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 shared property, even if one of them had no independent income either from study, maintenance of the household or custody of the children, etc., unless otherwise provided for by their contract or by law.

It is considered that anything acquired during the marriage, with the exception of things for individual use and the exceptions provided for in Article 57 of the Ukrainian Family Code, is an object of the spouses’ common property.

This presumption is established by Article 368 of the Ukrainian Civil Code and Article 60 of the Ukrainian Family Code. The current Ukrainian 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 EU Committee of Ministers of 1981 “On the rights of spouses with regard to the maintenance of the household and the use of the family home”.

Ukraine ratified the Convention on Legal Assistance and Judicial Relations in Civil, Family and Criminal Matters, 1993, Minsk (http://zakon3.rada.gov.ua/laws/show/997_009).

Ukraine has also signed agreements 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 issues arising between spouses are regulated.

It is important to stress that spouses have the right to refuse the general rules of the matrimonial property regime  by law by concluding a marriage contract between them.

1.2. Do the 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 establishes that spouses have equal rights to own, use and dispose of property belonging to them by virtue of shared 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 consequences of the matrimonial property regime, the spouses may choose the law of the personal law of 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.

2.1. Please describe the general principles: Which goods are part of the common goods? Which property is part of the spouses’ own property?

The matrimonial property regime is defined by the Family Code of Ukraine.

National legal practice is also in line with the provisions of the Convention on Legal 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 provides that all property, except property excluded from civil circulation, may be subject to the spouses’ joint right of ownership.

The object of the spouses’ joint property right is salary, pension, scholarship and other income received by one of them.

If one of the spouses had signed a contract in the interests of the family, then the money, other assets, including fees and gains received under this contract, shall be jointly owned by them.

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 shared property.

Article 57 of this Code defines the property which is the property of a spouse/spouse, in particular: 

• (1) property acquired by her/him before the marriage;
• (2) property acquired by him/her during the marriage by a contract of gift or inheritance;
• (3) property acquired by her/her during the marriage in respect of funds belonging to him personally;
• (4) a dwelling acquired by her/her during the marriage as a result of her/her privatisation in accordance with the Ukrainian Law “On Privatisation of the State Housing Fund”;
• (5) land operated and acquired by her/her during her marriage as a result of its privatisation, or obtained as a result of the privatisation of state land, municipal agricultural enterprises, institutions and organisations, or obtainedfrom  State-owned and municipal land within the limits of the free privatisation standards laid down in the Land Code of Ukraine.

Own goods 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 recognize 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 the prize);
• 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 from the personal funds of each spouse.

In the event of termination of the de facto marital relationship, the court may recognise the property acquired by each of the spouses at the time of 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 proportion of that property corresponding to the extent of the contribution is part of his own assets.

2.2. Are there legal presumptions in relation to the allocation of property?

Article 70 of the Code de la famille de l’Ukraine stipulates that, when allocating the property of the spouses which are jointly owned, the size of the shares in the property shall be equal, unless their agreement or marriage contract decides otherwise.

In the event of a dispute concerning the allocation of property, the court may derogate from the principle of equality of shares in the essential circumstances, in particular if one of the spouses was not involved in the financial maintenance of his or her family, if he or she had concealed, destroyed, damaged or spent common property to the detriment of their family.

The share of the property of one of the spouses may be increased by decision of the court if she/he resides with the disabled adult children or children, provided that the amount of support they receive is insufficient to ensure their physical and spiritual development and treatment.

The spouses’ common property may be shared by consent of the parties by concluding an agreement on the division of the spouses’ common property or before a court. In Ukraine, over the last 10 years, the division of the spouses’ common property on a contractual basis, without legal proceedings, has been significantly increased, helping to overcome conflicts and to take into account the interests of each spouse as much as possible.

The division of the spouses’ common property is possible both during the period of the registered marriage and after its dissolution. The agreement on the division of the joint property of the spouses (ex-spouses) is subject to mandatory notarisation.

Moreover, when drawing up a succession, a notary issuing a certificate of succession as a title to the inherited property must clarify the question of the existence of joint ownership of those assets by the spouses (formerly spouses). If the property is jointly owned by the spouses (former spouses), one of whom has died, the notary issues a certificate of ownership of part of the property to the surviving spouse.

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 if the property is divided 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 property? 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?

Articles 65 and 67 of the Ukrainian Family Code establish that the spouses have the property which is the subject of the joint right of ownership by mutual consent. 

When a contract is concluded by one of the spouses, he or she shall be deemed to be acting with the consent of the other spouse. A spouse has the right to apply to the court to declare the contract concluded by the other spouse without her consent to be void, if that contract exceeds the limits of a small domestic contract. In order to conclude a contract requiring notarisation and (or) state registration, as well as a contract for valuable property by one of the spouses, the consent of the other spouse must be submitted in writing.

If consent is given for the conclusion of a contract which requires notarisation and (or) state registration, consent must be notarised. That consent shall be drawn up in the form of an application, the authenticity of the signature of one of the spouses on which a notary is made.

A contract concluded by one spouse in the interests of the family creates obligations for the other spouse if the property received under the contract is used in the interests of the family. A spouse is only entitled to enter into a contract of sale, exchange, gift, maintenance (care) or pledge in the spouses’ joint ownership rights with a third party only after his/her determination and assignment in kind or determination of the procedure for the use of the property.

The spouses have the right to verify their share of the joint ownership right before it is determined and allocated in kind.

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, when one of the spouses enters into a contract on the disposition of the common property, he is deemed to be acting with the consent of the other spouse.

However, the conclusion of a contract on the disposition of the common property by one of the spouses without the consent of the other spouse may be a ground for declaring such a contract void only if the court finds that the spouse who concluded the contract on the disposition of the common property and a third party — the consideration under such a contract — acted in bad faith, in particular, that a third party knew or according to the circumstances of the case could not have been unaware that the property belonged to the spouses on the common right of ownership, and that the spouse concluding the contract did not obtain the consent of the other spouse. 

The Supreme Court of Ukraine considers that the lack of consent of one of the spouses to the disposal of the common property cannot in itself constitute a ground for declaring the contract void — in that case the other spouse is entitled to compensation for the value of that spouse.

2.5. Are there legal transactions carried out by one spouse which also engage the other?

When one of the spouses concludes contracts, they are deemed to be acting with the consent of the other spouse. A spouse has the right to apply to the court to declare the contract concluded by the other spouse without her consent to be void, if that contract exceeds the limits of a small domestic contract.

2.6. Who is responsible for debts incurred during the marriage? What assets can be used by creditors to recover their claims?

Each spouse is personally liable for their debts, unless otherwise provided for in a contract of guarantee or marriage contract.

According to Part 1 of Article 1054 of the Civil Code of Ukraine, a loan agreement is a transaction to receive ownership of the funds and does not create obligations for the other spouse, but only for the borrower as a party to the contract.

The signing of a loan agreement by one of the spouses must not render the other spouse liable, unless he or she has not signed a contract of guarantee.

In Ukraine, the current legal practice of concluding a loan agreement by one of the spouses provides for the simultaneous conclusion of a guarantee contract with the other spouse.

In accordance with Article 553 of the Ukrainian Civil Code, the guarantor guarantees the debtor’s creditor the performance of his obligations. The guarantor shall be liable to the creditor for the breach of obligations by the debtor. In other words, a guarantor is a means of ensuring the fulfilment of obligations (usually monetary), not a transaction to dispose of property belonging to the guarantor. The guarantee contract shall not create obligations for any person other than the parties to the contract.

It is important to pay attention to the provisions of Article 578 of the Civil Code, according to which common property may be pledged only with the consent of all the co-owners. Thus, the conclusion of a loan agreement by one of the spouses does not give rise to liability on the part of the other spouse, except where a guarantee contract is concluded at the same time.
Collection is permitted only in respect of property which is not excluded from civil circulation, as well as property belonging to spouses in co-ownership and pledge (mortgage) with the consent of all the co-owners.

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.

The recovery of debts may be imposed on the community reduced by acquisition, if the court has ruled that the contract was concluded by one of the spouses in the interests of the family and all what it was received under the contract was 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.

3.1. 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. Under a marriage contract, immovable property and other property cannot be transferred to the property of one of the spouses.

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 spouse, the spouse transfers for the common needs of the family, and the legal rules governing the property received as a gift by reason of the marriage.

The parties may agree that property acquired during the marriage shall be considered as joint partial ownership or personal private ownership. The parties may also agree on a possible procedure for the division 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 does not conflict with the moral principles of society.

3.2. What are the formal 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 void.

Spouses must notify the competent institutions of the existence of a marriage contract in order to take into account the agreements when exercising the spouses’ rights. In Ukraine, there is not yet a unified electronic register of marriage contracts.

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 conditions. Unilateral changes to the conditions of the marriage contract or unilateral refusal of the marriage contract are not permitted. The spouses may amend the marriage contract only after the conclusion of an appropriate contract, subject to mandatory notarization.

In Ukraine, a marriage contract is subject to mandatory notarisation, but it is not subject to state registration.

The matrimonial property regime is not registered separately. The right of ownership and other rights in rem over immovable property, its origin, transfer and termination shall be subject to state registration in accordance with Part 1 of Article 182 of the Civil Code of Ukraine. State registration of immovable property rights is public and takes place in the electronic register of state rights.

Notaries in Ukraine are state registrars with the right to carry out such registration of property rights. Therefore, when registering the ownership of immovable property by the State, if it is common, the type of ownership is indicated.

The legal regime governing the joint ownership of the spouses or the personal property of one of the spouses shall be determined exhaustively, taking into account the legal basis for the acquisition of property rights and State registrations, the law and the presence — absence of a marriage contract.

4.1. Is there one or more registers of marriage contracts in your country? Where?

Spouses must notify the competent institutions of the existence of a marriage contract in order to take into account the agreements when exercising the spouses’ rights. In Ukraine, there is not yet a unified electronic register of marriage contracts.

4.2. Which documents are registered? What information is recorded?

4.3. How can I access the information in the register and who can do so?

4.4. What are the legal effects of a registration (validity, enforceability)? 

5.1. How is ownership (rights in rem) divided? 

In accordance with Article 68 of the Ukrainian Family Code, the dissolution of a marriage does not put an end to the right to co-ownership of property acquired during the marriage. 

After the marriage has been dissolved, the property, which is the subject of the right of indivisation, is disposed of exclusively by mutual agreement of the spouses. 

The wife and husband have the right to share the property belonging to them by joint ownership, irrespective of the dissolution of the marriage.

The spouses have the right to share the property by mutual agreement.

A contract for the allocation of residential property, apartment, other immovable property and 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.

Depending on the obligations of one of the spouses, the penalty may be imposed only on his or her own property and on the proportion of the spouses’ right of indivision which is granted to him or her in kind.

Collection may be levied on property which is jointly owned by the spouses, if the court finds that the contract was concluded by one of the spouses in the interests of the family and that what was obtained under the contract was used for his or her needs.

When reparation for damage caused by a criminal offence of one of the spouses, the penalty may be imposed on property acquired during the marriage, if the court decision concluded that the property was acquired with funds obtained as a result of a criminal offence.

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, property which is the subject of joint ownership is shared between the spouses in kind.

If the spouses do not agree on the division of property, the dispute may be settled by the court. In doing so, the court shall take into account the interests of each of the spouses, the children and other important circumstances.

Indivisible matters shall be attributed to one of the spouses, unless otherwise provided in the agreement between them.

Objects intended for professional activities are assigned to a spouse who uses them in his or her professional activities. The value of that property is taken into account when assigning other property to the other spouse.

Monetary compensation may be awarded to one of the spouses instead of their share in the joint property right, including a dwelling, apartment or land, only with his or her consent.

Monetary compensation may be awarded to one spouse provided that the other spouse has previously paid the appropriate amount to the court’s deposit account.

The creditor of the joint owner of the property, in the event of insufficiency of other property subject to attachment, may apply to the courts for the allocation of shares in the joint ownership of the property for attachment, except in the cases provided for by law.

The extinguishing limitation period does not apply to applications for the division of the spouses’ common property if the marriage between them is not dissolved.

An application for division of property made after the dissolution of a marriage is subject to a limitation period of three years. 

The limitation period is calculated from the day on which one of the spouses learned or could have learned of the infringement of their property rights.

As a general rule, all the spouses’ property is shared, 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 hereditary 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 joint 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.

In Ukraine, there is no special matrimonial regime for multinational couples

However, the law may impose general restrictions on certain categories of goods. 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.  

Married couples who are not Ukrainian citizens do not have the right to own farmland.

In the current Ukrainian legislation there is no legal definition of registered and unregistered partnership.

Disputes relating to matrimonial matters fall within the jurisdiction of the courts (Article 15 of the Code of Civil Procedure).

In the context of the unchallenged court, in particular under a notarial contract, recovery is possible on the basis of enforceable instruments of the notary.

If the 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 real estate 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.