It often happens that during the marriage of spouses no one clearly identifies the source of income, and no one doubts who made money to purchase the so-called jointly acquired property, but unfortunately, when such a marriage is dissolved, a number of new problems appear. One of the spouses may disagree with the fact that all co-acquired property during the marriage will be divided equally between the spouses, because, in his opinion, he earned money for his purchase on his own. It is for the solution, including such conflict situations, that there is a marriage contract or as it is also called a marriage contract. At the legislative level, the procedure for concluding and the subject of the regulation of the marriage contract are determined by the norms of the Family Code of Ukraine.
Proceeding from the content of the Family Code of Ukraine, the marriage contract is a contract concluded between spouses or persons entering into marriage that regulates exclusively property relations between spouses, determines their property rights and obligations in marriage and / or in case of its dissolution, as well as property rights and responsibilities of spouses as parents. But at the same time, the legislator does not give us a clear definition of this concept. The main requirement of the law is that the marriage contract is concluded in writing and certified by a notary.
The marriage contract has the right to conclude spouses who are married or persons who applied for the registration of marriage. The marriage contract, signed before the marriage, begins to operate on the day of marriage registration. The marriage contract concluded in a marriage acquires legal force after its notarization. But the duration of each contract is different. So, in the marriage contract can be established a general term of its validity, as well as the duration of individual rights and obligations, both during and after the termination of marriage.
It is worth noting that the marriage contract can be concluded not only by adults, but also by minors aged 14 to 18 years. First, minors can have full legal capacity. Recall that full legal capacity, except for adults, has a person who married before adulthood, as well as emancipated persons who acquired full legal capacity before reaching adulthood in a special order provided by law. In such cases, minors enter into a marriage contract on their own. Secondly, a marriage contract can be concluded by minors who do not have full legal capacity, but have the permission of the parents (guardian) certified by a notary. But people living in a civil marriage can not enter into a marriage contract. But they can conclude an agreement on the definition of the legal regime of property, will have the same legal force in case of disagreement at the stage of separation of property after the termination of the actual marriage relations.
According to the legislation, the marriage contract can regulate both property aspects and issues related to who and to what extent will bring up and support common children after the dissolution of the marriage, as well as who and where will reside after such dissolution.
For example, in the marriage contract, no one forbids you to indicate that after the dissolution of a marriage, this or that immovable property or things will be transferred to the possession of one of the spouses, but here one should not forget that the marriage contract can not place in the knowingly disadvantage position of one of the spouses.
At the same time, non-property issues of former spouses in relations to each other can not be resolved in the contract. For example, it is illegal to determine the duty to avoid meeting each other, the obligation to change the name or other kind of violation of personal rights and freedoms.
However, in the marriage contract, you can specify that after the dissolution of the marriage, the common child of the spouses will live with the father or mother, and the other in turn will commit to allocate a certain amount of money for maintenance thereof monthly (alimony). Roughly speaking, these are the same alimony, but without separate court sessions and decisions, which will only be extra costs and problems for each of the spouses. By the way, according to the family code of Ukraine, the marriage contract can not reduce the scope of the child’s rights established by the current legislation.
On the change in the provisions of the marriage contract, as well as the refusal of such a contract and its termination, it is necessary to note the following. The marriage contract can be changed by the couple by:
The agreement on changing the marriage contract is a separate procedure, which is also notarized. Unilateral change of the terms of the marriage contract is not allowed. However, under the court’s decision, the marriage contract can be changed at the request of one of the spouses, if his interests, interests of children, and disabled adults are so demanded. Reasons should be significant – for example, a person who committed to provide financial assistance to his wife, became bankrupt, due to which he can not fulfill the terms of the marriage contract.
Spouses have the right to renounce the marriage contract jointly, but a unilateral refusal is not allowed. It is interesting that the parties can (by agreement) cancel the contract as from the date of submission to the notary of an application to refuse him, and from the moment of concluding an additional agreement. But the agreement of the spouses to annul the marriage contract can not cause violation of the rights and legitimate interests of third parties.
The dissolution of the marriage contract differs from the renunciation of the marriage contract in the absence of consent of the parties. So, at the request of one of the spouses, the marriage contract may be terminated by a court decision on grounds that are of significant importance, in particular in the case of impossibility of its fulfillment. In this case, the plaintiff must prove in court an objective impossibility of fulfilling the terms of the contract. In such a case, the court may decide on the compulsory dissolution of the marriage contract and release from the need to fulfill the duties prescribed by it. It is worth noting that the court may decide to terminate the marriage contract in full, but only in part of one or more of its conditions (points).
When concluding a contract, we should not forget that there is such a thing as the recognition of a marriage contract as invalid. The legislator has determined cases of recognition of the said contract as invalid.
This can happen at the request of one of the spouses or another person whose rights and interests are violated, and the marriage contract can be declared invalid by the court on the grounds established by the Civil Code of Ukraine. Basically, these are the same grounds as for other civil law contracts. The main ones are:
Here it should be understood that the main difference between the dissolution of a marriage contract and its recognition as invalid is that in the first case the operation of the contract is terminated only for the future, and everything is fulfilled by the parties to the agreement until its termination remains legal, and in the second the contract is canceled from the moment his conclusions.
Of course, the legislative provisions on the marriage contract in Ukraine are imperfect. In the Family Code of Ukraine there is even a definition of the concept of “marriage contract”, and the possibilities of such a treaty in comparison with “foreign colleagues” are very limited both in the subject and in the material aspect. Perhaps, the marriage contract could acquire great popularity in our country, if it could be concluded by persons living in a civil marriage (such naturally many) in order to protect their property interests.
As to the judicial practice regarding the recognition of marriage contracts as invalid, based on the decision of the Supreme Specialized Court of Ukraine (judgment of 29.03.2017 in case No. 447/66/15-c), the basis for the invalidity of the marriage contract is non-compliance at the time of the party (s) :
1) the content of the marriage contract can not contradict the legislation of Ukraine, as well as the moral principles of society;
2) the will of each of the spouses, when concluding a marriage contract, must be free and answer its internal will;
3) the marriage contract should be aimed at the real occurrence of the legal consequences caused by it.
But in general, the unpopularity of marriage contracts in Ukraine can be explained by the fact that it is simply inconvenient for the spouses to put before the fact of the husband or wife the fact that they need to sign a marriage contract.
What, then, is the benefit of a marriage contract? And all the benefits are that in case of divorce, the participants of such a marriage contract without unnecessary litigation can distribute jointly the acquired property taking into account the children’s interest. And in this way you can protect yourself from a fictitious marriage.
According to statistics of the Ministry of Justice of Ukraine, since the introduction of the marriage contract at the legislative level, that is, from 2002 and through 2014 inclusive, in Ukraine 11 820 marriage contracts are registered, it is naturally incomparable with the number of registered marriages for the same period.
Our team will happily make for you a marriage contract (contract), taking into account all your wishes, as well as requirements that will meet all the norms of the current legislation of Ukraine. The insignificant cost for the services of a family lawyer to develop a marriage contract and its notarization will help to avoid significant financial expenses for litigation in connection with the separation of the common property of the spouses, and most importantly, will save valuable time, which is better given to common children.