✅ Division of property of spouses

Division of property of spouses

Division of property of spouses in Ukraine

Our family lawyers are often asked the following questions: How to divide the property of the spouses? Problems with the division of spouses' property? How to draw up a statement of claim on the division of spouses' property?

On our website advokat-skriabin.com you can familiarize yourself with the topic: “Division of the property of spouses” 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.

The spouses’ right to division of property in Ukraine

  1. The wife and husband have the right to division of property belonging to them on the basis of the right of common joint property, regardless of the dissolution of the marriage.
  2. 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, a man from the entire property of the spouses must be notarized.

Termination of the right of common property in Ukraine

The exercise by the spouses of the right to common property may also lead to its termination. This is possible both on general legal grounds (through the alienation of common property under contracts to other persons, its consumption, destruction, etc.), and on the grounds provided for by family law, that is, on special grounds.

The most common special ground for the termination of the right to common ownership of property acquired by spouses during marriage is its division, as a result of which the share of each of the spouses in the common property is established, in accordance with which its distribution is carried out in kind in the manner prescribed by family and civil legislation.

Division of property of spouses in Ukraine

The division of the spouses’ property can be carried out both during marriage and after its dissolution.

At the same time, the legislator does not oblige the spouses to carry out the division of property within a certain period after the dissolution of the marriage.

Accordingly, the Grand Chamber of the Supreme Court, in its ruling dated February 28, 2018, noted that the absence of the spouses filing a claim for the division of property is not a reason for the termination of the ownership of the common joint property.

The division of common property is carried out either voluntarily by the spouses concluding an appropriate civil law contract, including with a notarial certificate, or in court at the request of one of the spouses or at the request of other persons in connection with the foreclosure of their property.

In addition, Articles 34, 38 of the Law of Ukraine “On Notaries” stipulate that notaries and consular offices of Ukraine may perform appropriate notarial actions, including such as issuing a certificate of ownership of a share in the common property of spouses, which is performed in accordance with the established procedure.

Now spouses, as individuals or as business entities, can own any property, with the exceptions established by law, and therefore notaries, when performing notarial actions in relation to the common property of spouses and the courts, when considering disputes in relation to such property, should take into account the availability of relevant evidentiary documents on legal regime of separate or joint property of spouses.

The division of the property of the spouses is one of the special ways of terminating their right of common joint ownership of all property acquired by them during the marriage, or only part of it.

In family law, there is no definition of the concept of division of the spouses’ common property.

Agreement on the division of immovable property in Ukraine

Articles 70, 71 of the SK only establish the procedure for determining the size of the shares of each of the spouses in the common property and the procedure for its division.

From the standpoint of the civilistic doctrine of transactions, the voluntary division of common property by spouses could be defined as an agreement (action) aimed at ending the regime of community of property acquired by a woman and a man who are or were married.

In the civil and family legislation of the Soviet period, there were no norms that directly recognized the division of the spouses’ common property as a contract.

But with the identification of legislation, the situation has changed.

So, in part 2 of Art. 69 SK directly provides for the right of spouses to conclude an “agreement on the division of a residential building, apartment, other real estate.”

Part 4 of Art. 372 of the Civil Code states that an agreement on the division of real estate in common joint ownership is concluded in writing and is subject to notarization.

Thus, the agreement between the spouses on the division of common property is a legal structure that has all the features of a family and civil contract.

Spouses, as individuals, are full-fledged subjects of civil legal relations, if they enter into legal relations on the objects of civil rights, which, of course, is property belonging to them on the basis of common property.

Voluntary or judicial division of common property in Ukraine

As already noted, the division of the spouses’ common property can be carried out on a voluntary or judicial basis.

In the legal literature, in both cases, such a division of property is presented as a ground for the termination of the spouses ‘joint property rights, with which one cannot but agree, since the real division of the spouses’ common property ceases to be its owners.

However, in modern civil science, the division of property in court is considered as a way to protect the rights of co-owners or third parties.

That is, the division of the common property of the spouses can perform a double role, because in the case of its implementation in court in accordance with Art. 16 of the Civil Code serves as a way to protect civil rights, in this case – the property of spouses as co-owners.

This is due to the fact that with the help of a claim for the division of common property, one of the spouses can acquire an independent right of private ownership of the part of the property allocated to him, in respect of which he can individually, at his discretion, change the powers of the owner.

One can agree with this opinion, but with a certain proviso.

The fact is that the judicial division of the spouses’ common property can be considered a way to protect their property rights if it is carried out at the suit of one of them due to the lack of consent to exercise powers in relation to common property. In the same cases when a claim for the division of common property is carried out at the request of third parties for the purpose of applying for the recovery of a share in the common property of one of the debtor’s spouses, it is a means of protecting the property rights of these third parties, and not the spouse.

Finally, the need for the division of the spouses’ common property may arise in connection with the need to foreclose on a share in such property for the debt obligations of one of them or the need to apply confiscation under a verdict in one of the spouses.

That is, under such circumstances, the division of the spouses’ common property is already a way to protect the property rights or interests of third parties, including the state.

Agreement on the division of common property in Ukraine

If the division of common property is carried out by the spouses, then the question arises about its legal nature in the system of civil law contracts, about the procedure for its conclusion, and the like.

There are sufficient grounds to consider the division of common property by the spouses as an independent agreement, according to which each of the parties (spouses) undertakes to provide each other with a certain part of the property in their common property on appropriate conditions.

If the spouses have divided the property in equal shares, then there are no signs of compensation for the contract, since each of them, with such a division, receives property in the amount prescribed by law.

That is, in this case, the division of common property is a free contract.

Another could be the assessment of the division of common property in unequal shares.

Here we can only assume that the actions of the spouse who agrees to provide the second with a large share in the common property, in excess of half of the total common property, by their legal characteristics may be close to a donation relationship.

Form of an agreement on the division of property in Ukraine

In this regard, the question may also arise about the form of the agreement on the division of property in equal shares.

The current family and civil legislation does not contain general provisions on the procedure for drawing up agreements on the division of property between spouses, except for real estate.

Of course, in this case, it is quite logical to extend the general provisions of civil legislation on the conclusion of contracts in oral, written (simple and notarized) form to agreements on the division between co-owners of common property.

It is quite obvious that real estate objects can be divided by spouses only under a notarized written agreement, because in Part 2 of Art. 69 SK established that 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, a man from the entire property of the spouses must be notarized.

Freedom to determine the size of the share in the division of property in Ukraine

Of course, when the spouses divide common property, the question may arise about the boundaries of their freedom in determining the size of shares in this property and the procedure for conducting the division.

The current legislation of Ukraine does not establish specific requirements for the division of the common property of spouses by their mutual consent.

Family legislation establishes legal methods and procedure for the division of the common property of spouses only in court, including in accordance with the provisions of Chapter 16 of the Civil Code on transactions.

In the legal literature, it is believed that the spouses have the right to voluntarily divide joint property at their discretion to determine the size of the particles, the procedure and method of its division.

Indeed, there is no legislative basis and legal arguments for not recognizing by spouses the right to a free division of common property.

Husband and wife, like any other subjects of civil relations, have the right to freedom of contract.

Contesting a contract and declaring it invalid in Ukraine

However, this does not mean at all that the agreement between the spouses on the division of common property can be challenged.

In our opinion, an agreement for the division of the spouses’ common property can be recognized, like any other agreement, invalid on the grounds established by the Civil Code, according to which a transaction whose content is contrary to the Family Code, other acts of civil law, as well as the interests of the state and society is invalid. his moral principles, other requirements established by law (Articles 203, 215).

This rule, in our opinion, must be understood in such a way that a transaction should be considered invalid, it does not comply not only with the Civil Code, but also with the requirements of other laws, including family law.

Therefore, since the current marriage and family legislation does not prohibit spouses from dividing the common property belonging to them at their own discretion, the establishment of unequal shares by a contract by the spouses cannot in itself be grounds for invalidating it.

At the same time, if the agreement of the spouses on the division of property in unequal shares was concluded under the influence of deception, violence, threat or in violation of other requirements provided for by law, it may be invalidated.

Accordingly, the spouses comply with the provisions of Art. 13 GK.

This circumstance was highlighted by the Supreme Court as part of the panel of judges of the Second Court Chamber of the Civil Court of Cassation, which, in its ruling of April 3, 2019, noted that the division of the spouses’ common property cannot be used by participants in civil transactions to avoid payment of the debt by the debtor or the execution of a court decision on debt collection. …

Failure by the spouses to comply with the requirements for notarization of the contract for the division of real estate will not lead to a change in its legal regime, because formally the owner of the property will be the one of the spouses who is indicated in the corresponding document.

It is also impossible not to take into account the fact that the division of the joint property by the spouses actually changes its legal regime.

Notarization of an agreement on the alienation of property in Ukraine

Moreover, in the event that an agreement on the division of unequal shares is established, such an agreement will have all the features of an agreement on the alienation of real estate, and requires mandatory notarization.

Therefore, it may be quite logical to conclude that when the legislator establishes compulsory notarization for contracts of alienation of real estate, the legislator must establish the same form for contracts on the division by spouses of their common property.

Therefore, taking into account all of the above, we consider it necessary to support the UK rule on notarization of agreements on the division of real estate.

Certificate of ownership of a share in common property in Ukraine

It is necessary to clearly distinguish actions related to the issuance by notaries (consular offices) of a certificate of ownership of a share in the common property of spouses from the division of common property by spouses.

Unfortunately, the current legislation does not define the legal consequences of obtaining such a certificate by spouses and how this affects the legal regime of the property specified in the certificate.

The Law of Ukraine “On Notaries”, as already noted, only provides for the right of notaries (consular offices) to issue to spouses a certificate of ownership of a share in common property.

Such uncertainty of the legal consequences of this notarial act gave grounds for representatives of the notarial law to assert that the performance of this notarial act allows the spouses to determine the share of each of them in the property that has the status of the joint joint property of the spouses, that is, to transfer this property into shared ownership and thus provide each of them the right to dispose independently of the share of the property already owned by him.

Of course, in the conditions of the legislative unsettledness of these relations, the opinion expressed has the right to exist.

However, one cannot unconditionally agree with her, because the situation is actually much more complicated.

So, even if we assume that the issuance of a certificate for a share in the common property of the spouses leads to the emergence of common shared property between them, then in this case, each of the spouses may not receive an absolutely independent right to dispose of the share in the common shared property at their own discretion, since according to Art. 358 of the Civil Code (Art. 113 of the Civil Code of the Ukrainian SSR), possession, use and disposal of property with common shared ownership is carried out with the consent of all participants, and in the absence of consent, the dispute is resolved by the court.

In our opinion, obtaining a certificate of ownership of a share in the common property of spouses can be aimed at liquidating both common joint and common shared property, especially when the certificate is issued for a specific divisible property that each of the spouses received in their own possession.

Procedure for issuing a certificate in Ukraine

The procedure for issuing a certificate of ownership of a share in the common property of spouses was regulated by Chapter 4 of the Instruction on the procedure for performing notarial acts by notaries of Ukraine dated 03.03.2004, and now – by the Procedure for performing notarial acts by notaries of Ukraine, approved by order of the Ministry of Justice of Ukraine dated 22.02.2012 G.

Accordingly, the notary, on the basis of a joint application of the spouses, issues one or each of them a certificate of ownership of a share in the common property acquired during the marriage.

At the same time, if the property subject to registration is included in the property for the share in which the certificate is issued, the notary requires the submission of documents confirming the ownership of the spouses.

A note is made on the issuance of a certificate of ownership of real estate on the title document.

It is the presence of such a mark that gives certain legal grounds to believe that in such a situation, it seems, the transformation of common joint property into common shared property of the spouses is taking place.

However, such a transformation of the legal regime should be based not on the Instruction or Procedure as a normative legal act or on its scientific interpretation, but on the law, since according to Art. 92 of the Constitution of Ukraine, exclusively by the laws of Ukraine, the legal regime of property is determined.

The need for legislative regulation of relations for the issuance of a certificate of ownership of a share in the common property of spouses is also caused by the fact that the notarial procedure for its issuance itself is so vague and ambiguous, does not directly determine the legal nature of these relations.

In this case, one can only assume that by turning to the notary with a statement, the spouses seem to be expressing their will to conclude a deal on the division of their common property, although in fact they may not want to terminate the right to common joint property.

It is no coincidence that it was noted in the notarial-legal literature that it is impossible to agree with the provision of clause 126 of the Instruction, according to which, on the basis of a joint written application of the spouses for the issuance of a certificate, the division of common property is carried out, since the application cannot replace the contractual relationship that actually takes place here.

In this regard, we recommend notaries to invite spouses to draw up a draft agreement and the subsequent issuance of a certificate.

However, it is necessary to determine the sequence of legal actions for issuing a certificate and concluding an agreement on the division of common property and determining its further legal regime.

In our opinion, this problem cannot be solved within the framework of notarial law, the task of which is to determine the procedure for performing notarial actions.

The grounds for issuing a certificate of the right to a share in the common property of the spouses and the legal regime of the property in respect of which the certificate is issued should be determined by family law.

Meanwhile, in the Instruction on the procedure for the performance of notarial actions by notaries of Ukraine (clause 128), and now in the Procedure for the performance of notarial actions by notaries of Ukraine (Chapter 11), the procedure for issuing a certificate of ownership of a share in common property in the event of the death of one of the spouses.

Such a certificate is issued for half of the common property on the basis of a written application from the spouse with the notification of the heirs who have accepted the inheritance. The message, which is sent to the heirs of the deceased, who accepted the inheritance, indicates the composition of the spouses’ common property, for which the second of the spouses, who is alive, asks to issue a certificate, and also explains the right to go to court in case the heirs contest the property claims of the other spouse, is alive.

Family lawyer in cases of division of property of spouses in Ukraine

For an effective solution of the case on the division of 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 dividing 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 division of spouses’ property is to contact good family lawyers!

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 new changes in the legislation of Ukraine regarding the division of spouses’ property.

Frequently asked questions to a lawyer in Ukraine

How should an agreement on the division of real estate be structured?
In what case can the agreement on the division of the spouses' common property be invalidated?
How is the division of the spouses' common property carried out?

Useful site materials advokat-skriabin.com:

  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 increased significantly during the marriage
  8. Exercise by spouses of the right of common joint property
  9. Disposal of property of spouses
  10. The right to use the property of the spouses
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Checked by Victoria on 23.06.21

ADVEGO

property 119 4.57
spouse 84 3.23
total 74 2.84
common property 53 2.04 / 4.07
property of spouses 43 1.65 / 3.30
right 37 1.42
contract 36 1.38
property 36 1.38
section 35 1.34
common property of spouses 27 1.04 / 3.11
share 23 0.88
May 23 0.88
notary 23 0.88
undress 23 0.88
certificate 23 0.88
it is 21 0.81
family 21 0.81
order 20 0.77
base 16 0.61
section of common property 16 0.61 / 1.84
legislation 15 0.58
legal 14 0.54
division of property 14 0.54 / 1.08
section of the general 14 0.54 / 1.08
joint 14 0.54
be 14 0.54
issue 13 0.50
action 13 0.50
share of the total 13 0.50 / 1.00
ownership 13 0.50 / 1.00
general section 13 0.50 / 1.00
section of common property 13 0.50 / 1.50
civil 12 0.46
section 12 agreement 0.46 / 0.92
share of common property 12 0.46 / 1.38
real estate 12 0.46 / 0.92
immovable 12 0.46
notary 12 0.46
case 12 0.46
article 12 0.46

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SKRIABIN
How should an agreement on the division of real estate be structured?
Part 4 of Art. 372 of the Civil Code states that an agreement on the division of real estate in common joint ownership is concluded in writing and is subject to notarization.
In what case can the agreement on the division of the spouses' common property be invalidated?
An agreement on the division of the spouses' common property may be invalidated on the grounds established by the Civil Code, according to which a transaction whose content contradicts this Code, other acts of civil legislation, as well as the interests of the state and society, its moral principles, and other requirements established by law (Articles 203, 215).
How is the division of the spouses' common property carried out?
Family legislation establishes legal methods and procedure for the division of the common property of spouses only in court, including in accordance with the provisions of Chapter 16 of the Civil Code on transactions.