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Perepelchenko Anatolii

Deputy Managing Partner

Lawyer, specializing in real estate, corporate, tax, civil and contract law, as well as litigation.

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MARRIAGE AGREEMENT AND DIVISION OF PROPERTY

 Not infrequently the future of the couple, on the proposal to conclude a marriage contract reacts rather skeptically, and at times, emotionally. For the most part, this concerns the countries of the former Soviet Union, including Ukraine, since for the inhabitants of the Western world a marriage contract is just as commonplace as a covenant for our fellow citizens.

 This is because all relations between spouses during the Soviet Union, including property, were governed by legislation that aimed to consolidate family relationships in exemplary communist families. Therefore, the property acquired by the spouses could be exceptionally common and would normally be distributed equally in the case of divorce. At the time, the very idea that marrying could be anticipated in advance of possible divorce and thinking about the distribution of property, could be perceived while antisocial and probably would cause outrage from the then society.

 However, nowadays it is precisely because of a skeptical attitude to a marriage contract that disputes over the distribution of property arise.

 On the whole, the problem of separation of jointly acquired property of a spouse at divorce can be said to be legally regulated, and sufficient case law has already been established on this issue, which is governed by the courts, along with the law. At the same time, courts often make decisions that do not correspond in any way to the realities of the spouses’ property relations.

 One of the problematic issues that often arises when a spouse jointly disposes of a jointly-owned property is the consideration of the family’s debt obligations.

 According to Art. 65 IC of Ukraine, a contract entered into by one of the spouses for the benefit of the family, creates obligations for the other spouse if the property obtained under the contract is used for the benefit of the family.

 At the same time, according to paragraph 24 of the Resolution of the Plenum of the Supreme Court of Ukraine “On the Practice of Application by the Courts of Legislation in the Consideration of Cases on the Right to Marriage, Divorce, Declaration of Invalidity, and Separation of Common Property of Spouses” No. 11, into the property to be divided, includes the common property of the spouse available to him at the time of the case and the property held by third parties. The division of property also takes into account the debts of the spouses and the legal relationship for obligations that arose in the interests of the family (Part 4 of Article 65 of the IC of Ukraine).

 At the same time Part 1 of Art. 60 IC of Ukraine the property acquired by the spouses during the marriage belongs to the spouse and the spouse on the right of joint joint ownership, regardless of the fact that one of them did not have for independent reason (education, housekeeping, child care, illness, etc.) self-employment ( revenue).

 However, Part 1 of Art. 57 of the Criminal Code of Ukraine determines that it is the personal private property of the wife, the husband, namely:

1) property acquired by her before marriage;

2) property acquired by her during the marriage, but on the basis of the gift contract or in the manner of inheritance;

3) property acquired by her during the marriage, but at his own expense to him personally;

4) housing acquired by her during his marriage as a result of his privatization, respectively.

 In practice, such disputes take some cost and time, much better to prescribe all the terms of marriage and its aspects in a marriage contract.

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