Establishment of the regime of separate residence of spouses

Establishment of the regime of separate residence of spouses in Ukraine

At the request of the spouses or the claim of one of them, the court may decide on the establishment of a separate residence regime for the spouses in case of the impossibility or unwillingness of the wife and (or) husband to live together.

The separation regime is terminated in the event of the resumption of family relations or by a court decision on the basis of an application from one of the spouses.

The institution of establishing the regime of separate residence of spouses, enshrined in the commented norm, is a novelty of FC.

Part 1 of Art. 119 FC assumes that in the event of the impossibility or unwillingness of the wife and (or) the man to live together, the spouses can establish a separate residence regime.

It should be noted that the issue of establishing a separate residence regime for spouses is decided in court.

Depending on who makes such claims, cases can be heard in various types of civil proceedings.

Separation regime with joint consent in Ukraine

So, if the spouses want to establish such a regime and their expression of will is common, there is no dispute between them, then this case will be resolved in a special procedure by submitting a joint statement by the spouses.

If one of the spouses wants to establish such a regime, and the other is against, then such a case will be considered in the course of action at the suit of one of the spouses.

In our opinion, this institution is expedient for the following reasons.

Family lawyer in Ukraine

Daria Sergeevna Scriabina

Family lawyer

Our lawyers are often asked the question: How to establish the fact of the separation of spouses? How is the issue resolved when only one of the spouses wishes to establish a separate residence regime? What should a spouse's representative have to file for divorce on their behalf?

On our website advokat-family.com.ua you will find all the answers to your questions in the field of family legislation of Ukraine.

Temporary regime of separate residence in Ukraine

If there is a temporary disorder between the spouses, tensions have developed, then their separate temporary residence will provide an opportunity to reflect the issue of divorce.

But quite often in practice the principle works: “We do not value what we have, and if we lose, then only then we begin to think about what happened.”

And in order not to lose family, children, each other, the legislator gives the spouses the opportunity to think about whether they can live without each other, love each other and if these feelings are not lost, then you need to make every effort to save your family, perhaps, make mutual concessions to each other, because only with time and experience do spouses begin to understand the mistakes that they made from a young age, but nothing can be fixed, since new families can already be created, children can be born, for which we, the parents, are responsible for their state of mind.

But there are cases when a spouse, due to objective circumstances, cannot live together, for example, the spouses do not have their own home, and the wife or husband cannot live with each other’s parents, since they have developed an unfriendly relationship, since the parents are both with one, and on the other hand they were against this marriage.

So, a spouse can temporarily live separately, for example, each with his parents.

Therefore, one cannot agree with the opinion, if it is impossible, then, probably, there is no need to preserve such a marriage.

Regarding the unwillingness to live together, then it is another matter, if the spouses have lost respect for each other, their feelings run into misunderstanding, perhaps there are cases when the behavior and habits of one of the spouses annoy the second, and he does not want to get rid of, then you still need to use the regime separation, test yourself time.

However, if the relationship has not improved, no one can force the spouses to be together, and then they, at their discretion, will decide it is advisable for them to be in such a marriage.

What does the regime of separate residence mean in Ukraine?

In our law practice, there have been cases when clients asked for advice and asked for clarification, if a separation regime is established between spouses, it means that his installation of termination of any family relations, for example, termination of intimate relationships, material assistance to each other, is obligatory “connection for the maintenance of children …

But the legislator does not directly answer this question in Art. 120 FC, which notes that the establishment of a separate residence regime does not terminate the rights and obligations of spouses established by the Code and which the wife and husband had to establish this regime, as well as the rights and obligations established by the marriage contract.

In this regard, the provisions of Part 2 of Art. 119 FC, which states that the regime of separate residence is terminated in the event of the resumption of family relations, since under Part 1 of Art. FC 120 such relations do not end in the event of the establishment of a separate residence regime.

The end of the regime of separate residence in Ukraine

Therefore, it is advisable to exclude this provision from Part 2 of Art. 119 FC and leave only the provision that the regime of separate residence is terminated on the basis of a court decision on a general application or an application of one of the spouses.

These issues should be resolved in a judicial proceeding (separate or claim proceedings), since such a court decision, after its entry into legal force, will have no prejudice in resolving issues in the future on the division of jointly acquired property of spouses during marriage, since the decision will establish the grounds, terms of termination of the regime of separate residence.

The date of entry into force of the court decision on the termination of the separation of spouses into legal force should be considered the countdown limit when the regime of separation of spouses is terminated.

Grounds for establishing the regime of separate residence in Ukraine

According to the analysis of Art. 119 FC of establishing the regime of separate residence of spouses is possible:

• on the basis of a joint application by the spouses;
• based on the claim of one of them.

At the same time, the court is empowered in both cases to decide on the establishment of a separate residence regime for the spouses.

The legal significance of the court decision on the establishment of the regime of separate residence in all cases raises certain doubts, since it has a public law nature, like the registration of marriage.

The spouses’ right to freely choose their place of residence in Ukraine

On the issue of cohabitation of spouses, it is not public and does not fall within the scope of legal regulation.

So, in Art. 21 of the Marriage and Family Code assumed that each of the spouses is free to choose his place of residence.

According to the Family Code, then Part 2 of Art. provides for a provision according to which spouses are considered a family if there are valid reasons for their general non-residence (study, work, treatment).

These norms indicate the exact opposite attitude towards cohabitation.

Based on the fact that the law does not have retroactive effect in time, it can be said that persons who got married before January 1, 2004, remain free to choose their place of residence, but after that date they do not.

But in Part 1 of Art. 56 FC, despite the provisions of Part 2 of Art. FC, there is a provision that the wife and husband have the right to freely choose their place of residence.

In our opinion, used in Art. 56 FC union “and” should be considered that the spouses together must determine their place of residence, but at the same time, as a general rule, live together, except in cases provided for by law.

In fact, this provision of the law is provided for the purpose of providing the parties with proof that at a certain time they will live separately.

But who is to control this issue, and the activity of the court is not completely formalized?

In this situation, you can instruct the courts to simultaneously consider entering into an actual marriage relationship on a contractual basis, etc., since citizens who do not live together during this period have the right to live with other persons.

Although the provision on cohabitation of one of the spouses simultaneously in two families: with the wife (husband) and with another person, is not prohibited by law and the consequences of such residence are not even regulated.

On the claim of one of the spouses for the establishment of a separate residence regime, then there are no questions here, since in such a case the interests of common children should be taken into account, the care of which should be shown by the state.

That is, the establishment of a separate residence regime for spouses in court is possible in the presence of children and, in our opinion, as an alternative to divorce.

Why it is the court that is empowered to consider all issues of separation, when citizens do not want or cannot live together, it is difficult to draw an unambiguous conclusion.

Separate Residence Agreement in Ukraine

The issue of separate residence can be resolved by mutual consent of the spouses and without a court, and notaries should be endowed with the appropriate powers to certify such transactions, who can not only fix the will of the spouses on a contractual basis, but also concretize their relationship for a certain period.

Such an agreement may be sufficient evidence that fixes the free expression of the will of the spouses.

In this case, it is considered that an agreement on the establishment of a separate residence regime may be simultaneously accompanied by an agreement in which the issues of paying alimony for the maintenance of the child or the repayment of the corresponding debt will be discussed.

Permit for cohabitation of spouses in Ukraine

By the opposite provision on the possibility of restoring cohabitation, then based on the generally binding nature of the court decision, it can be concluded that the spouses can obtain a permit for cohabitation: at the request of one of the spouses and on the basis of the decision of the residence court.

Based on the fact that the law does not have retroactive effect in time, it can be said that persons who got married before January 1, 2004, remain free to choose their place of residence, but after that date they do not.

But in Part 1 of Art. 56 FC, despite the provisions of Part 2 of Art. FC, there is a provision that the wife and husband have the right to freely choose their place of residence.

In our opinion, used in Art. 56 FC union “and” should be considered that the spouses together must determine their place of residence, but at the same time, as a general rule, live together, except in cases provided for by law.

In fact, this provision of the law is provided for the purpose of providing the parties with proof that at a certain time they will live separately. But who is to control this issue, and the activity of the court is not completely formalized?

In this situation, you can instruct the courts to simultaneously consider entering into an actual marriage relationship on a contractual basis, etc., since citizens who do not live together during this period have the right to live with other persons.

Although the provision on cohabitation of one of the spouses simultaneously in two families: with the wife (husband) and with another person, is not prohibited by law and the consequences of such residence are not even regulated.

Establishment of the regime of separate residence in Ukraine

On the claim of one of the spouses for the establishment of a separate residence regime, then there are no questions here, since in such a case the interests of common children should be taken into account, the care of which should be shown by the state.

That is, the establishment of a separate residence regime for spouses in court is possible in the presence of children and, in our opinion, as an alternative to divorce.

Why it is the court that is empowered to consider all issues of separation, when citizens do not want or cannot live together, it is difficult to draw an unambiguous conclusion.

Such issues can be resolved by mutual consent of the spouses and without a court, and notaries should be endowed with the appropriate powers to certify such transactions, who can not only fix the will of the spouses on a contractual basis, but also concretize their relationship for a certain period.

Such an agreement may be sufficient evidence that fixes the free expression of the will of the spouses.

At the same time, it is considered that an agreement on the establishment of a separate residence regime may be simultaneously accompanied by an agreement in which the issues of paying alimony for the maintenance of a child or repayment of the corresponding debt will be discussed.

By the opposite provision on the possibility of restoring cohabitation, then based on the generally binding nature of the court decision, it can be concluded that the permit for cohabitation of spouses is contained: at the request of one of the spouses and on the basis of a court decision on the restoration of cohabitation.

But it will be difficult to implement, as well as to be enforced by the state executor.

This is due to the fact that the concept of “cohabitation” of a spouse is not disclosed in the Family Code, but the consequences of cohabitation can be concluded from the analysis of Art. 120 FC, which refers to the acquisition of property and the birth of children.

Therefore, it is believed that the second of the spouses can occupy the room in which he lived before the establishment of a separate residence, but the establishment of family relations is the business of the spouses themselves, and not the court.

Legal consequences of establishing a separate residence regime for spouses in Ukraine

The establishment of the regime of separate residence does not terminate the rights and obligations of the spouses, which are established by this Code and which the wife and husband had to establish this regime, as well as the rights and obligations established by the marriage contract.

In case of establishing a separate residence regime:

• property acquired in the future by a wife and husband will not be considered acquired in marriage;
• a child born by a wife after ten months will not be considered as descended from her husband.

(Clause 3 of the second part of Article 120 is excluded on the basis of Law No. 524-U of December 22, 2006)

Property dispute in Ukraine

As for other legal consequences of establishing a separate residence regime, the property acquired in the future by the wife and husband will not be considered acquired in marriage (clause 1 of part 2 of article 120 of the FC).

Therefore, when a lawyer provides advice, he must explain this investigation to the client. Such consequences must also be explained by the judge to the parties (applicants) when making a judgment.

The establishment of a separate residence regime does not mean that a spouse cannot acquire property at all.

For example, during the time of separation, everyone worked, collected some amount of money, it became possible to buy an apartment for a family, one of the spouses can invest in the purchase of this property, but in the event of a dispute between them about the division of property jointly acquired during the marriage the regime of separation of spouses, its term will be taken into account.

When deciding this case, the judge should not be guided by the norms of the Family Code, according to which the wife and husband have equal rights to property, and in this case, their dispute over property should be resolved on the basis of the norms of the Civil Code and distributed in proportion to the funds contributed by each of the spouses.

Influence on children of the regime of separate residence of parents in Ukraine

The law (clause 2, part 2 of the commented norm) also provides that if a separate residence regime is established, a child born by a wife after ten months will not be considered as descended from her husband.

Prior to the amendments to the FC on December 22, 2006 in clause З, part 2 of Art. 120 FC noted that the wife, husband, who were in a separate punching regime, could adopt a child without the consent of the other spouse.

It is believed that the last legal consequence of the regime of separate residence prompted the idea of the advisability of the maximum period of time provided for in the law for which this regime can be established, the duration of the regime can be declared by the spouses, and in the event of a dispute, this issue should be decided by the court.

Therefore, when solving issues: the adoption of a child who is adopted for more than one day, and, possibly, the spouses will resume family relations a month after the adoption and they, husband, wife and child will have to live together, use funds from the general budget for her maintenance, create a normal the situation in the family, and perhaps the spouse suffers from a list of diseases, in the presence of which the child will not be able to live with him in the same room, one of the spouses abuses alcohol, drugs, negatively affects the development of the child, his state of mind, all circumstances must be checked, and also the period for which such a regime is established.

When adopting a child, it is necessary to take into account not only material, but also moral aspects, in addition, take into account the opinion of the other spouse on adoption, regardless of the fact that the spouses are in separation, which is a temporary phenomenon and can be terminated, and the child will live in this family …

Family lawyer in Ukraine when establishing a separate residence regime for spouses

In deciding a case on establishing a separate residence for spouses, the most optimal is to contact a family lawyer who will help you quickly and efficiently resolve the case in your favor.

Our lawyers specialize in solving family law cases, so they know the subtleties and nuances that will help speed up the process.

The advantages of going to family law lawyers are:

• the promptness of the decision of the case on the establishment of the regime of separate residence of the spouses;
• quick preparation of documents for their submission to the court;
• saving material and time resources in solving the case;
• the ability to resolve issues online.

Daria Sergeevna Scriabina

Family lawyer

The best way to save time and money when setting up a separate residence regime for spouses is to seek the advice of a good family lawyer!

To resolve the case, you need to call or write to our family lawyers and we will provide you with all the necessary information as soon as possible!

Frequently asked questions to a lawyer in Ukraine

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