Publication date: 20.05.2024
lawyer, 23 years of experience in enforcement.
Filing a claim for the recovery of alimony, if the debt collector is in Poland
As a result of the introduction of martial law in our country, many people decided to move to foreign countries. It is usually women with children who decide to leave, which leads to a significant exodus of women to Poland. Given this circumstance, questions have arisen regarding the procedure for collecting alimony when the recipient lives in Poland and traveling to Ukraine to file an application for alimony is impossible.
According to current legislation, it is allowed to file claims in Poland. This is in accordance with Article 27 of the Family Code of Ukraine, which provides that claims against an individual must be brought in court at the place of his registration of residence or stay, as determined by law. However, statutory exceptions may apply. In addition, Article 28 of the Family Code of Ukraine allows for claims related to alimony to be submitted to the court, for example, for its collection, increase in size, additional expenses for the child, penalties for late payment, indexation or changing the method of collection. registered place of residence or location of the plaintiff.
Under the terms of the Agreement between Ukraine and the Republic of Poland on legal assistance and legal relations in civil and criminal matters, persons of one Contracting Party have freedom of communication with the authorities of the other Contracting Party. These bodies, which handle civil and criminal cases, allow individuals to participate in legal proceedings, file petitions, make claims and engage in other procedural activities on equal terms with citizens of the host Contracting Party. Consequently, the legislation provides the plaintiff demanding alimony with the opportunity to choose the appropriate court for his application.
Application of Article 28 of the Treaty between Ukraine and the Republic of Poland on legal assistance and legal relations in civil and criminal matters prescribes that the legislation of the Contracting Party of which the child is a citizen shall prevail in matters relating to legal relations between parents and children, including the obligations of parents for child support .
If the child has Ukrainian citizenship, the person demanding child support has the right to apply to the judicial authorities of the Republic of Poland in accordance with Polish procedural law. However, it is necessary to apply the legislation of Ukraine, namely the Family Code of Ukraine. As stated in Article 182 of the Family Code of Ukraine, the amount of alimony must be adequate and necessary to ensure the comprehensive development of the child.
If the income of the person responsible for paying alimony is sufficient, the court has the right to assign a minimum recommended amount of alimony, which corresponds to the subsistence level for a child of the appropriate age. In addition, it has been established that the minimum guaranteed amount of alimony for one child should not fall below 50 percent of the subsistence level established for a child of the corresponding age.
If it is determined that the alimony payer has expenses that exceed his earnings and cannot provide evidence of the source of funds to cover these expenses, the court is not limited to the amount of the payer’s income. When deciding on a defense strategy when filing a claim in a foreign court, the plaintiff must take into account the peculiarities of the procedural aspects of the consideration of the case in that particular country.
In this case, the documents from the foreign court will be sent directly to the Ukrainian court, which will then forward them to the defendant (the one who is responsible for paying alimony). Alternatively, a foreign court can send documents to its justice authorities, which will then forward them to the Ministry of Justice of Ukraine and, finally, to the court at the place of residence of the alimony payer.
One of the main disadvantages that child support collectors face is the significant time investment required for these procedures. Typically, the process of sending such documents takes from 6 months to 1.5 years. Moreover, several translations are often necessary for the court to make a decision on a specific case.
According to Art. 52 of the Treaty between Ukraine and the Republic of Poland on legal assistance and legal relations in civil and criminal cases, the recognition and enforcement of the decision belongs to the competence of the court of the Contracting Party on whose territory the decision must be recognized and executed.
Article 51 of the Agreement between Ukraine and the Republic of Poland on legal assistance and legal relations in civil and criminal cases establishes that a request for recognition and enforcement of a decision can be submitted directly to the relevant court of the Contracting Party on whose territory the decision must be recognized and executed, or also through the mediation of the court that considered the case in the first instance. This article also establishes the requirements for filing a request for recognition and enforcement of a foreign court decision.
The provisions of Art. 472, 464-466 of the Civil Procedure Code of Ukraine, the requirements for submitting a petition for recognition of a decision of a foreign court are established.
On the basis of a decision of a foreign court and a decision on the recognition in Ukraine of a decision of a foreign court that has entered into force, the recipient of alimony must apply to the executive service in accordance with the procedure established by law.
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