution.
Decision of a foreign court on the recovery of alimony
The third way of collecting alimony abroad is to apply to a court of a foreign state and receive a decision that will be directly implemented at the place of residence of the payer spouse or the location of his (her) property.
This method can be used when there is no decision of the Ukrainian court to collect alimony from the defendant residing abroad. And in other cases: when such disputes are resolved in accordance with the laws of a foreign country at the place of residence of the defendant, when it is necessary to resolve the issue of increasing the amount of alimony, as well as in cases when there is no agreement on legal assistance between countries, which makes it impossible to enforce the decision of the Ukrainian court on the territory of a foreign state.
It is possible to apply to a court of a foreign state through the territorial department of justice at the place of registration of the claimant.
In this case, the territorial department of justice need to file an appeal to decide on the recovery of alimony and a statement on the recovery of alimony, along with a package other of relevant supporting documents. The entire package of documents must be translated into the language of the country in which alimony will be collected, and officially notarized.
The territorial department of justice transfers documents to the appropriate authority of the country in which the payer spouse resides, to review the application on the merits and collect alimony in the case if the issue is resolved in favor of the alimony claimant. The territorial body of the Ministry of Justice is obliged to regularly inform the applicant about the progress of the consideration of the case.
This method is the best among other judicial mechanisms for the recovery of alimony. This option reduces the procedural time that the plaintiff spends when recognizing the decision of the court of Ukraine, reduces the number of documents that must be submitted to various authorities and significantly minimizes costs.
Recovery of alimony from a payer spouse who permanently resides abroad or is a citizen of another state is a difficult and usually lengthy process (it may take more than a year).
You should take into account a list of significant factors when you choose one or another method of collecting child support: the country of residence of the payer of child support, the existence of an international agreement between Ukraine and the country of residence of the payer spouse, the presence or absence of the property of the payer spouse in Ukraine, is he or she employed, circumstances in which the child is, his (her) age and needs, etc.
In general, to date, the legislation of our state and international legal agreement to which Ukraine is a party allow us to resolve issues related to parental responsibility for the child support, regardless of citizenship and place of residence of parents and children.
Belikova Anastasia
assistant attorney – practice partner
legal representation
Attotney at law «Bachynskyy and partners»
Natalia Zhemanova]]>
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