Information regarding the regulatory resolution of the Constitutional Court
(№ 46 of June 28, 2024)
The Constitutional Court considered a citizen's appeal to check the compliance with the Constitution (subparagraph 11) of paragraph 1 of Articles 26 and 39) of the List of types of wages and (or) other income from which alimony for the maintenance of minor children is withheld (approved by Order of the Minister of Justice № 372 of December 24, 2014).
The author believes that the contested norm determines the amount of alimony from the entire income of the entrepreneur without taking into account the expenses related to the development of entrepreneurial activity and thus violates his constitutional rights to freedom of entrepreneurial activity and free use of his property for any lawful entrepreneurial activity.
The Constitutional Court noted that the transfer of a part of the parent's income as a means of child support cannot be considered as a restriction of the parent's rights, but is a natural obligation of the parent.
The Constitutional Court emphasizes that the real income of a person must be taken into account when determining the amount of alimony. The establishment of a tax return as a basis for the calculation of alimony obligations creates risks for the financial well-being of the child due to the fact that it is filled out for the expired tax period and its data can be used by the bailiff only in the calculation of alimony for the expired period and thus does not reflect the current financial situation of the alimony payer.
The Constitutional Court also pointed out the need to fix the mechanism for determining the income of a parent engaged in self-employment as a source for calculating alimony at the level of the law.
It is substantiated that the contested norm of the List, as well as the List itself, by its purpose and content do not contradict Articles 26 and 39 of the Constitution.
In this regard, the Constitutional Court recommended the Government to consider improving the legislation of the Republic of Kazakhstan on the calculation and collection of alimony for the maintenance of minor children from persons engaged in self-employment, in accordance with the legal positions set out in the normative resolution.