
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.