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AGA Partners
11a, пр. Науки
03028, Киев
Украина |
тел.: +380 (44) 206-06-75
+380 (44) 206-06-76
тел./факс: +380 (44) 206-06-75
e-mail: office@agalawyers.org |
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Specifications of law regulations of cohabitation issues under the Ukrainian legislation
Relevant legislation:
Civil Code of Ukraine, 16.01.2003;
Family Code of Ukraine, 01.10.2002;
Convention on the legal assistance and legal relations in civil, family and criminal matters (Kishinev, October 7, 2002)
Decree of the Plenary of the Supreme Court of Ukraine ь16 "On use by the courts of the certain provisions of the Family Code of Ukraine" adopted on June 12, 1998
According to Article 74 of the Family Code of Ukraine if a man and a woman live together as a couple but are not married to each other or to anyone else, the property acquired by them during their joint cohabitation (such cohabitation is also called actual marital relations) belongs to them by the right of common joint property unless otherwise provided for by a written contract between them.
Property that is the object of the right of common joint ownership of a man and a woman who are not married to each other or to anyone else is covered by the provisions regulating the rights of common joint property of the spouses whose marriage has been legally registered. That is, if the parties failed to provide otherwise in writing, a spouse may have a claim of 50% of the assets jointly acquired during the actual marital relations.
If the spouses are the citizens of different countries then according to Article 30 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases (Chisinau, 7 October 2002) ratified both by Russian Federation and Ukraine:
1. Personal and property legal relations of spouses shall be regulated by the legislation of the Contracting Party on the territory of which they have common place of residence.
2. If one of the spouses resides on the territory of one Contracting State and the second one - on the territory of another Contracting State and herewith both spouses have the same citizenship, their personal and property legal relations shall be regulated pursuant to the legislation of the Contracting Party whose citizens they are.
3. If one of the spouses is a citizen of one Contracting Party, and the other one - of another Contracting Party and one of them resides on the territory of one and the other one - on the territory of another Contracting Party, their personal and property legal relations shall be regulated by the legislation of the Contracting Party on the territory of which they had their last common place of residence.
4. If the persons mentioned in paragraph 3 of this Article did not have a common place of residence on the territories of the Contracting States, the legislation of the Contracting Party whose justice institution is trying the case shall be applicable.
5. Spouses' legal relations concerning real estate shall be regulated by the legislation of the Contracting Party on the territory of which this estate is located.
6. Spouses' personal and property legal relations belong to the competence of the institution of the Contracting State whose legislation is applicable in accordance with paragraphs 1-3 and 5 of this Article.
Thus, Ukraine will have jurisdiction over all contentious property located in Ukraine as well as in the case where one of the parties proves that the cohabitation took place in Ukraine or files a lawsuit with a court in Ukraine.
The cohabitation may be evidenced by the actual data confirming the cohabitation, keeping common household, bringing up and maintaining children. Living together (cohabitation) and keeping common household in certain cases may be confirmed by the availability of circumstances characteristic of family relations (living together as man and wife in the same dwelling place, having meals together, common budget, mutual care, acquisition of property for common use).
Thus, the Party alleging the availability of actual marital relations shall prove the fact of cohabitation in Ukraine and keeping joint household in Ukraine.
Ukrainian family law does not provide for specific requirements in order to determine from which period cohabitation (living together as spouses) may be acknowledged. On the basis of judicial practice and elucidation of the Supreme Court of Ukraine a conclusion can be made that a specific term will be subject to proof in the court (by witness testimony, fact of joint acquisition of property for common use while living together, etc.).
Cohabitation does not necessarily have to commence in Ukraine, however it shall necessarily take place here during some period of time sufficient for the court's finding of the availability of actual marital relations.
The very fact of the birth of a child in itself, although recognised by the father, does not prove the availability of actual family relations (the cohabitation), however, it is a strong argument for proving the availability of such relations in the court.
It is not the place of the child's birth that is of material significance but his/her citizenship. Article 35 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases provides:
1. Rights and duties of parents and children, including parents' obligations to support children are regulated by the legislation of the Contracting Party on the territory of which they have their permanent common place of residence and in the event that there is no permanent common place of residence of parents and children, their mutual rights and duties are determined by the legislation of the Contracting Party whose citizen the child is.
Where a plaintiff claims child support, the legislation of the Contracting Party on the territory of which the child permanently resides shall be applicable.
2. Adult children's obligations to support their parents as well as those to support other family members are regulated by the legislation of the Contracting Party in the territory of which they had common place of residence. In the event there is no common place of residence such obligations shall be regulated by the legislation of the Contracting Party the plaintiff is a citizen thereof.
3. Cases concerning legal relations between parents and children are within the competence of courts of the Contracting Party whose legislation shall be applicable in accordance with paragraphs 1 and 2 of this Article.
4. Courts judgments in respect of cases relating to the upbringing of children are enforced pursuant to the procedure established by the legislation of the Contracting Party in the territory of which the child resides.
Thus, Ukrainian legislation with regard to determining parties' rights and obligations to each other and to children shall be applicable in the following circumstances:
1) if the fact of joint cohabitation has been proved, including the fact of cohabitation in Ukraine;
2) if the child is a citizen of Ukraine;
3) if the child is permanently residing in Ukraine.
In determining jointly acquired assets for the purposes of their subsequent equitable distribution between the parties one should take into consideration Resolution No.16 of 12 June 1998 of the Plenary Supreme Court of Ukraine "On the Application by the Courts of Ukraine of Certain Norms of the Family Code of Ukraine". This Resolution in particular specifies that it is necessary for the courts to establish the amount of jointly acquired assets available by the moment of termination of joint managing the household (cohabitation), to determine the source and time of the acquisition of the designated property. Herewith it is necessary to proceed from the fact that common joint property constitutes movable and immovable property acquired during living together as a couple (the cohabitation) that can be an object of the right of private property (except the assets acquired during separate living after actual termination of the period of cohabitation).
The assets that used to belong to one of the persons may be found to constitute common joint property provided the parties determined it to be such by a contract or where it was found to be such by the court on the basis of the reasoning that during the period of cohabitation the value of such property has increased as a result of labour efforts or financial expenses of the other person or of both of them.
Common property in particular may include: real estate, land, vehicles, money, shares and other securities, accounts in banks (credit institutions), insurance sum, insurance premium paid out of joint funds, money resources and property belonging to cohabitants under other legal relations of obligations.
If any of the parties ) made an investment into the purchase of joint property at the expense of the property that belonged to him/her before they entered into actual marital relations; b) some property received as gift or inheritance during the actual marital relations, purchased at the expense of the resources that belonged to him/her prior to the entry into actual marital relations, or in case of any other separate property (including the value of property before it was recognised as common joint property), it should be taken into account while determining shares of common joint property. That is, in case a) the property shall be subject to equitable distribution, whereas in case b) it shall be not subject to.
According to the general rule, Ukrainian courts have jurisdiction solely over the assets located in Ukraine.
The most important obligation that arises in the described situation is payment of child support for the maintenance of minor children, the child support being calculated in the amount of 25 % of the income for one child and 33% for two children.
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