Sulyk Roman

Head of family law practice

E-mail

sulyk@prikhodko.com.ua

Phone numbers

An attorney with extensive experience specializing in complex family disputes. As Head of Practice, he combines deep legal expertise with a personalized approach to every client. He ensures strategic protection of family interests and delivers impeccable results in the most challenging cases.

Marriage contract with a foreigner

A marriage contract in the law of Ukraine is a legal act concluded between brides or spouses in order to regulate property relations.

The normative basis is the Family Code of Ukraine (Articles 92-103), and the general provisions of the Civil Code of Ukraine on transactions apply to the issues of validity, interpretation and execution.

In the presence of a foreign element (different citizenship, residence abroad, assets or income in another state), the conflict of laws rules of the Law of Ukraine “On Private International Law” are additionally applied, which determine the law governing the property consequences of marriage, and the limits of the autonomy of the will of the parties.

A marriage contract cannot replace other legal instruments for registration of rights to property and has clear legal boundaries. Conditions relating to children or personal non-property relations of spouses are not the proper subject of the contract.

Provisions that narrow the rights of the child or put one of the spouses in an extremely disadvantageous financial position are also unacceptable.

Separately, it should be taken into account that the transfer of ownership of real estate and other property, the right to which is subject to state registration, requires a proper legal form and registration procedures and cannot be implemented by “bypass” constructions through a marriage contract.

What is advisable to regulate in international pairs:

property regime (personal/joint/mixed) and qualification of income and savings;
rules for the use of housing and the distribution of maintenance/repair costs;
compensation and settlements in case of termination of marriage (formula, terms, currency, evaluation criteria);
asset rules in different jurisdictions (real estate, accounts, business, investments).

What is risky and needs to be removed/reworded:

conditions about children (place of residence, order of communication, “upbringing”, etc.);
“behavioral” obligations and fines for non-property violations;
disproportionate restrictions on one of the parties, which actually deprive it of its property base;
attempts to “re-register” real estate through a contract instead of separate transactions with state registration.

Judicial practice: how marriage contracts are evaluated in a dispute

In the event of a conflict, the marriage contract is evaluated by the court taking into account its legal nature and legal restrictions:

compliance with the form is checked;
freedom of expression of will;
certainty and fulfillment of conditions;
compliance with the imperative prescriptions of family and civil law.

Most often, the problematic provisions are those that are formulated in general terms and do not contain the mechanics of implementation, create a significant imbalance of rights and obligations, or go beyond the subject of the marriage contract.

It will also be useful: Marriage contract

For contracts with a foreign element, an additional factor is the jurisdictional suitability of the document:

a dispute often arises due to the non-compliance of the form with the requirements of another state;
errors in the translation of key legal categories;
discrepancies in personal data;
failure to take into account the mandatory provisions of the law of the state of residence of the parties or the location of assets.

Separately, it is necessary to take into account situations when the agreement is concluded against the background of debts or disputes: if the consequence of the agreement is a significant deterioration in the property status of the debtor and complication of satisfaction of creditors’ claims, the risk of appeal increases.

What is usually crucial in a dispute:

clear identification of property/categories of property and rules for their qualification;
availability of execution mechanics (assessment, terms, currency, supporting documents);
proportionality of the consequences for the parties and the absence of signs of excessive restriction;
absence of conditions that go beyond the subject of the contract (children, non-property relations);
lack of signs of a focus on harm to third parties.

Participation of a lawyer: how to ensure the effectiveness of a treaty in “two countries”

In marriage with a foreigner, the marriage contract must not only be formally correct under Ukrainian law, but also practically suitable for use abroad in the country of residence of the spouses or in the country where key assets are located.

That is why the participation of a lawyer consists in building a legal structure of the agreement, harmonizing it with conflict rules and minimizing the grounds for challenge.

Marriage contract with a foreigner

What is advisable to regulate in international pairs:

What is risky and needs to be removed/reworded:

Judicial practice: how marriage contracts are evaluated in a dispute

What is usually crucial in a dispute:

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Andrey Prikhodko