Ukraine: Common-Law Marriages In Ukraine

Last Updated: 22 November 2012
Article by Alex Frishberg

What about a couple who lives together as husband and wife, but does not have the marriage registration? What kind of property rights and obligations do they have without the marriage certificate?

Article 21 of the Code defines marriage as a family union of a woman and a man, which is registered in the state Registry office. At the first reading, the law could be interpreted that if a woman and a man live together as a family, but without registering such relations as a marriage, this alone is not sufficient grounds to trigger spousal rights and obligations. However, Article 74 of the Code clearly provides the following:

(1) if a woman or a man jointly reside as one family, but they are not married to each other and any other person, the property acquired during such joint residence belongs to them under the common property right, unless otherwise stipulated by the written agreement concluded between them;

(2) property under common ownership of a woman and a man living together as a family, but without registering an official marriage, is subject to general rules provided by law for the common ownership of the officially married persons, i.e. equal rights as for the possessing, use and alienation of such property.

As a general rule, Ukraine will have jurisdiction over any property located on its territory, 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. Thus, the partner alleging the existence of marital relations despite the absence of a marriage registration will have to prove the fact of cohabitation in Ukraine and keeping joint household in Ukraine.

Living together and keeping a common household in may be confirmed by various 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). Unfortunately, Ukrainian family law does not provide specific requirements to determine what period of cohabitation (living together as spouses) is sufficient to determine that marital relations exist. Moreover, cohabitation does not necessarily have to commence in Ukraine, but it must take place in Ukraine at least during some period of time sufficient for the court to establish actual marital relations. Based on judicial practice, and commentary by the Supreme Court of Ukraine, it appears that any specific term will be subject to factual review before the court on a case-by-case basis (by use of witness testimony, fact of joint acquisition of property for common use while living together, etc.).

Based on the above, if a partner without an officially registered marriage purchases an apartment (or a house), the owner is exposed to significant risks, including the following:

(a) relations between a man and a woman residing together can be recognized by the court as living like a family (i.e. to be the actual marital relations)

(b) real and movable property, purchased by one party within the period of their relationship, can be therefore considered as common ownership of both parties. In such case, the other party is entitled to exercise his/her rights (possession, use and disposal of such property) as if he/she is married to the property owner.

As a general rule, the court may consider the relations as marital and affirm both spouses' rights to common ownership only when:

(a) a man and a woman are not married to any other person, and

(b) they have established long-standing relations typical for spouses.

According to the Article 3 of the Code, a family consists of persons who reside together, are connected by joint household use, have mutual rights and obligations. The court may rule that the relations are marital, taking into consideration evidence and supporting documents confirming joint residence, joint purchases (bills), sharing housekeeping expenses, any vacations taken together, etc.

Once the court recognizes the relations between a man and a woman as marital, it consequently causes the right of such a man and a woman to common ownership of any property earned during their union. "Common property" can include commercial/residential real estate, land, vehicles, money, shares and other securities, accounts in banks (credit institutions), and anything else acquired during the period of the couple's cohabitation, unless:

(1) otherwise stipulated by the written agreement concluded between the parties, or

(2) such property cannot be considered as the common ownership by law.

The Ukrainian Law further provides that any property under personal private ownership of a spouse can not be considered as the common ownership even if the relations between the parties were recognized by the court as the actual marital relations. Specifically, Article 57 of the Code defines the property as "personal private ownership" as property acquired:

(1) before marriage (or relationships which might be considered as marriage);

(2) during the period of marriage but under the deed of a gift or by inheritance;

(3) during the period of marriage but for money belonging to her or him personally; (4) for individual use (e.g., property was purchased by money belonged to the owner personally or acquired before parties' relations had really started).

The owner's family members are considered to be his wife, their children and parents. Unfortunately, other persons can also be recognized as the owner's family members, including mother-in-law, if such persons permanently reside with the owner and help manage the common household (Article 64 of the Housing Code of Ukraine). Whenever relations between two partners are recognized by the court as marital, they are considered as family members to each other. According to Article 156 of the Ukrainian Housing Code, family members of an owner of a residential house (or an apartment) that jointly reside with him have the right to use such residential space equally with the owner unless another agreement regulating the use of such house (apartment) by family members is concluded between the owner and such family members when they move into the house (apartment).

Importantly, termination of the family relations with the owner of the realty does not cancel the former family members' legal rights to use residential property. Considering provisions of the Ukrainian Housing Code with respect of the actual and former family members' right to use the apartment (on free or paid basis), the chances of evicting any "family member" without a registered official marriage (even if such relations are already over) on legal grounds is rather small, unless all the issues of the apartment's use by such a party is clearly determined by a prior agreement with the owner.

As with married couples, Ukrainian legislation spells out the parties' rights and obligations to each other and to any common children if:

1) the fact of joint cohabitation has been proved, including the fact of cohabitation in Ukraine;

2) the child is a citizen of Ukraine; 3) the child permanently resides 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 is calculated in percentage from a salary/incomes or determined by the court.

In determining jointly acquired assets for the purposes of their subsequent equitable distribution between the parties, 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" requires 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. Generally, common joint property constitutes any movable and immovable property acquired during living together as a couple (cohabitation).

The assets that used to belong to one of the persons may be found to constitute common joint property if the parties contractually agreed to this or where the court found that during the period of cohabitation the value of such property has increased as a result of labor efforts or financial expenses of the other person or of both of them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions