Question 57: In case the custodial parent requests the judgement enforcement agency to collect support from the non-custodial parent for his or her failure to pay, does the agency have the right to seek payment for the unpaid support prior to the date of receiving the request from the custodial parent? Is the interest on late payment of the supported amount included? If yes, what shall be the interest rate in this case?

According to the law, the payment of child support will be proceeded monthly, quarterly, semi-annually, annually, or a one-off basis. If the obligor has financial difficulties disabling him/her to perform the support obligation, the obligor is entitled to negotiate with the other spouse or to request the Court to change the support method[2].

A Court’s decision determining whether a parent has the obligation to provide child support, shall be enforceable immediately[5]. Under the current Law on Civil Judgement Enforcement, if the obligor does not voluntarily perform such child support obligation, the custodial parent and the recipient have the right to request the judgement enforcement agency to issue a decision to enforce the Court’s judgement over the due support obligation. The time limit for requesting the enforcement is 05 years starting from the date of the obligation being due[6]. The money for support which has not yet been paid by the obligor must be seized by the judgement enforcement agency to return to the custodial parent and the recipient.

In fact, when the obligor evades the obligation to provide child support, and that the custodial parent faces financial difficulties, falling into troublesome circumstances as having to raise the child, the custodial parent is entitled to request the judgement enforcement agency to recover the unpaid child support. However, the seizure will be very difficult in cases where the obligor does not cooperate, intentionally evades, hides, or scatters the properties while the judgement enforcement agency has limited time and resources to keep pursuing. In addition, the judgement enforcement agency may also be reluctant to distrain and auction the obligor’s properties to pay for child support. The amount of child support is usually only a few hundred thousand to several million VND per month, which is a very small amount compared to high-value assets such as houses, land use rights, etc. The distraint for one-time payments, instead favours small-value assets such as motorbike, television, refrigerator, etc. There are assets usually distrained for a periodical payment of the obligation to provide child support. The procedures for property distraining and auction are also complicated; having to comply with the legal process also makes it more difficult to collect child support.

According to Article 6 of the Joint Circular No. 11/2016/TTLT-BTP-TANDTC-VKSNDTC, in case a judgement or decision of the Court includes interest for late payment, when the money is collected, the judgement enforcement agency will collect the main amount stated in the judgement or decision first, and will then proceed to collect the interest for late payment corresponding to the late period unless otherwise agreed by the spouses. However, since child support is a quite special case, in fact, there are two different opinions on the late payment interest in this case:

  • As for the first point of view, currently, the Law on Marriage and Family does not regulate the interest rate for the delayed payment. While the Civil Code 2015 only prescribes the obligor’s liability for the violation of his or her obligation to the obligee[10]. When the obligor is late for payment, that spouse must pay interest on the late amount in proportion to the late period[11]. Therefore, if the obligor fails to perform or does not perform thoroughly his or her obligation, the obligor must pay interest on the delayed amount. The amount of interest is proportionate to the delay, and the interest rate shall not exceed 20% per year[12]; and
  • As for the second point of view, the Civil Code 2015 only stipulates the responsibility for late payment in Article 357 thereof without any other provision related to the delayed payement of child support. Therefore, compelling the obligor to pay interest for the late payment of child support at the interest rate set out in Article 468.1 of the Civil Code 2015 is unreasonable.

The authors agree with the second opinion. In essence, the payment obligation under Article 357 of the Civil Code 2015 is a pure civil obligation which applies only to civil transactions, namely, the obligation of a buyer in a purchase contract, that of a lessee in a lease contract, and that of a service user in a service contract. Such obligation is offsetable[17]. Meanwhile, one’s obligation to provide support to their children may not be replaced by a different obligation nor be transferred to anyone[18]. This is an obligation of non-custodial parents to provide the child with basic necessities after their divorce; it is not a payment to hire other people to raise their children[19]. Therefore, the law stipulates that the level of support can also be adjusted depending on the income of the obligor and his or her circumstances as well as on the stage of the children’s development[20]. Moreover, if the non-custodial parent has financial difficulties at a certain moment in time leading him or her to a delayed performance of the obligation, imposing an interest on late payment would be completely unreasonable and neither in alignment with the purpose of child support, nor reflecting the nature of the family relationship. It looks like a pure civil transaction in which all rights and obligations must be clear to the extent of every number. Consequently, the failure of performance or the insufficient fulfillment of the obligation to provide child support may only result in administrative penalties, or criminal prosecution depending on the nature, seriousness, and consequence of such acts.

[2] Articl 117 of the Law on Marriage and Family 2014.

[5] Article 482.2.(a) of the Civil Proceedings Code 2015.

[6] Articl 30.1 of the Law on Civil Judgement Enforcement 2008.

[10] Article 351.1 of the Civil Code 2015.

[11] Article 357.1 of the Civil Code 2015.

[12] Articles 357.2, 468.1 of the Civil Code 2015.

[17] Article 378.3 of the Civil Code 2015.

[18] Article 107.1 of the Law on Marriage and Family 2014.

[19] Article 3.24 of the Law on Marriage and Family 2014.

[20] Article 116 of the Law on Marriage and Family 2014.

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