Division of property of spouses

Division of property of spouses in Ukraine

The spouses’ right to division of property in Ukraine

The wife and husband have the right to share property belonging to them on the basis of common joint property, regardless of the dissolution of the marriage.

The wife and husband have the right to share property by mutual agreement.

An agreement on the division of a residential building, apartment, other immovable property, as well as on the allocation of immovable property to a wife or husband from the entire property of the spouses, must be notarized.

The right of common property of spouses occupies the main place in the system of property relations between them.

The decisive factor here is the principle of the community of property acquired during the marriage, as well as the fairness of its distribution. This position is so ingrained in our consciousness that we cannot think otherwise.

The property belonging to the spouses on the basis of the right of common ownership can be divided between them in different ways and methods and at different intervals.

As for the method and order, they should include: voluntary (contractual) – through a notary and controversial – through the court. Property can be distributed between spouses, both during marriage and after divorce through a court or registry office, after the death of one of the spouses, both in a notary and in court.

When it comes to the division of property in a contractual manner, that is, with a notary, the latter, when distributing property belonging to spouses on the basis of common ownership, must distinguish between common joint and common shared ownership, since, as noted above, the legal properties of these types of property differ significantly.

Therefore, it should be established when the property belongs to the spouses according to a certain type of joint ownership. The sources of differentiation of these types of property are due to the methods of acquiring property.

Family lawyer in Ukraine

Our lawyers are often asked the question: How to divide the property of the spouses? Does the property that one of the spouses received as a gift for the conclusion of marriage belong to common joint ownership? Who issues certificates of ownership for a share in the common property of spouses?

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

The emergence of common shared ownership of the spouses in Ukraine

When property was acquired during marriage, then the spouses, as a general rule, have the right to common joint ownership, unless otherwise stipulated by the marriage or other contract.

An exception to the general rule can be considered cases when the spouses have a common shared property:

  • when both spouses become heirs by law after the death of their child or when they are indicated in the will as heirs;
  • in the case of the conclusion of a donation agreement between a person regarding premarital, donated or inherited property by one of them, as well as when the transferred property is acquired at the expense of premarital funds;
  • when, according to a marriage contract, property is considered to be a common shared property;
  • when the property belongs to one of the spouses and it generates income, then the common property of income is also considered the personal property of one of the spouses (Article 58 of the SK), unless otherwise provided by an alimony or marriage contract, or a court decision, in particular, on the recovery of alimony or okay h. 2 tbsp. 62 SK.

Therefore, it is necessary to separate the common joint property from the common shared and private (personal) property. In practice, this is very difficult to do, as will be discussed in the next material, but certain artificial complications are also due to Part 1 of Art. 71 of the UK, in which the common joint property is supposed to be divided only in kind.

It is believed that spouses have the right to leave the regime of joint ownership by concluding a marriage contract, in which they must stipulate that for some time now, the rules of common shared ownership have been applied to settle their own legal relations.

A peculiar way of allocating a share of the property of the spouses may be the option when both spouses agree to the separation of objects of common joint property and the consolidation of the right of private ownership of the thing by one of the spouses.

Or, conversely, one of the spouses can give the other half of the thing, the right to which he received in marriage or as a result of inheritance or donation.

If the property legal relationship of the spouses is subject to the joint ownership regime, then this thing will receive the status of common shared ownership, when each of the spouses will have equal rights to it, that is, 1/2 part.

If the thing is donated to the spouses, then such thing will become an object of common joint ownership, unless otherwise stipulated in the contract.

Consequently, we can talk about possible options for transforming the rights to things from private to common shared or joint ownership.

Therefore, the task of notaries to establish ownership of a thing cannot be called simple.

Home rights dispute in Ukraine

The concept of “common joint property” is a legal term and many ordinary citizens may live their lives and not understand the differences between the given terms.

For example, a spouse built a house and live in it until old age. When they die, their children can continue to live in this house without any formalization of rights.

This can go on for decades, but in legal practice there are cases when such a quiet life stops and the question arises of who does own this house.

Such cases include:

  • first of all, disputes about the rights to the house, for example, in the case discussed above – when a dispute arises between children;
  • the most common situations are related to divorce, when the question arises that the house, jointly built by the spouses, needs to be divided;
  • when one of the co-owners intends to appropriate a part of the house belonging to him;
  • in the case of proper registration of rights to the house and the like.

In such cases, the question arises as to who and what share of the house belongs to the right of ownership and who has the right to dispose of it.

After all, joint property is subject to distribution.

It should be noted that the issue of the distribution of the common joint property of spouses is not always adequately perceived, both by practitioners and theorists, and therefore most experts associate the distribution of common property only with a certificate of ownership of a share in the common (joint) property of spouses, issued by a notary for their application, the form and content of which are fixed by the rules of notarial office work (Articles 34, 70, 71 of the Law of Ukraine “On Notaries”).

Certificate of ownership in Ukraine

Let us analyze the form of the certificate of ownership of the share in the common property of the spouses in the sense in which it is normatively fixed.

From the name of this certificate it follows that it can be applied to both common joint property and common shared property, although additional information about the type of certificate indicates that it is recommended for determining at their request ”.

Moreover, Chapter 8 of the Law of Ukraine “On Notaries” deals with the issuance of a certificate of ownership of a share in the common property of spouses, and not in common joint property.

Therefore, it is considered that there is a prohibition on the issuance of a similar certificate of ownership of a share in a common shared property.

In the specialized literature, draft certificates are proposed that correspond to the principle of freedom of contract, which is confirmed by references to laws and freedom of contract, in particular, between spouses.

There are significant remarks to this form of certificate, since in its foreground only the position of a state notary is determined, but legal practice shows that according to the Presidential Decree “On the regulation of the activities of notaries in Ukraine” dated August 23, 1998 N 932/98 and the Law of Ukraine “On notaries »Private notaries have the right to issue such certificates.

Also, the Instruction on the procedure for performing notarial acts by notaries of Ukraine under private notaries recognizes the authority to perform notarial acts – the issuance of a certificate of ownership of a share in the common property of spouses, except in cases of death of one of the spouses.

Therefore, it is still advisable to assume in the form that private notaries have the right to certify the certificate upon a joint application of the spouses.

It is clear that references to the norms of the Marriage and Family Code in Form 12 should be changed to the Family Code, but it is considered advisable to refer to the special norms that govern notarial activity, that is, the norms of the Law of Ukraine “On Notaries”.

Since Form 12 only refers to the statement of the spouses and clarifies the need to submit such an application in writing.

But such a statement, even in writing, cannot exempt the notary from checking the spouses’ ownership of the property that will be defined as common.

Moreover, the spouses could have entered into a marriage contract, and therefore the question will arise about the consistency of its provisions with this certificate.

So, it is believed that along with the statement of the spouses, information about the existence of the marriage contract must be indicated.

The title of the certificate is based on shared ownership, not distribution. In fact, when it comes to the division of common property, the certificate should be called “Certificate of ownership of spouses in common joint or shared ownership.”

Therefore, the imbalance in the name and content of the certificate is hidden in the following phrase: “The property is marked, the ownership of which is issued a certificate, in whose name it was registered, or by whom it was previously recognized”, since from this phrase it can be concluded not about the nature of the ownership evidence, but about its contractual content.

That is, the notary can “testify” to who previously owned the property and to whom it will belong according to the certificate, that is, the certificate is proposed to record the transfer of ownership.

But the transfer of ownership should be fixed by an agreement, not a certificate. Therefore, the certificate should establish the right of ownership only to the property that was jointly owned, and did not belong to one of the spouses on the basis of personal (private) property rights.

It is the legal status of common property that can be changed by a certificate of ownership of common property.

For example, if it is confirmed that the car was purchased during the marriage, then these circumstances can be established: the date of purchase of the car on the basis of a contract of title for the purchase of the car, and when registering a marriage – a marriage registration certificate, passport.

Then we can talk about certain grounds for the distribution of such a car along with other property belonging to the spouses.

In this case, the notary, upon the application of the spouses, can enter information about any property in the certificate, but it is advisable to indicate only the one that is subject to registration.

However, in order to balance the shares of each of the spouses, it is necessary to contribute all the property that appears in the agreement of the spouses on the division of the common property.

A joint analysis of forms 12, 13, 14 of certificates makes it possible to say that not all conditions are clearly established in their content, since according to Articles 70, 71 of the Law of Ukraine “On Notaries”, a certificate can be issued to any of the spouses as during their stay in marriage, and after the dissolution of marriage, as well as in the event of the death of one of the spouses.

Therefore, it is considered that in the certificates it is advisable to regulate the question of what status the spouse has at the time of certification of the certificate, since this information has legal significance.

So, in the event of the death of one of the spouses, a certificate of ownership in the name of the deceased is a formality, since there is no point in obtaining it.

The heirs will receive a certificate of ownership of the inheritance, and the spouse will receive the certificate itself, then for whom Form 13 is issued remains unknown.

Forms of distribution of common property in Ukraine

If we perceive the common property as multifaceted, then there are many options for registration, both the acquisition and the division of the common property.

In particular, with the consent of both parties, the division of common property can be carried out in the following forms:

  • by certifying the marriage contract, when its terms include specific conditions for acquiring the right to common share, joint ownership or private (personal) property of each of the spouses, also by making additions and changes to the marriage contract, if the spouses have not dissolved the marriage;
  • by certifying the corresponding independent contract, which is not prohibited, both during marriage and after its dissolution, in particular in contracts for the acquisition of property, it is possible to indicate not one owner, but both spouses;
  • through the issuance of a certificate of ownership for a share in the common property of the spouses. This issue acquires particular importance in cases where the spouses do not get divorced, but intend to dispose of some thing, and not the entire share at their discretion.

That is, in this situation, we can even talk about the separation of one thing from the common property and compensation of its value to the spouse with other things or money.

Therefore, the proposed option to preliminarily conclude an agreement on the size of the parts is not consistent with the described concept, since neither the application, nor, even more so, the previous transaction should not be mandatory documents for the performance of notarial proceedings for the issuance of a certificate of the right to a share in the common property of the spouses.

All of the above material concerned such a method of division of the spouses’ common property as a contractual one, since such a division of property is carried out by the spouses by their mutual consent through a notary.

Distribution of property belonging to spouses on the basis of the right of common joint property, by their common consent at a notary, can be carried out regardless of the dissolution of the marriage and the statute of limitations.

If the spouses during the marriage certify the agreement on the division of a residential building, apartment, other immovable property, as well as on the allocation of immovable property to the wife, husband from the entire property of the spouses, then such an agreement must be notarized and subject to state registration.

Similarly, the issue is resolved regarding jointly acquired property by spouses during marriage, after its dissolution.

In addition to the notarial procedure for the distribution of the property of the spouses in kind, which is the object of common joint ownership, there is another way of its division – controversial – judicial.

But even after one of the parties goes to court, a simple way to resolve the dispute is an amicable agreement, in which the parties make mutual concessions regarding their rights and obligations in relation to common property.

Such an agreement is approved by the court and is subject to voluntary execution by the parties. The property between the spouses can be distributed on the basis of a court decision.

But we believe that the importance and role should belong to lawyers for the division of property in the settlement of family relations, in particular, regarding the division of the common property of spouses.

In the modern legal practice of Ukraine, the preliminary joint solution by the lawyers of both parties of the main problematic issues of the distribution of common joint property is practically not applied in Ukraine.

Although, in our opinion, the preliminary settlement of issues on the division of common property between spouses by their lawyers has positive aspects.

Such an institution takes place in the civil proceedings of England, when the lawyers of the parties first meet, disclose evidence and try to resolve the issues of their clients amicably or in court by concluding an amicable agreement.

Cooperation of the lawyers of the parties regarding the previous solution of issues is not regulated by the law, therefore it is not applied in practice.

But this can be explained by the fact that many lawyers are accustomed to solving cases only in court, and sometimes they are not able to find mutually beneficial options for resolving disputes without a trial, because: on the one hand, they are accustomed to the help of the court, on the other, they do not know how to calculate their own fee for the time spent , associated with the search for compromise options, and they use only tariffs – the amount of time spent in court, in proportion to the cost of such time, is the fee of individual lawyers.

Therefore, in our opinion, many non-professional lawyers make money precisely on the fact that they often go to courts, and the client pays them not for the provision of qualified legal assistance, but for the time spent.

Therefore, a compromise solution of a dispute between spouses is simply unprofitable for individual lawyers. Sometimes the clients themselves or one of the spouses try to complicate the life of the spouse and thus avenge the divorce or other guilt, but they do not understand that they are acting to their own detriment.

It follows that property lawyers should persistently recommend to clients the ways of a compromise solution of disputes.

Certain tendencies towards the resolution of disputes between spouses by concluding an amicable agreement are often revealed even by judges.

So, the judges at the court session can repeatedly propose to the parties to conclude an amicable agreement.

This can also be easily explained by the fact that when the settlement agreement is approved, the judges save a lot of time and the like.

That is, the judges are also interested in the dispute being resolved by establishing an amicable agreement.

Sometimes the parties find themselves in desperate legal situations when they stand on the “principle” that the case should be resolved only in accordance with their requirements, and the “uncompromising struggle” of the parties only leads to a delay in the process of considering the case, as well as to unnecessary waste of time, money and nerves.

For example, the distribution of a one-room apartment in kind is not possible, and therefore it remains only to establish to whom it will be awarded in kind, and who will receive compensation for it. Compensation is provided by law only with the consent of the person, while other options are not provided by law for such cases.

Therefore, confrontation in such cases is doomed to “eternal” appeal against court decisions, unless a compromise solution is found.

Problematic situations in resolving cases on the division of common property in Ukraine

Here are the problematic situations that lawyers face when deciding cases on the division of common property.

An interesting way of distributing the common property of the spouses was the case when one of the spouses announced that he wanted to separate movable and immovable property, which was the common property of the spouses.

Interesting in this situation is that the judge accepted such statements and did not resolve the issue of joining the claims into one proceeding, although there was every reason for this and the defendant requested this.

Moreover, when the second of the spouses filed a counterclaim and asked to combine it with the original claim regarding immovable property, which was the apartment, since he also claimed the division of the privatized apartment, the judge refused such a merger.

The presentation of the initial claim for the division of the real estate object separately from the movable property is understandable, since it only required recognition of the common ownership of the apartment in marriage, acquired through the execution of a sales contract for only one of the spouses.

The purpose of such a claim: in this case, the plaintiff pays a lower state fee – 3 non-taxable minimum – UAH 51, and the cost of the apartment is not estimated, therefore, the real state fee does not need to be paid.

Although the prospects for such a case are very dubious, since the recognition of the right to common ownership of such an apartment is an intermediate stage, and therefore it will still be necessary to divide the apartment in kind.

Therefore, the division of claims into two separate claims in relation to immovable and movable property does not always justify itself, since sometimes it only delays the final decision of the case.

In this situation, when the plaintiff filed two statements of claim and the defendant filed a counterclaim, three cases have already arisen, but this did not end the process of dividing the common property.

So, the parents of the defendant, as third parties with independent claims, filed a claim for the return of the debt, since they provided funds (loan agreement) to their son for the purchase of an apartment, which was the object of a dispute between the spouses.

In such a situation, their statement of claim as third parties with independent claims on the subject of the dispute should have been considered together with the initial claim for recognition of the right to common ownership of the apartment, in addition, they insisted on considering such cases in one proceeding.

The court, in violation of the law, began to consider these cases separately, although third parties insisted on their simultaneous consideration and refused to join the cases and considered them in parallel – separately – already four cases that relate to practically the same legal relationship.

In principle, this position of the court can be criticized, if only because all the common joint property of the spouses acquired during marriage, and not a separate part of it, is subject to distribution.

All common joint property is the subject of cases on the division of property jointly acquired during the marriage. Therefore, it is difficult to agree with the position taken by the court.

This position of the court is also conditioned by such a negative aspect that the likelihood of reaching a consensus and resolving the case by concluding a settlement agreement is practically reduced to naught.

Formally, the settlement agreement can be approved by the court in the case, and not in several cases, except that there can be mutual credits here.

That is, the possibility of concluding an amicable agreement in several cases concerning the common joint property of spouses is not provided for in the Code of Civil Procedure, since the possibility of combining several claims into one proceeding has been determined.

In the same situation, it should be said that such an amicable agreement in several cases is not provided for by legislation, but it is not prohibited either, and therefore it is possible, at least based on the analogy of law.

Of fundamental importance is the question that the consolidation of several claims into one proceeding should contribute to a reasonable and objective solution of the case, reduce the time that should be spent on consideration, and the like.

There are times when the cost of debt increases significantly if it was given purposefully for the purchase of a certain property. That is, the objective condition for the return of the debt should be the circumstance – to achieve what goal the money was lent.

For example, if this was not agreed, then the money has no connection with the object on which it was spent. For example, money was lent to one of the spouses, but without any conditions for their use, then, firstly, the obligation of the other spouse to jointly return these funds is not traced, since it becomes unknown what needs they were used for.

Secondly, when funds are provided for the purchase of a certain property and it is preserved in kind, then it can be assumed that the creditor agreed with the prospect of acquiring just such property, and therefore he has the right to claim the acquired property if the debtor is not able to repay the debt.

If the debtor has spent the money for other purposes and is not able to return it, in the event that one of the objects cannot be compensated for at the expense of other property.

For example, an expensive car, as a rule, cannot be compensated for by the cost of furniture, therefore, one of the spouses is awarded a car in kind, and the other – other movable property, while the value of the property is deducted from the value of the car and the spouse can be awarded the difference as compensation for the difference. in the value of the property received.

Therefore, the parties will compete in the process for promising property.

Family lawyer in the division of property of spouses in Ukraine

In resolving a case in the division of spouses’ property, the most optimal is to contact a family divorce lawyer, who will help you quickly and efficiently resolve the case in your favor.

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

The advantages of going to family law lawyers are:

  • efficiency in resolving the case when dividing 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.
The best way to save time and money when dividing a spouse's property is to seek the advice of a good family lawyer!

If you do not know how best to proceed when dividing the spouses’ property – call our family lawyers and they will help you sort out the situation!

Today you can solve any issue remotely – online, just write to the messenger (Viber, Telegram, Whatsapp) to our family lawyers.

Frequently asked questions to a lawyer in Ukraine

Does the question of the division of property arise only when the spouses divorce?
Does the property that one of the spouses received as a gift for the conclusion of marriage belong to common joint ownership?
Who issues certificates of ownership for a share in the common property of spouses?
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 “Division of the property of spouses” was useful for 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. Amount of shares in the property of the spouses
  2. Imposition of foreclosure on the property of spouses
  3. Division of property in a civil marriage
  4. Personal private property of spouses
  5. Common joint 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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