Couples in Ukraine

1.1. What is the law applicable to the couple’s property? What are the criteria used to determine the applicable law?

The choice of law applicable to marital property depends on a number of factors, such as the place of residence or habitual residence of the spouses, their citizenship, the location of the property, contractual arrangements between them, etc. If the spouses are citizens of Ukraine residing in Ukraine, their property relations are governed by Ukrainian law and regulated by the Family Code of Ukraine.

At the same time, in accordance with Article 13 of the Family Code of Ukraine, international treaties governing family relations, which have been ratified by the Verkhovna Rada of Ukraine, are part of the national family legislation of Ukraine. And, if an international treaty of Ukraine concluded in accordance with the established procedure contains rules other than those established by the relevant act of family law, the rules of the relevant international treaty of Ukraine shall apply.

It should be noted that Ukraine has concluded bilateral agreements on legal assistance in family matters with a number of countries, the rules of which should be taken into account when deciding on the application of law in resolving property rights of spouses with a foreign element.

In the absence of such a treaty with a particular country, the provisions of the Law of Ukraine “On Private International Law” apply to the resolution of property rights of spouses with a foreign element. Pursuant to Article 1(2) of this law, a foreign element is a feature that characterizes private law relations governed by this law and manifests itself in one or more of the following forms: at least one party to the legal relationship is a citizen of Ukraine residing outside Ukraine, a foreigner, a stateless person or a foreign legal entity; the object of the legal relationship is located in a foreign country; the legal fact that creates, changes or terminates the legal relationship occurred or is occurring in a foreign country.

As a general rule, Article 4 of the Law of Ukraine “On Private International Law” provides that the law applicable to private law relations with a foreign element is determined in accordance with the conflict of law rules and other provisions of the conflict of law regulations of this law, other laws, and international treaties of Ukraine. If it is not possible to determine the applicable law, the law that has a closer connection with the private law relationship shall be applied. The law to be applied to private law relations on the basis of conflict of laws rules is not determined if an international treaty of Ukraine provides for the application of substantive law to the relevant relations. At the same time, the Law of Ukraine “On Private International Law” provides for the possibility for parties to legal relations with a foreign element to choose the law applicable to their legal relations in cases provided for by law (the principle of autonomy of will).

Pursuant to Article 61 of the Law of Ukraine “On Private International Law”, spouses may choose to regulate the property consequences of marriage by the law of the personal law of one of the spouses or the law of the state in which one of them has his or her habitual residence, or, in respect of real estate, the law of the state in which the property is located. At the same time, such a chosen law ceases to apply or is changed by agreement of the parties in the event of a change in the personal law or habitual residence of the spouse to whose personal law or habitual residence the chosen law was tied. The new law applies to legal relations from the moment of marriage, unless otherwise agreed in writing by the spouses. In the absence of a choice of law by the spouses, the property consequences of the marriage are determined by the law applicable to the legal consequences of the marriage.

Pursuant to Article 16 of the Law of Ukraine “On Private International Law”, the personal law of an individual is the law of the state of which he or she is a citizen. If an individual is a citizen of two or more states, the law of the state with which the individual has the closest ties, in particular, has a place of residence or is engaged in the main activity, is considered to be the personal law of the state with which the individual has the closest ties. The personal law of a stateless person is the law of the state in which that person has his or her place of residence, or, in the absence of such a place of residence, the place of stay. The personal law of a refugee is the law of the state in which he/she has his/her place of residence.

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)

Yes, spouses may choose the applicable law in cases where their legal relations contain a foreign element (see the answer to the previous question). The possibility of such a choice is regulated by the Law of Ukraine “On Private International Law”

Pursuant to Article 60 of the Law of Ukraine “On Private International Law”, the legal effects of marriage are determined by the common personal law of the spouses (see the answer to the previous question), and in its absence - by the law of the state in which the spouses had their last joint residence, provided that at least one of the spouses still has a residence in that state, and in the absence of such a law - by the law with which both spouses have the closest connection in another way. Spouses who do not have a common personal law may choose the law that will apply to the legal effects of the marriage if the spouses do not have a common domicile or if the personal law of neither spouse coincides with the law of the state of their common domicile. Such choice of law is limited only by the law of the personal law of one of the spouses without applying part two of Article 16 of this Law (regarding the personal law of an individual if he/she is a citizen of two or more states). The agreement on the choice of law shall be terminated if the personal law of the spouses becomes their common law.

Pursuant to Article 61 of the Law of Ukraine “On Private International Law”, spouses may choose to regulate the property consequences of marriage by the law of the personal law of one of the spouses or the law of the state in which one of them has his or her habitual residence, or, in respect of real estate, the law of the state in which the property is located. At the same time, such a right ceases to apply or is changed by agreement of the parties in the event of a change in the personal law or habitual residence of the spouse to whose personal law or habitual residence the chosen right was tied. The new law applies to legal relations from the moment of marriage, unless otherwise agreed in writing by the spouses. In the absence of a choice of law by the spouses, the property consequences of the marriage are determined by the law applicable to the legal consequences of the marriage.

Article 62 of the Law of Ukraine “On Private International Law” establishes a mandatory rule that the choice of law must be made in writing or clearly follow from the terms of the marriage contract. An agreement between the parties on the choice of law concluded in Ukraine must be notarially authenticated.

Article 59 of the Law of Ukraine “On Private International Law” states that the parties to a marriage contract may choose the law applicable to the marriage contract.

It is important to note that, pursuant to Article 5 of the Law of Ukraine “On Private International Law”, which explains the content of the principle of autonomy of will, the choice of law may be made in respect of the transaction as a whole or a separate part thereof. The choice of law in respect of separate parts of the transaction must be explicit. The choice of law or change of the previously chosen law may be made by the parties to legal relations at any time, in particular, when entering into a transaction, at different stages of its execution, etc. The choice of law or change of the previously chosen law made after the transaction is executed shall have retroactive effect and shall be valid from the moment of the transaction, but may not: 1) serve as a ground for invalidation of a transaction due to non-compliance with its form; 2) restrict or violate the rights acquired by third parties before the choice of law or change of the previously chosen law. The choice of law is not made if there is no foreign element in the legal relationship.

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

Article 368(3) of the Civil Code of Ukraine establishes an important presumption that property acquired by the spouses during the marriage is their common property with indetermined shares, unless otherwise provided by agreement or law. Article 60 of the Family Code of Ukraine elaborates on this presumption and establishes that property acquired by the spouses during the marriage belongs to the wife and husband as jointly owned property with indetermined shares, regardless of the fact that one of them did not have independent earnings (income) for a valid reason (study, housekeeping, childcare, illness, etc.). It is believed that every thing acquired during the marriage, except for things for individual use, is the object of the right of common property with indetermined shares of the spouses.

Article 61 of the Family Code of Ukraine defines the objects of the right of common property with indetermined shares and establishes that:

1. The object of the right of common property with indetermined shares may be any property, except for property excluded from civil circulation.

2. The object of the right of common property with indetermined shares is the salary, pension, scholarship and other income received by one of the spouses.

3. If one of the spouses has entered into an agreement in the interests of the family, money, other property, including fees, winnings, received under this agreement, shall be the subject of the right of common property with indetermined shares of the spouses.

4. Items for professional activities (musical instruments, office equipment, medical equipment, etc.) purchased during the marriage for one of the spouses are subject to the right of common property with indetermined shares of the spouses.

It is important to note that divorce does not terminate the right of common property with indetermined shares of the spouses of the property acquired during the marriage. After the divorce, the co-owners shall dispose of the property subject to the right of common property with indetermined shares only by mutual agreement, in accordance with the Civil Code of Ukraine (Article 68 of the Family Code of Ukraine).

Article 74 of the Family Code of Ukraine defines the legal regime of property of a woman and a man who live in the same family but are not married to each other or in any other marriage. According to this Article:

1. If a woman and a man live in the same family, but are not married to each other or in any other marriage, the property acquired by them during their cohabitation belongs to them on the right of common property with indetermined shares, unless otherwise provided by a written agreement between them.

2. The property that is the subject of the right of common property with indetermined shares of a woman and a man who are not married to each other or in any other marriage is subject to the provisions of Chapter 8 of the Family Code of Ukraine, which regulates the right of common property with indetermined shares of the spouses.

Article 57 of the Family Code of Ukraine defines the property that is the personal private property of a wife or husband.

1. Personal private property of a wife or husband is:

1) property acquired by her or him before marriage;

2) property acquired by her or him during the marriage, but on the basis of a gift agreement or by inheritance;

3) property acquired by her or him during the marriage, but for funds that belonged to her or him personally;

4) housing acquired by her, him during the marriage as a result of its privatization in accordance with the Law of Ukraine “On Privatization of the State Housing Fund” (note: in the period from February 08, 2011 to June 12, 2012, such property was the object of the right of joint marital ownership);

5) a land plot acquired by her, him during the marriage as a result of privatization of a land plot that was in her, his use, or obtained as a result of privatization of land plots of state and municipal agricultural enterprises, institutions and organizations, or obtained from state and municipal property within the limits of free privatization as defined by the Land Code of Ukraine (note: in the period from February 08, 2011 to June 12, 2012, such property was the object of the right of joint marital ownership).

2. The personal private property of a wife and husband is things of individual use, including jewelry, even if they were purchased at the expense of the joint funds of the spouses.

3. The personal private property of a wife or husband is bonuses, awards that she or he received for personal merit.

The court may recognize the right of the other spouse to a share of this bonus, reward, if it is established that he or she contributed to its receipt by his or her actions (running a household, raising children, etc.).

4. The personal private property of a wife or husband is the funds received as compensation for the loss (damage) of a thing that belonged to her or him, as well as as compensation for moral damage caused to her or him.

5. Personal private property of a wife or husband is payments (insurance payments and payments of redemption amounts) received under life and health insurance contracts.

6. The court may recognize as personal private property of the wife or husband the property acquired by her or him during their separate residence in connection with the actual termination of the marriage relationship.

7. If, in addition to joint funds, funds belonging to one of the spouses are invested in the acquisition of property, the share in this property, in accordance with the amount of the contribution, is his or her personal private property.

Pursuant to Article 58 of the Family Code of Ukraine, if an item belonging to one of the spouses bears fruit, produces offspring or income (dividends), he or she is the owner of these fruits, offspring or income (dividends).

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

Yes, Article 372 of the Civil Code of Ukraine and Article 70 of the Family Code of Ukraine establish a presumption of equality of shares in the case of division of property.

In accordance with this presumption, in the event of division of property that is subject to the right of common property with indetermined shares of the spouses, the shares of property of the wife and husband are equal, unless otherwise provided by agreement between them, in particular, in a marriage agreement or by law. By a court decision, a co-owner's share may be increased or decreased taking into account circumstances of significant importance. Such circumstances are detailed in the Family Code of Ukraine, which provides that in resolving a dispute over the division of property, the court may deviate from the principle of equality of spouses' shares in circumstances of material importance, in particular if one of them did not care about the material support of the family, evaded participation in the support of the child(ren), concealed, destroyed or damaged joint property, or spent it to the detriment of the family's interests. By a court decision, the share of the wife's or husband's property may be increased if children, as well as disabled adult sons or daughters, live with her or him, provided that the amount of alimony they receive is insufficient to ensure their physical and spiritual development and treatment.

It is important to note that an agreement on the division of real estate owned in common property with indetermined shares must be concluded in writing and is subject to notarial authentiction (Article 372(4) of the Civil Code of Ukraine). After such a division, state registration of ownership is carried out in connection with the acquisition of ownership of the property acquired as a result of such a division, regardless of the existence of state registration of ownership of the property by the spouse (former spouse) to whom such property is transferred (paragraph 54-2 of the Procedure for of state registration of real rights to real estate and their encumbrances, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 1127 of December 25, 2015).

2.3. Should spouses draw up an inventory of property? If so, when and how?

Ukrainian law does not know of any cases where spouses are required to make an inventory of their property. A list of marital property may be required only in the case of division of property between the spouses, both for the purpose of concluding an agreement on the division of marital property and for the division of such property in court.

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? What are the effects of the lack of consent on the validity of a legal ttransaction and on enforceability against a third party?

According to Article 63 of the Family Code of Ukraine, a wife and husband have equal rights to own, use and dispose of property belonging to them as common property with indetermined shares, unless otherwise agreed between them.

Pursuant to Article 65 of the Family Code of Ukraine, a wife and husband dispose of property that is subject to the right of common property with indetermined shares by mutual agreement. When entering into contracts, one spouse is deemed to act with the consent of the other spouse. A wife or husband has the right to file a lawsuit to invalidate an agreement as concluded by the other spouse without her or his consent, if the agreement goes beyond a minor household agreement. In order for one spouse to enter into agreements requiring notarial authentication and/or state registration, as well as agreements regarding valuable property, the consent of the other spouse must be submitted in writing. Consent to enter into an agreement requiring notarial authentication and/or state registration must be notarized. An agreement concluded by one spouse in the interests of the family creates obligations for the other spouse if the property obtained under the agreement is used in the interests of the family.

Pursuant to Article 369 of the Civil Code of Ukraine, co-owners of property in common property with indetermined shares own and use it jointly, unless otherwise provided by agreement between them. Property owned in common with indetermined shares is disposed of with the consent of all co-owners, unless otherwise provided by law. If one of the co-owners makes a transaction regarding the common property, it is considered that it was made with the consent of all co-owners, unless otherwise provided by law. The consent of the co-owners to the execution of a transaction on the disposal of common property, which is subject to notarial authentication and (or) state registration, must be expressed in writing and notarized. Co-owners have the right to authorize one of them to enter into transactions on the disposal of common property. A transaction on the disposal of common property made by one of the co-owners may be declared invalid by a court at the request of the other co-owner if the co-owner who made the transaction does not have the necessary authority.

It is important to note that, pursuant to Article 68 of the Family Code of Ukraine, divorce does not terminate the right of common property with indetermined shares of property acquired during the marriage. After the divorce, the co-owners may dispose of the property subject to the right of common property with indetermined shares only by mutual agreement, in accordance with the Civil Code of Ukraine.

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

Pursuant to Article 65 of the Family Code of Ukraine, a wife and husband dispose of property that is subject to the right of common property with indetermined shares by mutual agreement. When one spouse enters into contracts, it is considered that he or she acts with the consent of the other spouse. In order for one of the spouses to enter into agreements requiring notarial authentication and/or state registration, as well as agreements regarding valuable property, the consent of the other spouse must be submitted in writing. Consent to enter into an agreement requiring notarial authentication and/or state registration must be notarized.

Article 64 of the Family Code of Ukraine enshrines the right of spouses to enter into contracts between themselves. It provides that a wife and husband have the right to enter into all agreements between them that are not prohibited by law, both in respect of property that is their personal private property and property that is the subject of the right of their common property with indetermined shares.

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

Pursuant to Article 65(4) of the Family Code of Ukraine, obligations for the other spouse are created by an agreement entered into by one of the spouses in the interests of the family if the property received under the agreement is used in the interests of the family. Otherwise, the obligations are personal.

Article 73 of the Family Code of Ukraine stipulates that the obligations of one of the spouses may be enforced only on their personal property and on the share in the common property with indetermined shares allocated to them in kind. Recovery may be imposed on property that is the common property with indetermined shares of the spouses if the court finds that the contract was entered into by one of the spouses in the interests of the family and that the proceeds of the contract were used for the family's needs.

3.1. Which provisions can be modified by a contract and which provisions cannot be modified? Which matrimonial property regimes can be chosen?

Pursuant to Article 93 of the Family Code of Ukraine, a marriage agreement regulates property relations between spouses and defines their property rights and obligations.

Pursuant to Article 97 of the Family Code of Ukraine, the legal regime of property is determined in the marriage agreement. Thus:

1. A marriage agreement may specify the property that a wife or husband transfers for use for the common needs of the family, as well as the legal regime of property donated to the spouses in connection with the registration of marriage.

2. The parties may agree not to extend to the property acquired by them during the marriage the provisions stating that the property acquired by the spouses during the marriage belongs to the wife and husband on the right of common property with indetermined shares, and consider it to be common property with determined shares or personal private property of each of them.

3. The parties may agree on a possible procedure for the division of property, including in the event of divorce.

4. In a marriage contract, the parties may provide for the use of property owned by both or one of them to meet the needs of their children and other persons.

5. The parties may include in the marriage agreement any other conditions regarding the legal regime of property, if they do not contradict the moral principles of society.

We would like to draw attention to the provisions of Article 93(5) of the Family Code of Ukraine, according to which real estate and other property subject to state registration cannot be transferred to one of the spouses under a marriage contract. In such cases, the parties have the right to enter into a property division agreement or other civil law agreement.

3.2. What are the formal requirements and who should I contact?

The form of a marriage agreement is provided for in Article 94 of the Family Code of Ukraine, which states that a marriage agreement shall be concluded in writing and notarially authenticated.

Therefore, to authenticate a marriage agreement, you need to contact a notary.

3.3. When can the contract be concluded and when does it take effect?

According to Article 92 of the Family Code of Ukraine, a marriage agreement may be entered into by persons who have applied for marriage registration, as well as by spouses.

At the same time, pursuant to Article 95 of the Family Code of Ukraine, if a marriage agreement is concluded before the marriage is registered, it comes into force on the day of marriage registration. And if the marriage agreement is concluded by the spouses, it comes into force on the day of its notarial authentication.

3.4. Can an existing contract be amended by the spouses? If so, what conditions would apply?

Article 100 of the Family Code of Ukraine provides for the procedure for changing the terms of a marriage contract. Thus, the aforementioned provision stipulates that unilateral changes to the terms of a marriage contract are not allowed. The marriage agreement may be amended by the spouses. An agreement to amend a marriage contract must be notarially authenticated. At the request of one of the spouses, a marriage agreement may be amended by a court decision if it is in the interests of the spouse, the interests of the children, as well as the interests of disabled adult daughters and sons, which are essential.

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

First of all, it should be noted that divorce does not terminate the right of common property with indetermined shares of the husband and wife to property acquired during the marriage. After the divorce, the co-owners may dispose of the property subject to their right of common property with indetermined shares only by mutual agreement, in accordance with the Civil Code of Ukraine. These provisions are enshrined in Article 68 of the Family Code of Ukraine.

In addition, the spouses have the right to divide the property that is the subject of the right of common property with indetermined shares by mutual agreement. At the same time, the wife and husband have the right to divide the property belonging to them on the right of common property with indetermined shares, regardless of the divorce. And an agreement on the division of a residential house, apartment, other real estate, as well as on the allocation of real estate to a wife or husband from the entire marital property, must be notarially authenticated. All this is provided for in Article 69 of the Family Code of Ukraine.

Article 70 of the Family Code of Ukraine establishes the size of the shares of property of the wife and husband in the division of property that is the subject of the right of common property with indetermined shares of the spouses. Thus, in the case of division of property subject to the right of common property with indetermined shares, the shares of property of the wife and husband are equal, unless otherwise provided by agreement between them or a marriage contract. However, in resolving a dispute over the division of property, the court may depart from the principle of equality of spouses' shares in circumstances of significant importance, in particular if one of them did not care about the material support of the family, evaded participation in the support of the child(ren), concealed, destroyed or damaged joint property, or spent it to the detriment of the family's interests. Also, by a court decision, the share of the wife's or husband's property may be increased if children, as well as disabled adult sons or daughters, live with her or him, provided that the amount of alimony they receive is insufficient to ensure their physical, spiritual development and treatment.

Article 71 of the Family Code of Ukraine defines the methods and procedure for the division of property subject to the right of common property with indetermined shares. In particular, the property that is the subject of the right of common property with indetermined shares of spouses is divided between them in kind. If the wife and husband do not agree on the procedure for dividing the property, the dispute may be resolved by the court. In doing so, the court takes into account the interests of the wife, husband, children and other circumstances of material importance. Indivisible property is awarded to one of the spouses, unless otherwise agreed between them. Things for professional activities are awarded to the spouse who used them in his or her professional activities. The value of these things is taken into account when awarding other property to the other spouse. The award of monetary compensation to one of the spouses instead of his or her share in the right of common property with indetermined shares, including a residential house, apartment, land plot, is allowed only with his or her consent, except in cases provided for by the Civil Code of Ukraine. The award of monetary compensation to one of the spouses is possible provided that the other spouse has previously deposited the relevant amount of money to the court's deposit account.

5.2. Who is responsible for existing debts after divorce/separation?

Pursuant to Article 65(4) of the Family Code of Ukraine, obligations for the other spouse are created by a contract entered into by one of the spouses in the interests of the family if the property received under the contract is used in the interests of the family. Otherwise, the obligations are personal.

Article 73 of the Family Code of Ukraine stipulates that the obligations of one of the spouses may be enforced only on their personal property and on the share in the common property with indetermined shares, allocated to them in kind. Recovery may be imposed on property that is the common property with indetermined shares of the spouses if the court finds that the agreement was entered into by one of the spouses in the interests of the family and that the proceeds received under the agreement were used for the family's needs.

It should be noted that the mere fact of divorce does not change the situation with debts incurred during the marriage.

For a more complete understanding of who is responsible for debts incurred during the marriage, please read the answer to item 2.6 of this questionnaire.

5.3. Is one of the spouses entitled to an equalisation payment (compensation)?

The concept of equalisation payment (compensation) does not exist in Ukrainian law. At the same time, spouses have the right to agree on the transfer of monetary compensation to one of them instead of their share in the right of common property with indetermined shares, in particular, in the case of division of indivisible property. Pursuant to Article 71(4) of the Family Code of Ukraine, in the event of a dispute, the award of monetary compensation to one of the spouses instead of his or her share in the right of common property with indetermined shares, including a residential house, apartment, or land plot, is permitted only with his or her consent, except as provided for in the Civil Code of Ukraine. The award of monetary compensation to one of the spouses is possible provided that the other spouse has previously deposited the relevant amount of money to the court's deposit account.

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?

Our national legislation does not provide for a special regime of marital property for multinational couples.

At the same time, in accordance with Article 61 of the Law of Ukraine “On Private International Law”, spouses may choose to regulate the property consequences of marriage by the law of the personal law of one of the spouses or the law of the state in which one of them has his or her habitual residence, or, in respect of immovable property, the law of the state in which the property is located. Such a chosen law shall cease to apply or be changed by agreement of the parties in the event of a change in the personal law or habitual residence of the spouse to whose personal law or habitual residence the chosen law was tied. The new law applies to legal relations from the moment of marriage, unless otherwise agreed in writing by the spouses. In the absence of a choice of law by the spouses, the property consequences of the marriage are determined by the law applicable to the legal consequences of the marriage.

Pursuant to Article 60 of the Law of Ukraine “On Private International Law”, the legal effects of marriage are determined by the common personal law of the spouses, and in its absence - by the law of the state in which the spouses had their last joint residence, provided that at least one of the spouses still has a residence in that state, and in the absence of such a law, by the law with which both spouses have the closest connection in another way. Spouses who do not have a common personal law may choose the law that will apply to the legal effects of the marriage if the spouses do not have a common domicile or if the personal law of neither spouse coincides with the law of the State of their common domicile. Such choice of law is limited only by the law of the personal law of one of the spouses without applying part two of Article 16 of this Law (regarding the personal law of an individual if he/she is a citizen of two or more states). The agreement on the choice of law is terminated if the personal law of the spouses becomes their common law.

According to Article 16 of the Law of Ukraine "On Private International Law", the personal law of an individual is the law of the state of which he or she is a citizen. If an individual is a citizen of two or more states, the law of the state with which the individual has the closest ties, in particular, a place of residence or main activity, is considered to be the personal law of the state with which the individual has the closest ties. The personal law of a stateless person is the law of the state in which that person has his/her place of residence, or, in the absence of such a place, his/her place of stay. The personal law of a refugee is the law of the state in which he/she has his/her place of residence.