When determining the amount of alimony, any additional remuneration paid to police officers during the period of martial law to be taken into account - The Civil Cassation Court of the Supreme Court

The additional remuneration paid to police officers during the period of martial law (UAH 30,000) until 16 November 2022 (the date of entry into force of Resolution of the Cabinet of Ministers of Ukraine No. 1263 dated 11 November 2022, which allowed the collection of alimony from the additional remuneration paid for the period of martial law) is not a one-time irregular type of financial support, but a permanent type of income that should be taken into account when determining the amount of alimony for spouses, children, parents, and other persons.

This legal conclusion was reached by the Civil Cassation Court of the Supreme Court in a case challenging the inaction of a state enforcement officer and the obligation to calculate the alimony arrears for the support of the daughter in the enforcement proceedings for the period from March to October 2022.

In support of her complaint, the applicant stated that the State Enforcement Service's enforcement officer had been recovering alimony from the father for his daughter's support since 3 July 2013 until she reached the age of majority. As a police officer, the father received financial support related to martial law, but the state enforcement officer did not collect alimony from him in full.

The court of appeal overturned the first instance court's ruling to uphold the complaint. They proceeded from the fact that Resolution of the Cabinet of Ministers of Ukraine No. 1263, dated 11 November 2022, only allows for the recovery of alimony from additional remuneration paid during martial law for legal relations arising from 16 November 2022, the date it entered into force.

The Civil Cassation Court of the Supreme Court cancelled the decision of the court of appeal and upheld the decision of the court of first instance, making the following legal conclusions.

Pursuant to Article 81 of the Family Code of Ukraine, the Cabinet of Ministers of Ukraine approves the list of types of income that are taken into account when determining the amount of alimony for one of the spouses, children, parents and other persons.

Paragraph 1 of the List of types of income taken into account in determining the amount of alimony for one of the spouses, children, parents and other persons, approved by the Cabinet of Ministers of Ukraine on 26 February 1993, No. 146, stipulates that alimony for employees is deducted from all types of income and additional remuneration, both for the main job and for part-time work.

Resolution of the Cabinet of Ministers of Ukraine No. 988 "On the remuneration of police officers of the National Police" of 11 November 2015 stipulates that the remuneration of police officers consists of a basic salary, a salary for a special rank, monthly additional types of remuneration (salary increases, allowances, benefits of a permanent nature), bonuses and one-time additional types of remuneration.

Paragraph 1 of Resolution No. 168 of the Cabinet of Ministers of Ukraine of 28 February 2022 "Issues of certain payments to military personnel, ranks and commanders, police officers and their families during martial law" stipulates that, in particular, police officers shall receive additional remuneration of up to UAH 30,000 per month on a pro rata basis.

There is no regulatory act stipulating that such additional remuneration is not considered to be monetary security of a permanent nature.

From the analysis of these rules it follows that alimony should be collected as a share of all types of income of the debtor. Therefore, even before the adoption of the Resolution of the Cabinet of Ministers of Ukraine dated 11 November, 2022, No. 1263, the enforcement officer had to take into account all types of income of the debtor when determining the amount of alimony. The said resolution merely confirmed the need to recover alimony including additional remuneration. Previously, the legislation simply did not contain a provision on additional remuneration paid during martial law.

Therefore, there is no reason to believe that the legislator, aiming to provide the child with proper support for his or her full mental and physical development, could not, for any reason, cover additional remuneration for the period of martial law with alimony obligations.

Therefore, the additional payments accrued and paid to the debtor until 16 November, 2022 in accordance with the Resolution of the Cabinet of Ministers of Ukraine of 28 February, 2022 No. 168 were not a one-time irregular type of financial support, but were of permanent nature and belonged to the types of income taken into account when determining the amount of alimony for one of the spouses, children, parents and other persons.

The Resolution of the Supreme Court of 28 February 2024 in case No. 209/3260/13-ц (proceedings No. 61-11541св23) - https://reyestr.court.gov.ua/Review/117402397.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.