✅ Amount of shares in the property of the spouses

Amount of shares in the property of the spouses

Our family lawyers are often asked the following questions: How to divide the property of the spouses? What is the appraisal of the property during the division? How to draw up an agreement on the division of spouses' property?

On our website advokat-skriabin.com you can familiarize yourself with the topic: “The size of the shares of the spouses’ property” and, if you have any questions, seek legal advice from our family lawyers and lawyers who will provide you with legal services in family matters.

Amount of shares in the property of the wife and husband in the division of property

  1. In the case of division of property, which is the object of the law of joint joint property of the spouses, the shares of the property of the wife and husband are equal, unless otherwise determined by an agreement between them or a marriage contract.
  2. When resolving a dispute on the division of property, the court may deviate from the principle of equality of shares of the spouses in circumstances of significant importance, especially if one of them did not care about the material support of the family, avoided participating in the maintenance of the child (children), hid, destroyed or damaged common property , spent it to the detriment of the interests of the family.
  3. By a court decision, the share of the wife’s or husband’s property may be increased if children live with her, as well as an incapacitated adult son, daughter, provided that the amount of alimony they receive is insufficient to ensure their physical, spiritual development and treatment.

Determination of shares of property in common ownership of spouses

The judicial division of property cannot take place without preliminary determination of the shares of each of the spouses in the common property.

That is, the court must first of all determine their shares in common property and only after that decide the issue of the division of property.

Of course, what has been said does not mean that a claim must first be filed for the establishment of shares in common property, and after its consideration, it is necessary to apply to the court with a new claim for the division of common property.

Civil procedural legislation allows you to combine several related claims in one statement of claim.

In our opinion, it is precisely this kind of coherence that exists in the claims for the determination of shares between spouses and the division of their common property, since they are homogeneous in terms of their legal content.

Moreover, as a rule, it is legally impossible to carry out the division of the spouses’ common property at all without defining the shares of each of the spouses in it, especially when one of the spouses requests an increase in the size of his share.

Actually, in all other cases, the court is somehow forced to state that both spouses have the right to 1/2 of the ownership right in jointly acquired property, guided by the presumption of its community, established by marriage legislation.

He must do this even when the spouses have come to an agreement on the size of the shares on their own, noting this fact in their decision.

In this regard, it was noted in the literature that the division of property is carried out in two stages:

  • firstly, the court determines the size of the particles of the spouses in the right to property;
  • secondly, it carries out the division of property in accordance with the established particles.

Meanwhile, as evidenced by judicial practice, plaintiffs mainly file claims only for the division or division of common property, according to which the court makes a decision not only on the division (distribution) of property, but also on the determination of the spouses’ shares in it.

In separate statements of claim, plaintiffs apply directly with a demand for the division of property in equal shares.

That is, in such claims, the requirements for the division of common property and the determination of the shares of spouses in this property are actually identified, despite the fact that marriage and family legislation does not give grounds for such an identification, because it assumes that in the case of division of property, which is common joint property of the spouses, their shares are considered equal.

This means that the court can carry out the division of property after determining the ideal share of each of the spouses in their joint property.

However, even if neither of the spouses requires an increase in the size of their share, the court is obliged to carry out the division of the common property in equal shares.

Departure of the Court from the Principle of Equality of Shares

Obviously, the creation of such a somewhat ambiguous legal situation was facilitated by the arrangement of provisions on the size of the spouses’ shares and on the division of their common property in two separate articles.

The UK provides for the possibility for the court to deviate from the principle of equality of shares of the spouses in circumstances of significant importance, in particular, if one of them did not care about the material support of the family, avoided participating in the maintenance of the child (children), hid, destroyed or damaged common property, spent it to the detriment of the interests of the family.

In the original version, among the grounds for deviating from the principle of equality of shares of spouses in common joint property, there was no reference to the fact that one of them avoided taking part in the maintenance of the child (children).

The UK defines only an indicative list of specific grounds for the court to deviate from the principle of equality of shares in matrimonial property.

This approach to determining the shares in the common property of the spouses found support in the judicial practice of the period of independence of Ukraine.

If the relevant interests of the children or one of the spouses were not taken into account, then this was considered as a basis for canceling the court decision.

However, such categoricalness of the higher courts is to a certain extent questionable.

The fact is that the norms of Art. 28 CoBS cannot be recognized as constructively successful because, firstly, it does not define the specific interests of one of the spouses, which deserve attention to deviate from the principle of equality of shares in common marital property, and secondly, it only states that in some cases the court may deviate from the principle of equality of shares of the spouses “, that is, the amended norm does not oblige the courts to deviate from the principle of equality of shares in favor of one of the spouses.

Therefore, in the new family legislation, an indicative list of the interests of minor children and one of the spouses is more specific; the court must take into account, when deviating from the principles, the equality of shares in the common property of the spouses.

Such interest may be due to the need to provide treatment and care for minor children or one of the spouses, the impossibility of satisfying the children’s residential interests at the expense of an equal share in housing.

In our opinion, the range of grounds for increasing the share of one of the spouses should not be too broad and not subject to broad interpretation.

At the same time, the interests of the other spouse, whose share is decreasing, should not be significantly infringed.

Example of a court derogation from the principle of equality of shares

Indicative in this respect is the case of M.’s claim against P. for divorce and recognition of ownership of half of the house.

The plaintiff, in particular, noted that while he was married, he and the defendant had acquired 2/5 of the house in Cherkassy, ​​they have two children from marriage, for the maintenance of which he pays alimony.

By the decision of the People’s Court of the city of Cherkassy M.’s claims were satisfied.

The Chairman of the Supreme Court of Ukraine brought a protest against this decision to the Presidium of the Cherkasy Regional Court, and satisfied the protest.

In her ruling, she noted that the protest is subject to satisfaction, since the court may deviate from the principle of equality of shares of the spouses, taking into account the interests of minor children or the interests of one of the spouses that deserve attention.

Recognizing the shares of each of the parties as equal, the court did not explain why it did not take into account the fact that two minor children remained with the defendant, and why it considered it possible to deviate from the principle of equality of shares of the spouses.

The defendant, however, referred to the fact that the area of the disputed part of the home ownership is only 23 m2 and its division into two parts significantly infringes upon the interests of children, since the area of 17 m2 is not sufficient for three people, and the plaintiff lives in a communal apartment and does not need housing.

On the basis of the above, the Presidium of the Cherkasy Regional Court ruled to satisfy the protest of the Deputy Chairman of the Supreme Court of Ukraine, and send the case regarding the division of the house for a new trial.

An analysis of the above case gives grounds for the conclusion that the court must justify not only a deviation from the principle of equality of shares, but also a refusal to increase the share of one of the spouses.

In Art. 70 SK established the legal basis for determining the size of the shares of spouses in common property when it is divided.

Grounds for derogation from the principle of equality of shares

While maintaining the principle of equality of the spouses ‘shares in common property in the course of its division, the principle of equality of the spouses’ shares in the common property was introduced in the Soviet Union during its division, the legislator, at the same time, predicted many reasons for deviating from this principle.

As already noted, accordingly, when resolving a dispute on the division of property, the court may deviate from the principle of equality of shares of the spouses under the circumstances listed in it, in particular, if one of them did not care about the material support of the family, hid, destroyed or damaged common property, spent it in damage to the interests of the family.

An analysis of the above provisions gives grounds for comments on their content.

Firstly, attention is drawn to the fact that the UK has included too wide a range of grounds for the court to deviate from the principle of equality of their shares in the division of the spouses’ common property, some of them will be difficult to interpret and ineffective in application.

And in general, there are doubts about the advisability of taking into account the fact of damage to common property.

Should it be deliberate, careless, accidental?

Finally, the statutory provision on the need to take into account circumstances of “material importance” may lead to such an excessive number of circumstances of significant importance, which negates the effect of property equality of the spouses.

We believe that the excessive number of such grounds only destroys the foundations of the spouses’ equal rights to the common joint property created by them.

Secondly, unlike Art. 28 KBS, which provided the court with the right to take into account certain interests of minor children, in the UK it was proposed to increase the share of one of the spouses, provided that “children live with him”.

Meanwhile, the very fact that a minor child lives with one of the parents, in our opinion, still does not at all indicate the urgent need to increase the share of such a father in the common property, if the interests of these children can be fully satisfied at the expense of an equal share in the common property.

Meanwhile, the content of the above article is not completely new for legislative practice.

However, marriage and family legislation did not contain such a norm. Despite this, it is believed that the rights of spouses to property cannot be equal in the event of bad faith behavior of one of them and, accordingly, it is considered correct judicial practice, to recognize the reasons for reducing the share of one of the spouses in common property rights such as:

  • spending money to the detriment of the interests of the family;
  • concluding agreements on the disposal of common property against the will of the other spouse;
  • alcohol or drug abuse;
  • groundless evasion from work and the like.

Of course, this position is correct in terms of the grounds that have been and are fixed.

However, one cannot unconditionally agree with the support of the Ukrainian judicial practice, which sometimes followed the path of the Russian courts, and there was no sufficient legislative basis for this.

It seems that the judicial practice of applying the provisions will allow legal science to formulate specific sectoral positions on their adequate interpretation.

What can affect the division of common property

Thus, in accordance with the spirit of family law, the proposal made by the Supreme Court in the composition of the panel of judges of the Second Court Chamber of the Civil Court of Cassation in a ruling that in the case when it is established that one of the spouses alienated common property against the will of the other spouse is not in the interests of the family and not for her needs, such property is taken into account in the division.

The division of common property can also be affected by the separation of a man and a woman due to the unwillingness to maintain the marriage relationship.

In our opinion, the provision that the court can recognize the property acquired by each of the spouses during their separation during the actual termination of the marriage, the property of one of them, has vulnerabilities.

First of all, it contradicts the fundamental principle of property relations between spouses about the community of property acquired by them during the marriage. The law recognizes only marriage as the basis for the emergence of a community of property for spouses, and does not oblige the wife and husband to live together, run a joint household, work together, and the like.

For this reason, it cannot be accepted that the fact of cohabitation of spouses is one of the elements of the legal structure necessary for the regime of community, and therefore property acquired during marriage under such circumstances cannot be considered acquired as a result of joint work of spouses.

It is impossible to ignore the possible negative socio-economic consequences of the application of the studied provision for those of them who did not work during the period of the actual termination of their marriage, did not receive income from work in the public sector of the economy due to illness, caring for children, and the like.

In such circumstances, in the event of recognition of separate property acquired by each of the spouses separately during the period of the actual termination of the spouses’ marriage, the worst property situation will be exactly that of the spouses, who during this period, perhaps for good reasons, did not receive income, since he did not receive any income at all. will receive any property.

The existence of a legislative provision on the recognition of separate property acquired during the period of the actual termination of the marriage relationship will entail a number of evidentiary difficulties, especially in situations where the spouses have repeatedly terminated and resumed such relations.

Confirming the presence or absence of such a relationship will be extremely difficult, since, as a rule, spouses are not focused on collecting evidence to support these circumstances.

In our opinion, it is possible to get out of this difficult legal situation without canceling the regime of community of property acquired during the period of the actual termination of the marriage relationship.

For this, the legislator only needs to grant the court the right, depending on the specific circumstances of the case, to allocate to each of the spouses the property that was acquired by each of them during the period of the actual termination of the marriage.

At the same time, in such cases, the court should not recognize such property as separate property, while retaining the ability to allocate to each of the spouses the property that each of them acquired during the actual termination of the marriage, or if one of them did not work for valid reasons, did not had earnings or other income, divide such property in equal shares.

Actually, part 6 of Art. 57 of the UK does not contain direct court prohibitions on such a division of property between spouses who have actually stopped living together.

The procedure for dividing the common property of spouses

Before proceeding directly to the division of the common property of the spouses, the court must establish the material composition of the common property and its total value.

As a rule, one of the spouses – the plaintiff indicates a list of common property and its value.

The defendant’s spouse certainly has the right to make his own adjustments regarding the claims, file a counterclaim, and the like.

The court has the right to decide differences in establishing the real value of common property by appointing an expert examination.

In accordance with the norms of the SK, the court is given the right to increase the share in such property of the spouse with whom, firstly, the children live, and secondly, the disabled adult son, daughter, the amount of alimony received, both of them, is insufficient to ensure their physical , spiritual development and treatment.

That is, the provisions of this part are applied in the absence of facts for derogation from the principle of equality of shares in the common joint property of spouses.

The issue of the possibility of changing the size of shares by the court in the event of division of property between spouses who entered into a marriage contract, which determines their shares in the property received during marriage, remains unresolved by law.

One gets the impression that in the case of the division of the spouses’ common property, the legal regime of which is determined by the marriage contract, their shares should be determined in accordance with the marriage contract, the court cannot deviate from the conditions.

In this case, it will also be impossible to apply the relevant rules on the right of the court to deviate from the principles of equality of shares and increase the share of one of the spouses, taking into account his interests or the interests of minor children.

In this regard, the Supreme Court of Ukraine and legal science have announced their specific position.

However, in their opinion, in the application of Art. 70 SK cannot operate double standards, that is, this article should apply to the relations of spouses with a legal property regime, but not to property relations with a contractual regime.

Family lawyer in cases concerning the size of the shares of the spouses’ property

To effectively resolve the case on the size of the particles of the spouses’ property, you should contact professional family lawyers.

Property lawyer:

  • provide legal advice on family matters;
  • will help to determine the best option for solving a family case;
  • prepare all the necessary documents;
  • accompanies the course of the entire trial.

Our family lawyers will do everything necessary for a quick and high-quality completion of a legal case!

Contacting us is a way to save time and money in resolving the issue of the size of the shares of the spouses' property.

If you do not know how to do the right thing to decide the case in your favor – write or call our family lawyers!

The first step on the road to success in resolving a case on the size of particles of property of a spouse is to contact good family lawyers!

If the article “Particle Size of Spouses’ Property” 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 new changes in the legislation of Ukraine regarding the size of shares in the property of spouses.

Frequently asked questions to a lawyer

Under what condition can the share of one of the spouses be increased in the division of property?
How much should the shares of the property of each of the spouses be in the implementation of the division of their common property?
In what case can the share of one of the spouses be reduced in the implementation of the separation?
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the amount of state duty for the division of property of spouses 2021

Checked by Victoria on 23.06.21

ADVEGO

property 78 3.14
spouse 74 2.98
total 40 1.61
top up 33 1.33
court 29 1.17
common property 26 1.05 / 2.09
one 25 1.01
share 23 0.93
child 22 0.89
principle 21 0.85
property of spouses 20 0.80 / 1.61
equality 20 0.80
principles of equality 19 0.76 / 1.53
equity principles 19 0.76 / 2.29
equal shares 19 0.76 / 1.53
interest 18 0.72
size 18 0.72
it is 17 0.68
May 16 0.64
section 16 0.64
one spouse 15 0.60 / 1.21
base 15 0.60
family 15 0.60
property 15 0.60
share of spouses 14 0.56 / 1.13

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Under what condition can the share of one of the spouses be increased in the division of property?
By a court decision, the share of the wife's or husband's property may be increased if children live with her, as well as an incapacitated adult son, daughter, provided that the amount of alimony they receive is insufficient to ensure their physical, spiritual development and treatment.
How much should the shares of the property of each of the spouses be in the implementation of the division of their common property?
In the case of division of property, which is the object of the law of common joint property of the spouses, the shares of the property of the wife and husband are equal, unless otherwise determined by an agreement between them or a marriage contract.
In what case can the share of one of the spouses be reduced in the implementation of the separation?
When resolving a dispute on the division of property, the court may deviate from the principle of equality of shares of the spouses in circumstances of significant importance, especially if one of them did not care about the material support of the family, avoided participating in the maintenance of the child (children), hid, destroyed or damaged common property , spent it to the detriment of the interests of the family.