In-depth | Women's Rights

Without alimony, the burden falls on single mothers

By - 17.12.2020

Kosovo’s judicial system fails to ensure the well-being of single mothers and their children.

After an ordinary 9-to-5 workday, Marigona Buja’s exhaustion can be heard in her voice. It’s in the frequent and long pauses she takes while connecting sentences, and it’s also in the way she is nestled in her yellow chair. 

Buja and many other parents, mostly women, often gather at the Prishtina office of the Single Parent Association to share their divorce experiences as well as to learn more about the legal rights to which they are entitled.

Buja, who comes from the village of Bujan in Lipjan, works at an event organizing company in Kosovo’s capital. While working she leaves her 5-year-old daughter with her parents in Bujan, where they live together.

“It’s quite tough,” says Buja, 29, talking about the difficulties of covering the financial expenses for her daughter, who she raises on her own. “My daughter has been diagnosed with asthma. She takes medicine twice a day. I need to be very careful with her, and care for her. It’s very tough, especially now during the pandemic.”

After one year of marriage, Buja and her husband divorced in 2016. Since November of that year, when the Lipjan branch of the Basic Court of Prishtina decided on temporary alimony, she says that her ex-husband has not paid his obligations for their daughter. The court had initially assigned a payment of 250 euros but later reduced it to 150 euros. According to Buja, even after 2019 when the divorce was finalized and the court proceedings were over, her ex-husband avoided his obligation.

In spite of a court decision, Marigona Buja says she has never received alimony from her ex-husband — an experience shared by many single mothers. Photo: Uran Krasniqi.

“He never [paid the alimony]; not even one month,” Buja says. “We filed a complaint [with the court]. He also submitted a complaint that it was too much. It was reviewed and sent for retrial. They decided on alimony again, this time at 150 euros. He complained again. His complaint was refused and the alimony has been at 150 since November 2016.”

Arjeta Gashi, 43, from Prishtina has the same issue after divorcing her husband of 10 years. She finalized the divorce in 2013 when her only son was 10 years old.

“Since 2013, when the child’s father was obligated to pay alimony, he has never once made a payment,” says Gashi, who, motivated by her personal experience, founded the Single Parent Association in 2018 to push for the welfare of children of separated parents and the economic empowerment of single parents.

According to the Convention on the Rights of the Child, adopted by the United Nations, whose implementation in Kosovo is ensured through the Constitution, involved parties must take “all appropriate measures to ensure the receipt of alimony for the child by his parents or by other persons who have financial responsibilities toward them, whether inside or outside the country.” 

The responsibility for this financial obligation is further clarified in the Family Law of Kosovo, which states that “a parent whose parental responsibility has been removed is not relieved of his duties to support their children.”

But in Kosovo, there are various reasons that contribute to the failure to pay this obligation. Among them is the inefficiency of the judicial system, including the postponement of such cases in courts, which do not consider these cases a priority. There are also shortcomings in the implementation of the law as well as problems that can arise between divorced couples in order to avoid obligations toward each other — and toward their childrens’ care.

Both Buja and Gashi have felt these consequences first hand. 

A justiceless judicial system

Those who suffer from the lack of alimony are the children and the single parents, most of whom are mothers. 

Data collected by K2.0 from the Kosovo Agency of Statistics shows that there were 3,637 divorces between 2010 and 2019 where couples had children. Of these, 2,188 children went into the custody of their mothers and 1,214 into the custody of their fathers. The two parents shared custody in 196 cases, while in 38 cases someone else received custody.

A 2014 scientific study analyzed the violation of children’s rights in relation to alimony in 30 divorce cases further found that the mother received custody in 24 cases while the father received custody in six. In total, there were only eight cases in which a parent was obliged to pay for alimony. 

According to this study, court decisions for the payment of alimony were not implemented in some cases, while in others they encountered various obstacles.

Lawyer Merita Stublla-Emini blames the failure to legally protect single mothers on the inefficiency of the judicial system. Photo: Atdhe Mulla / K2.0.

According to lawyer Merita Stublla-Emini, who represents women in divorce proceedings, issues with alimony payments and the dysfunction of the institutional chain begin precisely with decisions taken by courts. She says that in some cases, they either do not apply the law, misinterpret it, or do not conduct sufficient investigations.

“Although Kosovo courts have a legal basis, they often do not pay added attention to correctly interpreting legal provisions and do not conduct investigations in order to decide correctly and adequately on the amount of alimony that would go toward a child’s welfare,” Stublla-Emini says.

The inefficiency of the courts to handle alimony cases has also been identified by the Ombudsperson, which specifically considers delays in court proceedings to decide on the allocation of alimony and their execution a violation of people’s rights.

“In some cases, the Ombudsperson concluded that there have also been violations of the right to a fair and impartial trial and has requested that the courts undertake all necessary actions in order for cases that are to do with children or children’s rights to be adjudicated on without delay and within legal deadlines,” the Ombudsperson said in a response to K2.0.

The National Audit Office, through a 2017 report on the efficiency of the management of civil cases in Kosovo’s basic courts, assessed that they are not being managed efficiently. It mentioned various issues, including the piling up of old cases, adjournments of court hearings and the high number of cases that are retried. 

Regarding alimony cases specifically, according to Kosovo Judicial Council’s 2019 annual report that it sent to K2.0, 96 new cases were received in the courts last year, bringing the total number of cases on the books that year to 258. Of these, only 82 were resolved, while another 176 remained unresolved.

Buja has herself experienced the consequences of such delays.

“I attend 12 sessions and he [her ex-husband] does not come,” says Buja, whose ex-husband lives mostly in Germany. “He comes to Kosovo but does not come to court. He disregards the invitation, refuses to come and does not take responsibility. He answers for none of this.”

K2.0 has contacted two lawyers, Naser Gashi and Fehmi Shala, who represented Buja’s ex-husband, but neither would comment on the case since they no longer represent him. 

Absence of the respondents is one of the common reasons why cases are delayed in court, where the ex-spouse’s lawyer is often absent. According to Gashi, this is a strategy by the respondent parent to delay the process, knowing that retroactive payment can be avoided, since after the court decides on alimony, parents are not obliged to pay for the months before the verdict.

Gashi says that failure to pay alimony retroactively exhausts custodial parents; mothers, in the majority of cases, end up accepting a very small sum just so the issue is resolved.

Yll Zekaj, a representative of the NGO Kosovo Law Institute (KLC), says that in addition to the duration of court proceedings, which can take years to reach a final verdict, another problem is the non-implementation of the Law on Mediation.

Under this law, alimony cases fall into the category of compulsory mediation cases so, after the lawsuit is initiated, the judge starts the case through a mediation procedure where a licensed mediator, chosen and paid for by the parties themselves, attempts to resolve it. If this is not achieved within 90 days, the case is returned to the court for due process.

Zekaj says that although this law entered into force in 2018, judges often do not respect it and such cases are largely not even referred to the mediation procedure.

Another problem is the failure to execute court decisions on alimony; the court must ensure that the obligations arising from the judgment are fulfilled either voluntarily or by force.

Ylli Zekaj from the Kosovo Law Institute says that the Prosecution needs to be more proactive in taking legal action against those who flout court decisions on alimony payments. Photo: Uran Krasniqi.

In the Center for Free Legal Aid established by KLC, Zekaj says that there have been cases where although there was a final judgment determining alimony, the party who had benefited from this right had still not received payment five years after the judgment was issued.

“The law determines that the execution of decisions in cases of family relations is in the competence of the court and not private executors,” he says. “This has led to procedural delays in cases where alimony is not paid voluntarily and the [decision] should be processed through the execution procedure.”

Zekaj underlines that the failure to implement the Criminal Code is another problem, and says that the Prosecution should be proactive in taking legal action against those who disregard the court by not executing court decisions.

“From our monitoring practice, we have not encountered any case when criminal proceedings have been initiated in such cases,” he says.

Bedri Bahtiri, a lecturer in Family and Inheritance Law at the University of Prishtina, says that the court has sufficient authority to initiate investigations ex officio into a case where it is suspected that one parent is not fulfilling his or her obligations toward a child, which is a criminal offense according to the Criminal Code. However, according to Bahtiri, no case has been identified to date in which a civil court has notified the Prosecution regarding non-fulfillment of obligations related to alimony.

“This is left to the injured parties,” Bahtiri says. “In this case, the civil court should initiate criminal proceedings by notifying the State Prosecutor about this criminal offense, which would have a positive effect first in terms of prevention and then as a punitive measure against all of those who evade the legal obligation to pay alimony.”

The Kosovo Judicial Council has responsibility for monitoring and taking potential measures against courts when they do not perform their jobs properly, while the Prosecutorial Council has a similar role for prosecutors. But the 2017 National Audit Office report shows that the Judicial Council has not been effective in monitoring the progress of courts, as it has created generalized and vague measures that cannot be measured, complicating the monitoring process. 

Among the problems with the courts highlighted in this report are the postponement and high number of cases that remain unresolved, the varied distribution of civil cases to judges, irregularities in the completion and specification of cases, delays in their review in the Court of Appeals, and the high number of cases that go on retrial at the basic courts.

But the report notes that monitoring of courts by the Judicial Council is largely based on case statistics reported by the basic courts.

In a response to K2.0, the Judicial Council said that this report is three years old and now the situation has improved as they monitor through NGOs that they have signed memorandums of understanding with including BIRN, the Kosovo Law Institute and the Group for Legal and Political Studies. 

However, these memorandums are not necessarily useful in cases involving disputes around family relations because those sessions are closed to the public.

The lack of effective mechanisms for monitoring courts and judges leaves little room for any substantive change that would guarantee single mothers fair treatment in the judicial system.

Another way of monitoring the work of the courts is through evaluating the performance of judges, including the possibility of filing complaints and setting up disciplinary investigations against them. Complaints from natural and legal persons are submitted to the head of the basic court, who, if they assess the complaint to be grounded, requests the Judicial Council to initiate disciplinary investigations. 

The latter then sets up an investigative panel to investigate within three to five months. If their report shows a violation by the judge, then the JudicialCouncil imposes sanctions ranging from a non-public written warning to a proposal for dismissal.

For example, in 2019, out of 135 disciplinary complaints against judges throughout Kosovo, 92 were rejected as unfounded by the heads of the courts, while in 16 cases requests for disciplinary investigations were made to the Judicial Council. In the end, only four cases under disciplinary investigation were reviewed: One judge was released from disciplinary responsibility, one had their monthly salary reduced by 30% for three months as a disciplinary measure, while in the other two cases only non-public written reprimands were issued.

This data does not include judges involved in alimony cases, because according to the Judicial Council, there were no appeals against judges’ decisions in cases of this type.

However, according to the 2019 European Commission Progress Report for Kosovo, when disciplinary proceedings against judges do take place they “face long delays and have been proven to be ineffective.” The 2020 report noted “some progress in the implementation of the legal framework” but emphasized that “efforts are still needed to ensure more consistent and effective application of disciplinary proceedings against judges and prosecutors.”

But the combination of these two factors — the lack of complaints in alimony cases and ineffective mechanisms for monitoring courts and judges — leaves little room for any substantive change that would guarantee single mothers fair treatment in the judicial system.

Cheating the system

A conflict that often arises between divorced couples is the identification of sources of income, which is then reflected in alimony disagreements. Some parents even commit financial fraud in order to pay a smaller sum that does not correspond to their real income. They find various ways to avoid it, such as changing real estate ownership and declaring false financial data.

For example, Gashi claims that her ex-husband hid his real income from the court. And despite the fact that she had disputed the employment contract presented by her ex-husband, she says the court, without taking the effort to verify it, assigned him an alimony payment of 130 euros.

When contacted on this issue, Gani Hoxha, the lawyer of Gashi’s ex-husband, Lulzim Rrmoku, refused to speak about the allegations. Meanwhile, K2.0 has not managed to get in touch with Gashi’s ex-husband.

In the NGO INJECT’s 2019 Shared Property and Financial Maintenance study into the rights of divorced women, 70% of women interviewed had a court decision entitling them to alimony, but only 25% of them stated that they received alimony regularly. In another striking finding, INJECT found that 70% of the women interviewed had fallen prey to economic fraud when it comes to paying alimony.

“When the court asked for evidence, his salary and all, he did not bring anything,” Buja says. “He was neither punished, nor has gotten a warning, and that’s something I expected.”

The Family Law of Kosovo stipulates that the scope of financial maintenance should be “adequate to the conditions in which the person entitled to financial maintenance lived,” and that the obligation to provide financial maintenance or alimony is determined in proportion to all of the respondent’s means and within the limits of the applicant’s needs.

The INJECT research noted that courts often assign alimony based on the average living standard in Kosovo and not based on marital status. According to Stublla-Emini, this is illegal.

“There are cases where, despite the evidence given to the court for family expenses that have been in the thousands of euros, the court has decided based on the standard of living in Kosovo and has set alimony for children at 150 euros,” says Stublla-Emini, who explains that this is contrary to Article 305 of the Family Law, which states that the amount of alimony depends on the standard of living in the marriage.

According to Bahtiri, the Family Law provides many opportunities for the court to play an active role in conducting investigations in cases when it decides on children’s custody and alimony.

“In this context, the court, based on the respective provisions of the Law on Contested Procedure, is authorized to ask banks and other financial institutions to find out the realistic possibilities and the real conditions of the parents,” Bahtiri says. “Therefore, on the basis of data obtained from these court investigations, it also decides on the amount of alimony payment.”

In Buja’s case, the court has set the alimony at only 150 euros, while she claims that based on the financial conditions of her ex-husband a larger amount should have been allocated for their daughter.

“When the court asked for evidence, his salary and everything, he did not bring anything,” Buja says. “He was neither punished, nor has he received a warning, and that’s something I expected.”

The Criminal Code of Kosovo stipulates a prison sentence of three months to five years for someone who evades material care of a child through false reporting. Although she claims that her ex-husband enjoys a much higher income compared to the alimony assigned to him, Buja has given up on a possible request for him to be investigated.

“No, I am so exhausted that I wouldn’t take that step at all,” she says. “I would be happy even with 150 euros. Having waited 4 years to get a final verdict, I do not want to wait another 14 years when my daughter is grown up and he can say, ‘No, I won’t pay now because she’s 18.’”

Lack of justice unites single parents

Buja and Gashi are just two of almost 120 parents — including three fathers — who meet at the offices of the Single Parent Association. Here, they share their experiences about the burden of ensuring their children’s well-being alone, often facing challenges with providing food, shelter, and education, as well as covering medical expenses.

It was precisely her personal experience that motivated Gashi to found this association. Now, it is engaged in aiding single parents with counseling and their economic empowerment.

Arjeta Gashi, who has never received alimony from her ex-husband, shares this experience with many single mothers, who get together at the association she established. Photo: Uran Krasniqi.

The Law on Family, which regulates alimony obligations, entered into force in 2006. However, the disregard for it and the consequences for single parents are something that most of those who attend share as a common concern. The association is specifically trying to address this through an initiative through which they have urged the Ministry of Labor and Social Welfare to look into paying the alimony itself, and then the parent who does not pay alimony is indebted to the state.

For the director of the Kosovo Center for Gender Studies, Luljeta Demolli, it is precisely these gender-sensitive policies that are missing, which makes it impossible to address the needs of single mothers for their empowerment. She says the non-implementation of alimony is an additional challenge, given their utterly disadvantaged position in the labor market.

“Single mothers are under stress to get to work on time, to send their children to school or daycare, and to meet all their deadlines on time, including food and clothing,” she says. “Limited opportunities to find part-time work and the lack of flexibility at work are also factors that discriminate against women in the labor market. A child’s sudden illness is a problem that can arise at work because you must take leave.”

"Alimony does not only serve a monetary function, but it also creates a sustainable environment for the cognitive, emotional and social development of a child,"

psychologist Natyra Agani says

Many of these worries and difficulties are also transferred and affect the well-being of their children. Psychologist Natyra Agani sees the importance of financial support in the context of the impact that the entire divorce process can have on the child by causing emotional distress or uncertainty about the future.

“Financial insecurity limits the possibility to plan activities such as birthday parties, buying toys or school equipment, attendance of extracurricular activities or going on a summer vacation, which can in turn cause feelings of negligence, abandonment and not being loved by parents,” Agani says. “Thus, alimony does not only serve a monetary function, but it also creates a sustainable environment for the cognitive, emotional and social development of a child, enabling the continuity of the routine that the child had before the parents’ divorce.”

According to Agani, the failure to fulfill financial obligations by one parent turns into a burden for the other parent who has custody of the children.

“This exacerbates the general condition of the other parent considering that they need to find other alternatives for securing financial means,” she says.

In Gashi’s and Buja’s cases, they have turned to their families for financial support. But regardless of this aid, their and their children’s difficulties and worries continue.

Buja says that she has to leave a lot of personal things behind in order to cover expenses for her daughter.

“I can’t get a loan, I can’t get anything to make my life a little easier, a car or an apartment,” she says. “I dare not do it because I spend about 100 euros [just] for my daughter’s medication.”

Buja says that the pressure and stress that she has been dealing with has also affected her mental health.

“I also went to therapy due to the stress and the anxiety about what’s going to happen,” she says. “How can I raise my daughter now?”

While the judicial system fails to protect single mothers like Buja and Gashi, alimony remains mostly at the will of the ex-husbands. And considering that in many cases they decide not to contribute to their children’s well-being, the heaviest burden falls on the single mothers.K

Feature image: CC0.

This publication is part of the third cycle of the Human Rights Journalism Fellowship Program, supported by the European Union Office in Kosovo. The program is co-supported by the National Endowment for Democracy. This program is being implemented by Kosovo 2.0, in partnership with Kosovar Center for Gender Studies (KCGS), and Center for Equality and Liberty (CEL). Its contents are the sole responsibility of Kosovo 2.0 and do not necessarily reflect the views of the donors.