ALIMONY OBLIGATION

Filippova O.V.; Zatsepin M.N.; Zatsepin A.M.; Permyakov M.V.

Алиментная облигация

Филиппова Ольга Владимировна,

кандидат юридических наук, доцент, член Российской криминологической ассоциации, ovz24@ya.ru

Зацепин Михаил Николаевич

доктор юридических наук, профессор, Аналитик отдела научных исследований и международного сотрудничества УрГЭУ, mnz-1958@mail.ru

Зацепин Александр Михайлович

кандидат юридических наук, доцент, доцент кафедры уголовного права УрГЭУ, tp0507@ya.ru

Пермяков Максим Владимирович,

кандидат юридических наук, доцент, Уральский федеральный университет имени первого Президента России Б.Н. Ельцин, Уральский государственный юридический университет, pmv0929@yandex.ru

Семейное право в настоящее время нуждается в комплексной доработке, поскольку регулирует широкий перечень отношений, посредством которых вырабатываются меры, необходимые для обеспечения стабильности семьи и ее членов, в частности несовершеннолетних и инвалидов. В статье рассматривается регулирование алиментных обязательств в России с акцентом на главе 13 Семейного кодекса Российской Федерации, регулирующей алиментные обязательства. Автор исследовал ряд вопросов, связанных с алиментными обязательствами, и проанализировал их с учетом проблем правоприменительной практики. Ключевые слова: алименты, супруги, дети, родители, семейное право, материальное обеспечение, правоотношения между членами семьи, взыскание, взаимопомощь, бабушка, дедушка, сестра, брат, пасынок, падчерица, отчим, мачеха.

The fifth section of the Family Code of the Russian Federation [1] regulates alimony obligations and sets out the financially vulnerable person's right to receive payments.

As things stand, the laws and practices pertaining to alimony need further elaboration.

Let's discuss the legal scholars' arguments regarding the definition of alimony or alimony obligations, and specific types and features of this institution of family law.

V.P. Nikitina suggests that alimony is an obligation under which, in cases expressly established by law, one family member must support other family members who are financially vulnerable [5, p. 275].

E.O. Zhuchkova defines alimony as financial or other support provided by a person (on which relevant obligation was imposed) to another person. E.O. Zhuchkova considers the absence of a common household between the alimony payer and the recipient as an important requirement for alimony obligations [4, p. 174].

L.M. Pchelintseva perceives alimony obligations as a legal relationship consisting of the obligation of one family member to support financially other eligible family members, as determined by a court or agreement. The author suggests that family members receiving alimony have the right to claim such payments [6, p. 351].

It is important to note that L.M. Pchelintseva distinguishes between the concepts of alimony and support. In her opinion, alimony is an element, an integral part of support within the context of legal relationship between family members.

A similar conclusion about the inconsistency of the concepts of support and alimony can be made when analyzing Article 80 of the Family Code. This rule suggests that the support provided to minor children is a direct obligation of their parents, and alimony obligations arise on the basis of other legal facts with a narrower focus. That is, the Family Code has a thin line separating support and alimony.

Legal analysis and existing regulations suggest that alimony cannot be equated with support. We agree with those who believe that alimony is a part of financial support of some family members by other family members. The Family Code of the Russian Federation establishes the following types of legal relationships arising from alimony obligations: 3

1. Between children and parents. This group K includes alimony provided by: 0

a) parents for minor children; |

b) parents for adult but disabled children; n

c) adult children for disabled parents in need of a financial support. c

2. Between spouses, former spouses. ^

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3. Between other family members (grandparents, sisters, brothers, stepson, stepdaughter, stepfather, stepmother).

The right to alimony can be established both voluntarily (out-of-court) and by a legal procedure.

The alimony obligation should be viewed as a legal relationship based on a fact stipulated by law. By virtue of this obligation, some family members must provide support to other members of their family, and the latter have the right to demand such support [8, p. 186].

Specific features of alimony obligations:

1. They are based on peremptory norms of family law. For example, part 1, Article 80 of the Family Code of the Russian Federation provides for the parents' obligation to support their minor children. Article 116 of the Family Code of the Russian Federation stipulates the "inadmissibility of offsetting and refund of alimony payments" [1].

2. The financial nature of legal relationship. Alimony obligations mean a person's statutory obligation to pay money or provide property to an eligible person.

3. In addition to the financial nature of alimony obligations, they have features of personal legal relationship. Alimony obligation is a legal relationship of financial nature between persons. Researchers of family law suggest that the right to alimony is an example of the right to mutual aid of spouses enshrined in the law (clause 1 of article 1, clause 1 of article 89 of the Family Code of the Russian Federation), the child's right to receive care from parents (clause 2, article 54 of the Family Code of the Russian Federation), the right to priority protection of disabled family members (clause 3, article 1 of the Family Code of the Russian Federation).

4. Sophisticated structure of parties to legal relationship. The structure of parties to legal relationship stemming from alimony is well-defined. On top of that, the law establishes a number of requirements for the parties to alimony obligations -such individuals should possess a certain legal status of close kinship (spouses, children, parents and other family members).

5. The emergence, change and termination of alimony obligations are connected with facts determined by law (for example, the birth of a child, reaching by the child of a certain age, reinstatement of parental rights, etc.).

6. Alimony obligations are always reciprocal. This feature of the considered institute of family law implies the conditional nature of the rights and obligations of the parties to legal relationship arising from alimony. For example, the children's obligation to pay alimony to their parents ceases if the latter are deprived of parental rights (clause 5, Article 87 of the Family Code of the Russian Federation).

7. The obligation to pay alimony is enforced by the state, based on the responsibility established by rules of family, civil, administrative and criminal laws [10].

8. Alimony obligations may be primary (first priority) and vicarious (second priority) [7, p. 111].

9. There is an element of publicity in alimony obligations.

10. The crucial nature of alimony payer's earnings and his or her actual ability to pay alimony is an important feature of legal relationship arising from alimony. This is with the exception of the payment of alimony for the benefit of minor children. When supporting this category of persons, the payer's income has no legal implications. This statutory provision emphasizes the importance of the rule to protect a minor who is a vulnerable party to legal relationship.

11. Alimony obligations are continuing in nature. The latter outlined feature of alimony obligations gave rise to the enshrinement of the possibility to change the amount of alimony in relevant laws.

The amount of alimony may be increased or reduced. Furthermore, the laws provided for the possibility of exemption from alimony payments. The procedure for changing the amount of alimony begins with the preparation of a statement of claim. Pursuant to Russian laws, an alimony payer should file a claim to change the amount of alimony with the defendant's (claimant's) local court.

In real-world contexts, courts often have to consider claims to reduce the amount of alimony. In the Resolution of the Plenary Session No. 56 as of December 26, 2017 (clause 8), Supreme Court of the Russian Federation clearly stated that the decision on this issue is made by the court "taking into account the financial situation and family relations of the parties, as well as other relevant circumstances or interests of the parties" [2].

Here is an example from case history. On May 28, 2020, Belogorsk City Court of the Amur Region considered claim filed by FULL NAME 1 against FULL NAME 2 to reduce the amount of alimony. The claimant argued that the alimony payments paid to the first spouse as support of their joint child had to be reduced because of the birth of the second child in the second marriage. Yet, the claimant told that he was charged alimony for each child in the amount of 1/4 of all earnings, and the total alimony paid by him amounts to 70% of earnings, which exceeds the statutory percentage.

Therefore, he asked the court to reduce the amount of child support paid to his previous wife to 1/6 of all monthly earnings. After analyzing the case file, the judge ruled to dismiss the claimant's claims, since the birth of a child alone does not suggest a worsening of the financial situation, and no other documents suggesting the family's poor financial security were provided to the court. On top of that, the court ruling focuses on the arguments made by the Constitutional Court of the Russian Federation regarding relations arising from alimony and the need to balance the interests of minor children and their parents, based on the rules enshrined in the Constitution of the Russian Federation [3].

Therefore, as regards these issues, the courts review the formality of alimony obligations in respect of each particular child, pay attention to the fact whether the child lives together with the alimony payer or separately, clarifying other circumstances of the case.

As for changing the amount of alimony, the applicable laws of the Russian Federation provide for

changing the alimony payment method from a percentage of earnings to fixed monthly payments. Such changes are possible in the following situations:

1. when the child's interests are jeopardized by the original method of collecting child support;

2. when the defendant has income that is not included in the calculation of alimony payments. Such situations are quite common: alimony payers conceal their actual income, work without an employment contract (unreported employment), own expensive property, declaring a small income.

3. when it is difficult to collect alimony in the way that the court originally established.

Disputes over alimony payments arise quite often between parents. Reduction of alimony is typically claimed by the person paying alimony under a court order. A positive ruling on the claim is possible when the court is provided with evidence in support of the cause of action. Review of case history suggested that the judge decides whether to reduce the amount of payments relying on own inner conviction. When resolving disputes, the court takes into account the financial situation of both parties, making a decision in accordance with the requirement to protect the rights of the minor child, while trying not to hurt the person obliged to pay alimony.

As for the responsibility of persons who are held liable by the legislator for failure to fulfill maintenance obligations or obligations to pay funds for the maintenance of children and disabled parents, it is enshrined in accordance with the Code on Administrative Offenses, and the legislator toughens the responsibility of this category of persons in accordance with the criminal legislation, when revealing the fact of "malicious evasion" from the fulfillment of maintenance obligations. Thus, in accordance with the latest changes and amendments made to Federal Law No. 323 of 03.07.2016 regarding Article 157 of the Criminal Code of the Russian Federation, which were aimed at improving the Russian legislation in the field of protecting the rights of children and disabled parents, namely, a qualifying sign "malicious intent" was excluded from the wording of the article and an administrative prejudice was introduced, the criminogenic component in Russia improved significantly and already in 2016 the number of persons subjected to criminal prosecution decreased, but the root cause of the problem, regardless of the decrease in indicators, has not been resolved.

In the Russian family, administrative and criminal legislation, measures of parental responsibility have already been established. Moreover, they are largely redundant, corruptogenic and lead to groundless interference in family life, in the upbringing of children. They should not be expanded, but reworked towards a reasonable narrowing, creating a space of family autonomy that allows for the forceful state intervention only in exceptional cases.

By nature, a family is an independent social institution designed to ensure the stable existence of the state and its further social, economic and political prosperity in the world community.

Based on this statement, it seems necessary to point out the fact that in most cases an incomplete (single-parent) family, in the absence of one of the parents,

cannot fully provide for the proper psychological and socio-economic upbringing of a child.

In order to increase the chances of giving a "little citizen" the opportunity to receive full-fledged support, the legislator, as a state regulator of these relations, has taken on the function of forcing an unscrupulous parent to fulfill his direct obligations.

Everything would be alright, but the one thing - a child being brought up in an incomplete family does not get enough love, warmth, attention, care from one of the parents, which naturally occurs through the fault of adults, and in the event of state intervention in family relations and performance by the offender of all constituent elements of the offence under Part 1 of Article 157 of the Criminal Code of the Russian Federation, the latter incurs criminal punishment and, as a criminal legal consequence, gets convicted, which in turn has a detrimental effect on the future of a child who is already infringed in his rights, not to mention a moral component.

The very fact of convicting the offender in no way contributes to the parent's refusal to evade paying maintenance, but in the future, it makes matters worse for both a parent (with a criminal record it will be many times more difficult to find a job which will help pay maintenance) and an innocent child, since with the parent's existing criminal record a child will not be able to get a job in the public service.

The foregoing shows the need to amend the Criminal Code of the Russian Federation by excluding and decriminalizing this rule from the Criminal Code of the Russian Federation and including it in the Code of the Russian Federation on Administrative Offenses by strengthening the existing rule and tightening the enforcement of sanctions (Article 5.35.1 of the Code of the Russian Federation on Administrative Offences), since, in fact, a sanction of current Article 157 of the Criminal Code of the Russian Federation does not achieve the goals of punishment set by the legislator (neither the achievement of social justice, the correction of a convict nor the prevention of new crimes has been achieved).

It should also be noted that in the text of Paragraph 1 of Article 69 of the Family Code of the Russian Federation (Deprivation of Parental Rights), malicious evasion from paying child maintenance, which is an example of evading parental duties, is indicated as one of the grounds for deprivation of parental rights. In order to accept such a fact as grounds for deprivation of parental rights, a parent does not have to be found guilty under Article 157 of the Criminal Code of the Russian Federation, it will be sufficient to bring him to administrative responsibility.

Thus, it appears appropriate to recommend to the judiciary to develop a practice of applying the above rule to deprive an unscrupulous parent of his parental rights in order to change a mother's social status from a "divorced woman" to a "single mother". Such status gives an incomplete family the right to receive cash payments from the state in the form of benefits and compensations, for example, a mother will be able to send her child to kindergarten, since the state will pay for a kindergarten place. Also, single mothers enjoy

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some privileges, which are enshrined in the Labor Code.

Finally let's draw attention to the fact that current laws of the Russian Federation do no define the concepts of alimony, alimony obligations and support, which leads to discrepancies among researchers. There are arguments about the relationship between the categories of support and alimony, with different points of view regarding the very definition of the latter concept. Along with this, due to legal proceedings and insufficient competence in alimony issues the parties often engage professionals to represent them (lawyers) [11].

In our opinion, such doctrinal issue can be solved by amending article 80 of the Family Code of the Russian Federation. A paragraph describing the concept of alimony should be introduced in the above rule.

We also consider that the concept of support needs to be introduced as well. Such proposal would resolve existing disputes about the concept of alimony and its relationship to the concept of support in family law.

Despite the current uncertainty regarding definitions, alimony obligations are an independent institute of family law, as confirmed by a number of features of this phenomenon.

Unfortunately, in today's society, particularly in Russia, there is a negative tendency for some parents to ignore their constitutional duty to care for and educate their children. Court statistics suggest that over the past 5 years the number of cases involving the recovery of child alimony payments has been increasing. The problem can be viewed from two perspectives. On the one hand, this is a society-wide problem, which is becoming large scale because of the poor social responsibility and moral character of the parent who must pay alimony. The other side of this problem involves the lack of clear regulatory and legal framework for the recovery and collection of child support. It is also important to consider the fact that some children, who are legally eligible to receive support from their parents, do not in fact enjoy this right. There are a number of objective reasons for this: 1) poor or zero earnings of alimony payers; 2) underreporting of earnings by the alimony payer; 3) concealment of alimony payers' income and property from foreclosure; 4) the lack of effective nationwide arrangements intended to enhance and strengthen the family. Evading child support payments is still a serious issue for Russian families. Its scale can be estimated by looking at the total alimony arrears for 2019. Taxpayers owed their children approx. RUB 152 billion. Compared to 2012, debts have increased sevenfold — at that time the debt amounted to RUB 19.8 billion [9]. Every year laws are proposed to reduce the scale of the problem, but unfortunately adopting such laws takes time.

Therefore, in order to secure proper fulfillment of child support obligations by negligent parents, nationwide steps to improve the arrangements for recovery of child support money need to be taken:

- development of a common policy to strengthen families, marriage in particular;

- set-up of an alimony fund;

- development of steps to enhance the responsibility of debtors and methods of exerting psychological pressure on them.

These provisions should be incorporated into the family and criminal codes, the administrative offences code, and, importantly, in the existing system for the recovery of alimony.

References

1. Family Code of the Russian Federation No. 223-FZ as of December 29, 1995 (edited on July 2, 2021) // Rossiyskaya Gazeta, No. 17, January 27, 1996.

2. Resolution of the Plenary Session of the Supreme Court of the Russian Federation No. 56 as of December 26, 2017 "On the application of laws and regulations by courts when considering cases involving the recovery of alimony" // Bulletin of the Supreme Court of the Russian Federation, No. 4, April, 2018.

3. Court Ruling No. 2-882/2020 2-882/2020~M-611/2020 M-611/2020 as of May 28, 2020 regarding Case No. 2-882/2020. http://sudact.ru/regular/doc/J2dOBHW1KkVK/ (accessed on September 6, 2021).

4. Zhuchkova, O.E. Problems Arising When Applying the Rules of Family Law in Divorce Cases. M.: Yurlitinform, 2013. 594 p.

5. Nikitina, V.P. Problems with Regulation of Financial Relations in a Family. M., 1976. 775 p.

6. Pchelintseva, L.M. Family Law in Russia: Textbook for Universities. M., 1999. 634 p.

7. Romanova, I.N. Theoretical and Legal Aspects of Alimony Obligations: Grounds and Requirements // Rule of Law: Theory and Practice. 2019. No. 2 (56). P. 111-117.

8. Family law: textbook / ed. by A.A. Demichev. 2nd ed., revised and supplemented, Moscow: FORUM: INFRA-M, 2021. 301 p.

9. Media reported record RUB 152 billion overdue alimony payments in Russia. URL: https://rbcru.turbopages.org/rbc.ru/s/society/12/02/202 0/5e43ad209a79479b3c3d9f01 (Date of access: September 6, 2021).

10. Permyakov, M.V., Zatsepin, A.M. Evading to Pay the Child Support or Alimony to Incapacitated Parents // Textbook: Ekaterinburg: Azhur Publishing House, 2014

11. Permyakov, M.V. Defense Attorneys in Russia / M.V. Permyakov, A.G. Kilin, O.N. Khodasevich // Eurasian Law Journal, No. 8, 2021. P. 109-111.

Alimony Obligation

Filippova O.V., Zatsepin M.N., Zatsepin A.M., Permyakov M.V.

USUE, Ural Federal University named after the First President of Russia B.N. Yeltsin

Family law currently needs comprehensive improvements, since it regulates a broad list of relations through which the arrangements necessary to ensure the stability of families and family members, and in particular of minors and disabled persons, are developed. This paper addresses regulation of alimony obligations in Russia, focusing on Chapter 13 of the Family Code of the Russian Federation, which regulates alimony obligations. The author explored a number of issues related to alimony obligations, and analyzed them given the problems of law enforcement practices.

Keywords: alimony, spouses, children, parents, family law, financial support, legal relationship among family members, collection, mutual aid, grandmother, grandfather, sister, brother, stepson, stepdaughter, stepfather, stepmother.