Invalid of a marriage

Invalid of a marriage in Ukraine

Grounds for declaring a marriage invalid in Ukraine

Grounds for declaring a marriage invalid in Ukraine

The ground for the invalidity of marriage is a violation of the requirements established by Articles 22, 24-26 of the Family Code of Ukraine.

The basis for the invalidity of a marriage is a violation of the requirements established by:

  • Art. 22 of the Family Code of Ukraine- marriageable age;
  • Art. 24 of the Family Code of Ukraine- voluntariness of marriage;
  • Art. 25 of the Family Code of Ukraine- monogamy;
  • Art. 26 of the Family Code of Ukraine- a list of persons who cannot be married to each other.

It is necessary to pay attention of specialists, in the commented norm, not all articles are indicated, the violation of the requirements of which is the basis for the invalidity of the marriage.

So, in part 5 of Art. 30 of the Family Code of Ukraine established that hiding information about the state of health of one of the spouses may become grounds for declaring the marriage invalid – if at the time of registration of the marriage there was a clear violation of the physical or mental health of the other groom, which may affect their descendants (for example, opium addiction, epilepsy).

There is reason to assert that physical inability to have sexual intercourse, as well as inability to conceive a child, should be considered a serious illness in the relationship of spouses.

One can agree with this position, but it is considered appropriate to clarify that these diseases should be hidden from the other spouse and exist at the time of registration of the marriage.

So, in contrast to the following rule, it can be argued that the listed grounds do not necessarily lead to invalidation of a marriage, but are regarded as grounds for invalidation of a marriage.

At the same time, this article does not make a clear distinction as to how the marriage will be declared invalid in the future: on the basis of a court decision or on the basis of an act of the state registration body for acts of civil status, which is stipulated in the following norm.

Family lawyer in Ukraine

Family lawyer in Ukraine

Daria Sergeevna Scriabina
Family lawyer in Ukraine
Hello everyone! My name is Daria Sergeevna Skriabina. I am a family lawyer. Our law company specializes in providing legal services for divorce and recovery of alimony. Our lawyers provide support in court proceedings throughout Ukraine.

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

What marriage is considered invalid in Ukraine

What marriage is considered invalid in Ukraine

  1. A marriage registered with a person who is simultaneously in another registered marriage is invalid.
  2. A marriage registered between persons who are relatives of a direct line of kinship, as well as between siblings is invalid.
  3. A marriage registered with a person who has been declared legally incompetent is invalid.

At the request of an interested person, the state registration authority for civil status acts shall annul the deed of marriage registered with the persons specified in parts one – three of this article.

If the marriage is registered with a person who is already married, then in the event of the termination of the previous marriage before the annulment of the deed entry regarding the remarriage, the remarriage becomes valid from the moment of termination of the previous marriage.

The marriage record is canceled regardless of the death of the persons with whom the marriage was registered (parts one – three of this article), as well as the dissolution of this marriage.

The commented article provides for the grounds on which a marriage is considered invalid and the procedural procedure for canceling the deed of such a marriage by the registry office.

Invalidation of a marriage in Ukraine

Invalidation of a marriage in Ukraine

In parts 1-3 of the commented norm, the grounds are determined on which the marriage is invalidated.

This is a marriage registered with a person who is simultaneously in another registered marriage. That is, before registering a marriage at the registry office, a person who is already married must submit the following documents: a certificate of dissolution of a previous marriage, a death certificate of the second of the spouses, a court decision on recognizing the marriage as invalid.

That is, the registry office can register a new marriage only if such documents are available.

Also invalid is a marriage registered between persons who are relatives of the direct line of kinship, as well as between siblings.

This provision is also duplicated in parts 1, 2 of Art. 26 of the Family Code of Ukraine.

The relatives of the direct line of kinship include persons who descend from each other – parents and children, grandchildren, grandfather, grandmother.

As for siblings, in Art. 26 of the Family Code, it is clarified that they include both full brothers and sisters, that is, those who have common parents, and incomplete ones – those who have a common mother or common father.

Annulment of a Marriage with a Disabled Person in Ukraine

Annulment of a Marriage with a Disabled Person in Ukraine

A marriage registered with a person recognized as incompetent is invalid, that is, in confirmation of this fact, a court decision is submitted on recognizing one of the spouses as incompetent, which has entered into legal force and concerns the period of registration of the marriage.

It is clear that if a person is recognized as incapacitated after registration of a marriage, the latter should be terminated, and not invalidated.

In the presence of the above grounds, at the request of an interested person, the registry office can cancel the deed of such a marriage.

But the latter provision simplifies the procedure for canceling the deed of such a marriage, since even an invalid marriage can give rise to certain legal consequences and it is not always possible in a simplified manner to annul the conflict situation that arose during the registration of the marriage.

For example, in the case of registering a marriage with an incapacitated person, the spouse could use the funds of such a person, therefore, a simple cancellation of the official record of such a marriage without a court hearing of the case may lead to a violation of the rights of the incapacitated person and the like.

Not always, and the second of the spouses, who was misled when registering a marriage, will agree to a “simple” cancellation of the deed, since he has a law on his side, which provides for special legal consequences of the invalidity of a marriage.

Invalidation of a marriage in court in Ukraine

Invalidation of a marriage in court in Ukraine

Therefore, the recognition of a marriage as invalid in court at the request of interested parties should be carried out simultaneously with the establishment of the guilt of one of the spouses in the registration of the marriage, as well as the legal consequences of the invalidity of the marriage (Articles 45, 46 of the Family Code of Ukraine).

In part 4 of Art. 39 of the Family Code of Ukraine used the term “stakeholders”, but it is not specified.

Therefore, it turns out that the representatives of the registry office themselves have the right to determine who is the interested person and has the right to such an appeal.

By interested persons who can apply to the registry office with an application to annul a marriage record, in our opinion, only the other spouse should be understood.

All other subjects do not have the right, even with the given grounds, to go to court, since their interest in the consequences of the invalidation of the marriage must be proven.

For example, it is difficult to say what interest in declaring a marriage invalid may be prompted by the guardianship and guardianship authority or the prosecutor, since the state is not interested in declaring the marriage invalid.

In order to establish the persons whose rights have been violated in connection with the registration of this marriage (Article 42 of the Family Code of Ukraine), an appropriate justification of the circumstances of such an offense is necessary (Article 10, 119 of the Code of Civil Procedure).

But it should be noted that there may be a contentious relationship between the “interested person” and the entity whose marriage has been declared invalid. For example, by the decision of the court of appeal, a person can be declared incapacitated and the decision of the court comes into legal force from the moment of its announcement.

However, such a court decision can be appealed and canceled on appeal.

But in the period of time when the court decision was in effect, the corresponding marriage record can be canceled at the request of the guardian or other persons.

Therefore, we believe that if the question of recognizing a marriage as invalid from those listed in Art. 39 of the Family Code of Ukraine, the grounds will be simultaneously associated with a dispute or guilty actions of one of the parties, the dispute can be considered by the court simultaneously with the recognition of the marriage as invalid.

Remarriage in Ukraine

Remarriage in Ukraine

According to part 5 of Art. 39 of the Family Code of Ukraine, if the marriage was registered with a person who is already married, then in the event of the termination of the previous marriage before the annulment of the record regarding the remarriage, the remarriage becomes valid from the moment of termination of the previous marriage.

This provision of the law is simply contrary to the principles of the morality of marriage.

On the basis of this rule, it follows that a person can be married twice, but if he is “caught” in this, then the marriage can be declared invalid. And if they don’t get caught, then the marriage is valid.

Moreover, a person caught in a double marital relationship may separate even before the appropriate changes are made to the record.

In addition, there is an opportunity to be in two marriages and wait, maybe one of the husbands or wives will die first, then it will be possible to annul one of the marriages.

Even from a formal point of view, this provision is difficult to perceive, how can it be indisputably established that a marriage became valid from the moment of termination of the previous marriage? Maybe the appropriate entry should be made in the marriage certificate?

It seems that here the Ukrainian legislation was greatly influenced by Muslim law, which allows a man to have many wives, and we went even further – we allowed a woman to have many men as well.

In general, this norm is not democratic, but a direct contradiction of Art. 25 of the Family Code of Ukraine and provided for in Part 5 of Art. 39 of the Family Code of Ukraine consequences.

That is, the legislative branch should determine unequivocally whether a double marriage is allowed or not.

The marriage record is canceled regardless of the death of the persons with whom the marriage was registered (parts 1 – 3), and dissolution of the marriage is not an obstacle to declaring the marriage invalid (part 1 of article 43 of the Family Code of Ukraine).

In general, and taking into account the above in the provisions of Art. 39 of the Family Code of Ukraine, in cases, marriage can be declared invalid by the registry office and the court should have the same powers.

This provision can be proven on the basis that the registry office and the court can examine and evaluate evidence, but unlike the court, the registry office evaluates only indisputable written (official) evidence, and the court can examine all appropriate and admissible evidence, including audio and video recordings, to interrogate witnesses (Article 57 of the Code of Civil Procedure), etc.

Evidence for invalidating a marriage in Ukraine

Evidence for invalidating a marriage in Ukraine

And when a marriage is declared invalid, only indisputable evidence, such as:

  • marriage certificate (previous);
  • indisputable documents confirming kinship relations between relatives of a direct line of kinship, siblings – birth certificates or a court decision on establishing the fact of kinship, which entered into legal force;
  • a court decision on recognizing a person as incapacitated, which has entered into legal force.

If such indisputable evidence cannot be presented to the registry office, it can refuse to recognize such a marriage as invalid.

Under such conditions, the case should be considered in court.

For example, how to confirm that the wife and husband are simultaneously in another registered marriage, if there is no certificate of such registration of marriage, the registry office will not provide it to an ordinary citizen or citizen, in particular, if it is lost, and the book on the marriage registration act has not been preserved and the archive burned down, or even if there was such a book, if the corresponding record was absent in it (skipped during recording).

That is, it is not possible to restore such an act record on the registration of marriage, but there are witnesses who can confirm that the registration of the marriage took place.

The court, however, may request the relevant marriage registration records and examine other written evidence (letters, notes, etc.).

In this case, it is necessary to apply to the court for establishing the fact of registration of the marriage (clause 6 of article 256 of the Code of Civil Procedure) and at the same time raise the issue of recognizing the marriage as invalid by way of action.

Court decision to declare a marriage invalid in Ukraine

Court decision to declare a marriage invalid in Ukraine

A marriage is declared invalid by a court decision if it was registered without the free consent of a woman or a man.

The consent of a person is not considered free, in particular, when, at the time of registration of marriage, he suffered from a serious mental disorder, was in a state of alcoholic, narcotic, toxic intoxication, as a result of which he did not fully realize the significance of his actions and (or) could not direct them or if the marriage was registered as a result of physical or mental violence.

A marriage is declared invalid by a court decision if it is fictitious.

A marriage is fictitious if it is entered into by a woman and a man or one of them without the intention of creating a family and acquiring the rights and responsibilities of spouses.

A marriage cannot be declared invalid if, at the time of the consideration of the case by the court, the circumstances that indicated the lack of consent of the person to the marriage or his unwillingness to start a family have disappeared.

Before proceeding to the commentary on this norm and based on the analysis of Articles 39, 40, 41 of the Family Code of Ukraine, specialists should pay attention to such aspects. The legislator, firstly, identifies two ways of declaring a marriage invalid: by the civil registry office (extrajudicial) (Article 39 of the Family Code of Ukraine) and judicial (Articles 40, 41 of the Family Code of Ukraine). Secondly, according to the judicial procedure for recognizing a marriage as invalid, it can be concluded that in Art. 40 of the Family Code of Ukraine speaks of the court’s obligation to recognize marriage as such, and in Art. 41 of the Family Code of Ukraine – on the right of the court to declare a marriage invalid.

It should also be said that the marriage is declared invalid in court by virtue of a direct indication in the law. Analyzing Art. 40 SK, we come to the conclusion that it has an imperative (mandatory) character, since it refers to cases in the presence of which a marriage must be declared invalid by the court. Among such grounds, we highlight the following:

  • if the marriage was registered without the free consent of the woman and the man;
  • if it is fictitious.

Now it is advisable to dwell on the analysis of each foundation.

The free consent of a woman and a man is understood as their actual expression of will for this marriage, that is, it should be carried out without any pressure, deception, coercion, that is, physical or mental violence.

The newlyweds together must appear in the registry office and personally submit an application for marriage registration, being at the same time aware of each other’s age and state of health.

But if at the time of registration of the marriage the person suffered from a serious mental disorder, was in a state of alcoholic, drug, toxic intoxication, as a result of which she did not realize the significance of her actions and could not direct them, the person’s consent is also not considered free and adequate to his freedom.

Evidence of fictitious marriage in Ukraine

Evidence of fictitious marriage in Ukraine

As for the fictitious marriage, it is a marriage that is concluded between a woman and a man or one of them without the intention of creating a family and acquiring the rights and responsibilities of spouses.

In reality, such cases are difficult, since it is necessary to prove the fact that one of the spouses had no intention to start a family before the registration of the marriage, and such a desire did not appear after registration.

For example, a woman and a man entered into marriage in order to obtain housing.

The man stood in line to receive an apartment at his place of work, but only two-room apartments were allocated.

Since the man was not married and the area of ​​the apartment exceeded the norms established for one person, in order to get an apartment, he decided to marry his former classmate.

They quickly registered the marriage in order to obtain this living space, for which he promised the woman a monetary reward, that is, the marriage was registered without the intention of creating a family.

Although, at first glance, in this case there was a mutual consent to register the marriage, however, the actual expression of the will of these persons was aimed not at creating a family, but at obtaining material benefits.

At the same time, we note that for the recognition of a marriage as invalid, it is sufficient that at least one of the persons does not want to enter into a marriage with the aim of creating a family.

But in Part 3 of Art. 40 of the Family Code of Ukraine refers to a special case when, at the time of consideration in court of a case on recognizing a marriage as invalid, circumstances that indicated the lack of consent of a person to marriage or his unwillingness to start a family disappeared.

In our law practice, there has been a case of invalidating a marriage under the Code of Conduct – the marriage was registered in order to obtain living space.

When the prosecutor filed a lawsuit to invalidate the marriage, the persons first registered the marriage without the intention of creating a family, began to live together, run a joint household, maintained intimate relationships, took care of each other and the wife was 8 months pregnant.

In particular, they were waiting for the birth of a child together (in the medical card of a pregnant woman, the man was recorded as the alleged father of the child), that is, in fact, a family was created.

The court began to consider the case on recognizing the marriage as invalid in essence, having analyzed all the evidence in the case, came to the conclusion that at the time of this dispute the circumstances that had taken place during the registration of the marriage had disappeared, that is, the reluctance to create a family disappeared, since the family was created, that witnesses confirmed.

When the woman was in the hospital to save the child, the man came to the hospital every day, brought her food and the like.

Therefore, the court dismissed the claim to invalidate the marriage.

Grounds for declaring a marriage invalid in Ukraine

Grounds for declaring a marriage invalid in Ukraine

A marriage can be declared invalid by a court decision if it was registered:

  • between the adoptive parent and the child adopted by him in violation of the requirements established by part five of Article 26 of this Code (Clause 1 of part one of Article 41 as amended by Law No. 3250-IV of 20.12.2005);
  • between a cousin and a sister;
  • between aunt, uncle and nephew, niece;
  • with a person who has hidden his serious illness or illness dangerous for the other spouse and (or) their descendants;
  • with a person who has not reached marriageable age and who has not been granted the right to marriage.

When deciding a case on recognizing a marriage as invalid, the court takes into account the extent to which this marriage violated the rights and interests of the person, the duration of the spouses’ cohabitation, the nature of their relationship, as well as other circumstances of significant importance.

A marriage cannot be recognized as invalid if a wife is pregnant or a child is born to the persons specified in clauses 1, 2, 4 of the first part of this article, or if someone who has not reached marriageable age has reached him or he was granted the right to marriage.

The commented article provides for optional grounds for declaring a marriage invalid by a court decision. Among them, the following are highlighted:

  • if the marriage was registered between the adoptive parent and the child he adopted in violation of Part 5 of Art. 26 of the Family Code of Ukraine;
  • if the marriage was registered between a cousin and a sister, between an aunt, an uncle and a nephew, a niece;
  • if the marriage was registered with a person who concealed his serious illness or illness dangerous for the other spouse and (or) their descendants;
  • if the marriage was registered with a person who has not reached marriageable age and who has not been granted the right to marry.

When registering a marriage, all these circumstances must be observed.

If a marriage is registered between the adoptive parent and the child he adopted, then it can be registered only in case of cancellation of the adoption, since in Part 5 of Art. 26 SK there is a prohibition, an adoptive parent and a child adopted by him cannot be married to each other.

As a general rule, a marriage is also invalidated if it was registered between a cousin and a sister, between an aunt, an uncle and a nephew, or a niece.

But in this case, the following circumstances should be taken into account:

  • if the facts of kinship were known to the future spouses at the time of registration of the marriage, then such a marriage may be invalidated;
  • if the future spouses did not know about the existence of family relations between them, then the claim for recognizing the marriage as invalid may be refused.

In this context, it should be considered that the guilt of persons who entered into an invalid marriage may be absent if they were not aware of the existence of a close relationship between them (for example, that they are a cousin).

In the absence of the fault of both parties, the invalidation of the marriage is a measure of protection.

The same provision also applies if one of the spouses did not know about the incapacity of the other.

Therefore, in the case when the marriage was registered in the presence of these circumstances and the registration of such a marriage drew negative consequences for one of the parties, on the following grounds and the evidence presented, the marriage may be invalidated by the court.

But in each specific case, the court proceeds from the factual circumstances of the case, which developed at the time of its consideration.

When deciding a case on recognizing a marriage as invalid, the court takes into account how much this marriage has violated the rights and interests of a person, the duration of the spouses’ cohabitation, the nature of their relationship, as well as other circumstances of significant importance.

If, at the time of consideration of the case, both spouses (or one of them) have reached marriageable age, live in a normal family, the wife is pregnant, and, in addition, the parents have given consent to such a marriage, then it is considered justified to recognize such a marriage as invalid only on formal grounds.

Therefore, in the UK it is justly provided that a marriage cannot be invalidated under the conditions provided for in paragraphs 1-4 of part 1 of Art. 41 SK in the event of a wife’s pregnancy, as well as in the event of a child being born to such persons.

Due to a serious illness, the court also proceeds from the circumstances of the case, for example, if a person suffers from tuberculosis, then she can live in a family, if she has a separate isolated room, or the form of such a disease has changed and one of the spouses, living in a communal apartment, does not create their health is a danger to others.

Let’s give one more example from practice.

So, when registering a marriage, a man hid from his wife that he was ill with opium addiction, a disease dangerous for future descendants. He told her that he had stopped using drugs, but when they got married and started living together, her husband started using drugs again. The wife made every effort to free her husband from this trap, healed him.

But disaster struck, the wife died tragically, and after her a significant inheritance remained and her husband, a drug addict, became the heir under the law of the first stage.

A cousin, in accordance with Article 42 of the Family Code of Ukraine, filed a lawsuit to declare the marriage invalid, which she motivated by the fact that the defendant hid from her sister the fact that he was sick with an illness dangerous to their descendants (clause 3 of Part 1 of Art. 42 of the Family Code of Ukraine).

When considering the case, the court proceeded from the factual circumstances of the case and the evidence presented by the parties, and refused the plaintiff to satisfy the claim, that is, did not recognize the marriage as invalid, since, as it was found out, the bride knew about her husband’s illness at the time of registration of the marriage.

Who has the right to file a claim to invalidate a marriage in Ukraine

Who has the right to file a claim to invalidate a marriage in Ukraine

The wife or husband, as well as other persons whose rights have been violated in connection with the registration of this marriage, have the right to go to court with a claim to invalidate a marriage. For example, parents, guardian, guardian of a child, guardian of an incapacitated person, prosecutor, guardianship and guardianship authority, if the rights and interests of a child, a person declared incapable, or a person whose legal capacity is limited, require protection.

Cases on recognizing a marriage as invalid are considered by the court in the manner of action proceedings.

The right to go to court with a claim to invalidate the marriage in accordance with Art. 40 SK and Art. 41 UK is vested with a wife or husband, parents, guardian, guardian of a child, guardian of an incapacitated person, a prosecutor, a guardianship and trusteeship body, if protection is required by the rights and interests of a child, a person declared incapable, or a person whose legal capacity is limited, and other persons, rights which are violated in connection with the registration of this marriage.

But it should be said that the general list of persons who have the right to apply to the court with a statement declaring a marriage invalid.

But taking into account the circumstances of the case, the grounds for recognizing the marriage as invalid, these subjects can be specified.

Claim to declare a marriage null and void in Ukraine

Claim to declare a marriage null and void in Ukraine

A claim can be brought by a wife or husband in the following cases:

  • if he was registered without the free consent of a woman or a man, one of the spouses at the time of registration of the marriage suffered from a severe mental disorder, was in a state of alcoholic, narcotic, toxic intoxication, as a result of which he did not fully realize the significance of his actions and (or) could not lead them, or if the marriage was registered as a result of physical or mental violence, as a result of pressure, intent, delusion;
  • in the case of a fictitious marriage, that is, if it was entered into by a woman and a man or one of them without the intention of creating a family and acquiring the rights and obligations of spouses;
  • if one of the spouses has hidden his serious illness or illness that is dangerous for the other spouse and (or) their descendants.

In relation to the parents of the husband or wife, guardians and custodians of the child, they apply to the court with a claim to invalidate the marriage if the rights and interests of the child (ward) need protection in cases where the child or wards:

  • have not reached marriageable age and have not been granted the right to marriage;
  • their marriage was registered as a result of pressure, deception, mental and physical violence;
  • they suffered from a severe mental disorder;
  • were in a state of alcoholic, narcotic, toxic intoxication, as a result of which they did not fully realize the significance of their actions and or could not direct them.

The guardian of an incapacitated person may apply to the court with a claim to invalidate the marriage if the rights and interests of the incapacitated person need protection, that is, the marriage was registered by a person, did not understand the meaning of her actions and could not direct them due to mental illness or dementia.

The law also gives the trustee the right to bring a claim to the court to declare the marriage invalid in the interests of his ward, that is, a person whose legal capacity is limited, if the rights and interests need protection, namely: the marriage was registered as a result of mental or physical pressure, in the case of fictitious marriage, that is, not for the purpose of creating a family.

As for the other persons referred to in the commented rule, and who have the right to bring a claim to declare the marriage invalid, the interest of such persons and their right to go to court with the said claim is primarily due to the fact that their rights may be violated in connection with the registration of a marriage, which in their opinion is invalid. As a rule, in practice, these can be relatives of the persons who registered this marriage.

In the legal practice of one of the authors, there was a civil case on the invalidation of a marriage.

The plaintiff in the case was the sister of the deceased wife, filed a lawsuit against the husband of the sister to declare the marriage invalid on the grounds provided for in Part 2 of Art. 40 of the Family Code of Ukraine.

She motivated her interest and claims by reference to Part 4 of Art. 1224 of the Civil Code (removal from the right to inheritance).

According to this provision, persons whose marriage is invalid or recognized by a court decision do not have the right to inherit by law after each other.

Since the sister belongs to the second order of heirs according to the law, she has the right to inherit only after receiving the inheritance by persons belonging to the previous order.

So, part 2 of Art. 1258 of the Civil Code, it is assumed that each subsequent line of heirs by law receives the right to inherit in the absence of heirs of the previous line, if they are removed from the right to inherit, they do not accept the inheritance or refuse to accept it.

Therefore, the plaintiff’s sister, considering the marriage registered by her sister with the defendant to be invalid (fictitious), with the aim of obtaining an inheritance after the death of her sister, went to court with a claim and submitted evidence in support of her claims.

When considering this case by the Court of Appeal, the question arose about the legality of the sister’s filing such a claim, and even provided for the possibility of terminating the proceedings in connection with the presentation of an application by an improper plaintiff.

Therefore, the plaintiff’s representative needs to prove to the court of appeal the correctness and the possibility of her applying to the court with a statement declaring the marriage invalid.

Since the invalidation of marriage significantly affects property relations (in particular, the above example from judicial practice), according to which succession is allowed, the death of the plaintiff or defendant in the case of invalidation of the marriage is not a reason for terminating the proceedings.

Participation of the guardianship and trusteeship authorities in matters of declaring a marriage invalid in Ukraine

Participation of the guardianship and trusteeship authorities in matters of declaring a marriage invalid in Ukraine

On the right of the prosecutor, the guardianship and guardianship body to apply to the court with a statement of claim declaring a marriage invalid, it is enshrined both in the norms of the Constitution (article 21 – in relation to the prosecutor) of the Family Code of Ukraine, and in Art. 45 Code of Civil Procedure.

In accordance with Art. 45 of the Code of Civil Procedure, it can be concluded that state and local government bodies, in particular, in this norm – guardianship and trusteeship bodies, differ from interested persons (physical) in the purpose of their participation in the process.

They begin or enter the process not with the aim of protecting a subjective interest, but for the implementation of the functional duties assigned to them to protect the interests of other persons or state or public interests (part 1 of article 46 of the Code of Civil Procedure).

The guardianship and trusteeship authorities can apply to the court with an application for recognizing the marriage as invalid, if the interests of a minor or an incapacitated person are affected, they can be brought by the court to participate in the process or enter into the process on their own initiative to give an opinion on the case (part 3 of Art. 45 Code of Civil Procedure).

The participation of these bodies in the process is mandatory if the court finds it necessary or is due to their competence in the field of executive and administrative and law enforcement activities.

From the analysis of the judicial practice of considering cases of claim proceedings, it can be concluded that judges make mistakes in determining the procedural position of state authorities and local self-government, calling the latter third parties.

The procedural position of state and local government bodies cannot be reduced to the procedural representation of the direct interests of the plaintiff.

According to Articles 38, 42, 44 of the Code of Civil Procedure, the judicial representative is the authorized person of the person participating in the case to carry out procedural actions on behalf of this person and in his interests; in the performance of his duties, a procedural representative depends on the will of the person he represents, and cannot act contrary to his interests.

In contrast, the activities of state authorities and local self-government have a different focus.

These bodies act on their own behalf, an authorized person acts on their behalf, in the process he becomes a judicial representative of the state authority and local government, but not the plaintiff.

The rights of other persons are protected when they coincide with the state interests, regardless of the will of these persons.

According to the fact that their participation in the civil procedure is aimed at fulfilling the duties arising from the functions assigned to them in public life, they, as subjects of protecting the interests of other persons, in contrast to the procedural representatives, should be called legal protectors.

The legal consequences that arise from legal facts established in the procedure are closely related to the interests of the state.

Consequently, public authorities and local self-government bodies in the consideration of civil cases should take part in order to comprehensively, fully establish by the court all the circumstances of the case, help the plaintiff to ensure the protection of his legitimate interests and the protection of the rights and interests of other persons.

According to Art. 42 of the Family Code of Ukraine, art. 45 of the Code of Civil Procedure, the prosecutor can apply to the court to declare the marriage invalid.

The civil procedural legal personality of the prosecutor differs from the legal personality of the plaintiff in that the prosecutor protects the interests of the plaintiff and the state, and the plaintiff protects his personal interest and subsequently his subjective rights.

The interest of the prosecutor in the case is of a state nature, and the personal interest of the plaintiff is determined by the need to exercise his subjective property and personal non-property rights.

The law (Art. 121 of the Constitution of Ukraine) provides for a new approach to defining the procedural position of the prosecutor.

The Prosecutor’s Office is a unified system that is entrusted with representing the interests of a citizen or the state in court in cases determined by law.

This means that the prosecutor is the representative of the plaintiff and the state.

He is an official of a state body – the prosecutor’s office and acts without special instructions from this body and on the basis of the Constitution of Ukraine, the Law of Ukraine “On the Prosecutor’s Office” and his official position, performs the tasks and functions assigned to the prosecutor’s office, that is, carries out legal representation.

This type of representation is due to the basis of occurrence – the law.

The refusal of the prosecutor from the application filed by him does not deprive the applicant of the right to demand that the court consider the case on the merits.

The prosecutor and the body of state power and local self-government are united by the fact that they are the spokesmen for the interests of the state, and as a result, their replacement is possible, but at the same time the state as a bearer of interests cannot be replaced.

This is what distinguishes the state as a materially interested person from the prosecutor and the state authority and local self-government, which occupy different procedural positions, always defend the interests of the state, although they act on their own behalf, and not on behalf of the state.

But the participation of a prosecutor differs from the participation of a representative of a public authority in that the latter acts on the basis of a power of attorney from this authority.

As noted above, the prosecutor does not need to receive special assignments, since participation in civil cases is within his competence.

The prosecutor can file a statement of claim with the court to declare the marriage invalid from a wider range of grounds than the guardianship and guardianship authority.

First of all, there should be an appeal to him by an interested person with a request to go to court with such a claim and if the prosecutor comes to the conclusion that the legality has been violated with the registration of an invalid marriage.

For example, the prosecutor can apply to the court for declaring the marriage invalid if he has information that the marriage was registered between the adoptive parent and the child he adopted without canceling such adoption; with a person who has not reached marriageable age and who has not been granted the right to marriage; if the registry office registered a marriage between the spouses, when one of them was in a registered marriage, that is, the registry office did not check certain legal circumstances.

It should be noted that legal representatives, at the request of the court, can be replaced in certain categories of cases (Article 43 of the Code of Civil Procedure).

Invalidation of a marriage after its termination in Ukraine

Invalidation of a marriage after its termination in Ukraine

  1. Dissolution of marriage, death of a wife or husband is not an obstacle to invalidation of a marriage.
  2. If the marriage is dissolved by a court decision, a claim for invalidation may be brought only after the court’s decision to dissolve the marriage is canceled.
  3. In the commented part, the provision is fixed that the dissolution of marriage, the death of a wife or husband is not an obstacle to the recognition of a marriage as invalid. As for the recognition of a marriage as invalid after the dissolution of the marriage, this issue is disclosed in detail in Part 2 of the commented norm, taking into account the peculiarities of the civil process.

As for the death of one of the spouses, the analysis of judicial practice (see the Commentary to Article 42 of the Family Code of Ukraine) indicates that quite often there is a need to declare a marriage invalid after the death of one of the spouses at the request of interested persons, the prosecutor’s office and the like.

The need to recognize a marriage as invalid after its dissolution or the death of one of the spouses can be justified by the legal consequences that arise in the event of the dissolution and invalidation of the marriage (Article 45 of the Family Code of Ukraine).

In this particular case, the need to recognize the marriage as invalid even after the death of one of the spouses is due not so much to the establishment of a certain legal fact, but to the legal consequences that this fact can cause, in particular, according to Art. 727 of the Civil Code, the donation agreement may be terminated.

Take, for example and analysis, Part 2 of Art. 45 SK, which establishes: if during an invalid marriage persons have acquired property, it is considered to belong to them on the basis of common shared ownership. In this context, let us consider what legal consequences may occur when:

  • dissolution of marriage between spouses – the property is divided equally between them (1/2 part) upon divorce and after the death of one of the spouses – the one of the spouses who survived is entitled, in accordance with Articles 34, 71 of the Law of Ukraine “On Notaries”, to allocate to him one second share of property jointly acquired during marriage and to issue him a certificate of the right ownership of a share in the common property of the spouses, and in relation to inheritance, according to the law, after the divorce, there will be no inheritance, since the divorced do not already belong to the first order of heirs by law;
  • if the marriage between spouses is declared invalid, then according to Part 2 of Art. 45 of the Family Code of Ukraine, property acquired by them during an invalid marriage is considered to belong to them on the basis of common shared ownership. In addition, the size of the shares of each of them is determined according to their participation in the acquisition of this property by their labor and means;
  • if the marriage is declared invalid after the death of one of the spouses at the request of interested parties (Art. 42 of the Family Code of Ukraine), then according to Art. 1224 of the Civil Code in the event that the marriage is declared invalid, the spouse who remained alive is removed from inheritance, and the property acquired during the invalid marriage can be distributed by the court, taking into account the provisions of Part 2 of Art. 45 of the Family Code of Ukraine, but the right to allocate a specific share will depend on how the parties prove their claims or objections to the claim.

With regard to divorce, some rights and obligations may remain between the spouses, in particular, the right and obligation to maintain after divorce (Article 76 of the Family Code of Ukraine), the right to property and its division within the statute of limitations, etc.

If the marriage is declared invalid, the person acquires its original state, except for the cases provided for by Articles 46, 47 of the Family Code of Ukraine.

Registration of marriage for the purpose of obtaining the right to housing in Ukraine

Registration of marriage for the purpose of obtaining the right to housing in Ukraine

In practice, there are still cases when a marriage is registered not for the purpose of creating a family, but in order to obtain the right to housing.

Therefore, if one of the spouses dies and after his death there remains an apartment that belongs to the state housing stock, the prosecutor in the interests of the state can file a lawsuit to declare such a marriage invalid.

This provision is provided for by Part 4 of Art. 45 of the Family Code of Ukraine – a person who settled in the dwelling of another person, due to the registration of an invalid marriage with him did not receive the right to live in it and can be evicted.

Part 2 of the commented norm provides for a condition for filing a claim with a court to declare a marriage invalid if it was terminated by a court decision.

So, a claim can be brought only after the cancellation of the court decision on divorce.

We consider it appropriate to analyze this provision from the point of view of the peculiarities of the modern civil procedure and consider possible legal situations, in particular, cases require interpretation when a court decision on divorce has not entered into legal force, as well as if a court decision has entered into legal force.

The decision of the court of first instance can be appealed on appeal in accordance with Art. 294 of the Code of Civil Procedure, that is, an application for an appeal is filed within 10 days from the date of the decision, and an appeal – within 20 days after the filing of an application for an appeal.

Article 223 of the Code of Civil Procedure states that a court decision comes into legal force upon the expiration of the time limit for filing an appeal, if the application for an appeal against this decision.

If an application for an appeal was filed, but the appeal was not filed within the time period established by Art. 294 Code of Civil Procedure, the court decision comes into force upon the expiration of this period.

In the case of filing an appeal, the decision, if it is not canceled, comes into legal force after the consideration of the case by the court of appeal and under Part 2 of Art. 218 of the Code of Civil Procedure, after the decision is made, the court that ruled it cannot itself cancel or change it.

Analyzing the provisions of Part 2 of Art. 43 of the Family Code of Ukraine and harmonizing it with the norms of the Code of Civil Procedure, two conclusions can be drawn.

If the court decision on divorce has not yet entered into legal force (term), then it can be appealed on appeal, motivating its position by the fact that this marriage should be declared invalid, and asking the court of appeal to cancel the decision of the first instance court and take the case to his production, since the norms of substantive law were incorrectly applied, while it is necessary to change the subject of the claim to invalidate the marriage and ask for a new decision on the merits of the new claimed claims.

But in this case, it will be necessary to explain what evidence was presented in the court of first instance and was not taken into account by the court, as well as the reasons why such a claim was not made in the court of first instance.

However, if the decision to dissolve the marriage has already entered into legal force and was not contested in the appellate instance, then its further appeal to the cassation instance is impossible, since Art. 324 of the Code of Civil Procedure provides that the parties and other persons participating in the case, as well as persons who did not participate in the case, if the court decided the issue of their rights and obligations, have the right to appeal in cassation the decision and ruling of the court of first instance after their revision in the appeal okay.

That is, it is possible to appeal to the cassation instance to cancel the decision of the first instance court only on condition that such a decision was reviewed by the appellate instance.

But this situation can be solved like this.

If, when considering the case on divorce, the person did not participate and did not know that his marriage should not be dissolved, but declared invalid, then this issue can be resolved on the basis of:

  • Articles 229-231 of the Code of Civil Procedure, when making a decision in absentia, you can ask to reconsider the decision in absentia;
  • clause 1 of Art. 361 of the Code of Civil Procedure in the course of proceedings on newly discovered circumstances, that is, the decision to dissolve the marriage will be canceled by the court that issued it, if sufficient evidence is presented proving the invalidity of the marriage. After the cancellation of the decision to dissolve the marriage, the case under Part 3 of Art. 365 Code of Civil Procedure is considered by the court according to the rules established by the Code of Civil Procedure.

It should be noted that the interested person may ask the court when considering the case:

  • is entitled as a plaintiff in accordance with Art. 31 of the Code of Civil Procedure, during the entire period of consideration of the case, change the basis or subject of the claim, therefore the plaintiff can change the subject of the claim to invalidate the marriage, and the court must consider the case on the merits and make a decision on the amended claims;
  • the defendant can apply with a counterclaim in a divorce case, in which to ask the court not to dissolve the marriage, but to declare it invalid (Article 123 of the Code of Civil Procedure), but only during the preliminary court hearing.

It is clear that interested persons, for example, heirs, can also ask the court to declare the marriage invalid, but their position will be very difficult if they do not have sufficient evidence of the invalidity of the marriage and at the same time evidence that the person himself, for one reason or another, could not ask the court invalidate a marriage, for example, due to death, illness, and the like.

After the decision of the case on the recognition of the marriage as invalid by the court, this legal fact is subject to state registration by the registry office.

But it should be remembered that, in addition to the judicial procedure for the dissolution of a marriage, the latter can be terminated by the registry office, which in the future can itself annul the record on the basis of a court decision on the recognition of this marriage as invalid.

The moment from which the marriage is considered invalid in Ukraine

The moment from which the marriage is considered invalid in Ukraine

  1. In the cases provided for by Articles 39-41 of this Code, the marriage is invalid from the date of its state registration.
  2. The commented part deals with the time from which the marriage is considered invalid, that is, from the date of its state registration. This general rule is correct, but it is considered advisable to clarify it, since in this norm only the date from which the period should be counted is formally determined, but the end date of the counting is not given. That is, according to this formula, it is necessary to consider the period during which the marriage is considered invalid. However, it should be said differently about this period, that during the time of an invalid marriage, marriage relations do not arise between a man and a woman, but property relations are possible, during this period a child could be born and the like. This provision is due to the fact that during the period of an invalid marriage, legal facts (circumstances) may occur, from which certain consequences may occur in the future, for example, the rights and obligations of parents and a child born during an invalid marriage (Article 47 of the Family Code of Ukraine) …

So, in the cases provided for by Articles 39-41 of the Family Code of Ukraine, the marriage is invalid from the date of its state registration.

In these articles, we are talking about three options for the invalidity of a marriage:

  • conditions under which a marriage is invalid (Article 39 of the Family Code of Ukraine);
  • conditions under which a marriage is invalidated by a court decision (Article 40 of the Family Code of Ukraine);
  • conditions under which a marriage can be declared invalid by a court decision (Article 41 of the Family Code of Ukraine).

All these three cases of recognition of marriage as invalid by the time of its recognition are covered by the moment – from the date of its state registration.

Consequences of invalidating a marriage in Ukraine

Consequences of invalidating a marriage in Ukraine

  1. An invalid marriage (Article 39 of this Code), as well as a marriage declared invalid by a court decision, is not the basis for the emergence of the rights and obligations of spouses among the persons between whom it was registered, as well as the rights and obligations established for spouses by other laws of Ukraine.
  2. If, during an invalid marriage, persons have acquired property, it shall be deemed to belong to them on the basis of the right of common shared ownership.

The size of the shares of the spouses’ property is determined in accordance with their participation in the acquisition of this property by their labor and means.

  1. If a person received alimony from someone with whom he was in an invalid marriage, the amount of alimony paid is considered received without a sufficient legal basis, and is subject to return in accordance with the Civil Code of Ukraine, but not more than for the last three years.
  2. A person who settled in the dwelling of another person in connection with the registration of an invalid marriage with him did not receive the right to live in it and can be evicted.
  3. A person who, in connection with the registration of an invalid marriage, changed his surname, is called this surname without sufficient legal basis.
  4. The legal consequences established by parts two through five of this article apply to a person who knew about the obstacles to registering a marriage and hid them from the second party and (or) from the state civil registration body.
  5. Regarding the legal consequences of the invalidity of marriage, the legislator provided them in two norms – Articles 45, 46 of the Family Code of Ukraine. And the consequences provided for by Art. 46 of the Family Code of Ukraine, called special. So, the commented article talks about the general legal consequences of the invalidity of marriage. This regulation deals with cases where both the man and the woman knew that they were registering an invalid marriage.

From the analysis of Articles 45, 46 of the Family Code of Ukraine, one can make the erroneous conclusion that the consequences provided for in these norms occur simultaneously with the recognition of the marriage as invalid, but it is believed that the plaintiff must indicate these legal circumstances in the statement of claim.

There is no need to wait for the second spouse to voluntarily return the alimony, vacate the apartment, so this should be indicated in the statement of claim.

In the commented part, we are talking about two cases of invalidity of marriage:

  • invalidity of marriage under Art. 39 of the Family Code of Ukraine, that is, if it is recognized on the basis of cancellation of the deed of registration of marriage, committed by the registry office;
  • the marriage was declared invalid by a court decision.

If the marriage is declared invalid by the registry office on the basis of Art. 39 of the Family Code of Ukraine, as well as by the court, then the rights and obligations of spouses under the Family Code of Ukraine, as well as other laws of Ukraine, with the exception of Art. 46 of the Family Code of Ukraine.

That is, the abolition of the rights and obligations of spouses means the recognition of a marriage as invalid from the moment of its state registration, which has legal significance, as a result of which a marriage arises (Article 27 of the Family Code of Ukraine), which implies the emergence of rights and obligations for the spouses (Part 2 of Art. 21 of the Family Code of Ukraine).

In addition, in Part 1 of Art. 21 of the Family Code of Ukraine notes that a mandatory sign of marriage is its registration with the state registry office.

The property that persons acquired during an invalid marriage is considered to belong to them on the basis of the right of common shared ownership.

The size of the shares of each of them is determined in accordance with their participation in the acquisition of this property by their labor and means, that is, it is regulated by the norms of the Civil Code, and not the Family Code of Ukraine.

The size of the parts must be proved to the court, that is, persons can submit direct evidence (extracts from personal accounts, which reflect the flow of funds, in particular for the purchase of an apartment, household appliances, etc.).

But in life there are cases when persons who were in a fictitious marriage acquired property by their labor.

These circumstances can be confirmed by testimony, material, written evidence, sound and video recordings, for example, a person personally (by his own labor) took part in the construction of a house, carried out repairs in an apartment, as an artist painted pictures, which he then realized, and spent the money on maintaining household.

This provision also applies to cases when, during the period of a fictitious marriage, property was registered in the name of one of the spouses.

There is a point of view that when dividing property acquired during an invalid marriage, the work of the wife or husband in housekeeping and raising children should be taken into account, since domestic work should have a monetary equivalent and be taken into account on an equal basis with other types of labor.

However, a wife or husband who is incapable of work does not have the right on this basis to demand an increase in their share in the right of common shared property.

This position should be taken as one that relates to the general consequences of the invalidation of a marriage, but it is difficult to unequivocally agree with it when it comes to the incapacity for work of one of the spouses, which arose during the invalid marriage and in the failure of the obliged person to fulfill his duties.

That is, in this case, maintenance obligations should be taken into account in the distribution of common shared ownership, but this case should be regarded as a special case.

If a person received alimony from someone with whom he was in an invalid marriage, the amount of alimony paid is considered received without a sufficient legal basis and is subject to return in accordance with the Civil Code, but not more than for the last three years.

By analogy, this provision can be substantiated by reference to Part 2 of Art. 382 of the Code of Civil Procedure, which states that in cases of the recovery of alimony, the return of performance is not allowed regardless of the order in which the decision was made, except for cases when the court’s decision was based on forged documents or on knowingly false information of the plaintiff.

As you can see, in this case we are not talking about the return of the execution of the decision on the recovery of alimony in its literal sense, which is provided for in Articles 380-382 of the Code of Civil Procedure, since the invalidation of marriage cannot be equated to the cases referred to in Part 1 of Art. 380 GPK.

The issue of returning the execution of the decision on the recovery of alimony is decided by the court of appeal or cassation instance, if, having canceled the decision, it terminates the proceedings, leaves the claim without consideration, refuses the claim in full or satisfies the claim in a smaller amount.

In part 2 of Art. 380 of the Code of Civil Procedure is provided if the decision after its execution is canceled and the case is returned for a new consideration, and with a new consideration of the case, the claim is denied or the claims are satisfied in a smaller amount, or the proceedings are closed or the application is left without consideration, the court, making a decision, must to oblige the plaintiff to return to the defendant the funds unjustifiably collected from him according to the canceled decision.

In this case, we should talk about the consolidation in the Family Code of Ukraine of the provision on the return of alimony as unjustifiably acquired property in accordance with Articles 1212, 1213 of the Civil Code.

As you can see, alimony received during the period of an invalid marriage, that is, without a sufficient legal basis (groundlessly acquired property), therefore, on the one hand, as a general rule, they must be returned to the man (woman), but in Art. 1215 of the Civil Code stipulates that such groundlessly acquired property as alimony and other sums of money provided to an individual as a means of subsistence, if their payment is made by an individual voluntarily, is not subject to return.

On the other hand, the return of the execution of the decision on the recovery of alimony is not allowed, except in cases where the decision is based on deliberately false information of the plaintiff, which can be regarded as such when the marriage is declared invalid (Articles 39, 40, 41 of the Family Code of Ukraine).

With regard to the three-year period for the return of alimony in the event of a marriage being declared invalid, the provisions of Art. 1215 of the Civil Code.

It is necessary to pay attention of specialists, according to the CoBS, alimony was collected only in court, in accordance with the new SK, alimony obligations can be regulated by contract when certifying an alimony contract, marriage or mixed – a marriage contract with elements of an alimony contract, are voluntarily concluded and certified by both parties at a notary , alimony can be paid on the basis of an application, therefore, if the fact of the voluntary payment of alimony is established, then they, in accordance with Art. 1215 of the Civil Code should not be returned in the event of a marriage being declared invalid, since in part 3 of the article being commented on there is a direct reference to the norms of the Civil Code.

This does not mean that the alimony cannot be returned, but it should be referred to the fact that the alimony payer was misled or acted as a result of an error (Articles 229, 230 of the Civil Code) not only when registering a marriage, but also when paying alimony (Articles 229, 230 of the Civil Code ), that is, it is actually twice the victim.

As for living in a dwelling if the marriage is declared invalid, the person who settled in the dwelling of another person in connection with the registration of the marriage did not receive the right to live in it and can be evicted, this provision should be analyzed together with the norms of the Housing Code.

So, in judicial practice, there was a case that caused significant difficulties in the decision.

So, in part 4 of the commented article, it is only about the loss of the right of residence if the person settled in connection with the registration of marriage.

This provision indicates that the person should have moved into the apartment after the registration of the marriage, and not before the marriage, which is quite often the case in practice.

And if during the invalid marriage the spouses submitted a joint application for the privatization of the apartment, then this provision does not say about the possibility of canceling the privatization of the apartment.

If, according to a joint application, a certificate of ownership was prepared and the spouses were notified of the need to obtain it, but the wife died, then such a case seems even more difficult to resolve on the basis of this rule, if it was the wife who originally lived in this apartment.

If we transform this situation in the interests of the wife’s sibling, who was misled by a person who had no intention of starting a family, but tried to get at least part of housing in Kiev for his family through marriage, then it turns out that the marriage was invalid.

Therefore, in our opinion, the wife’s brother, as the heir of the second stage, rightfully submitted to the court an application for the recognition of the marriage, registered by his sister with her husband, invalid due to its fictitiousness.

In this case, the husband cannot be considered the proper heir and husband of the deceased.

With the validity of the position and confirmation of the selfish motives of the marriage, since the man demanded not only registration in the apartment, and then privatizing her for two, in connection with which he repeatedly “beat his wife and threatened her, which forced her to make concessions to him.

But the husband always demanded from his wife to have an abortion and demanded not to have children. ”

So, the man had the right to own part of the apartment, but he must return this apartment under Art. 1212 of the Civil Code as groundlessly acquired property, if the marriage is declared invalid by the court, and it is also established that at the time of registration in the apartment he did not have the right to live in it, therefore, he could not privatize it.

In our opinion, such a complex structure of the claim, which we have laid out only schematically, indicates the possibility of satisfying such a claim.

With regard to the change of surname in connection with the registration of marriage, which was then invalidated, then in Part 5 of Art. 45 of the Family Code of Ukraine notes that a person is named with this surname without a sufficient legal basis, but in part 6 of this provision nothing is said about what exactly the legal consequence is or the person is deprived of such a surname, or continues to use it.

It is believed that this rule can be perceived as the right of one of the spouses to forcefully change the surname of the other, if the marriage was invalidated and the other spouse, who knew about the obstacles to registering a marriage, does not voluntarily change his surname to a premarital one.

Although such a procedure for the execution of court decisions is not provided, but this provision is considered fair, the court has the right to establish an appropriate provision in the decision and oblige the defendant in the case to submit documents for correction, and the registry office and the Ministry of Internal Affairs – to amend the documents of the defendant.

But the question arises whether the right of inheritance is extended by one of the spouses after the death of the other, if they were in an invalid marriage.

The need to cover this issue is due to the provision of Part 1 of the commented norm, which states that the rights and obligations of spouses can be established, in addition to the Family Code of Ukraine, by other laws of Ukraine, that is, the Civil Code, the Housing Code, the Land Code and the like.

According to the Civil Code, namely, inheritance after the death of one of the spouses, two legal situations need to be considered.

If the marriage was declared invalid during the life of both spouses, then the person who survived the testator is not an heir, and this is obvious, since at the time of opening the inheritance they were no longer considered spouses and they did not have rights and obligations in relation to inheritance.

But if one of the spouses has died, but the interested parties have evidence of the invalidity of such a marriage, they can bring a claim to invalidate the marriage in court (Article 42 of the Family Code of Ukraine) or resolve this issue in the registry office.

If the interested parties prove the fictitious marriage, then the spouse who survived will be removed from inheritance (part 4 of article 1224 of the Civil Code), but will have the right to a share of the property jointly acquired during the fictitious marriage in accordance with the common shared ownership regime.

Interesting for discussion, both from the point of view of science and practice, will also be the question of the distribution between the spouses of the rights acquired during marriage, which will later be recognized as invalid, in particular, the rights to a land plot that was allocated for building for a family, but was not privatized.

It is believed that such rights are of a personal nature, as a rule, land for construction is allocated to a family, but the surname of one of the spouses is formally indicated, so this issue will be decided in favor of the person whose surname is indicated in the act.

In the legal literature, there are thoughts that the recognition of marriage as invalid entails the invalidity of the marriage contract.

This opinion is often motivated by the fact that a prenuptial agreement can be concluded between persons who are married or who are about to get married.

A marriage contract concluded between persons who are going to conclude a marriage is considered concluded from the date of its state registration.

A marriage contract cannot exist without marriage.

But one cannot fully agree with this point of view.

First, our reasoning is due to the fact that Art. 93 of the Family Code of Ukraine talks about the content of the marriage contract, and in part 2 of this provision it is noted that the marriage contract can determine the property rights and obligations of spouses as parents.

In addition, in Art. 96 SK refers to the duration of the marriage contract and, in particular, it is provided that the marriage contract may establish the general duration of its validity, as well as the duration of the individual rights and obligations of the spouses, for example, regarding their children, who may be born in an invalid marriage , on which, according to Art. 47 of the Family Code of Ukraine, the consequences of the invalidity of a marriage do not apply, that is, the invalidity of a marriage should not affect the volume of mutual rights and obligations of parents and a child who was born in this marriage.

You should also take into account the provisions of Part 2 of Art. 96 of the Family Code of Ukraine, the marriage contract may establish the validity of the contract or its individual conditions even after the termination of the marriage.

In connection with this motivation, we believe that the invalidity of a marriage between spouses does not always contribute to the recognition of a marriage contract as invalid in full, since such an agreement may relate to the rights and obligations of third parties, whose rights and interests are not affected by the invalidity of the marriage, therefore, in this part, the marriage contract the contract cannot be declared invalid at the same time as the marriage is declared invalid.

Here it is possible and necessary to say that the invalidity of marriage automatically terminates the cohabitation of the former spouses.

Therefore, the invalidity of the marriage entails the invalidity of the marriage contract in the part concerning the rights and obligations of the wife and husband as spouses, but the marriage contract can be used in the part of the division of common property.

For example, if the marriage contract states that when the common property is divided, the husband receives 1/3 of the property acquired during the joint residence, and the wife – 2/3, since at the time of the conclusion of the contract their income corresponded to this share.

That is, in this case, the court will take into account a legal fact certified by a notary.

In the commented part, we are talking about the fact that the legal consequences established by parts 2-5 of this article apply to a person who knew about the obstacles to marriage registration and hid them from the second party and (or) from the state civil registration authority.

In the context of analyzing this provision, I would like to draw the attention of specialists to the one-sidedness of the negative consequences provided for in the law, since they relate to the guilty person, which must be proven in court.

In this part, we are talking only about the intent of one party, which knew about the obstacles to registration of marriage and hid them from the second party and (or) from the registry office, then for this person there are unfavorable consequences provided for by parts 2-5 of this rule on the division of property , receipt of alimony, the right to housing, surname.

But if we proceed from the concept of marriage, enshrined in Art. 21 of the Family Code of Ukraine, then this norm refers to the family union of a woman and a man.

So, in our practice, there were marriages that were later recognized as invalid on the grounds provided for by Articles 39-41 of the Family Code of Ukraine, the presence of which (obstacles to marriage registration) both parties knew and went to such registration deliberately, thereby hiding from the registry office their real intentions.

In particular, there were cases when both spouses knew that one of them was in a registered marriage, but registered the marriage in order to get an apartment.

In practice, there have also been cases when each of the spouses knew that the marriage was being registered not for the purpose of creating a family, but for the purpose of simplified acquisition of citizenship of Ukraine or another country.

In this context, in our opinion, negative consequences should arise for both spouses, and measures of responsibility should be provided for persons who have received some benefit from such registration of marriage.

On the other hand, liability measures will allow one of the spouses to blackmail the other, which is a more negative phenomenon.

Therefore, it is considered that in each specific case, when the negative behavior of both spouses, and not one of them, is found, the court has the right to proceed from the case materials and not apply negative consequences only to one of the parties.

For example, when it is discovered that an apartment was obtained from the state housing stock as a result of registering a fictitious marriage or a youth loan was obtained for a young family, negative consequences can occur for both spouses – both the apartment and the youth loan must be returned to the state, since a fictitious marriage should not this situation generate positive results for one of the parties.

In this case, the state will be considered the injured party and is entitled on the basis of Part 2 of Art. 218 Civil Code to claim damages.

If a person did not know and could not have known about the obstacles to registering a marriage, he or she has the right:

  • for the division of property acquired in an invalid marriage as the common joint property of the spouses;
  • to live in a dwelling in which he settled in connection with an invalid marriage;
  • for alimony in accordance with Articles 75, 84, 86 and 88 of the Family Code;
  • to the surname that it chose when registering the marriage.

The main condition of the commented norm is that the legislator called the consequences provided for in it special and their occurrence is possible provided that the person did not know and could not know about the obstacles to the registration of marriage, that is, it is believed that he acted in good faith.

Therefore, such a person has the right to:

  • division of property acquired in an invalid marriage as a common joint property of spouses, that is, the property is divided equally without taking into account the funds contributed to the acquisition of property;
  • living in a dwelling in which he settled in connection with an invalid marriage, in this case the provisions of Art. 65 Housing Code, that is, the consent of all family members to move into the apartment;
  • alimony (Articles 75, 84, 86, 88 of the Family Code of Ukraine);
  • the surname that it chose when registering the marriage.

It should be noted that this list is exhaustive.

So, if it is established that a person acted in good faith, then in the event of a marriage being declared invalid, the same consequences occur for him as in the case of divorce.

But in life, various legal situations arise that lead to the resolution of controversial issues by the court.

In particular, in our practice there was a court case on invalidation of a marriage, the plot of which is as follows.

In 1999, a marriage was registered between gr. P and gr. M. The couple lived together in Ukraine for about three years.

Three years later, that is, in 2002, the wife found out that her husband was in a registered marriage with a French citizen; a certificate of registration of such a marriage was found in the man’s personal documents.

But he explained to his wife that he needed to register this marriage in France at one time, since the possibility of his further employment in Paris at the firm of the father of his fictitious wife depended on this.

He does not maintain any relationship with his fictitious wife, and divorce is just a formality.

Therefore, the couple continued to live together until 2003.

In 2003, my husband left for France due to work needs.

And in 2005, his wife learned that his son was born from his first wife in France.

Such circumstances led to the fact that gr. M. in 2006 filed a lawsuit against her husband to declare the marriage invalid, referring to the fact that he was registered not for the purpose of creating a family (fictitious marriage), but out of mercenary motives, since her husband, with the help of this marriage, became the director of the Ukrainian-French firm “Renome”, the founder of which she was, and in addition, at the time of registration of their marriage, he was in another marriage, but he hid this fact from her. She asked the court on the basis of Art. 44 of the Family Code of Ukraine to recognize their marriage as invalid from the date of its state registration.

Together with the recognition of the marriage as invalid, the question arose about the division of property.

The wife believed that the property belonged to them on the basis of common shared ownership and should have been divided between them in shares, according to their participation in the acquisition of this property by their labor and means.

She received a salary – UAH 10,000 per month and dividends from the activities of her company, and her husband’s salary was UAH 1,000 per month.

However, her husband objected to the claim for recognition of the marriage as fictitious from the moment of state registration and justified this by the fact that since 2002 his wife knew that he was in another registered marriage with gr. France, however, she did not take any measures.

They continued to live together as spouses, and in 2005 they jointly acquired a four-room apartment worth US $ 300,000, which is to be divided equally between them.

The court had a number of questions when deciding this case, since in this case, that is, based on these circumstances, the consequences provided for by Art. 45 of the Family Code of Ukraine, as well as the consequences provided for by Art. 46 of the Family Code of Ukraine.

Therefore, based on the literal content of Part 1 of Art. 46 of the Family Code of Ukraine on the Special Legal Consequences of the Invalidity of Marriage (Clause 1, Part 1 – in the case of division of property acquired in an invalid marriage, the regime of common joint property of spouses is in effect) occurs only if the person did not know and could not have known about the obstacles to registration of marriage.

But, as can be seen from the plot of this civil case, firstly, the wife did not know which marriage was fictitious and believed her husband that she was in a real marriage, and the marriage with a French citizen was fictitious.

Secondly, the commented article talks about the obstacles to registering a marriage, and not after registering it.

Since the wife found out about the registration of the previous marriage only in 2002, and the marriage took place in 1999, it can be assumed that she did not know and could not have known about the obstacles to registering the marriage.

Therefore, if the wife had a lower income, then she could apply for the division of property acquired in an invalid marriage, as the common joint property of the spouses.

But she has the right to refer to the fact that according to Part 6 of Art. 45 of the Family Code of Ukraine, Part 2 of Art. 45 of the Family Code of Ukraine.

That is, a person had the right to choose the most favorable option for the division of property when registering a marriage.

Consequently, she has the right to demand that the court distribute property in the proportion: wife 10/11, and husband – 1/11 of the property acquired in marriage. The denominator of the proportion is determined by adding up the total funds received, that is, 10000 + 1000 = 11000, and when the numerator and denominator are reduced by 1000, the proportion is determined.

Other legal norms and the legal interpretation of the behavior of persons can be applied to this situation, because since 2002, the wife acted in bad faith, since she already had information about another registered marriage, but did not take the measures provided for by law to recognize the marriage as invalid.

Therefore, when declaring a marriage invalid from the moment of registration of the marriage, one cannot ignore the time period from 2002 to 2006 (from the moment of receiving the relevant information in the submission of a statement of claim to the court on declaring the marriage invalid).

So, in this period of time, Art. 74 of the Family Code of Ukraine, since one can formally say that the wife and husband lived in one family, both knew about the fictitiousness of their marriage, and they were not subject to the norms of the legislation on spouses, therefore, Art. 74 of the Family Code of Ukraine.

The property acquired by the spouses during this period can be divided in accordance with the regime of common joint property, since the behavior of both spouses should be considered unscrupulous, because after learning in 2002 about the obstacles to marriage registration, the wife lived with her husband alone for four years. family, was connected with him by a common way of life and acquired common property.

If we complicate this legal situation and solve it with a greater correspondence of the interests of all subjects, then in the decision, a French citizen should be involved as a third party on the defendant’s side, who has the right to declare her marriage to be fictitious and to present claims to the property acquired by the spouses, since such The “triangle” should be solved taking into account her interests as well.

As for living in a residential area of a person who does not know about the obstacles to registering a marriage and in which he settled in connection with an invalid marriage (clause 2), this person has the right to extend his residence in it. But it should be noted that in practice questions arise about the possibility of this person not only to live on the living space, but also the possibility of privatizing it.

So, for example, a wife who did not know about the obstacles to registering a marriage (the fact that the husband is in another registered marriage) settled in her husband’s apartment, which belonged to him as private property.

Therefore, if their marriage is recognized as invalid, she, according to this norm, has the right to live in the living quarters in which she settled when registering their marriage.

The question arises whether such an ex-wife can raise the issue of recognizing her ownership of the living space of her ex-husband, if during their cohabitation she significantly improved the condition of the apartment with her labor, money, as stated in the decision of the Plenum of the Supreme Court of Ukraine “On the practice of the courts’ application of legislation regulating the right of private ownership of citizens to a residential building” dated October 4, 1991 No. 7. In paragraph 5 of the Resolution there is an explanation that the house (and apartment), which belonged to one of the spouses, can be recognized in accordance with Art. 25 of the Code on Marriage and Family by the common property of the spouses, if during the period of marriage its value has significantly increased due to labor or monetary costs of the other spouse or both of them.

At the same time, the share of the wife to whom it belonged increases by the amount of the value of the house before its improvement, including in cases where the court deviates from the rule of equality of shares of spouses in common joint property, taking into account the interests of minor children or the interests of one of the spouses that deserve attention.

With this provision, it is advisable to add the point of view of scientists who believe that if a person did not know about the obstacles to marriage, the same legal consequences occur for him as in the case of divorce.

So, for a person who did not know about the obstacles to registering a marriage, the share of his improvement of the spouse’s property, which belonged to him (her) on the basis of private property rights, should be regarded as common joint property.

This provision also follows from Art. 62 of the Family Code of Ukraine, which states that if the property of the wife, husband during the marriage has significantly increased in its value due to general labor or monetary costs, or the costs of the second of the spouses, in the event of a dispute, it can be recognized by a court as an object of law common joint property of the spouses.

Such a person has the right to alimony (clause 3 of part 1 of article 46, articles 75, 84, 86, 88 of the Family Code of Ukraine) as in a legal marriage.

But it should be borne in mind that such incapacity for work occurred during an invalid marriage or within one year from the date of recognition of the marriage as invalid (the day of cancellation of the marriage registration certificate by the registry office or the entry of a court decision on the recognition of the marriage as invalid) and in other cases provided for Articles 75, 84, 86, 88 of the Family Code of Ukraine.

You should pay attention of specialists, in the list of articles on alimony on the forum of Art. 76 of the Family Code of Ukraine, but this is a flaw (gap) of the legislation, because in this norm it should rather be about Art. 76 of the Family Code of Ukraine, and not about Art. 75 of the Family Code of Ukraine, after all, it is the recognition of marriage as invalid that provides for the consequences referred to in Art. 76 of the Family Code of Ukraine.

Therefore, in this legal situation, by analogy, Art. 76 of the Family Code of Ukraine, which refers to the right to maintenance after divorce, which is generally equivalent to the recognition of marriage as invalid, provided that the person did not know and could not have known about the obstacles to registering the marriage.

In addition, in Art. 75 speaks of the universal right of one of the spouses to maintenance, the concepts are revealed, and in Art. 76 of the Family Code of Ukraine provides precisely the mechanisms and conditions for obtaining alimony after divorce.

Therefore, in the commented rule, it is the consequences that are of interest, that is, the alimony obligations of the unscrupulous party for the second of the spouses, who did not know and could not know about the obstacles to registering a marriage.

A person has the right to use the surname that he chose when registering a marriage (clause 4), if the marriage is declared invalid, if he did not know and could not know about the obstacles to registering a marriage, that is, it is believed that he is named with such a surname on a sufficient legal basis. basis.

But here one should proceed from the law and one should not confuse this right with an obligation, since the overwhelming majority of citizens, after a divorce or recognition of a marriage as invalid, change their surname and regain their surname, which they had before the registration of the marriage.

Family lawyer for invalidation of marriage in Ukraine

Family lawyer for invalidation of marriage in Ukraine

In deciding a case when a marriage is declared invalid, the most optimal is to contact a family lawyer for declaring a marriage invalid, 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 when the marriage is declared invalid;
  • 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.
The best way to save time and money in invalidating your marriage 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

Frequently asked questions to a lawyer in Ukraine

From what moment is a marriage invalid?
Can a marriage be invalidated if the wife is pregnant?
Does a person who did not know about the obstacles to registering a marriage have the right to divide the property acquired in this marriage?
Is it possible to evict a person who settled in another person's dwelling in connection with the registration of an invalid marriage with him?
Do you need a personal presence of the client in court?
What is your experience in family affairs?
What is the cost of legal services in your company?

If the article “Invalid marriage” was useful to you, please like it. We will provide you with the most relevant and useful information in the field of family law, as well as on current changes in the legislation of Ukraine.

Useful site materials advokat-family.com.ua:

  1. All you need to know about divorce
  2. Where to file for divorce?
  3. Grounds for divorce
  4. How to get a divorce in Ukraine
  5. Marriage
  6. Divorce if you are abroad
  7. Recognition of marriage as invalid
  8. Translator in the divorce cases
  9. Marriage with a foreigner
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