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Family law REGISTRATION OF A DONATION (DONATION AGREEMENT)

Anna Saliienko

Lawyer

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saliienko@prikhodko.com.ua

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Family law specialist. Deals with issues of divorce, alimony, division of property and adoption.

REGISTRATION OF A DONATION (DONATION AGREEMENT)

A gift agreement has a special status in family law.

Despite the fact that it is regulated by the norms of the Civil Code of Ukraine, its application in marital or family relations raises a number of issues related to the regime of joint property, spousal rights, inheritance disputes, and tax benefits.

Family relationships impose a number of legal restrictions and obligations on gifts, which should be taken into account when concluding a contract.

Who can be a donor and recipient in a family?

Within the framework of family law, the donor and recipient can be:

married couple;
parents and children;
grandparents, grandchildren;
other relatives (sisters, brothers, aunts, uncles, etc.).

Such agreements are considered gifts between relatives, which is important for taxation and further legal relations.

Is the donated property included in the joint property of the spouses?

No.
According to Article 57 of the Family Code of Ukraine, property received as a gift is not considered joint property of spouses, even if the gift was made during the marriage.

Example:
If a husband received an apartment as a gift from his parents during marriage, it is his personal private property, and the wife has no rights to it during a divorce.

Features of gift giving between spouses

Gift giving between spouses is possible. But in this case, you need to consider:

Property gifted by a husband to his wife (or vice versa) is considered the personal property of the recipient;
It is mandatory to conclude a written contract, and when transferring real estate or transport, it must also be notarized;
It is possible to recognize an agreement as fictitious if it is proven that it was concluded to conceal joint ownership (often in cases of division of property upon divorce).

Jurisprudence:
Courts often examine whether a gift agreement was the true intention of the donor or merely an attempt to avoid division of property in a divorce.

Gifting property to children

Parents can gift property to minor children. However:

if the child is under 14 years old, the contract is signed by the legal representative (mother, father, guardian);
To register a gift of expensive property (for example, an apartment), the consent of the guardianship and trusteeship authorities is required if it is on behalf of a child.
Property received as a gift is the property of the child, and parents do not have the right to dispose of it without the permission of the guardianship authorities (e.g., sale, exchange, rent).

Donation in favor of relatives or heirs

Often, parents gift property to one of their children, which creates conflicts between heirs after the donor’s death.

In such cases it is worth remembering:

a gift agreement has priority over inheritance;
donated property is not included in the estate;
A donation cannot be challenged solely due to “unfair distribution,” but it can be if fraud, pressure, or the mental state of the donor are proven.

Cancellation of a gift in family law

The donor has the right to revoke the gift if:

the recipient mistreated the donor;
the donor was left without help or care (if this was a condition of the donation);
the recipient evades withholding if such a condition was provided for.

Practical example:
The son received a house as a gift from his father, but refused to support his father in his old age. The court declared the gift agreement invalid, citing the terms of a moral obligation.

It will also be useful: Estate Litigation Attorney

Tax benefits for relatives

According to the Tax Code of Ukraine:

First-degree relatives (husband and wife, parents and children) do not pay personal income tax (PIT) on gifts;
When giving from other relatives (for example, an aunt to a nephew), the personal income tax rate is 5% + 1.5% military levy.

Risks and recommendations

Document everything: even within the family, it is better to draw up a contract properly to avoid misunderstandings.
Don’t rely on “agreement”: in case of conflict, only a written contract has legal force.
Anticipate the donor’s living conditions: especially when it comes to housing – you can enter an easement or a lifetime right of residence.
Gift-giving in marriage — under control: the other spouse is not always aware of the gift. This can create tension when dividing property.
Consultation with a lawyer— especially important when the donor or recipient is a minor, incapacitated, or elderly person.

Case law: typical disputes and conclusions

Cancellation due to non-fulfillment of obligations – for example, the recipient did not fulfill his obligation to support the donor’s elderly mother — the court declared the agreement invalid.
Attempts to challenge ownership rights — when the donor applied for the cancellation of the gift after several years: courts mostly take into account the actual acquisition of the right and the absence of special conditions.
Donation of real estate without a notary — the court declares the contract invalid due to violation of formal requirements.
Conflicts between heirs — the donor’s heirs may challenge the agreement if it is proven that the gift was made under duress or in error.

Gift agreement in the field of family law — This is not only a transfer of property between relatives, but also a legal instrument that can affect inheritance, division of marital property, and child rights. Such an agreement requires special caution and strict adherence to the law.