October 30, 2024
On October 29, 2024, the Grand Chamber of the Constitutional Court of Ukraine at the plenary session delivered the Decision in the case upon the constitutional petition of the Supreme Court on the inconsistency of Article 75.4 of the Family Code of Ukraine (hereinafter, the “Code”) with the Constitution of Ukraine.
According to Article 75.4 of the Code, “one of the spouses is in need of financial assistance, if his/her salary, pension, income from the use of his/her property, other income do not provide him/her with the subsistence minimum established by law”.
The Constitutional Court of Ukraine declared Article 75.4 of the Code as inconsistent with the Constitution of Ukraine (unconstitutional).
The author of the petition asserted that “the assignment of the respective pension or other social benefits to a person with a disability cannot depend on the payments made by one of the spouses for the maintenance of the other spouse, who is a person with a disability. The fact that the state grants a disability pension cannot affect or exclude the fact that the court assigns alimony for the maintenance of one of the spouses. The needs of a disabled person, as a rule, are not limited to the usual needs of a healthy person, therefore, they entail additional costs for treatment, rehabilitation, and nutrition, which is conditioned by a different, other way of life of such a person.”
In resolving the case, the Court took into account its own legal positions, the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the Charter of Fundamental Rights of the European Union, and other international acts and instruments.
In the Decision, the Court noted that from the analysis of the provisions of Article 75 of the Code regarding the payment of maintenance (alimony) by one spouse in favour of the other in their essential connection with the provisions of the Constitution of Ukraine and the Code, it appears that such payment depends on the need for material assistance, but is not a social payment, state aid and is not a component of the right to social protection. Legal relations on spousal maintenance stem from the constitutional principle of equality of rights and obligations of each spouse in marriage and family, the requirement for the state to protect the family (as the basis of society) and are provided for in Articles 51.1, 51,3 of the Constitution of Ukraine.
The Constitutional Court of Ukraine emphasised that the rights and obligations of one of the spouses to support the other spouse are not only moral, but also social in its essence. At the same time, the moral obligation of each spouse to support each other financially in marriage has been enshrined in law and has become a legal obligation, and the legal mechanism for regulating property relations in marriage provides for the possibility of enforcing this obligation.
According to the provision of Article 75.4 of the Code, an obligatory prerequisite for one of the spouses to receive the right to maintenance (alimony) is that he/she does not have income at the level of the subsistence minimum. Thus, Article 75.4 of the Code allows for the possibility of a situation where pensions, other social payments and benefits may be lower than the subsistence minimum established by law.
The Constitutional Court of Ukraine emphasised that the normative regulation allowing for a situation where a person’s total income (including social payments and benefits) is lower than the subsistence minimum established by law contradicts Article 46.3 of the Constitution of Ukraine.
At the same time, in the Decision the Court noted that the subsistence minimum in the context of Article 75.4 of the Code is defined in a way that does not fully take into account and cannot take into account the needs of disabled persons, and therefore cannot be universal for determining the level of costs for maintaining the life support of all people without exception. In particular, the need of the one of spouse who is unable to work should be established taking into account the ratio between his/her salary, pension, other income and those needs that are important for his/her normal life support. Article 75.4 of the Code is worded in such a way that it deprives the court of the ability to interpret the content of this category and deliver decisions at its own discretion, taking into account all the circumstances of the case that are essential.
The subsistence minimum does not reflect the actual state of a person’s need for material assistance, but rather, as can be seen from the content of Article 75.4 of the Code, limits the right to the spousal maintenance (alimony). In addition, since a person of retirement age or a person with a disability of groups I, II or III has a pension or social benefits in an amount that may exceed the subsistence minimum established by law, Article 75.4 of the Code shall not be applied, and the right to spousal maintenance shall not be exercised.
When reviewing the disputed provisions of the Code for compliance with the requirements of Article 8.1 of the Constitution of Ukraine in systemic connection with Articles 51.1, 51.3 thereof, the Constitutional Court of Ukraine determines that the family is protected by the state, but the protection shall not involve excessive regulation of the private sphere, interference in family relations by limiting the right to maintenance (alimony) of a disabled spouse to the subsistence minimum, which is a basic social standard. Such a restriction negates the very essence of this right and, according to the Constitutional Court of Ukraine, contains signs of excessive state regulation of family life.
The Constitutional Court of Ukraine believes that Article 75.4 of the Code is formulated in such a manner that it does not allow the court to determine fair, appropriate criteria for the need for financial assistance based on the financial situation of the spouse in need, the level of his/her income and expenses, as well as the possibility of receiving income from other sources, and therefore does not comply with the principle of legal certainty and unambiguity of a legal norm, since it cannot ensure its uniform application, which contradicts Article 8 of the Fundamental Law of Ukraine.
The imposition of a legislative restriction on the provision of material assistance (alimony) is unfair in its essence and unjustified given that the legislator has the opportunity to choose a means to achieve this goal that would be less burdensome to the realization of private (personal) and family life without unreasonable interference in these areas.
The Constitutional Court of Ukraine considers it unjustified to legislatively limit the size of the subsistence minimum to the limit, in case of not reaching which a person is considered to be in need of financial assistance from the other spouse, since such a limitation cannot be considered objectively assessed, determined by the individual needs of one of the spouses who needs financial assistance , is an excessive interference (regulation) of the state in the right to receive material assistance and to provide it in a larger amount, as it consists in limiting the realization of such a right (narrows its implementation to the circle of persons in need of material assistance).
In view of the above, the Constitutional Court of Ukraine concluded that Article 75.4 of the Code contradicts Article 8.1 of the Constitution of Ukraine in systemic connection with Articles 51.1, 51.3 of the Constitution of Ukraine.
The disputed provisions of the Code, declared as unconstitutional, shall cease to be effective from the date of of this Decision delivery by the Constitutional Court of Ukraine.
The Judge-Rapporteur in this case is Galyna Yurovska.
