The Family Code of Ukraine establishes the obligation of parents to maintain their child until he or she reaches the age of majority. The payment of child support by a court decision is one of the responsibilities of the child to those parents who live separately from the child.
In accordance with Part 1, Article 2. 196 of the Family Code of Ukraine in the event of arrears due to the fault of the person who is obliged to pay alimony by court decision, the recipient of alimony is entitled to a penalty (penalty) of one percent of the amount of unpaid alimony for each day of delay. The amount of the penalty may be reduced by the court taking into account the material and family status of the alimony payer.
Clause 22 of the Resolution of the Plenum of the Supreme Court of Ukraine of May 15, 2006 №3 “On the application by courts of certain provisions of the Family Code of Ukraine when considering cases of paternity, maternity and recovery of alimony” it is clarified that Art. 196 of the IC of Ukraine the responsibility of the payer of alfiment for delay in their payment in the form of a penalty (penalty) arises only in the presence of fault of this person. Accordingly, the alimony payer cannot be held liable if the debt was incurred for reasons beyond his control, in particular due to late payment of wages, delay or incorrect transfer of alimony by banks. In other cases, the penalty is charged for the entire period of delay.
First of all, let’s find out what a penalty is. According to Art. 549 of the Civil Code of Ukraine Penalty (fine, penalty) is a sum of money or other property that the debtor must transfer to the creditor in case of breach of obligation by the debtor. The penalty is a penalty calculated as a percentage of the amount of unfulfilled or improperly fulfilled obligation. Penalty is a penalty calculated as a percentage of the amount of overdue monetary obligation for each day of delay.
So, how to correctly calculate the penalty (penalty) for alimony arrears.
According to the legal position of the Supreme Court of Ukraine of 11.09.2013 (case №6-81tss13) and the legal position of the Supreme Court of Ukraine dated 01.10.2014. (case №6-149tss14) The Supreme Court of Ukraine determined that when considering disputes over recovery on the basis of Part 1 of Art. 196 of the IC of Ukraine penalty from the amount of unpaid alimony, the court must determine the amount of unpaid alimony for each of these periodic payments, set a deadline by which each of these obligations must be fulfilled, and taking into account the amount of penalty based on the amount unpaid alimony for each month separately from the date of violation by the payer of alimony of his obligation to pay them until the date of the court’s decision to collect a penalty, summarizing the amount of accrued penalty for each of the overdue payments and determining its total amount.
Currently, the legal position of the Supreme Court of Ukraine has changed, so in the case № 6-94tss15 from 01.07.2015. The Supreme Court of Ukraine clarified that the amount of alimony arrears for the previous months is not added to the arrears for the following months, and the number of days in arrears is calculated based on the month in which the alimony was not paid. That is, the penalty (penalty) for one month is calculated as follows: arrears of alimony for the month multiplied by 1% of the penalty and multiplied by the number of days of the month in which the debt arose.
The above can be presented by the following formula:
P = s * p * Q, where
P – penalty for one month, S – debt for the month, p – interest rate in percent for the day of delay, Q- number of overdue days of the month
The total amount of penalty (penalty) is determined by adding the accrued penalty for each of the overdue payments (for each month).