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Family Law: termination of parental rights, rights of the child, child support. (Ukraine)

Question

The theory:
You may remember the case? I had an extra marital affair with a Ukrainian woman – Olga. The result was twins, 7 years ago. Under Ua law, the twins are entitled to child support = 1/3 of the father’s salary (not sure if this is gross or net) – to 18, or to age 23 for university students. The children have birth certificates registered under my name in Ukraine. Under English law the percentage of child support is C20%, based on normal domestic settlements. Of course, the norm in Uk salary terms would mean a higher settlement than under normal Ua salary terms.

The reality:
I was born in 1950. I live with my wife and support a daughter. I have been paying Olga 1000 Euros pm which is around 23% of my salary depending on exchange rate. She has a job, and earns about E675 at current X rate. I want to support the kids – for me it’s a moral obligation – but I want an agreement within reasonable limits. I also want unrestricted access to the children, ie without the mother’s presence. We have started a conversation aimed at finding an agreement to give Olga’s children security.

My issues are:
1. Overall the agreement needs to be workable – my salary is in the UK, the children in Ukraine. I don’t want to sign an agreement which is subject to Ukrainian legal requirements.
2. I need an agreement which is reasonable – if I am sick, made unemployed, or die, the agreement needs a termination or pause clause.
3. I retire at 65 subject to changes in law. I can’t guarantee payments of this level after that point.

The agreement so far (English version) looks as attached.

I would like your advice on
1. Whether you feel I should go ahead on this basis, what are the legal risks in your view?
2. Whether an agreement should be signed at all, and then under English or Ukrainian law? Is there an alternative?
3. What kind of clause should be introduced to cover uncertainty (unemployment, sickness, death, force majeure)?
4. What is likely to happen in the case that I die, while the children are under 18? Can they claim under English law against my estate?

Could you let me know how much this would cost and how to make payment to you?

Answer

I studied very carefully your situation and the agreement that you were offered to sign. Thus, according to Art. 180 of Family Code of Ukraine, parents have responsibility to maintain their minor children. The age of majority in the Ukraine becomes at 18 years.
According to Art. 181 of Family Code of Ukraine, the ways, in which the parents can perform their responsibility to maintain their children are determined upon agreement between them. And such parent who does not live with the child may participate in the child’s support in cash form or in other kind upon agreement between the parents. If the parties were not able to reach an agreement regarding child support, the court orders payment the money for children (child support) as a share of earnings of the mother, father and/or as a fixed amount.
When a party has a changeable income or under other essential circumstances, the court by the application may determine the amount of child support to be paid as a fixed cash sum (Art. 184 of Family Code of Ukraine). As a rule, the fixed cash amount of child support is ordered if the defendant has income in foreign currency. The amount of child support determined by the court order as a fixed cash sum is subject to indexing in accordance with law.
According to Art. 182 of Family Code of Ukraine, in determination of the amount of child support to be paid, court may take into consideration:
1) health and financial situation of the child;
2) health and financial situation of child support payer;
3) whether the child support payer has other children, spouse, parents or other dependants who are unable to work;
4) other essential circumstances.
According to Art. 185 of Family Code of Ukraine, both the parent who has the duty to pay child support and the other parent shall necessarily share the additional expenses for the child when such expenses are in connection with special circumstances (such as: development of the child’s skills, illness, injury, etc.).
In case of dispute, the extent to which one of the parents should share the additional expenses for the child is to be determined by court and the court may take into account any essential circumstances.
The additional expenses for the child may be paid in advance or as a lump sum, or periodical or permanent basis.
Upon petition of child support payer or by its own discretion, the Custody and Care Authority may verify how the paid child support is used. Whenever the child support is not used for the child’s purposes, the parent may apply to court for reducing the amount of the child support or for depositing a portion of the child support at the child’s personal account in a subsidiary of the State Savings Bank of Ukraine.
Support for major and working students of Universities of age from 18 to 23 may be ordered to be paid only in some situations and you should not think about it till 2023. The support of major children under no circumstances will be a subject of court’s hearing and this should not be a topic in your agreement.
So, the draft of the agreement you sent me does not protect your interests. If you sign this agreement, it can be enforced in any country and you will have to discharge the duty you took. At the same time, if the child support is ordered by Court, it will be very difficult to enforce such order outside of the Ukraine, and even not always possible, and in such case the matter of child support payment will be most likely a subject of your good will rather that enforcement.
When your income changes, your also will be able to change in court the amount of the court ordered child support. But to change the amount of support paid by agreement will be much more difficult because this was voluntarily taken duty of support of your children.
In my opinion, the best for your would be not to sign any agreements and not to go to court for orders regarding child support. As you pay voluntarily, your ex wife should not withhold money from you by court’s order. And she has absolute right to go to court with such suit at any time till majority of the children and court in such case will go from the current situation and you income at the day of such court’s application. In case of application to court for the first time and also in case of court’s decision about child support, you will be able to refer to illness, low income, or other circumstances which will make sense to determine the amount of child support or to its change. In case of court order you will be able to easily change the amount of support by reach or your retirement age.
In case of your death, the payment of child support is discontinued and nobody will have to pay it for you. In such case the state (the Ukraine) will take the responsibility to support children and pay a pension for lost of breadwinner.
In case of death without a will, you children independent of their age will be heirs of the first order by law and will inherit equally as your wife, other children and your parents. In order to change the order of inheritance by law, you should execute a will. With the existent will, the children can be heirs of some share of your assets (the required share) till they are minor and depend on you.
As to determination of procedure of communication with children, in this matter the agreement would be needed to you: there should be foreseen not only meetings with children and travels with your or your ex wife, but also the possibility of communication with children by Skype, by phone and meetings with other relatives. If needed, I will be able to prepare such agreement.
I can repeat that mixing in one agreement the procedure of communication with children and the matter of child support is not rational and not always would be lawful.
Karina Duvall
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