✅ Objects of the right of common joint ownership

Objects of the right of common joint ownership

Objects of the right of common joint ownership in Ukraine

Our family lawyers are often asked the following questions: Is the personal reward received by a person during his or her marriage related to common joint property? Does the personal computer of one of the spouses belong to the objects of the law of common joint property of the spouses?

On our website advokat-skriabin.com you can familiarize yourself with the topic: “Objects of the law of common joint 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.

The object of the law of common joint property of the spouses, according to Art. 61, can be any property, except for those excluded from civil circulation.

The object of the right to common joint property is wages, pensions, scholarships, and other income received by one of the spouses.

If one of the spouses has entered into an agreement in the interests of the family, then the money, other property, including royalties, winnings, which were received under this agreement, is the object of the law of joint joint property of the spouses.

Items for professional occupations (musical instruments, office equipment, medical equipment, etc.) acquired during marriage for one of the spouses are subject to the joint property rights of the spouses.

The marriage and family legislation of Ukraine during the Soviet period did not contain a list of property that could be the object of the right of joint joint property of spouses.

Since spouses are subjects of both family and civil legal relations, it seems quite logical that the spouses can own, on the basis of common joint ownership, any property that can generally belong to individuals on the basis of private property in accordance with property legislation.

What belongs to private property in Ukraine

Meanwhile, according to Art. 13 of the Law “On Property”, the objects of private property rights are:

  • residential houses, apartments;
  • personal items;
  • summer cottages, garden houses;
  • household items;
  • productive and working cattle;
  • land plots, plantings on a land plot;
  • means of production;
  • manufactured products;
  • vehicles;
  • cash;
  • shares, other securities;
  • other consumer and industrial property.

Thus, all the listed property can also be in the joint joint ownership of the spouses.

To provide for such a detailed list of property in family legislation, in our opinion, is inappropriate.

In Art. 326 of the Civil Code states that individuals and legal entities can be the owners of any property, with the exception of certain types of property, which, according to the law, cannot belong to them.

Actually, a similar rule was first enshrined in Part 1 of Art. 61 SK, according to which the objects of the law of common joint property of spouses could be any things, with the exception of those excluded from civil circulation.

But such a rule did not cover all possible objects of civil rights, because the concept of “things” is narrower than the concept of “property”, as evidenced, in particular, by Article 190 of the Civil Code, according to which a separate thing, a set of things, is considered a property as a special object, as well as property rights and obligations.

Therefore, by the Law of Ukraine dated December 22, 2006, part 1 of Art. 61 SK was stated in the following edition: “The object of the right of common joint ownership can be any property, except for those excluded from civil circulation.”

Part 2 of Art. 61 IC the legislator tried to consolidate an indicative list of such objects, and it was stated as follows: “The object of the right of common joint property is wages, pensions, scholarships, other incomes received by one of the spouses and contributed to the family budget or contributed to his personal account to a banking (credit) institution “.

Since some of the provisions of the aforementioned norm (in particular, in terms of determining the moment of entering income into the family budget) could cause difficulties in their interpretation and application, the Law of Ukraine of 22.12.2006, part 2 of Art. 61 SK was stated in a different edition, namely: “The object of the right of common joint property is wages, pensions, scholarships, other income received by one of the spouses.”

In the updated version, the above norm no longer links the spread of the community regime with the fact that such property is included in the family budget.

At first glance, there should be no special problems in determining the possible object composition of the spouses’ property.

But actually it is not.

Clarification of Common Joint Ownership in Ukraine

Even in the Soviet period, when the range of objects of personal property rights was strictly limited, difficulties arose in establishing the objects of the law of common joint property of spouses.

Therefore, the Plenum of the Supreme Court of the Ukrainian SSR, in its resolution “On some issues arising in judicial practice on the application of the Marriage and Family Code of the Ukrainian PCP” dated June 15, 1973 (as amended by the Plenum resolution of April 24, 1981 No. 4), explained that in accordance with Art … 22 of the Code of Marriage and Family of the Ukrainian SSR, the common joint property of spouses is only property acquired by them during marriage, in particular, household items, buildings, sums of money, certificates, as well as deposits made to savings banks and other credit institutions, and unit savings in a housing construction, dacha construction and garage construction cooperative, targeted contributions to horticultural societies, the insurance or redemption amount and insurance premiums that the policyholder received or is entitled to receive under personal insurance contracts, were paid from the common funds of the spouses, and the redemption amount, which would belong to him in the event of early termination of the mixed life insurance contract at the time of the termination of the marriage relationship, and the sums of money and property due to the spouses for other legal obligations.

The need for such clarifications to the courts did not disappear during the period of changes in property relations.

So, in the decision of the Plenum of the Supreme Court of Ukraine “On the application by the courts of some norms of the Code on Marriage and Family of Ukraine” dated June 12, 1998 No. 16, with the adoption of which the above decision of June 15, 1973 became invalid, the List of objects of common joint property was somewhat updated.

In part 9 of the resolution of June 12, 1998, the Plenum first formulated a generalized rule on property jointly acquired by spouses, noting that, when resolving disputes between spouses about property, it is necessary to establish the amount of jointly acquired property available at the time of termination of joint farming, find out the source and the time of acquisition of the specified property, and at the same time, it should be assumed that, in accordance with Articles 22, 25, 27 of the Code, the common joint property of the spouses is the movable and immovable property acquired by them during the marriage, which can be an object of private property rights (except for property, acquired by each of the spouses during their separation during the actual termination of the marriage).

Consequently, this clarification provides not only a generalized rule about possible objects of common joint property of spouses, but also the conditions for recognizing such objects as joint property of spouses. This explanation of the Plenary Session is fundamentally correct and deserves support.

However, the Plenum of the Supreme Court of Ukraine decided to concretize the list of objects of the law of common joint ownership in part 2 of paragraph 9 of this resolution, in which it wrote: “The common joint property of spouses, in particular, can be: apartments, residential and garden houses; land plots and plantations on them, productive and working cattle, means of production, vehicles; cash, shares and other securities, deposits in credit institutions; unit accumulation in a housing construction cooperative; sum insured, insurance indemnity paid at the expense of the spouses’ common funds, insurance payments that were returned upon early termination of the insurance contract or which one of the spouses could receive in the event of early termination of such an agreement at the time of the actual termination of the marriage; sums of money and property belonging to spouses under other obligations of obligation ”.

Comparing the lists of objects of common joint property of spouses, formulated in the resolutions of the Plenum of the Supreme Court of Ukraine 1973 and 1998 p., First of all, it should be noted that the latter was supplemented by most of the types of property listed in Art. 13 of the Law of Ukraine “On Property” (apartments, residential and garden houses, land plots and plantations on them, productive and draft animals, means of production, vehicles, shares and other securities), which became invalid in 2007.

Of course, this list of objects that can be jointly owned by spouses is not exhaustive, although in this form it provides certain guidelines for the courts in determining the common marital property.

However, an in-depth analysis of the contents of this list may provide grounds for appropriate legal assessments.

Controversial issues in determining the types of common property in Ukraine

First, in the list under study, the Plenum of the Supreme Court of Ukraine identified two categories of property:

  • property that is directly the object of common ownership (apartments, houses)
  • property, is not currently the object of common property rights and property rights in general, but belongs to one of the spouses or both of them on the right of claim, in particular in legal relations (for example, spouses’ funds in credit institutions, unit accumulation in housing and construction and other cooperatives, insurance premiums, sums insured and reimbursements that may be paid to spouses).

Secondly, the Plenum of the Supreme Court, having correctly distinguished the types of common property of the spouses, made a legal inaccuracy, recognizing that the property belonging to the spouses under legal obligations may be common joint property. Until the spouses actually receive such property, for example, money in a credit institution, it is not an object of ownership, and the depositor spouses only have the right to claim against the credit institution, that is, the right to demand the issuance of the deposited funds.

In the legal literature of the Soviet period, attention was drawn to the fact that the money contributed by the owner to a credit institution turns from an object of ownership to an object of a claim.

Therefore, it is necessary to clearly distinguish between the concepts of “joint property of the spouses” and “common joint property of the spouses”.

The latter is broader than in the first, and then the property relations of the spouses are not reduced to property relations.

Is it possible to consider the sums insured and insurance compensation as joint property in Ukraine

In the practical application of clause 9 of the resolution of the Plenum, other difficulties could arise, especially in that part of it, which states that the sum insured, insurance compensation paid from the common funds of the spouses, insurance payments that were returned in case of early termination of the insurance contract or which one of the spouses could receive in case of early termination of such an agreement at the time of the actual termination of the marriage.

There can be no doubt about the need for such clarifications, because they are caused by the needs of judicial practice, which was not always unambiguous.

For example, the Judicial Collegium for Civil Cases of the Kiev Regional Court, in its ruling of February 4, 1972, concluded that the insured sums of division between spouses should not be amenable, since according to Art. 371 of the Civil Code of the Ukrainian SSR, rights and obligations under a voluntary personal insurance contract arise only to the parties under the contract.

However, already on June 15, 1973, the Plenum of the Supreme Court of the Ukrainian SSR, in its resolution No. 6, directly indicated that the joint joint property of the spouses is the insurance compensation received under the personal insurance contract, which introduced certainty into the legal regime of this type of property created by the spouses during marriage.

But even after the adoption of this resolution of the Plenary Session, special approaches to solving this problem were encountered.

Thus, by the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the RSFSR of December 17, 1975, the decision of the Crimean Regional Court was recognized as legal, according to which Ukrgosstrakh accrued insurance sums to the deceased citizen, which were recognized as his personal property.

In connection with the adoption of the Investigative Committee, the Plenum of the Supreme Court of Ukraine adopted a new resolution of December 21, 2007 No. 11 “On the practice of the courts’ application of legislation when considering cases on the right to marriage, divorce, invalidation and division of the common property of spouses,” in p. 23 of which it is written that “joint property, in particular, may be: apartments, residential and garden houses, land plots and plantings on them, productive and working cattle, means of production, vehicles; monetary funds, shares and other securities, unit accumulation in housing construction, summer cottage construction, garage construction cooperatives; sums of money and property belonging to spouses in other legal obligations, etc. “.

First of all, attention is drawn to the fact that, in contrast to the aforementioned legal positions, the Supreme Court of Ukraine in Resolution No. 11 among the list of common property of spouses did not name either the sums insured (contributions) or deposits in credit institutions, which is obviously due to the possibility of their coverage by the broad concept of “sums of money and property for other legal obligations”.

It is also worth noting that Resolution No. 11 provides an indicative list of objects of “common joint ownership”, and not a list of objects of “common joint ownership”, as is done in Art. 61 SK, in principle, is legally correct, because the first concept is broader than the second and reflects the economic essence of relations, and not the legal one.

Since in Art. 61 SK is not directly determined by the legal regime of such property, it is necessary to take into account the provisions of Part 5 of Art. 57, according to which the personal private property of the wife, husband is the sums insured received by her, by him on compulsory personal insurance, as well as on voluntary personal insurance, if insurance premiums were collected at the expense of funds that were the personal private property of each of them.

However, the legal positions set out in the said Decree No. 11 do not eliminate all possible problems in defining certain types of objects that should be subject to the regime of community of spouses’ property.

There is an opinion that when determining the legal regime of insurance claims, it is necessary to proceed from the fact that they are common joint property, if there was insurance of the common property of the spouses, and permission, if the separate property of one of the spouses was insured.

Basically, one can agree with this position.

However, nothing is said here about the legal fate of insurance payments made by the wife (husband) – the insured under the separate property insurance contract, because such payments could be made at the expense of the spouses’ common funds.

They can be returned to the policyholder upon early termination of the contract in accordance with Art. 28 of the Law “On Insurance” (as amended on October 4, 2001 p.).

Obviously, if they were contributed at the expense of the spouses’ common funds, then they should also be considered their common property.

Relation to the common property of bank deposits in Ukraine

As already noted, deposits made by spouses in banking and other credit institutions during marriage should be considered common joint property.

Of course, if they are created at the expense of funds jointly acquired by the spouses.

However, the situation regarding the legal regime of the spouses’ deposits, as already noted, is rather complicated, which is due, in particular, to the fact that the deposits are registered in the name of only one person – the depositor.

For the first time in the legislation, the admissibility of the recognition of the contribution as common joint property was provided for by Art. 87 Fundamentals of Civil Legislation of the PCP Union and Union Republics 1961, Art. 385 of the Civil Code of the Ukrainian SSR, which assumed that the collection on the deposits of citizens in state savings banks and in the State Bank of the USSR can be turned on the basis of a court decision regarding the contribution, which is the common property of the spouses.

Despite this, in the literature it was sometimes believed that the contribution is the joint property of the spouses, but only after a court decision on the division of the contribution was made.

Indeed, at first glance, such a position has a legal basis, since the granting of the depositor wife the right to independently dispose of the monetary amounts indicates the existence of a kind of presumption of permission for the contribution made during the marriage by one of the spouses.

In fact, this is not at all the case, since such a presumption exists only in legal relations arising between a credit institution and the depositor’s wife as a party to a civil contract.

And this is quite logical, because for any civil law contract, legal relations arise, as a rule, among the parties to the corresponding contract.

Therefore, a more correct opinion is that the contribution created and made during the marriage in the name of one of the spouses should be considered their common property, but in order for the credit institution to consider it as such, a court decision is necessary that will allow the wife, who is not a contributor, to implement their right to a joint contribution.

The contribution made by one of the spouses during marriage to a credit institution should be considered their common joint property also because it was created (unless proven otherwise) at the expense of their common income, which turned from an object of ownership to an object of claim.

The question arises about the possibility of changing the procedure for registration of deposits.

In the legal literature, it has already been proposed, in order to increase the efficiency of protecting the rights of both spouses, to enshrine in the legislation the rule on the right of spouses, if they wish, to draw up a contribution for both of them at the same time.

Such a proposal has its drawbacks, which consist in the fact that its implementation in practice would only slow down and complicate settlement operations for credit institutions, and also generated contradictions between them and the depositor-spouses regarding the sole disposal of funds, and in the end – and numerous litigation.

Actually, this conclusion is confirmed by trends in modern legislation, for example, on savings certificates as one of the types of securities.

So, Art. 18 of the Law of Ukraine “On Securities and Stock Exchange” (in its original version) defined a savings certificate as a written certificate of the bank on depositing funds, certifying the depositor’s right to receive the deposit and interest on it after the expiration of the established period. Personalized certificates are not subject to circulation, and their sale (alienation) to other persons is invalid.

Thus, the legislator unambiguously determined the person of the depositor and his powers and does not allow the deposit to be divided.

Therefore, the procedure for registration of a deposit for only one person, established by the legislation of the Soviet period, can be preserved in the future.

In the same cases when the depositor’s wife avoids the financial support of the family or when there are contradictions between the spouses regarding the contribution, the other spouse who is not the depositor has the opportunity to file a claim in court for the division of funds.

Inclusion of securities in the common property of the spouses in Ukraine

Certain difficulties may arise when deciding whether to include other securities, especially shares, in the common joint property of the spouses.

Family law does not contain prohibitions regarding the inclusion of such objects of common joint property of spouses.

However, in our opinion, when applying the generality regime with respect to securities acquired by one of the spouses, it is necessary to take into account their legal nature, as well as the peculiarities of the legal regime of certain types of securities, determined, in particular, by the Civil Code, the laws of Ukraine “On Securities and Stock market ”and“ On joint stock companies ”.

One of the most common types of securities are shares, for which neither family nor civil legislation contains direct provisions on the possibility of their recognition as joint property of spouses.

However, an analysis of individual norms of this legislation gives certain grounds for a positive answer to this question.

So, in accordance with Art. 6 of the Law of Ukraine “On Securities and the Stock Market”, a share is a registered security that certifies the property rights of its owner (shareholder) with regard to a joint-stock company, including the right to receive part of the joint-stock company’s profit in the form of dividends and the right to receive part of the property in in the event of its liquidation, the right to manage a joint-stock company, as well as non-property rights provided for by the Civil Code and the law governing the creation, operation and termination of joint-stock companies (the refusal of bearer shares and the introduction of only registered shares were first provided for by the Law of Ukraine “On Joint-Stock Companies” dated September 17, 2008).

Thus, according to the current legislation, shares can only be registered, and secondly, the owner of the shares by law is provided, in addition to property rights, also non-property, which are called corporate rights and related to the identity of the owner of the shares.

Therefore, the question arises about the admissibility of extending the community regime to the registered shares of one of the spouses.

Registered shares acquired with the joint funds of both spouses may be subject to joint ownership rights.

At first glance, there are no legal obstacles to this.

And the basis for such a conclusion could be, in particular, the provisions of Art. 5 of the Law “On Securities and Stock Exchange” in the original edition stating that a share is indivisible, and in the case when the same share belongs to several persons, they are all recognized as one shareholder and can exercise rights through one of them, or through a common representative.

Thus, the legislator admits the possibility of a share being owned by several persons, and then also by spouses.

Another thing is that the legislator allowed in Art. 5 of this Law, legal incorrectness, considering that several people can be recognized as one shareholder.

One thing cannot have several owners, but one thing can have several co-owners.

However, by the Law of Ukraine of 11.06.2009, the above provision was changed, and in Art. 6 of this Law, it was written that a share is indivisible and the procedure for exercising the rights of co-owners of a share (shares) is determined by the Civil Code and the law governing the creation, operation and termination of joint stock companies.

But not in Art. 6 of the Civil Code, nor the Law of Ukraine “On Joint Stock Companies” contain specific rules for the regulation of such relations.

Therefore, it is necessary to solve this problem in relation to spouses taking into account the general provisions of family law and special laws.

At the same time, first of all, it is necessary to familiarize oneself with the legal position on this issue of the Supreme Court of Ukraine, formulated in the Plenum resolution of December 21, 2007 “On the practice of the courts’ application of legislation when considering cases on the right to marriage, divorce, invalidation and division of common property. spouses “.

In clause 26 of this Resolution, it is noted that when deciding on the division of property in the form of shares, a share (share, share) in the funds of corporate economic organizations, the courts should proceed from the fact that the issue of their division is decided depending on the type of legal entity, organizational the legal form of its activities, the nature of the spouses’ legal relationship with this entity, and clause 27 explicitly states that shares can be the object of common joint property rights and the subject of division between spouses if they were acquired for their common funds.

Despite the certain compliance of such a legal position with the norms of family law, one cannot but pay attention to its contradiction with the provisions of the legislation on securities and joint-stock companies, because the recognition of registered shares as the object of the joint property right of the spouses obliges to grant corporate rights also to the one of them who was originally a shareholder , which, finally, will create obstacles in the activities of joint stock companies.

So, in accordance with Articles 25-26 of the Law of Ukraine “On Joint Stock Companies”, Art. 6 of the Law of Ukraine “On Securities and Stock Market”, the owners of common and preferred shares are shareholders.

Since the shares are registered, it is quite logical that their owners should be considered the persons identified in them by the shareholders, who should own all property and corporate rights in relation to the joint-stock company.

Such a legislative definition of the legal regime of shares has led to a legal situation in which, on the one hand, a share, according to the Law of Ukraine “On Securities and the Stock Market”, in principle can be the object of the rights of several co-owners, including spouses in the case of acquisition by one of these, registered shares (shares) at the expense of general marital funds in accordance with the provisions of Articles 60-61 of the SK.

On the other hand, the share is indivisible and the property and corporate rights, certified by it, belong only to the shareholder as the owner, determined by such a registered share.

In such circumstances, even the judicial recognition of the share as common joint property will not be able to provide the spouse with corporate rights.

At the same time, even in such circumstances, there are sufficient legal grounds to conclude that the spouse, who is not specified in the share by the shareholder, has the right, in the event of its creation (acquisition), to general funds for:

  • awarding him monetary compensation in the amount of half the value of the share (shares), since the registered share is registered and indivisible;
  • the awarding of half of the dividends received by the wife (husband) – shareholder as income received by one of the spouses (part 2 of article 61 of the SK);
  • half of the property (its value) received by the wife (husband) -the shareholder in the event of the liquidation of the joint-stock company.

Share in the authorized capital as the common property of the spouses in Ukraine

No less difficult is the problem of the share in the authorized capital of business entities, which is formed by its participants at the expense of the property transferred to them in the ownership of the company as a contribution to the authorized (pooled) capital (Article 115 of the Civil Code).

In the above-mentioned decision of the Plenum of the Supreme Court of Ukraine of December 21, 2007, it was noted that, firstly, since under Art. 12 of the Law of Ukraine “On Business Companies” the owner of the property transferred to the company by its founders and participants is the company, the contribution to the authorized capital of the business company is not subject to the right of joint joint ownership of the spouses; secondly, based on the content of parts 2,3 of Art. 61 SK, if a contribution to the statutory fund of a business company is made at the expense of the spouses’ common property, in the interests of the family, then of the spouses who are not a member of the company has the right to share the income received; thirdly, in accordance with the provisions of Articles 57, 61 of the UK, Art. 52 of the Civil Code, the property of a private enterprise or an individual – an entrepreneur is not an object of common joint ownership, and then the other spouse has the right only to a share of the income received from this activity.

The analysis of the above legal positions of the Supreme Court of Ukraine gives many reasons to believe that they contain editorial and substantive contradictions, there is no legal reasoning about many conclusions, legal norms are given that do not directly relate to the legal relationship in question, and the like.

IV Spasibo-Fateeva drew attention to these and other vulnerable provisions of these legal positions, who, after a fairly detailed analysis of the legislation and legal positions of the Supreme Court of Ukraine, came to the unequivocal conclusion that the contribution made from the common property of the spouses is transformed into the share of a member of the company in its authorized capital, which is the object of the right of joint joint ownership of the spouses.

Indeed, Articles 57.61 SK, Art. 52 of the Civil Code, referred to by the Supreme Court of Ukraine in its ruling of December 21, 2007, do not directly contain provisions that would give grounds for the stated legal position.

However, the author’s judgment that the share of one of the spouses contributed at the expense of common funds to the authorized capital is the object of the joint property rights of the spouses is legally incorrect, because property, for example, the property of a business entity in accordance with Art. 115 of the Civil Code is the property of the company, and therefore it cannot be at the same time the object of the right of joint joint property of the spouses.

However, this judgment is not accidental, since Chapter 8 of the SK establishes the legal regime of community only for the property that is currently the object of ownership.

Accordingly, in legal science and in judicial practice, it is not always taken into account that the community regime for spouses can also arise from the property that belongs to them, for example, on the rights of claim for their obligations or one of them.

The investigated legal situation was the subject of consideration of the Constitutional Court of Ukraine in the case of the constitutional appeal of the private enterprise “IKIO” regarding the official interpretation of the provisions of Part 1 of Art. 61 of the IC, which in its decision of September 19, 2012 came to the conclusion that the authorized capital and property of a private enterprise, formed through the common joint property of the spouses, are the object of their joint joint ownership.

One of the arguments in favor of such a decision, according to the Constitutional Court of Ukraine, is that a private enterprise (or part of it) founded by one of the spouses is a separate object of the law of joint joint property of the spouses, which includes all types of property, including including the contribution to the authorized capital and property set aside from their common joint property.

In principle, it may be quite logical to conclude that the decision of the Constitutional Court of Ukraine of September 19, 2012 can also be extended to the property of spouses as individuals – subjects of entrepreneurial activity.

However, even after the adoption of this decision, there is an unequal application of the norms of substantive law to property relations (see: decisions of the High Specialized Court of Ukraine for the consideration of civil and criminal cases of July 16, 2014; of February 13, 2013; of January 29, 2013; from 23.11.2013; from 11.12.2013; from 19.06.2014; from 17.04.2014).

This gave grounds to the Supreme Court of Ukraine to review the ruling of the High Specialized Court of Ukraine for the consideration of civil and criminal cases dated July 16, 2014, which refused to open cassation proceedings to the plaintiff S.V. Bozhskul on his appeal against the decision of the Shevchenko District Court. Chernivtsi and the decision of the Court of Appeal of the Chernivtsi region regarding the refusal to recognize non-residential premises and a land plot as joint property.

At the same time, in the decision of July 16, 2014, in particular, it was noted that the court of first instance and the court of appeal were justified, taking into account paragraph 29 of the decision of the Plenum of the Armed Forces of Ukraine No. 11 dated 21.12.2007. the land plot was acquired by the plaintiff for entrepreneurial activities and with funds from such activities, such disputed objects are not subject to the regime of the common property of spouses, (resolution of the Supreme Specialized Court of Ukraine for the consideration of civil and criminal cases dated July 16, 2014. Case No. 6 – 29685sk14).

The decision of the Constitutional Court of Ukraine of September 19, 2012 in another case was ignored.

So, in December 2011, A. filed a lawsuit against the public joint stock company Bank of Cyprus (hereinafter referred to as OJSC), an individual M., the private enterprise Veter Plus on the recognition of contracts as invalid and recognition of ownership, motivating the claims by that during the period of being in a registered marriage, M.’s husband, as an individual – an entrepreneur, for the common joint funds of the spouses, with his consent to carry out entrepreneurial activities, acquired non-residential premises with an area of ​​524 sq. m, and on July 4, 2008, without his consent, he introduced the specified non-residential premises as the founder of the charter of the private enterprise “Lube Service” (hereinafter – PP).

July 4, 2008 p. M. entered into loan agreements with OJSC without his consent, and under the contract dated July 4, 2008, the PE transferred the non-residential premises to the PJSC as a creditor in a mortgage.

By the decision of the Sykhivskiy District Court of Lviv on July 4, 2012, the claim was partially satisfied, the decision of the founder of the state of emergency to add non-residential premises to the statutory fund was declared invalid, the mortgage agreement was declared invalid, the non-residential premises were recognized as joint property of the spouses.

By the decision of the Court of Appeal of the Lviv region, the decision of the court of first instance in this part was canceled, the grant was denied.

By the decision of the High Specialized Court of Ukraine on February 13, 2013, the decision of the appellate court was canceled, the decision of the district court was upheld.

The Supreme Court of Ukraine considered the OJSC’s application for revising the decision of the High Specialized Court of Ukraine on February 13, 2013 and decided to cancel it and send the case for a new cassation hearing.

At the same time, the Supreme Court of Ukraine in its decision, in particular, stating that the property of an individual – an entrepreneur, which is acquired and used in his entrepreneurial activity for the purpose of making a profit, should be considered as his personal private property, in accordance with Art. 57 SK, and not as an object of common joint property of spouses.

The reference to the decision of the Constitutional Court of Ukraine of September 19, 2012 does not refute this conclusion, since this decision deals exclusively with the authorized capital, and the property of a private enterprise formed due to the common joint property of the spouses.

In our opinion, the conclusion that the fact that an individual – an entrepreneur acquired property for entrepreneurial activity is the basis for recognizing it as his personal private property – seems to be quite controversial.

Such a judgment can only be acceptable about the acquisition of property at the expense of funds that are not the common joint property of the spouses.

The above cases indicate a too narrow understanding by the judicial authorities of the decision of the Constitutional Court of Ukraine dated September 19, 2012 p., Which requires the introduction of legislative certainty in solving this problem.

In the legal literature, the opinion has already been expressed that regardless of whether an individual is a subject of entrepreneurial activity or not, the property acquired by him in the course of entrepreneurial activity is the common joint property of the spouses. This position is primed.

According to the laws of legal logic, such a solution can be extended to contributions (shares) in the staged capital of business entities, radically changes the above-mentioned legal positions and generally changes the entire legal situation regarding the legal regime of common property contributed to the authorized capital of corporate and private unitary enterprises.

However, the adoption by the Constitutional Court of Ukraine of the above decision may also have certain negative consequences, because the recognition of the contribution (share) made to the charter capital of a corporate or unitary private enterprise by one of the spouses formally provides an arc of them with the opportunity to demand that he be granted the exercise of corporate or other managerial rights.

Finally, it is not based on sufficient doctrinal foundations and does not eliminate conflicts between business and family legislation, and therefore can create appropriate obstacles to the development of entrepreneurship.

In any case, the investigated relations require their further settlement, in the process of which it is imperative to take into account that spouses may own property not only on the basis of property rights, but also for legal obligations.

That is, it can be in some cases the object of the right of common joint property, in others – the object of the right of claim, it is far from always taken into account in civil doctrine, law-making and judicial practice.

To avoid such negative consequences, it was advisable to legislate in Art. 61 SK a rule that would provide for the recognition of contributions (stakes, shares) to the authorized capital as the common property of the spouses and would give the spouse who is not a participant, founder, shareholder, the right to demand from the other spouse appropriate monetary compensation and a part of the income received by the latter from the use common property.

It is also worth using the experience of the developers of the Civil Code, in the draft of which was revised in 1996. According to Article 1303, it was assumed that for the implementation of entrepreneurial activities, an enterprise constitutes a single property complex, and its parts can also be subject to the right of personal or joint joint property of spouses.

Property is privatized as a share of the common property of the spouses in Ukraine

A special type of government securities is privatization papers, certifying the owner’s right to receive, in the course of privatization, a share of the property of state enterprises, state housing stock, land fund (Article 1 of the Law of Ukraine “On Privatization Papers”).

Privatization papers are not subject to free circulation, and their sale or alienation in any other way in accordance with Art. 5 of the Law is invalid.

According to the law, privatization papers can be transferred to other persons only by way of inheritance (Article 2 of the Law of Ukraine “On Privatization Papers”).

If we also take into account those provisions of this Law, providing for the use of privatization securities only for the acquisition of privatization objects only by a person, is their owner in accordance with the law and defined in the privatization documents (they also include the heirs of the owner of privatization securities), then the arguments become quite obvious against the extension of the community regime to the privatization papers received by one of the spouses.

However, the foregoing does not exclude the possibility of the spouses having the right to common property not on the basis of family law.

For example, according to Art. 8 of the Law of Ukraine “On Privatization of the State Housing Fund”, the transfer of occupied apartments (houses) is carried out into common joint or partial ownership by the written consent of all adult family members permanently residing in this apartment (house), including those temporarily absent, who retain the right for housing, with the obligatory determination of the authorized owner of the apartment (house).

That is, in this case, the community for housing between spouses and other family members arises on special privatization grounds, and then the exercise of powers by co-owners of privatized housing should be carried out according to the general rules of civil law.

The Law of Ukraine “On Amendments to Article 61 of the Family Code of Ukraine regarding the objects of the law of common joint property of spouses” dated 11.01.2011. Art. 61 was supplemented by Part 5 of the following content: “The object of the right of joint ownership of spouses is housing acquired by one of the spouses during marriage as a result of privatization of the state housing stock, and a land plot acquired as a result of gratuitous transfer of it to one of the spouses from state or communal lands. property, including privatization ”.

However, such a rule had significant shortcomings, since it did not take into account the peculiarities of privatization legal relations.

According to the preliminary practice of committing acts of privatization of hundreds of thousands of residential properties, opportunities for violation of the principle of justice were created.

For example, citizen A. in 2005. He privatized a one-room apartment, and in May 2011 he married a citizen P., who privatized a two-room apartment during her marriage.

As a result of the application of the provisions of Part 5 of Art. 61 SK husband will become a co-owner of the apartment privatized by his wife, despite the fact that in 2005 he already exercised his right to privatize housing.

Therefore, given these and other shortcomings of the commented norm of Part 5 of Art. 61 UK was quite rightly excluded in accordance with the Law of Ukraine of 05/17/2012.

At the same time, by the same Law, Art. 57 of the CK was supplemented by parts 4 and 5, the norms of which suggested that such objects are the personal private property of the wife, husband (see the Commentary to Art. 57 of the CK).

Entry by the Spouses of the Right of Common Ownership of Property in Ukraine

It is important for the spouse to resolve the issue of establishing the moment from which the action of the community of property regime begins, since this moment is directly related to the solution of the issue of the moment when the spouses have the right to common ownership of the property they have acquired or the moment when a community of property arises in them, due to one of them on legal obligations.

Moreover, with the acquisition by the spouses of the right to common ownership of property and property rights, the spouses have corresponding common property obligations.

Undoubtedly, it is legitimate to speak about the operation of the property community regime among spouses only within the period of the marriage.

That is, the property community for the spouses can arise only from the moment of registration of the marriage in the DRACSU (earlier – the registry office, registry office) is suspended from the moment of termination of the marriage.

In accordance with Art. 95 SK in cases where a prenuptial agreement is concluded before the registration of the marriage, it enters into force on the day of registration of the marriage, and if during the period of marriage – on the day of its notarization.

That is, in the latter case, the legal legal regime of property will operate for a certain period, and subsequently – contractual.

Undoubtedly, the practice of applying this provision in the future will reveal its effectiveness, but even now we can confidently assert that the existence of several legal regimes during a marriage will not contribute to the stability of property relations between spouses.

Grounds for the emergence of the right of common property in Ukraine

In order for the spouses to have the right to common joint property, as well as the right to property of any subject in general, specific legal grounds are necessary.

As you know, the grounds for the emergence of the right to private property are income from participation in social production, from individual labor, entrepreneurial activity, investments in credit institutions, joint stock companies, as well as inheritance and property on other grounds not prohibited by law.

According to the above agreements, spouses can also acquire property into ownership, concluding them jointly or individually.

Of course, when the spouses jointly acquired property under a sale and purchase agreement, in which they simultaneously acted as buyers, then the ownership of each of the spouses arises simultaneously, that is, at the time of transfer of property, unless otherwise provided by law or contract (Part 1 of Art. 334 Civil Code).

However, the situation may be much more complicated when one of the spouses single-handedly acquires property under contracts or other reasons.

In this regard, the question arises about the moment when the right of common property or other property community arises from the second spouse.

It is this question that requires careful and in-depth analysis, because in the legislation it has not found its solution.

When the courts consider property disputes between spouses, it is necessary to take into account significant innovations in certain acts of civil legislation in the period since 1991. And especially in the Central Committee to determine the moment of the emergence of property rights.

Article 128 of the Civil Code of the Ukrainian SSR 1963 established a general rule that the acquirer of property under a contract arises from the moment the property is transferred, unless otherwise provided by law or contract. In fact, this general rule was retained in Part 1 of Art. 334 Civil Code.

If this provision is applied to legal relations between spouses, then it can be stated that in any case, the spouses’ right of common property cannot arise earlier than the property right of the spouse who acts as the acquirer of the property in the contract.

Considering that the principle of the community regime for family law comes into effect automatically (unless otherwise stipulated by the marriage contract), it is quite possible that the logical conclusion is that the right to common joint ownership of property acquired under the contract by one of the spouses arises simultaneously at the time of the emergence of the right personal property of the spouse who is a party to the contract, that is, the ownership of one subject automatically turns into the ownership of several subjects (co-owners).

Such a legal situation can be characterized as an automatic transformation of one legal regime into another, and the legal regime of a community in relation to property acquired through transactions of one of the spouses arises regardless of the will of the wife – a participant in the transaction.

All of the above gives grounds for a generalizing conclusion that the right to common joint ownership of property acquired by one of the spouses arises at the time of transfer of property to him, unless otherwise provided by an agreement or law.

The Civil Code of the Ukrainian SSR 1963 did not provide for a single direct warning about another moment of the emergence of ownership of the acquirer of the property under the contract.

In the civil legislation of the Soviet period, only in some union republics in the civil code there were special reservations regarding the moment when the right of ownership arose.

In particular, in Art. 135 of the Civil Code of the RSFSR, 1964. It was recorded that when transactions for the alienation of property are subject to state registration, the acquirer’s ownership right arises from the moment of such registration.

This norm, with some editorial additions, is also reproduced in the new Civil Code of the Russian Federation in 1996 (Art. 223).

In the modern legislation of Ukraine, there is a tendency to expand the range of cases of legislative definition of the moment of emergence of property rights both in individuals and legal entities.

For example, Art. 22 of the Law of Ukraine “On privatization of small state-owned enterprises (small privatization)” as amended on May 15, 1996 provided that the right to own, use and dispose of the object of privatization passes to the buyer from the moment of notarization of the purchase and sale agreement.

From a legal point of view, the construction of the above norm cannot be considered successful, since the legislator has applied non-traditional terminology about the transfer to a new owner of powers, and not the transfer of ownership.

Such “inappropriateness” was not allowed in the Law of Ukraine “On the privatization of property of state enterprises” as amended on February 19, 1997, in Art. 27 of which it was stated that the ownership of the privatized object passes from the moment of notarization of the purchase and sale agreement.

Transfer of ownership of a building or land plot in Ukraine

Article 30 of the Land Code of Ukraine in 1991. Provided that when the ownership of a building and structure is transferred, together with these objects, the right of ownership or the right to use the land is transferred in the appropriate size.

Thus, in this case, the moment of the emergence of the ownership (right of use) to the land plot is made dependent on the moment of the emergence of the ownership of the building or structure.

However, in the new Land Code of Ukraine dated October 25, 2001, this issue is resolved somewhat differently.

So, in accordance with Art. 120 LC of Ukraine 2001. Upon transfer of ownership of a building and structure, ownership of a land plot or part of it may be transferred on the basis of civil transactions.

Since the moment of the emergence of the ownership of the land plot is not directly determined here, it must be determined taking into account the provisions of Art. 125 of the Law of Ukraine 2001, according to which the ownership of a land plot arises after the owner receives a document certifying ownership and its state registration, as well as Art. 132, according to which agreements on the transfer of ownership of land plots are considered concluded from the date of their notarization. In the Civil Code of the Ukrainian SSR in 1963, there were no special rules regarding the moment when the ownership of buildings and structures arose.

In Art. 227 of the Civil Code of the Ukrainian SSR only noted that the contract for the sale and purchase of a residential building must be notarized if at least one of the parties is a citizen and failure to comply with this requirement entails the invalidity of the contract.

Moreover, according to Part 2 of Art. 227 of the Civil Code of the Ukrainian SSR, such agreements must be registered with the executive committee of the local Council of People’s Deputies.

However, this article did not say anything about the moment the property right arose. Therefore, in the literature on this matter, it was noted that the ownership of a residential building arises at the time of notarization of the contract.

Indeed, the right of ownership to a residential building may arise at the time of notarization of the contract, but if the parties have not determined in the contract another moment for the emergence of ownership. Notarization of the contract for the parties means a symbolic transfer of a residential building to the purchaser.

A special case of the emergence of property rights among citizens was provided for in Art. 15 of the Law of Ukraine “On Property” (expired), according to which a member of a housing, housing and construction, summer cottage, garage or other cooperative or society who has fully paid his share contribution for an apartment, garage, other building or premises provided to him for use , acquires ownership of this property.

And although in the above norm we are talking only about the receipt by a member of a cooperative or society of ownership of the specified property, it is quite obvious that the moment of repayment of shares by him is at the same time the moment when this person arises the right of ownership, and at the end, if this person is married , then at the same time the right of common joint property of the spouses (provided that the initial and subsequent share contributions were made during the marriage).

With the adoption of the Civil Code, the situation regarding the emergence of ownership of residential buildings and other structures has changed significantly due to the fact that in Art. 326 of the Civil Code states that the ownership right to a thing under a contract requires notarization, arises from the acquirer from the moment of such certification or from the moment the court decision enters into legal force on recognizing as valid a contract that has not been certified by a notary, except as provided by law, and if the contract on the alienation of property is subject to state registration, the acquirer’s right of ownership arises from the moment of its registration (for example, contracts for the sale and purchase of a land plot, a single property complex, a residential building (apartment) or other real estate, a mine (Articles 657, 716).

In connection with the cancellation of state registration of real estate transactions by the Law of Ukraine dated 11.02.2010, Part 4 of Art. 334 of the Civil Code was stated as follows: “Rights to real estate, which are subject to state registration, arise from the moment of such registration.”

According to the updated Part 1 of Art. 182 Civil Code (as amended by the Law of 02/11/2010) The right of ownership and other real rights to immovable things, encumbrances of these rights, their occurrence, transfer and termination are subject to state registration.

Such changes entered into force on 01.01.2013. In the manner determined by the Law of Ukraine “On state registration of rights to real estate and their encumbrances” (as amended in 2010)

Therefore, taking into account these changes, it can be concluded that the ownership of real estate acquired under a contract by one of the spouses arises from the moment of state registration of such a right by the acquirer.

For the spouses, this will mean that common joint ownership of such property also arises at the time of its state registration, provided that the property was acquired using their common funds.

Right of common joint ownership of the wages of the spouses in Ukraine

Most of all, however, discussions arose in the legal literature of the Soviet period about the moment of the emergence of the right of common joint property of spouses to the wages received by one of them and other labor income, pensions, and scholarships.

Here, basically three main points of view were formed, which in general boil down to the fact that the community regime for wages and other similar incomes of spouses applies to:

  • the moment one of the spouses – an employee enters the right to receive remuneration;
  • the moment the reward is delivered to the family;
  • the moment of actual receipt of remuneration by one of the spouses (employee).

Indeed, the opinion that the accrued but not received salary belongs to the spouses on the basis of the right of common property is vulnerable, since by the time the employee receives it, it is not at all an object of property rights.

In this regard, the Judicial Collegium for Civil Cases of the Supreme Court of Ukraine in its decision of December 17, 1975 came to the conclusion that the salary, bonus, compensation for unused leave accrued to one of the spouses were not received and did not go to the budget. are considered joint property of the spouses, and belong to one of the spouses – the employee (Soviet law. 1976. № 6. P. 103).

Of course, such a court decision does not contradict the current legislation.

However, in this regard, another question arises: it may still be advisable to extend the action of the community regime to the wages not received by one of the spouses and to provide for this directly in family legislation.

In our opinion, the introduction of such a proposal in legislation could give rise to negative situations and would be in conflict with the principles of labor law, because according to Art. 97 of the Labor Code of Ukraine, wages are remuneration calculated, as a rule, in monetary terms, which the owner or his authorized body pays the employee for the work performed by him.

The extension of the community regime to the wages not received by one of the spouses would give the second of them the right to demand in court the payment of part of it or in full, it would be incompatible with the nature of labor legal relations in which the emergence of labor rights and obligations is associated with the personality of the employee, his qualifications , positions and the like.

The second point of view also has vulnerabilities, according to which the authors coincide with the moment when the spouses have the right of common property to pay wages to the moment of their introduction into the family budget.

Her opponents call one of the most powerful arguments that she would allow one of the spouses not to participate in the creation of the family budget, and then there would be a disregard for the norms of family law, which provides for the automatic action of the regime of community of property of friends.

From the above definition of the judicial collegium of the Supreme Court of Ukraine dated December 17, 75 g .. It is seen that the judicial collegium was also inclined to consider the moment when the right of common property arose from spouses the moment of transfer of remuneration to the family.

However, a significant drawback of this position is also the fact that it complicates the solution of family and property disputes, because it is almost impossible to establish the moment of transferring funds to the family budget. Despite the vulnerability of this approach to solving this problem, the legislator in Art. 61 SK in its original version suggested that the object of the right of common joint property is wages, pensions, scholarships, other incomes of one of the spouses, transferred to the family budget.

However, the Law of Ukraine of 22.12.2006, Part 2 was set forth in a different edition, according to which the object of the right of common joint property is wages, pensions, scholarships, and other income received by one of the spouses.

Thus, the amendments made do not link the emergence of the right to common joint property with the fact that one of the spouses contributed such income to the family budget.

In such circumstances, the property rights of the spouse who does not work for valid reasons can be more effectively protected.

This, however, does not mean that one of the spouses is deprived of the right to dispose of the received wages or other income at his own discretion, because when concluding transactions, one of the spouses is considered to act with the consent of the other spouse.

In addition, the employee in any case owns half of the remuneration, which he can dispose of independently.

Part 2 of Art. 61 SK, in addition to wages, pensions, scholarships, other incomes received by one of the spouses are also attributed to the objects of the right of common joint property.

Recognition of income from entrepreneurial activity as common joint property in Ukraine

The most problematic is the admissibility of recognizing the income from entrepreneurial activity received by one of the spouses as their common joint property.

In this regard, the conclusions set out in the decision of the Supreme Court of Ukraine of May 18, 2016 in case No. ownership of the property, on invalidating the sale and purchase agreement, lifting the arrest from the property, came to the conclusion that the property of an individual – an entrepreneur, as property for the professional activities of a family member, which was acquired with funds from his activities as an entrepreneur and is used in his business activities not in the interests of the family, should be considered as his personal private property in accordance with Art. 57 SK, and not as an object of common joint property of spouses, falls under the regulation of Articles 60, 61 of the SK.

The conclusions set out in the decision of the Supreme Court of Ukraine dated May 18, 2016 cannot be considered sufficiently reasoned.

Firstly, the court actually recognized that the property of an individual – an entrepreneur, acquired with funds from entrepreneurial activities, is his personal, and not joint joint property of the spouses, does not correspond to the content of Part 2 of Art. 61 SK.

Secondly, such property is groundlessly considered property for professional activity, since it does not fall under the characteristics of things for professional occupation, as defined in Part 4 of Art. 61 SK.

More acceptable is the conclusion of the Collegium of Judges of the Chamber of Civil Cases of the High Specialized Court of Ukraine for the consideration of civil and criminal cases in the decision of November 1, 2017 in case No. activity by such a person) is considered the common property of the spouses, as well as other property acquired during the marriage.

Actually, such a legal position was stated earlier in the ruling of the Supreme Court of Ukraine dated March 11, 2015 in case No. 6-21ts15.

In our opinion, the provisions of Art. 61 SK give reason to believe that the income received by an individual – an entrepreneur during marriage, but at the same time the property acquired with such funds, should be considered the joint property of the spouses.

Family lawyer in cases concerning objects of law of common joint property in Ukraine

For an effective solution of the case regarding the objects of the law of common joint 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 objects of common joint property rights.

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 solving a case regarding objects of common joint property law is to contact good family lawyers!

If the article “Objects of Common Joint Property Rights” 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 objects of common joint property law.

Frequently asked questions to a lawyer in Ukraine

Does the personal computer of one of the spouses belong to the objects of the joint property rights of the spouses?
Is the bank deposit of one of the spouses his personal private property?
What refers to the grounds for the emergence of private property rights?

Useful site materials advokat-skriabin.com:

  1. Division of property of spouses
  2. Amount of shares in the property of the spouses
  3. Imposition of foreclosure on the property of spouses
  4. Division of property in a civil marriage
  5. Personal private property of spouses
  6. Common joint property of spouses
  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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ADVEGO

property 166 2.13
spouse 157 2.02
right 156 2.01
total 135 1.74
estate 129 1.66
joint 92 1.18
total joint 83 1.07 / 2.13
joint ownership 77 0.99 / 1.98
article 77 0.99
common joint ownership 72 0.93 / 2.78
object 72 0.93
Ukraine 66 0.85
be 63 0.81
one 62 0.80
general rights 54 0.69 / 1.39
ownership 50 0.64 / 1.29
objects of law 49 0.63 / 1.26
moment 48 0.62
contract 47 0.60
it is 47 0.60
spouses’ property 47 0.60 / 1.21
law 46 0.59
ship 43 0.55
common joint rights 41 0.53 / 1.58
common joint property rights 41 0.53 / 2.11
single spouse 40 0.51 / 1.03
joint property of spouses 40 0.51 / 1.54
promotion 38 0.49
joint property of spouses 38 0.49 / 1.95
solution 38 0.49

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SKRIABIN
Does the personal computer of one of the spouses belong to the objects of the joint property rights of the spouses?
Thus, things for professional occupations (musical instruments, office equipment, medical equipment, etc.) acquired during marriage for one of the spouses are subject to the right of common joint property of the spouses.
Is the bank deposit of one of the spouses his personal private property?
No, deposits made by spouses in banking and other credit institutions during the marriage should be considered common joint property.
What refers to the grounds for the emergence of private property rights?
As you know, the grounds for the emergence of the right to private property are income from participation in social production, from individual labor, entrepreneurial activity, investments in credit institutions, joint stock companies, as well as inheritance and property on other grounds not prohibited by law.