Couples in Ukraine
1. Which law applies?
1.1. What is the law applicable to the couple’s property? What are the criteria used to determine the applicable law? Which international conventions must be complied with in relation to certain countries?
The property acquired by the spouses during the marriage is their community property, regardless of whether one of them personally had no source of income as a result of their studies, household maintenance or child-raising, etc., unless otherwise provided for, by their contract or by law.
Anything acquired during the marriage, with the exception of objects for personal use, are deemed to be common.
This presumption is established by Article 368 of the Civil Code and Article 60 of the Ukrainian Family Code. Ukraine’s current legislation follows the concept of the ‘single status of the consequences of marriage’, according to which all legal relationships (personal and marital) between spouses are subject to the status of the general effects of marriage. This provision is included in the recommendations of the Committee of Ministers of the European Union 1981 “on the rights of spouses as regards the maintenance of the household and the use of the family home”.
Ukraine has ratified the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993, Minsk, Belarus (http://zakon3.rada.gov.ua/laws/show/997_009).
Ukraine has also signed treaties on legal assistance in family relations with countries such as Lithuania (http://zakon3.rada.gov.ua/laws/show/440_002), Uzbekistan (http://zakon3.rada.gov.ua/laws/show/860_013), Finland (http://zakon2.rada.gov.ua/laws/show/246_008), Albania (http://zakon2.rada.gov.ua/laws/show/246_008), where property problems between spouses are regulated.
1.2. Do spouses have the option to choose the applicable law? If so, according to what principles is this choice governed? (e.g. concerning the laws to be chosen, formal requirements, retroactivity)
Article 63 of the Ukrainian Family Code stipulates that spouses have the equal rights to own, use and dispose of property belonging to them as a result of the community of property, unless their contract provides otherwise.
In accordance with the provisions of articles 59 and 61 of the Law of Ukraine “On Private International Law”, in order to settle the property consequences of marriage, spouses may choose the right to the law applicable to one of them or the law of the State in which one of the spouses has a habitual residence, or, as regards immovable property, the law of the State in which the property is located.
2. Is there a statutory matrimonial property regime and, if so, what does it provide for?
2.1. Please describe the general principles: Which assets are part of the common property ? Which assets are part of the spouses’ own property?
The matrimonial property regime is defined by the Family Code of Ukraine.
In addition, national legal practice is in line with the provisions of the Convention on Mutual Assistance and Legal Relations in Civil, Family and Criminal Matters (http://zakon3.rada.gov.ua/laws/show/997_009), as well as with the international treaties on legal assistance in family relations signed with Lithuania (http://zakon3.rada.gov.ua/laws/show/440_002), Uzbekistan (http://zakon3.rada.gov.ua/laws/show/860_013), Finland (http://zakon2.rada.gov.ua/laws/show/246_008) and Albania (http://zakon2.rada.gov.ua/laws/show/246_008).
Article 61 of the Ukrainian Family Code stipulates that any property, except property excluded from civil circulation, may be subject to the spouses’ right to their common property.
Salaries, pensions, study grants and other income received by one of the spouses are subject to the right to their common property.
If one of the spouses had signed a contract in the interests of the family, then money, other property, including fees and gains received under this contract, would be the object of their common property.
Objects intended for professional activity (musical instruments, office equipment, medical equipment, etc.) acquired during the marriage by one of the spouses are subject to the right to their common property.
The property which forms part of the property of the spouses is defined in Article 57 of this Code, and it is:
(1) property acquired before marriage;
(2) property acquired by gift or inheritance during the marriage;
(3) property acquired against payment with his or her own money during the marriage;
(4) housing acquired during the marriage, resulting from its privatisation under the Law of Ukraine “On Privatisation of Social Housing”;
(5) land exploited and acquired during marriage resulting from its privatisation, or from the privatisation of State land and municipal agricultural enterprises, institutions and organisations or obtained from the land of the State and municipalities, under the rules of free privatisation laid down in the Ukrainian Land Code.
Own assets are also:
objects for personal use, including jewellery, even when acquired with the spouses’ common money;
prizes or awards received for personal merits (the court may recognise the right of the other spouse to one part of that prize or award, if it is found that his or her actions (maintenance of the household, bringing up the children, etc.) have contributed to obtaining it;
money received as compensation for the loss (damage) of property belonging to one of the spouses, as well as compensation for non-material damage;
insurance benefits received for compulsory personal insurance and voluntary personal insurance if the insurance premiums have been paid out of each spouse’s own funds.
In the event of the termination of the marital relationship in fact, the court may recognise the property acquired by each of the spouses during their separation as their own property.
If, in addition to mutual funds, funds belonging to one of the spouses have been invested in the acquisition of the property, the share in those assets corresponding to the size of his or her contribution forms part of his or her own property.
2.2. Are there legal presumptions in relation to the allocation of assets?
Yes. Article 70 of the Ukrainian Family Code stipulates that during the separation of the assets of spouses which are the subject of a community of assets, the size of the shares of the assets shall be equal, unless their agreement or marriage contract decides otherwise.
In the event of a dispute over the allocation of assets, the court may depart from the principle of equality of shares in essential circumstances, especially if one of the spouses was not concerned with the financial support of their family, if they had concealed, destroyed, damaged or spent common property to the detriment of their family.
The share of one spouse’s property may be increased by the decision of the judge, if he or she resides with the children, or adult children with disabilities, provided that the amount of support they receive is insufficient to ensure their physical and spiritual development and treatment.
2.3. Should spouses draw up an inventory of property? If so, when and how?
This is not mandatory. The inventory and valuation of property may be required only in the event of their distribution between the spouses or at the request of a court in order to settle the dispute over the common property.
2.4. Who is responsible for the administration of the property ? Who has the right to dispose of the assets ? Can a single spouse dispose of/administer the property or is the consent of the other spouse necessary (e.g. if the spouses’ domicile is disposed of)? What are the effects of the lack of consent on the validity of a legal transaction and on enforceability against a third party?
In accordance with articles 65 and 67 of the Ukrainian Family Code, spouses have the right to administer their common property by mutual agreement.
For the conclusion of contracts requiring notarisation and (or) state registration, as well as agreements concerning valuable property by one spouse, the other spouse must give his or her consent in writing with a notarial signature.
Each spouse has the right to sign a contract of sale, exchange, donation, care or guarantee in relation to his or her share of a common property with a third party only after his or her share has been determined and a common property has been put into use in kind or after the order for use of the property has been determined.
According to the second part of Article 369 of the Ukrainian Civil Code and the second part of Article 65 of the Ukrainian Family Code, upon the conclusion of a contract for the transfer of joint property by one of the spouses, he or she is deemed to act with the consent of the other spouse. However, the conclusion of a contract by one of the spouses for the disposal of common property without the consent of the other spouse may be the grounds for the recognition of such an agreement as null and void only if the court establishes that the spouse who concluded the contract for the transfer of common property, and a third person — the counterparty to such an agreement, acted in bad faith, in particular, of which the third party knew or, according to the circumstances of the case, could not have been unaware that the property belongs to the spouses under the law of co-ownership, and that the spouses who concluded the contract, did not receive the consent of the other spouse. The Supreme Court of Ukraine takes the view that the absence of a spouse’s consent for the disposal of common property cannot be a ground for declaring the contract null and void, in such a case the other spouse is entitled to compensation for the value of his or her share (http://protokol.com. ua/ua/vsu_vidsutnist_zgodi_odnogo_z_podruggya_na_vidchugennya_spilnogo_mayna_sama_po_sobi_ne_ne_ne_z_sobi_ne_moge_butila idstavoyu_dlya_viznannya_dogovoru_nediysnim/)
2.5. Are there legal transactions carried out by one spouse which also commit the other?
Where one of the spouses concludes a contract, he or she shall be deemed to have acted with the consent of the other spouse.
Nevertheless, the spouse has the right to appeal to the court on the recognition of the contract as null and void and signed by the other spouse without his or her consent, if that contract goes beyond a small contract of a domestic nature.
2.6. Who is responsible for debts incurred during the marriage? What assets can be used by creditors to recover debts?
Each spouse is personally liable for their debts, unless otherwise provided for in a contract of guarantee or marriage contract.
The signing of a loan agreement by one of the spouses shall not render the other spouse liable unless he or she has not signed a contract of guarantee.
The recovery of claims in respect of the obligations of one of the spouses may be imposed only on their own assets and their share of the common property allocated to them in kind.
Debt collection may be imposed on the community property regime, if the court has ruled that the contract was entered into by one of the spouses in the interests of the family and all that had been received under the contract has been used for his or her needs.
In the case of compensation for damage caused by a spouse’s criminal offence, the penalty may be imposed on common property acquired during the marriage, if the court has found that the property was acquired with money obtained as a result of a criminal offence.
3. How can spouses organise their matrimonial property regime?
3.1. Which provisions can be modified by a contract and which provisions cannot be modified? Which matrimonial property regimes can be chosen?
Articles 93 and 97 of the Ukrainian Family Code stipulate that spouses or persons intending to marry may conclude a marriage contract governing the property relationships between them, determining their matrimonial property regime and obligations. Real estate and other property, the right to which the State is subject to registration, may not be transferred to the property of a spouse by a marriage contract.
The marriage contract may also define the property rights and responsibilities of the spouses as parents.
The marriage contract may determine the property which the woman or husband gives to meet the common needs of the family, as well as the legal treatment of property received as a gift by reason of the marriage.
The parties may agree that their property acquired during the marriage shall be treated as community shares or property of each party. The parties may also agree on a principle of separation of property, including in the event of divorce.
The parties have the right to include in the marriage contract any other provision on the matrimonial property regime if it is not contrary to public morals.
3.2. What are the form requirements and who should I contact?
A marriage contract is subject to mandatory notarisation. In the event of failure to comply with the requirements of the Notarisation Act, such a contract shall be null and void.
3.3. When can the contract be concluded and when does it take effect?
The marriage contract concluded before the marriage is celebrated enters into force on the date on which the marriage is registered, and the marriage contract concluded after the marriage has been celebrated — the day of its notarisation, which must be indicated in the text of the contract.
3.4. Can an existing contract be amended by the spouses? If so, what conditions would apply?
A marriage contract may include provisions relating to the procedure for amending its terms. Unilateral changes to the terms of the marriage contract or unilateral rejection of the marriage contract are prohibited. The spouses may amend the marriage contract only after the conclusion of a corresponding contract, subject to mandatory notarisation.
4. Can the matrimonial property regime be registered or must it be registered?
In Ukraine a marriage contract is not subject to state registration.
4.1. Is there one or more registers of marriage contracts in your country? Where?
4.2. Which documents are registered? What information is recorded?
4.3. How can someone access the information in the register and who can do so?
4.4. What are the legal effects of a registration (validity, enforceability)?
5. What are the consequences of divorce/separation?
5.1. How is ownership (rights in rem) divided?
According to Article 68 of the Ukrainian Family Code divorce does not stop the right to ownership of common property acquired during the marriage.
After divorce, the management of the joint property is carried out by the spouses exclusively by mutual agreement.
The woman and her husband have the right to separate their property by common property right regardless of divorce.
The spouses have the right to share the property by mutual agreement.
The contract for the allocation of dwellings, apartments and other immovable property, as well as the contract for the award of immovable property to one of the spouses, must be notarised.
5.2. Who is responsible for existing debts after divorce/separation?
The liability for debts existing after divorce/separation lies with the spouse who was a debtor before the divorce, if a contract of guarantee was not concluded or stipulated otherwise in the marriage contract.
5.3. Is one of the spouses entitled to an equalisation payment (compensation)?
5.3.1. In the case of participation in the acquisition:
— Must the request be met by payment or in kind?
— How is the application evaluated?
— What is the amount of the equalisation payment (compensation)?
— When is the application time-barred?
5.3.2. In other cases (excluding participation in the acquisition) and which?
In accordance with Article 71 of the Ukrainian Family Code, the property which is the subject of the right to common matrimonial property is shared between the spouses in kind.
If the spouses do not agree on the property sharing procedure, the dispute may be settled by the court. In this case, the court shall take into account the interests of each of the spouses, the children and other essential circumstances.
Indivisible matters are attributed to one of the spouses, unless otherwise agreed between them.
Objects intended for employment are attributed to the spouse who uses them in his or her professional activities. The cost of these elements is taken into account when assigning other property to that spouse.
The granting of monetary compensation to one of the spouses instead of their share in the community, in particular in the home, apartment and land, is permitted only with his or her consent.
The extinctive prescription does not apply to the requirements for the division of common property if the marriage between the spouses is not terminated.
As regards the division of joint property declared after divorce, the extinctive prescription period is three years.
The extinctive prescription period shall be calculated from the day on which one of the spouses learned or could have learned of the infringement of his or her property rights.
6. What are the consequences of death?
As a general rule, all the spouses’ property is common property, and in the event of the death of one spouse, half of that property belongs to the surviving spouse and the other half is inherited.
The notary may open the inheritance file at the request of the heirs.
The heirs of the second half of the estate may be the persons indicated in the will or by law. A surviving spouse who lives with the deceased’s children or parents belongs to the first order of the heirs by law. All inherited assets are divided equally between the heirs.
If the spouses have established a common will, all their common property becomes the property of the surviving spouse. This property shall only pass to the heirs specified in the common will after the death of the survivor.
7. Does your national law provide for a special matrimonial property regime for multinational couples?
There is no special matrimonial property regime for multinational couples in Ukraine.
However, the law may impose general restrictions on certain categories of assets. For example, foreigners cannot own agricultural land. If this land has been accepted as inheritance, in accordance with Article 80 of the Land Code of Ukraine, it is subject to disposal during the year.
8. What does the law provide for the property of registered and unregistered partners?
9. With which competent authority should a claim be filed in the event of a dispute or other legal issues?
Disputes relating to matrimonial matters fall within the jurisdiction of the courts (Article 15 of the Code of Civil Procedure).
If both spouses are citizens of Ukraine residing in its territory, disputes fall exclusively within the jurisdiction of the Ukrainian courts.
If one of the spouses is a foreign national, disputes concerning the division of immovable property located in Ukraine are dealt with exclusively by the Ukrainian courts, as well as cases of inheritance, if the testator is a citizen of Ukraine and resides in Ukraine.