Division of property of spouses in Ukraine

Division of property of spouses in Ukraine

What is the presumption of joint ownership of the spouses?

The design of the norm of Article 60 of the IC of Ukraine testifies to the presumption of the common ownership of the spouses to the property acquired by them during the marriage.

According to the rule of Article 60 of the SK of Ukraine, property acquired by spouses during marriage belongs to the wife and husband on the basis of common joint property, regardless of the fact that one of them did not have for a good reason (education, housekeeping, childcare, illness, etc. .p.) independent earnings (income).

It is considered that every thing acquired during marriage, except for things of individual use, is the object of the right of joint joint property of the spouses.

According to Article 63 of the SK of Ukraine, a wife and husband have equal rights to own, use and dispose of property belonging to them on the basis of the right of common joint property, unless otherwise established by an agreement between them.

According to the first part of Article 70 of the IC of Ukraine, in the event of a division of property, which is the object of the law of joint joint property of the spouses, the shares of the property of the wife and husband are equal, unless otherwise determined by an agreement between them or a marriage contract.

In accordance with paragraph 3 of the first part of Article 57 of the IC of Ukraine, the personal private property of the wife, husband is the property acquired by her, by him during the marriage, but for funds that belonged to her (him) personally.

The design of the norm of Article 60 of the IC of Ukraine testifies to the presumption of the common ownership of the spouses to the property acquired by them during the marriage.

At the same time, this presumption can be refuted and one of the spouses can challenge the extension of the legal regime of common property to a certain object, including in court.

The burden of proof of the circumstances necessary to refute the presumption rests with the spouse who refutes it.

Resolution of the Supreme Court of 05.09.2018 in case No. 522/24628/16-c (http://www.reyestr.court.gov.ua/Review/76350351).

The absoluteness of the presumption of the common ownership of the spouses to the property acquired by them during marriage is also indicated by the OP VS in its resolution of 11/21/2018 in case No. 372/504/17 (http://revestr.court.gov.ua/Review/ 78215412).

How does one of the spouses have the opportunity to refute the presumption of common joint property?

The status of common joint ownership is determined by the following criteria:

  • time of property acquisition;
  • funds for which such property was acquired (source of acquisition).

Article 60 of the IC of Ukraine determines that property acquired by spouses during marriage belongs to the wife and husband on the basis of the right of common joint property, regardless of the fact that one of them did not have for a good reason (education, housekeeping, childcare, illness, etc. etc.) independent earnings (income).

In accordance with paragraph 3 of the first part of Article 57 of the IC of Ukraine, the personal private property of the wife, husband is the property acquired by her, by him during the marriage, but for funds that belonged to her (him) personally.

So, the belonging of the property to the common joint property of the spouses is determined not only by the fact of its acquisition during marriage, but also by the joint participation of the spouses by means or labor in acquiring the property.

Applying the norm of Article 60 of the SK of Ukraine and recognizing the right of the spouses to jointly own property, the court must establish not only the fact of acquiring property during marriage, but also the fact that the source of its receipt was common joint funds or joint work of the spouses.

That is, the status of common joint ownership is determined by the following criteria:

  • time of property acquisition;
  • funds for which such property was acquired (source of acquisition).

The norm of Article 60 of the IC of Ukraine is considered to be applied correctly if the acquisition of property meets these factors.

In connection with the above, in the case of acquiring property, although during marriage, but with the personal funds of one of the spouses, this property cannot be considered an object of joint joint property of the spouses, but is the personal private property of the spouse, with whose personal funds it was acquired.

Therefore, the mere fact of acquiring the disputed property during marriage is not an unconditional basis for classifying such property as objects of the law of joint joint property of spouses.

Resolution of the Armed Forces of Ukraine of 16.12.2015 in case No. 6-2641 tss 15 (http://www.revestr.court.gov.ua/Review/54513240).

Is the land plot (as well as housing) privatized during the marriage in common joint property of the spouses?

In the period from February 8, 2011 to June 12, 2012, land plots (as well as housing), which were registered in ownership during privatization, if this happened during the period of marriage, is the common joint property of the spouses.

The Law of Ukraine dated January 11, 2011 No. 2913-VI “On Amendments to Article 61 of the Family Code of Ukraine regarding the objects of the law of common joint property of spouses”, which entered into force on February 8, 2011, amended Article 61 of the SK of Ukraine with part five, which provides that the object common joint property rights of spouses are housing acquired by one of the spouses during marriage as a result of privatization of state housing stock, and a land plot acquired as a result of gratuitous transfer of it to one of the spouses from state or communal property, including privatization.

However, it should be borne in mind that the changes introduced by the said law, namely, part five of Article 61, are excluded from the Family Code on the basis of Law No. 4766-VI of 17.05.2012. At the same time, this Law amended part one of Article 57 of the UK.

That is, now again everything is the other way around: “The personal private property of the wife, husband is:

  • housing, acquired by her, by him during the marriage as a result of its privatization in accordance with the Law of Ukraine “On the privatization of the state housing stock”;
  • a land plot acquired by her, during her 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 communal agricultural enterprises, institutions and organizations, or received from state and communal property within the limits of the norms of free privatization determined by the Land Code of Ukraine ”.

New legislative changes came into force on 12.06.2012.

According to the first part of Article 58 of the Constitution of Ukraine and in accordance with the first and second parts of Article 5 of the Civil Code of Ukraine, laws and other regulatory legal acts do not have a retroactive effect in time, except for cases when they mitigate or abolish the liability of a person, including civil liability.

Thus, land plots (as well as housing), which were registered in ownership during privatization in the period from February 8, 2011 to June 12, 2012, if this happened during the period of marriage, is the common joint property of the spouses.

Land plots and housing acquired during marriage, but before February 8, 2011 or after June 12, 2012, are the personal property of the wife or husband, depending on who acquired it.

Letter of the High Specialized Court of Ukraine for the Consideration of Civil and Criminal Cases dated 15.05.2012 No. 648/0 / 4-12 (https://zakon.rada.gov.ua/laws/show/v0648740-12).

At the same time, you should pay attention to the fact that according to part one of Article 377 of the Civil Code of Ukraine, the person who has acquired the ownership of a residential building (except for an apartment building), a building or a structure passes the right of ownership, the right to use the land on which they changes in its intended purpose in the amount and on the conditions established for the previous landowner (land user).

The first part of Article 120 of the LC of Ukraine provides that in case of acquiring ownership of a residential house, building or structure that is owned, used by another person, the ownership right, the right to use the land plot on which these objects are located is terminated.

A person who has acquired ownership of a residential house, building or structure located on a land plot owned by another person shall transfer the ownership right to the land plot or part thereof on which they are located, without changing its intended purpose.

Part four of Article 120 of the Labor Code of Ukraine determines that when the ownership of a building and structure is transferred to several persons, the right to a land plot is determined in proportion to the persons’ shares in the value of the building and structure, unless otherwise provided in the agreement on the alienation of the building and structure.

In a resolution of October 12, 2016 No. 6-2225tss16 (http://www.reyestr.court.gov.ua/Review/62058395), the Supreme Court of Ukraine concluded that the norm of Article 120 of the LC of Ukraine and Article 377 of the Civil Code of Ukraine enshrines the general principle the integrity of the property with the land on which this property is located.

According to this norm, the definition of the legal regime of a land plot is directly dependent on the ownership of a building and structure and provides for a mechanism for separate legal regulation by the norms of civil law of property relations arising from the conclusion of transactions on the acquisition of ownership of real estate, and legal regulation by norms of land and civil legislation relations in the transfer of rights to a land plot in the event of acquiring ownership of real estate.

At the same time, when applying the provisions of Article 120 of the LC of Ukraine in combination with the norm of Article 125 of the LC of Ukraine, one should proceed from the fact that in the case of transfer of ownership of the property in accordance with the procedure established by law, the ownership of the land plot for the acquirer of real estate arises simultaneously with the emergence of ownership of objects erected on it.

According to the general rule, enshrined in part one of Article 120 of the LC of Ukraine, a person who acquired ownership of a building or structure becomes the owner of the land plot on the same terms as it belonged to the previous owner, unless otherwise provided in the contract of alienation of real estate.

So, if the spouses during their cohabitation built a house on the land plot of one of the spouses (which, as a result of privatization, is in his personal property), and the spouses raise the issue of dividing these real estate objects (house and land), the court should proceed from the following.

If the house is recognized by the court as an object of joint joint property of the spouses, then, taking into account the provisions of Article 120 of the LC of Ukraine and Article 377 of the Civil Code of Ukraine, one of the spouses acquires the right to joint joint ownership of the land plot on which the said disputed house is located.

This legal position is set out in the decision of the Supreme Court of 03.10.2018 in case No. 343/2166/15-c (http://reyestr.court.gov.ua/Review/77087793).

What is the significant increase in the value of the husband’s or wife’s property, what is the basis for recognizing it as joint property of the spouses?

According to the first part of Article 62 of the IC of Ukraine, if the property of the wife, husband during the marriage has significantly increased in its value due to the general labor or monetary costs or costs of the second of the spouses, in the event of a dispute, it can be recognized by a court as an object of the joint property rights of the spouses.

When resolving disputes between spouses about property, it is necessary to establish the amount of jointly acquired property available at the time of termination of joint farming, to find out the source and time of its acquisition.

Property that belonged to one of the spouses can be attributed to common joint ownership by an agreement (marriage contract) concluded during the registration of marriage or recognized as property by a court on the basis that during the marriage its value has significantly increased as a result of labor or monetary costs of the other spouse or both of them.

In the decision of the Supreme Court of Ukraine of 08.11.2017 in case No. 6-1447ts17, it was concluded that Article 57 of the IC of Ukraine determines the rules for classifying property as objects of personal private property of one of the spouses, while Article 62 of the IC of Ukraine establishes special conditions, with the occurrence of which it is determined by the previous rule, objects of personal private property of one of the spouses can be recognized by a court decision as objects of common joint property of the spouses.

For the application of the rules provided for in Article 62 of the IC of Ukraine, the increase in the value of property should occur as a result of the total costs of the spouses, regardless of other factors (in particular, trends in the general rise in price of a particular property), while a significant increase in the value of the property as an object, its quality characteristics should be a significant sign.

The increase in the value of the property and the materiality of such an increase is subject to clarification by comparing the time of resolving the dispute over the value of the object before and after the improvement; at the same time, the size of the monetary costs of the spouses or one of them, as well as the cost of repair work, which is determined at the time of the consideration of the case, cannot be considered the only factor that undoubtedly indicates the significance of the increase in the value of the property as an object.

The Supreme Court of Ukraine, in its resolutions dated 04.12.2013 No. 6-130tss13 and dated 30.09.2015 No. 6-286tss15, expressed its legal position, according to which immovable property objects, which include unauthorizedly built (reconstructed, re-planned) objects, are not subject to division (allocation) real estate, since they are not objects of ownership (provisions of Articles 364, 367, 376 of the Civil Code of Ukraine).

Resolution of the Supreme Court of January 30, 2019 in case No. 234/4816/16-c (http://www.reyestr.court.gov.ua/Review/79744856).

Does the right to common joint property terminate the divorce?

When resolving disputes about the division of spouses ‘property, the courts should take into account that the dissolution of a marriage does not in itself terminate the spouses’ common joint ownership rights to property acquired during the marriage.

However, the disposal of such property after the dissolution of the marriage is carried out by the former spouses solely by mutual consent in accordance with the provisions of the Civil Code, since in such cases the presumption of consent of one of the spouses to conclude by the second agreements on the disposal of property in the joint joint property of the spouses is no longer valid (cl. 19 of the Plenum of the Armed Forces of Ukraine dated 21.12.2007 No. 11 “on the practice of applying the legislation by courts when considering cases on the right to marriage, divorce, invalidation and division of the common property of spouses” (http://www.reyestr.court.gov.ua / Review / 79744856).

From what time does the limitation period begin for disputes on recognizing property as joint property after divorce?

When deciding on the beginning of the limitation period, it is necessary to proceed not from the time when the parties dissolved the marriage, but from the moment when the person learned or should have learned about the violation of his property right.

In accordance with the provisions of Articles 256, 257, 261 of the Civil Code of Ukraine, the limitation period is the period within which a person can apply to the court with a claim to protect his civil rights or interests.

The general limitation period is established for three years. The limitation period begins from the day when the person learned or could learn about the violation of his right or about the person who violated it.

From the content of the second part of Article 72 of the IC of Ukraine it is seen that with the requirement for the division of property declared after the dissolution of the marriage, a three-year limitation period applies.

The limitation period is calculated from the day when one of the co-owners learned or could learn about the violation of his property right.

So, when deciding on the beginning of the limitation period, it is necessary to proceed not from the time when the parties dissolved the marriage, but from the moment when the person learned or should have learned about the violation of his property right, because the termination of the marriage in itself is not evidence of violation property rights of one of the spouses. Failure to submit a claim for the division of property, including before the expiration of three years from the date of divorce, in the absence of evidence proving the contestation of the right of one of the spouses to the property acquired during the marriage, which is registered for the other spouses, cannot testify to a violation of the right by the spouses and indicate the beginning of the limitation period.

Resolution of the Armed Forces of Ukraine dated September 23, 2015 in case No. 6-258tss15 (http://www.revestr.court.gov.ua/Review/54513232).

In what cases should one of the co-owners deposit funds into a deposit account when the property is divided?

The requirement of one of the spouses (plaintiff) to recover from the other spouse (defendant) monetary compensation instead of his share in the right of common joint ownership of property does not give rise to the obligation of such defendant to pre-deposit the corresponding amount of money into the court’s deposit account.

According to the rules of Article 71 of the IC of Ukraine, property that is the object of the law of joint joint property of the spouses is divided between them in kind.

If the wife and husband have not agreed on the procedure for the division of property, the dispute can be resolved by the court.

In this case, the court takes into account the interests of the wife, husband, children and other circumstances of significant importance.

Indivisible things are awarded to one of the spouses, unless otherwise specified by an agreement between them.

The awarding of monetary compensation to one of the spouses instead of his share in the right of common joint ownership of property is allowed only with his consent, except as provided for by the Civil Code of Ukraine.

In addition, part five of this article provides that the award of monetary compensation to one of the spouses is possible, provided that the second of the spouses has previously paid the corresponding sum of money to the court’s deposit account.

The indicated amount of funds is a guarantee of preliminary compensation for any deprivation of property.

So, the interpretation of this part of Article 71 of the IC of Ukraine gives grounds for the conclusion that its provisions apply to the claim of one of the spouses to award him certain property in kind and to terminate the other co-owner’s right to a share in the common property by paying him compensation for the value of such a share.

The failure of the applicant to deposit any funds to the deposit account of the court when considering this dispute is not a reason for leaving the disputed property in the common shared ownership of the parties without its real division, since, according to the systemic interpretation of parts 4 and 5 of Article 71 of the IC of Ukraine, consent to receive compensation for property, when it is divided, must be provided by the spouse in whose favor such compensation is awarded, since the property is awarded to the other of the spouses.

The requirement of one of the spouses (plaintiff) to recover from the other spouse (defendant) monetary compensation instead of his share in the right of common joint ownership of property does not give rise to the obligation of such defendant to pre-deposit the corresponding amount of money into the court’s deposit account.

This is stated in the decision of the Supreme Court of March 29, 2018 in case No. 621/2974/15-c (http://www.reyestr.court.gov.ua/Review/73219666).

Does the court have the right to carry out the division of the construction in progress?

Unfinished building, erected during marriage; can be recognized as an object of the law of common joint property of spouses with the definition of shares.

In the event of a division of property in common joint ownership, it is considered that the shares of co-owners in the right of common joint ownership are equal, unless otherwise established by an agreement between them or by law (part two of Article 372 of the Civil Code of Ukraine).

In the Civil Code of Ukraine, in addition to the concepts of “real estate”, “real estate”, “immovable property” (part one of Article 181, paragraph 6 of the first part of Article 346, Articles 350, 351), other concepts are also adopted, for example, “about an object of unfinished construction ”(Article 331),“ construction object ”(Articles 876, 877, 879-881, 883), but there is no direct definition of these concepts.

Based on the analysis of the current legislation and taking into account the characteristic features of construction in progress, it should be recognized that a construction object (an object of construction in progress) is an immovable thing of a special kind: physical creatures have begun, but not completed.

For such a thing, it is possible to install any subjective property rights, as well as rights of obligation, in cases and in the manner determined by acts of civil legislation.

When deciding the issue of the emergence, change and termination of subjective civil rights in relation to an object of unfinished construction, it is necessary to take into account the features and restrictions established by legislative acts.

According to the second part of Article 331 of the Civil Code of Ukraine, the ownership right to newly created real estate (residential buildings, buildings, structures, etc.) arises from the moment of completion of construction (creation of property).

If the law provides for the acceptance of immovable property into operation, the ownership right arises from the moment of its acceptance into operation. If the property right is subject to state registration in accordance with the law, the property right arises from the moment of state registration.

So, the newly created real estate acquires the legal status of a residential building after its acceptance into operation and from the moment of state registration of ownership of it.

However, before that, not being a residential building from a legal point of view, an object of unfinished construction is a set of building materials, that is, things as objects of the material world, in respect of which civil rights and obligations may arise, therefore such an object is property, which, according to the law conditions may belong to the spouses on the basis of common joint ownership and, subject to building codes and regulations, may be divided between them.

At the suit of the wife, family members of the developer who jointly built the house, as well as the heirs, the court has the right to divide the object of unfinished construction, if, given the degree of its readiness, it is possible to determine the individual parts to be allocated, and it is technically possible to complete the construction by these persons.

If it is impossible to divide the object of unfinished construction, the court may recognize the right of these persons to building materials and structural elements of the house or, taking into account specific circumstances, leave it to one of the parties, and award monetary compensation to the other.

A legal analysis of the above-mentioned norms of substantive law allows us to conclude that an object of unfinished construction, erected during the marriage, can be recognized as an object of the law of common joint property of spouses with the definition of shares.

In this case, the court may recognize the right to a part of the construction in progress for each of the parties.

Resolutions of the CCS Supreme Court of 18.03.2019 in case No. 299/1757 / 16ts (http://revestr.court.gov.ua/Review/80521623) dated 30.01.2019 in case No. 454/1678 / 16ts (http: // revestr .court.gov.ua / Review / 79805820)

Resolution of the Armed Forces of Ukraine of 09/07/2016 on case No. 6-47ts16 (http://www.revestr.court.gov.Ua/Review/61536620).

How are the debts acquired during the marriage divided between the spouses?

The spouses, in addition to the right of common joint ownership of the funds received and the car received at the expense of the latter, as a result of the conclusion of the loan agreement also arises an obligation in the interests of the family in the form of the return of loan funds, the fulfillment of which is jointly and severally carried out by the spouses.

Resolution of the Armed Forces of Ukraine dated 04/27/2016 on case No. 6-486ts16 (http://www.reyestr.court.gov.ua/Review/57463791).

How to carry out the division of property in the event of its alienation by one of the spouses against the will of the other spouse?

If, when considering the claims for the division of the spouses’ common property, it is established that one of them has alienated it or used it at his own discretion against the will of the other spouse and not in the interests of the family not for its needs or has hidden it, such property or its value is taken into account when dividing.

Since in this case it is impossible to establish the real value of such property, the market value of a property similar in its qualities (technical characteristics) at the time of consideration of the case is subject to determination.

This approach is a guarantee of fair compensation for a person in connection with the termination of his right to common property.

This position is set out in the decision of the Supreme Court of 03.10.2018 in case No. 127/7029/15-c (http://reyestr.court.gov.ua/Review/77009144).

Useful site materials divorce.com.ua:

  1. Division of property of spouses in Ukraine
  2. Common property of spouses in Ukraine
  3. Property of a minor child in Ukraine
  4. Establishment of the regime of separation of spouses in Ukraine
  5. Section of the loan after divorce in Ukraine
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