Common joint property of spouses

Common joint property of spouses in Ukraine

The right of common joint property of spouses in Ukraine

The property acquired by the spouses during the marriage belongs to the wife and husband on the basis of the right of common joint property, regardless of the fact that one of them did not have an independent earnings (income).

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

In the UK, the general provision is fixed that property acquired by spouses during marriage belongs to the wife, husband on the basis of common joint property, regardless of the fact that one of them did not have for a good reason (education, housekeeping, childcare , illness, etc.) of independent earnings (income).

It is necessary to draw the attention of specialists to the fact that this provision in the norm itself is not limited by any other conditions. At the same time, it is believed that this provision cannot be perceived without appropriate clarifications.

Family lawyer in Ukraine

Our lawyers are often asked questions: What is included in the concept of common joint property of spouses? How to sell the common joint property of the spouses?

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

Definition of jointly acquired property in Ukraine

So, in Art. 97 SK states that the marriage contract may determine that property jointly acquired by spouses will be considered:

  • common joint property;
  • common shared property;
  • personal private property of each of the spouses.

So, the greatest attention in the legislation is paid to common joint ownership, since the advantages of this method of distributing property are evidenced by the content of Chapter 8 of the SK and the absence of the corresponding chapter “Common joint ownership of spouses”.

However, the Family Code does not quite constructively set out the options for acquiring the right to common joint property, as one of the options for regulating the property rights of spouses.

In practice, there is often no distinction between common ownership with the definition of shares – shared ownership, or without defining shares – joint ownership.

There are no fundamental differences between these concepts, if you do not take into account the specifics of family (marital) relations.

Thus, common share ownership stipulates that the ownership of all acquired property will be divided in the appropriate, predetermined proportion – a share. The size of the shares of the spouses’ property is determined by the rules of the UK and the court.

Suppose that the construction team has agreed that everything they receive for the work performed will be divided equally – then the ownership of each of the workers will be determined by dividing the total by the number of workers.

Also, the right of common ownership arises for the heirs under the law, when the share of each of the heirs is determined by dividing the entire inheritance by the number of heirs.

The fact that the IC does not give the specifics of the definition and implementation of property rights indicates that this issue is regulated by the norms of the Civil Code, i.e. Articles 356-367 of the Civil Code, which regulate the property rights of each of the spouses.

Unlike common shared ownership, common joint ownership does not establish clear criteria for the distribution of acquired property.

Let us demonstrate this with an example of the transformation of property rights that can occur over time.

Example of acquisition of joint property in Ukraine

Suppose that a man and a woman began living together as one family in 1995, and in 1999 they were married. On this basis, it can be assumed that all property acquired before 1999 should be divided taking into account the contribution of each of the spouses to the acquisition of property.

For example, when one of the spouses received a salary of 300 hryvnias, and the other – 500 hryvnias, then the property during this period will have a common share ownership in proportion corresponding to their contribution, namely: 3/8 and 5/8 of property value.

If the spouses did not resort to the help of a lawyer to conclude a marriage contract at the time of marriage in 1999, then from 1999 on all acquired property the right of common joint property will apply.

The Difference Between Common Joint Ownership and Common Equity Ownership in Ukraine

In fact, common joint ownership differs from common shared ownership in that when common shared ownership arises, the shares of each co-owner must be clearly defined.

With regard to common joint ownership, it is only assumed that it will be equal, since by agreement or by law, grounds for departure from equality of shares can be established.

For example, when the share of one of the spouses is determined, the court may deviate from equality of shares if the increase in the share of one of the spouses is duly justified (Article 70 of the CK), in particular taking into account the interests of the children.

Attempting to make a comparison between common joint ownership and common shared ownership will not yield clear criteria.

Moreover, sometimes the right to common joint ownership can be absorbed by common shared ownership.

So, if a family builds a house, then in case of participation in construction, in addition to spouses and other family members, there will be not a common joint, but a common shared property, when each family member has the right to claim the allocation of his share of the house.

In addition, you can insist on the allocation of an appropriate share of the spouses, for example, for two or more families, the house can be converted to take into account all families and individual entities.

Therefore, the right to common joint ownership becomes an element influencing the distribution of common shared ownership and only later will become an independent criterion for the distribution of common joint property rights.

When it comes to the preemptive right of co-owners of property to purchase a share in the right of common shared ownership, then such a right differs significantly from the protection and protection of common joint property provided for by the IC.

Sale of a share in the right of common shared ownership in Ukraine

The norms of the Civil Code assume that in the event of a sale of a share in the right of common shared ownership in violation of the preemptive right of purchase, the co-owner can sue for the transfer of the buyer’s rights and obligations to him.

At the same time, the plaintiff is obliged to deposit to the court’s deposit account the amount of money that the buyer must pay under the contract.

At the same time, the law does not establish the conditions for the preliminary recognition of the sales contract as invalid.

That is, in fact, the buyer is deprived of his property without any conditions, which is difficult to agree with, since his rights in this situation are violated, and the provision on transferring not only the rights, but also the obligations of the buyer to the co-owner can be interpreted as an obligation to compensate the damage caused to the buyer. with which it is impossible to agree.

Claim for the Establishment of Common Shared Ownership in Ukraine

We believe that the plaintiff should apply to both subjects of this transaction with a claim to invalidate it on the basis of Art. 362 of the Civil Code and at the same time on the transfer of the rights and obligations of the buyer.

In this situation, the buyer will have the right to file a claim against the co-owner who violated the preemptive rights of other co-owners to sell the property.

It should be noted that this rule has general legal significance, and therefore does not determine the specifics of notarization of individual contracts for the sale of real estate.

So, according to Art. 42 of the Law of Ukraine “On Notaries”, the notary must be sure that when certifying the agreement, the rights of interested parties are not violated.

Therefore, without the consent of other co-owners, he does not have to certify the corresponding contract.

This provision gives rise to the general responsibility of the notary for the certification of the contract, which caused damage to one of the parties to the contract, which is due to the rights of third parties to the thing.

Therefore, in practice, this provision is quite often used to bring a claim against a notary with a claim for compensation for damage caused.

From the standpoint of a lawyer, such a claim is more balanced, since it is directed against a person who, in the overwhelming majority, is able to compensate for damage.

However, we believe that the notary is not obliged to compensate the damage caused to the buyer in full, since he is the subject who is responsible only for the legality of the contracts he is certified, and not directly the subject of contractual legal relations.

Therefore, when contacting a notary with a claim for reimbursement of the cost of an apartment under an agreement, the costs incurred by the buyer, the notary has the right to deny the validity of the claim on the grounds that the respondent for the return of the cost of the apartment must be the entity that received the appropriate funds – the seller (co-owner of the common shared property).

But you should pay attention to the aspect that when establishing the common shared property of the spouses, this provision will only concern the advantages of buying and selling property, and not all transactions.

So, in case of common shared ownership, the co-owner of the property (the second of the spouses) has the right to donate the share belonging to him and otherwise alienate it without the consent of the second of the spouses, who has the same right to alienate the property.

Every thing acquired during marriage, except for things of individual use, is the object of the law of joint joint ownership of spouses, respectively, this provision duplicates Part 1 of this provision, since all property acquired by spouses during marriage consists of things.

Family lawyer in determining the common joint property of the spouses in Ukraine

In resolving a case on common joint property of spouses, the most optimal is to contact a family lawyer for the division of the spouses’ property, which 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 benefits of going to family or divorce lawyers are:

  • the promptness of resolving the case on the joint property 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.
The best way to save time and money on common property between spouses is to seek the advice of a good family lawyer!

If you do not know how best to act in case of joint property of the spouses, call our family lawyers and they will help you sort out the situation!

Today, you can solve any issue remotely – to carry out the division of the spouses’ property and divorce online, just write to the messenger (Viber, Telegram, Whatsapp) to our family lawyers.

Frequently asked questions to a lawyer in Ukraine

Does it matter in the division of property that one of the spouses did not bring income to the family for a certain period of time?
Is the notary obliged to certify any property agreement of the spouses provided to 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?

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Useful site materials

  1. Division of property of spouses
  2. Amount of shares in the property of the spouses
  3. Imposition of foreclosure on the property of spouses
  4. Division of property in a civil marriage
  5. Personal private property of spouses
  6. Objects of the right of common joint ownership
  7. The right to property that has significantly increased during the marriage
  8. Exercise by spouses of the right of common joint property
  9. Disposal of property of spouses
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