At the beginning of July 2024, the long-awaited proposal for the Law on Temporary Child Support from the Alimony Fund was introduced into the parliamentary procedure of the Republic of Serbia, giving us reason to take a closer look into this legal institution.

1. What is the Alimony Fund?

The Alimony Fund would represent a fund from which children up to the age of 18, whose parent (although obligated by an enforceable document, i.e., a final and enforceable court judgement) doesn’t pay child support for at least two months consecutively, receive the necessary child support. This fund has already been introduced in the Croatian and Montenegrin legislation, while for the Serbian legal system, the introduction of this Fund would be a novelty.

The necessary funds would be provided from the budget of the Republic of Serbia, and the management of the Fund would fall under the jurisdiction of the Ministry of Family Welfare and Demography. The idea of forming an Alimony Fund is also contained in the draft for the Civil Code of the Republic of Serbia.

2. How is the issue of a parent failing to provide child support currently regulated in Serbian legislature?

As per the provisions of the Serbian Family Law (Porodični zakon) and the provisions of the Law on Enforcement and Security Interest, a child who is the creditor of the child support obligation, which is determined by a final and enforceable document – a court judgement, has the option to initiate enforcement proceedings against their parent – the debtor of the child support obligation and to collect the awarded, yet unpaid, child support by force. However, we have seen in practice that such proceedings may take a long time, and that the child support debtors usually use various means to avoid the child support obligation (for instance – “transferring” their assets to a different, closely related person), and the biggest problems arise when the parent who is obligated to pay child support works abroad. According to current legal solutions, in such cases, the parent failing to provide child support meets the conditions for complete termination of parental rights (Article 81 of the Family Law), additionally, per the provision of Article 195 of the Criminal Code, “Failure to Provide Support” constitutes a criminal offense punishable by a fine or imprisonment for up to two years, and up to three years in the case of “serious consequences for the supported person”. Nevertheless, neither the threat of complete termination of parental rights, nor criminal responsibility of the parent failing to provide the final and enforceable court ordered child support can ensure financial support for the child in a time of need. Thus, the idea of establishing an Alimony Fund was introduced, which would provide the child support instead of the parent, while the said Fund would be refunded by the parent who failed to fulfill their child support obligation. This way, the risk of the parent failing to pay the said child support sum would be transferred from the child to the Alimony Fund, and if necessary – to the state. This scheme is specifically significant, due to the published statistical data demonstrating that every other parent obligated to provide child support has failed to do so.

3. What would the procedure of exercising a child’s right to support from the Alimony Fund look like?

The procedure for exercising the child’s right to support from the Alimony Fund could be initiated ex officio by the Office of the Public Guardian, the parent living with the child or by the child’s guardian, in the name and on behalf of the child. According to the published text of the draft Law, when submitting a request, it would be sufficient to simply provide a statement that the enforceable collection of child support failed, without the need for further evidence; however, the exact content of the request should be prescribed by the bylaw.

The procedure for exercising the right to Temporary Child Support would be governed by the rules of administrative procedures, before the Office of the Public Guardian (i.e., the Center for Social Work, determined according to the municipality in which the child resides) and, as any procedure related to a child, it should be conducted under the principle of urgency. The duration of Temporary Child Support would last as long as the child support debtor doesn’t start fulfilling their obligations, or the child turns 18 years of age.

4. What is the practice in countries where the Alimony Fund exists?

The application of the Law on Temporary Child Support from the Alimony Fund came into force in Montenegro on November 1^st 2022, and during 2023 a few hundred requests were submitted to the Alimony Fund, resulting in over 64,000 EUR in payments. However, at the end of 2023, amendments to the regulations were made, resulting in temporary suspension of payments from the Fund, as well as problems related to the date from which children are recognized the right to payments from said Fund. Namely, the legislator’s intent was to recognize said right from the moment the request was submitted, however, the Center for Social Work of Montenegro recognized the right retroactively, resulting in amendments to the regulations and a temporary blockade of the Fund. Thus, it is necessary for this issue to be explicitly regulated in advance when drafting a domestic law, to avoid the possibility of ambiguous interpretation. The idea of establishing an Alimony Fund is currently discussed in Republika Srpska as well, where the draft Law was first adopted, and then withdrawn after a public debate.

It is interesting that in Montenegro the right to Temporary Child Support from the Alimony Fund is recognized for foreign children with a residence in Montenegro, even though such a provision is not included in the draft Law. This could be an interesting topic for analysis, given the number of foreigners who have moved to the Republic of Serbia in the recent period.