Disposal of property of spouses

The spouses’ right to dispose of property in Ukraine

The wife, the husband dispose of the property, which is the object of the right of joint joint property of the spouses, by mutual agreement.

When concluding contracts, one of the spouses is considered to be acting with the consent of the other spouse. The wife, the husband has the right to go to court with a claim to invalidate the contract as one that was concluded by the second spouse without her, his consent, if this contract goes beyond the limits of a small household one.

For one of the spouses to conclude agreements requiring notarization and (or) state registration, as well as agreements on valuable property, the consent of the second spouse must be submitted in writing.

Consent to conclude an agreement, which requires notarization and (or) state registration, must be notarized.

A contract concluded by one of the spouses in the interests of the family creates obligations for the second spouse if the property received under the contract is used in the interests of the family.

Family lawyer in Ukraine

Scriabina Daria Sergeevna

Family lawyer

Our lawyers are often asked the question: Who can dispose of the spouses' common property? Do you need the consent of the other spouse when renting the common joint property to another person?

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

Property rights of spouses in Ukraine

Based on Art. 60 SK, and analyzing the common joint property of the spouses and the common shared property of the spouses, it can be concluded that in the case of common shared property, the spouses dispose of their shares independently, taking into account the preferential (privileged) right provided for by the Civil Code.

You should also pay attention to its name – “The right of spouses to dispose of property, which is the object of the law of common joint property of spouses,” where the word “order” is used, which in the science of civil law means the legally enshrined ability of the owner to independently decide the fate of the property by its alienation to other persons, changes in his condition and purpose.

In this regard, it can be concluded that the Family Code deals with transactions for the alienation of property that is in common joint ownership of the spouses who are its owners.

But this refers to the conclusion by one of the spouses of contracts requiring notarization and (or) state registration.

Based on the analysis of this provision of the law, it can be concluded that the consent of the second spouse will be required not only in case of alienation of property (donation, sale and purchase, exchange), which is the object of the right of common joint property, but also in cases when one of the spouses wishes to transfer in possession and use of property belonging to spouses on the basis of common joint ownership, in particular a building or other capital structure (their separate part) under a lease agreement for a period of one year or more, since such an agreement is subject to mandatory notarization and state registration.

A similar provision applies to contracts for the lease of vehicles with the participation of an individual, contracts for a loan of a vehicle, in which at least one party is an individual.

Therefore, such an important provision should be reflected in the UK or regulated in a separate article.

Common joint property of spouses in Ukraine

In the UK, the provision is fixed that the wife, the husband disposes of the property that is the object of the joint property right of the spouses, by mutual agreement, that is, in accordance with the principle of equality of the spouses’ rights to the property belonging to them (part 1 of article 70 of the SK).

This provision can be illustrated by such an agreement (most scholars consider a one-sided deal), as the will of the spouses.

So, according to the norms of the Civil Code, spouses have the right to draw up a common will regarding property that belongs to them on the basis of common joint ownership.

That is, when certifying this transaction, mutual consent turns out to be in the general expression of the will of the spouses to certify such a will of the spouses.

At the same time, common joint ownership obliges the co-owner, when certifying transactions, to take into account the rights and interests of the other co-owner.

The consequences of exercising the respective rights of the co-owner in accordance with Part 2 of Art. The 65 UKs are more clearly defined.

Thus, when concluding contracts, one of the spouses is considered to act with the consent of the other spouse.

The wife, the husband has the right to go to court with a claim to invalidate the contract as one that was concluded by the second of the spouses without her, his consent, if this contract goes beyond the limits of a small household contract.

Dispute on the division of property of spouses in Ukraine

It is believed that in the event of disputes regarding the distribution of property between spouses in a divorce through a court, cases on the alienation of the right to common joint property may be fundamentally different from the alienation of a share of common shared property according to the following criteria:

• when such a share is alienated, the law clearly establishes that such contracts should be recognized as invalid, but it does not say about the possibility and necessity of transferring the buyer’s right to the second spouse;
• potentially, the right of common joint ownership is concretized and cannot be considered unambiguously formulated, since it can increase or decrease taking into account the specific circumstances of the case (parts 2, 3 of article 70, parts 1, 3 of article 71 of the SK).

We believe that an agreement on the alienation of a thing related to the common property of the spouses without the consent of the other co-owner may be invalidated:

• on formal grounds, if such consent has not been obtained;
• if there is a violation of the rights of another co-owner, which cannot be compensated for at the expense of other property, for example, if part of the apartment was alienated, then the second spouse will find himself in a situation where he is forced to live with strangers, which is considered a violation of his rights.

In general, life situations indicate that sometimes one of the spouses can alienate common property during their life together, but without the consent of the other.

For example, sometimes citizens take valuable things out of an apartment (antiques, gold, equipment, etc.) and sell them significantly below their real price, but it is impossible to establish the buyer of such things. Therefore, it is impossible to recognize such a transaction invalid in court. But in order to protect the rights and interests of the other spouse, such things should be indicated by him as common joint property and may belong to property that passes to the spouse who sold such a thing, but at a market price, and not understated, that is, at the cost of this item must be reduced to the size of the property of the spouse who sold these things (part 2 of article 70 SK).

Interest in joint ownership is caused by the protection of the rights not only of persons directly involved in the transaction, but also of persons not participating in the notarial proceedings, but when the consequences of the performed notarial act can significantly affect the scope of their rights in relation to the object of the contract.

So, protecting the rights of persons not participating in the transaction, the occurrence of an offense is prevented, namely, a violation of the buyer’s right if the transaction is declared invalid.

When protecting the rights of persons who are not directly involved in the conclusion of the transaction, but are co-owners of property, the state gives preference to co-owners of the property, who have the right to transfer the contract of sale to themselves (and determine the size of the shares in the property of the spouses) or unconditionally recognize the contract of alienation of property as invalid ( common joint property).

Therefore, co-owners of property who are not directly involved in the conclusion of the transaction, but under the law endowed with the right of pre-emptive purchase of this property or the right to consent to the certification of transactions for the disposal of this property, are proposed to be called third parties in the transaction.

This is due to the fact that they are entitled to influence notarial proceedings due to the fact that the co-owners are personally interested in the results of the certified contracts.

So, the co-owners of the property must express their attitude to the contract certified by the notary, namely, its content, although this theoretical concept has not received the appropriate regulatory form until recently.

Until now, such persons are invited to express their attitude to the contract on its reverse side or in a separate notarized statement in the form of consent to the transaction.

Notarization of agreements on the alienation of a share in the joint property of spouses in Ukraine

Part 3 of this rule states that in order for one of the spouses to conclude agreements on the alienation of the common property of the spouses, requiring notarization and (or) state registration, the consent of the other spouse must be expressed in writing (part 3 of Art. 65 SK ) and presented to a notary.

But we immediately want to draw attention to the aspect that the Family Code deals only with the notarization of the contract. According to the notarial procedure, and proceeding from other norms of the law, then transactions are enshrined in them, which are subject to mandatory notarization.

These include:

• agreements on the alienation of real estate (purchase and sale, exchange, donation, donation, rent, lifelong maintenance (care), inheritance agreement of Articles 657, 715, 719, 729, 732, 745, 1304 Civil Code)
• mortgage agreements, agreements on the pledge of vehicles, space objects (laws of Ukraine “On mortgage”, “On pledge”, Art. 577 Civil Code)
• agreements on joint shared ownership of a land plot, purchase and sale of land plots, on the transfer of ownership and on the transfer of ownership of land plots, on the exchange of land plots that are allocated in a single array in kind (on the ground) to owners of land shares (shares) ( Articles 88, 128, 132, 142 of the LC, Article 14 of the Law of Ukraine “On the Procedure for Allocating in Kind (on-site) Land Plots to Owners of Land Shares (Units)”);
• contracts (sale and purchase) of privatization of state property, alienation of privatized property (laws of Ukraine “On privatization of state property”, “On privatization of small state-owned enterprises (small privatization)”);
• agreements on the division of property, which is the object of the joint property rights of spouses, on the provision of maintenance, on the termination of the right to maintenance in exchange for acquiring the right to real estate or receiving a one-time cash payment;
• prenuptial agreements, agreements between spouses on the amount and timing of the payment of child support, agreements on the termination of the right to child support in connection with the acquisition of ownership of real estate (Articles 69, 78, 89, 94, 109, 189, 190 SK)
• lease agreements for a building or other capital structure (their separate part) for a period of one year or more (part 2 of article 793 of the Civil Code);
• contracts for the hiring of vehicles with the participation of an individual, contracts for a loan for a vehicle, in which at least one party is an individual (part 2 of article 799, part 4 of article 828 of the Civil Code);
• real estate management contracts (Article 1031 of the Civil Code);
• other transactions for which the law provides for a mandatory notarial form of certification.

In addition, persons of their own free will can apply to a notary for certification of the transaction.

So, clause 35 of the Instruction on the procedure for performing notarial actions by notaries of Ukraine dated March 3, 2004 (hereinafter referred to as the Instruction), the provision is fixed that, at the request of the parties, other transactions for which a mandatory notarial form is not established, for example, agreements on the procedure for possession and use common property (dwelling house, manor house, apartment, garden house, summer cottage, land plot, etc.), on the determination of the size of the shares of the spouses’ property or on the change of shares, the contract of assignment, etc.

Therefore, in our opinion, in the UK we should talk about cases of mandatory notarization of transactions in relation to the common property of spouses, for the commission of which the written consent of the other spouse is required.

Notarization of the agreement on the division of the common joint property of the spouses in Ukraine

We emphasize that the IC stipulates two procedures for certifying transactions:

• when the consent of a third person – another co-owner of joint property, that is, the second of the spouses, is obligatory to certify the contract;
• when there is no need to submit such consent to the notary or the notary, under certain circumstances, can certify the contract without the consent of the other spouse.

This formula is laid down in para. 2, clause 44 of the Instruction “Transactions in spouses’ joint property rights of spouses requiring compulsory notarization and (or) state registration, as well as transactions in relation to other valuable property can be certified by a notary with the written consent of the other spouse.

The authenticity of the signature on the other spouse’s statement of consent to conclude such an agreement (transaction) must be notarized. ”

This provision of the Instruction corresponds to Art. 65 SK. We consider it necessary only to concretize that agreements on valuable property (part 3 of article 65 of the SK) differ from “small household” agreements.

So, according to Part 1 of Art. 31 of the Civil Code, a small household transaction should be understood as a transaction that satisfies the household needs of a person, corresponding to his physical, spiritual or social development and relating to an item that has a low cost.

That is, agreements on joint property and small household transactions differ in their value, which can be established by analogy with clause 3 of Art. 208 of the Civil Code, namely, transactions of individuals between themselves for an amount exceeding twenty or more times the size of the non-taxable minimum income of citizens, must be made in writing.

From the above paragraph. 2, clause 44 of the Instruction, it should also be considered that the notarial act of notarizing the consent of the other spouse to certify it should be considered separate from the certification of the transaction.

Problematic, the most difficult issue is the situation when consent to conclude a transaction to alienate the common joint property of the spouses is contingent on whether such transactions require mandatory notarization, in particular those regulated by clause 35 of the Instruction.

But it should be noted that the list given in this norm cannot be considered exhaustive.

The above provision should follow from the rule that transactions that do not require mandatory notarization are not among the most significant.

Let us consider this rule using the example of certification of transactions for the alienation of vehicles acquired by spouses while they are married.

Contracts for property rights that are subject to compulsory notarization in Ukraine

According to clause 35 of the Instruction, the following are subject to mandatory notarization: agreements on the pledge of vehicles, agreements on the hiring of vehicles with the participation of an individual, vehicle loan agreements, that is, the alienation of a vehicle is not necessarily notarized.

But according to clause 139 of the Instructions, when certifying contracts for the alienation of vehicles, other self-propelled vehicles and mechanisms that are the common joint property of the spouses, the consent of the other spouse is required, which is drawn up by a notary in compliance with the requirements for common joint property.

The grounds for recognizing the transaction as invalid in the decision of the Plenum of the Supreme Court of Ukraine are: the lack of consent of the other spouse to alienate the common property, if the agreement needed a mandatory notarization, or the court finds that the parties (party) to the agreement acted in bad faith (subparagraph d. 16 Resolutions “on judicial practice in cases of invalidating transactions”).

So, in case of unfair actions of the seller, the agreement (transaction) may be invalidated.

Therefore, in the interests of protecting the rights of third parties of the transaction and the rights of the buyer, the seller should be deprived of the opportunity to act in bad faith, not only when certifying transactions in a notary order, but also when certifying such contracts by other entities.

So, any entities that alienate transport and other objects belonging to spouses on the basis of common joint ownership must comply with the requirements of Art. 65 SK and, before certifying such contracts, obtain consent to alienation from the other spouse.

Application and consent of spouses to alienate or pledge joint property in Ukraine

If earlier the authenticity of the signature on the statement of the other spouse on consent to the alienation or pledge of common property had to be certified by a notary or by an enterprise, institution, organization in which he works or studies, a housing maintenance organization at his place of residence, or by the administration of an inpatient medical and prophylactic the institution in which he is being treated, then according to the current legislation, only a notarized consent must be submitted for notarization of the contract (part 3 of article 65 of the SK).

It is not required to verify the authenticity of the signature if the alienator’s spouse personally comes and submits a statement of consent to the alienation to the notary.

In this case, the notary identifies the applicant, verifies the authenticity of his signature, which makes a mark on the application, and indicates the name of the identity document, number, date of issue and the name of the institution that issued it.

The importance of the issue of the legality of contracts certified by one of the spouses with “outsiders” makes it necessary to analyze the provisions of the Instruction in more detail, namely par. 3 clause 44: “If the application of the other spouse on consent to alienate common property indicates to whom personally (surname, name, patronymic of an individual, name of a legal entity) he agrees to sell, donate, mortgage, etc. jointly acquired property, or the sale price, other conditions for concluding a transaction are indicated, the notary, when certifying it, is obliged to verify compliance with the conditions specified in such a statement. “

It is clear that non-observance of the conditions set forth in the application deprives it of legal force, but the above list of conditions for consent to alienation is not entirely adapted to certain types of transactions.

So, when certifying a sale and purchase agreement, an essential condition of the contract is the price, and not the subject, to make the purchase, while when donating for the other spouse, the price of the property does not play a significant role, and the subject to whom the property should be donated comes to the fore.

Therefore, notaries, when certifying consent to the alienation of property, should pay attention to essential and unnecessary conditions of consent.

For example, if, as a result of a preliminary agreement with the buyer, one of the spouses shows consent to sell the property at a certain price and to a certain entity, then the other spouse will not be able to sell the property at a lower price to another entity, which will significantly complicate the task of selling such property.

Consent to alienate property in Ukraine

Consent to the alienation of property can be formalized by a corresponding statement of one of the spouses, as well as by certifying a power of attorney. In particular, in paragraph 4 of Art. 720 of the Civil Code states that a donation agreement on behalf of the donor can be concluded by his representative, and the instructions for concluding a donation agreement, which does not indicate the name of the gifted, is null and void.

In this case, the attention of the other spouse should be drawn to the characteristic features of consent to the alienation of joint property and the power of attorney for such alienation.

If the person has not indicated how long such consent is valid, then by analogy with clause 55 of the Instruction, it can be considered that it will be valid only for three months.

At the same time, if the validity period of the power of attorney has not been established, then Art. 247 of the Civil Code and it remains in force until its termination.

Although it is believed that the period of validity of the consent to the alienation of property belonging to the spouses should be established by law or regulated in the consent itself.

The same provision applies to the alienation of common shared ownership (paragraphs 51-59 of the Instruction).

We believe that the current Art. 65 SK should be perceived more broadly than this provision was previously regulated by the CoBS, since it states that in order for one of the spouses to conclude contracts requiring notarization and (or) state registration, as well as contracts on valuable property, the consent of the other spouse must be submitted in writing.

That is, this rule establishes a general requirement both for the seller of the thing belonging to the spouses and for the buyer, who must also act only with the consent of the other spouse.

That is, it is transformed here that in the purchase and sale agreement, on the one hand, a valuable object of the right of common ownership “appears”, and on the other, an equally valuable object – a certain amount of money.

So, the modern doctrine of the middle class provokes the need to take into account the rights of spouses when acquiring valuable things, and not only when they are alienated.

At the same time, the Instruction on the Procedure for Performing Notarial Actions by Notaries of Ukraine (Clause 45) of 2004 already takes into account the terms of the marriage contract.

However, the terms of a marriage contract for the property legal relationship of spouses in marriage should take into account the possibility of regulating the rights and obligations of spouses when certifying contracts.

These and some other problematic issues, in our opinion, should be considered not only from the standpoint of the rights of individuals, but also from the standpoint of the notarial process, which requires certainty of the rights and obligations of a notary in notarial legal relations.

When commenting on part 4, which states that an agreement concluded by one of the spouses in the interests of the family creates obligations for the second of the spouses, if the property received under the agreement is used in the interests of the family, the opinion is broadcast that the second of the spouses by giving consent to certify the transaction in relation to the spouses ‘common property, for example, to certify the contract for the sale of the spouses’ apartment, thereby confirming the general expression of will for such alienation.

Therefore, the consequences of the recognition of such an agreement as invalid, if what was obtained under the agreement is used in the interests of the family, also apply to the spouse who gave such consent, that is, they create obligations for the second of the spouses.

Family lawyer for the disposal of the spouses’ property in Ukraine

In resolving a case when disposing of spouses’ property, the most optimal is to contact a family lawyer for divorce and division of 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 advantages of going to lawyers or divorce attorneys are:

• the efficiency of solving the case when disposing of the 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.

Daria Sergeevna Scriabina

Family lawyer

The best way to save time and money when disposing of spouses' property is to seek the advice of a good family lawyer!

If you do not know how best to act when disposing of the spouses’ property – call our family lawyers and they will help you understand the situation!

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