Information regarding the regulatory resolution of the Constitutional Court
(№ 58-NP of 24 December 2024)
The Constitutional Court considered the appeal of a citizen on verification of the compliance with the Constitution of the Republic of Kazakhstan of the paragraphs two, three and four of paragraph 29 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 29 November 2019 № 6 ‘On the application of legislation by the courts when considering cases related to the collection of alimony’ (hereinafter - the NP of the Supreme Court).
The contested paragraphs of paragraph 29 of the SCP clarify the application by the courts of the provisions of paragraph 2 of Article 139 and paragraph 1 of Article 175 of the Code of the Republic of Kazakhstan ‘On Marriage (Matrimony) and Family’ (hereinafter - the Code) in terms of the conditions for changing the amount of alimony previously established by the court.
The contested paragraphs of paragraph 29 of the SCP clarify the application by the courts of the provisions of paragraph 2 of Article 139 and paragraph 1 of Article 175 of the Code of the Republic of Kazakhstan ‘On Marriage (Matrimony) and Family’ (hereinafter - the Code) in terms of the conditions for changing the amount of alimony previously established by the court.
The subject of the application is the payer of alimony for the maintenance of minor children: one from the first marriage, three - from the second marriage). The total amount of alimony is 75 per cent of his income. When applying to the court to reduce the amount of alimony, he was denied satisfaction of the claim with reference to the failure to provide sufficient evidence confirming the deterioration of his financial situation, which does not allow him to maintain the payment of alimony in the previous amount.
In his view, the legal basis for the court's refusal to satisfy the claim was the provisions of the Supreme Court's NP, including that a change in a parent's financial or family situation is not an unconditional ground for satisfying the claim.
Following the review, the Constitutional Court noted that the wording of the above explanation was ambiguous in practice. However, the Supreme Court's explanations challenged by the applicant generally comply with the provisions of article 139, paragraph 2, and article 175, paragraph 1, of the Code, which are aimed at a comprehensive and complete investigation of all the circumstances relating to the parents' material and family situation. The establishment of these circumstances is a guarantee of the best interests of the child and the preservation of stable relations in the fulfilment of parental rights and obligations.
The Constitutional Court emphasised that the SC NP does not fully clarify the provisions of other laws indicating the circumstances related to the collection of alimony under several judicial acts when its amount exceeds half of the payer's earnings and (or) other income. Thus, Article 166 of the Code limits the withholding of alimony to more than 50 per cent of a person's salary or other income. A similar approach is set out in Article 203(3) of the Social Code of the Republic of Kazakhstan with regard to pensions. The retention of at least 50 per cent of wages or other income in the event of foreclosure on the debtor's wages or other types of income under one or more enforcement documents is also provided for in paragraph one of article 95, paragraph 1, paragraph 1, of the Enforcement Proceedings and Status of Court Enforcement Officers Act. In addition, under article 115, paragraph 3, of the Labour Code of the Republic of Kazakhstan, the employer with whom the debtor has an employment relationship, as well as any other person from whom the debtor receives income, shall withhold no more than 50 per cent of the wages due to the employee.
The final judgement of the Constitutional Court also states that the Code establishes a share approach according to the number of children, but does not consider the number of claimants. This, as a rule, entails non-compliance with the shares established by the legislator, and it is therefore necessary to revise the current legislation on the calculation and collection of alimony for minor children and to improve the mechanism for the enforcement of the relevant judicial acts. The Constitutional Court has issued a recommendation to this effect to the Government.