The property relations that develop between the spouses have always needed and require special attention. The regulation of these relations is subordinated to the fulfillment of one of the tasks of family law – building family relations on the basis of mutual assistance and support, and at the same time, protecting their private interests. So, property security – the presence of a certain property, a certain number of funds, facilities and amenities necessary for the spouses. And this is natural, since a person in a society is an active consumer of a greater degree of material benefits than spiritual ones. Only having a certain material base, the family can perform the functions that are assigned to it. Accordingly, between the spouses there are not only personal, but also property relations, which are important for the relations of the spouses as a whole.
Family law provides for two modes of property of spouses – personal private and joint property.
In order to be able to fully use and dispose of personal private property while in a marriage, it is necessary to know which property belongs to it. Personal private property of the wife or husband in accordance with Art. 57 of the Family Code of Ukraine are:
It should be noted that the registration of marriage does not change the legal regime of the property that was acquired by each of the spouses before. Without the consent of the owner, the premarital property of one of the spouses must not be transferred to the common property, the property that was acquired by each of the spouses before marriage, maintains a separation regime regardless of the duration of the marriage, even if this property was used not only by the owner but also by the spouse.
As a general rule, all property acquired by spouses during their stay in marriage is the joint property of the spouses. It does not matter who bought this or that thing, in whose name (spouse) it is registered, and which of the spouses made money to purchase this property. However, the property acquired on separate funds is the separate property of each of the spouses. So, there is a general regime for the community of spouses’ property, according to which the property acquired during the marriage is deemed to belong to the spouses. The reverse must be proved by the person who considers the property separate and owned personally. In this regard, things acquired during the marriage, automatically fall under the regime of common property of the spouses. It should be borne in mind that if the spouses are still married, but in fact have already ceased to live together, that is, they have stopped marital relations, the property acquired during this period is covered by the rule on joint property of spouses. And in this case, in court it will be necessary to prove that certain property was acquired in the period when the spouses lived separately and the marriage relations were terminated. Only in this case this property will be considered the personal property of the spouse.
When courts consider disputes on the division of property of spouses, courts often decide on the recognition of separate property acquired during marriage by one of the spouses at their own expense. Only in the case when the spouse can prove in court that the money for which the thing was purchased belonged to him personally, the property can be recognized as separate. In the event of a dispute, the evidence of these circumstances will be carried out by the interested party in court. If the wife (husband) does not object that the property (including the immovable thing) was acquired, although during the marriage, but at the expense of one of them, they can recognize this fact and fix it in the contract. This could be, for example, a contract on the division of property of spouses or a marriage contract.
How to prove in court, property is personal private property and to implement the division of the common property of the spouses? You need to apply to the family lawyer and prove that the property in respect of which the dispute is bought by you personally on your personal funds, or the money donated to you. This can be money from the sale of other property that was in your property or property of your relatives even before marriage. The question of who exactly gave the property – the couple or one of them, in case of a dispute, is decided by the court, proceeding from all the circumstances of the case. Usually, courts take into account the nature of the donated property. If the property provides for the interests of the spouses (refrigerator, furniture set, etc.), it is considered that the gift was made in favor of the spouses, if the gift had a personal direction, then only one of the spouses (computer, medical equipment, special literature like that). In judicial practice, there are cases of disputing prisoners made by one of the spouses during the marriage of real estate donation contracts. There were requirements to recognize such contracts as alleged and imprisoned in order to conceal a real transaction, which is actually a contract of sale of such property, recognition of the right of joint property of spouses to such property and the right to share in it.
In order to recognize property as joint common property, the court must establish not only the fact of acquiring this property during the marriage, but also the source of its receipt. This conclusion was reached by the Supreme Court of Ukraine in Resolution No. 6-612 c15 of July 1, 2015.
So, in the judgments of the Supreme Court of Ukraine from 1.02 and 6.05.2015, the court of cassation instance on the basis of Article 57 of the Family Code of Ukraine came to the conclusion that one of the spouses purchased at the time of marriage for own means raised the apartment by selling the private property of another apartment, is his personal property.
It was noted that the ownership of the property to the joint joint property of the spouses is determined not only by the fact of its acquisition during the marriage, but also by the common participation of the spouses by means or labor in the acquisition of property.
Similar conclusions are contained in the Supreme Court of Ukraine decision of 19.06.2013, where, furthermore, it is indicated that a contract concluded by one of the spouses creates obligations for the second of the spouses in case it is concluded in the interests of the family, and the contract received under this agreement the property was actually used to meet the needs of the family. A contract concluded by one of the spouses, according to which the property is used not for the needs of the family, but for other needs, does not create obligations for the other spouse.
Litigation and enforcement of art. 62 of the Family Code of Ukraine, which determines that in the event of a significant increase in the value of the property of the wife or husband due to the total labor or money costs or expenses of the second of the spouses, in the event of a dispute, in the event of a dispute, it can be recognized by the court decision as the object of the joint joint property of the spouses. In judicial practice, it is noted that the increase in the value of property should occur as a result of joint expenses of spouses, regardless of other factors (in particular, trends in the overall appreciation of specific property), while an important sign should be a significant increase in the value of property as an object, its quality characteristics.
The increase in the value of the property and the materiality of such an increase shall be ascertained by comparison for the time of resolving the dispute of the value of the object before and after the improvement; at the same time the amount of money spent by the spouses or one of them, as well as determined at the time of consideration of the case, the cost of repair work can not be considered as the only factor, undoubtedly testifies to the materiality of the increase in the value of property as an object.
Defining the legal status of the disputed property as the joint joint property of the spouses, the court must take into account that the share in such property is determined in accordance with the amount of the actual contribution of each party, including at the expense of property acquired by one of the spouses before marriage, is his personal private property . If in the acquisition (construction) of property are invested, in addition to general means, personal private funds of one of the parties, then the share in such property in accordance with the amount of the contribution is its property.
There are a lot of controversial issues in the division of spouses’ property, if it includes corporate rights, that is, one of the spouses acts as the founder of the economic company, acquires a share or a stake in the authorized capital, and so on.
Plenum of the Supreme Court in its judgment of 21.12.2007 number 11 “On the practice of courts of law in cases of the right to marriage, divorce, annulment, and the division of common property of spouses,” noted that in deciding on the division of property in the form of shares , share (share, share) in the funds of corporate economic organizations, courts should proceed from the fact that the issue of their division is decided depending on the type of legal entity, the organizational and legal form of its activities, the nature of the legal relationship spouses with this subject. In particular, the shares were attributed by the Plenum to the common property of the spouses, and the share in the authorized capital of the limited liability company and the property of the private enterprise were not attributed to the objects of common joint ownership. In relation to the property of a private enterprise, as private personal property of spouses, the Constitutional Court of Ukraine also interpreted. So, the decision of the Constitutional Court of Ukraine of September 19, 2012 No. 17-rp / 2012 on the case on the constitutional appeal of a private enterprise adopted: “In terms of constitutional treatment, the provisions of part one of Article 61 of the Family Code of Ukraine should be understood so that the authorized capital and property of a private enterprise is the object of the right of joint property of the spouses together “. At the same time, we note that the legal nature of relations in a private enterprise is not identical with societies with limited liability.
In the aforementioned resolution of the plenum, the courts explained that Art. 12 of the Law of Ukraine “On Business Associations” established that the owner of the property transferred to him by the founders and participants is the company itself. The contribution to the statutory fund of the economic company is not subject to the right of joint property of the spouses.
Thus, in the case of the transfer by the spouses of their property for the conduct of entrepreneurial activity by the participation of one of them in the foundation of the economic company, this property belongs to the specified company on the basis of ownership, the spouse acquires the corresponding property right, which is realized by one of the spouses (the founder) by participation in the management of the company , and the second spouse acquires the right to demand payment of certain amounts to him in case of division of property between spouses.
Ambiguity remains judicial practice for the recognition of joint property of one of the spouses, who is an individual entrepreneur. Due to the fact that the current legislation does not separate the property of an individual from the property of a physical person-entrepreneur, and therefore in fact the general provisions of the Family Code of Ukraine, which regulate the status of common property of spouses, are distributed to the entrepreneur. Usually, judicial practice adheres to the general principles of family law, and determines that the property of an individual entrepreneur is the joint property of the spouses, and therefore this property is subject to division in the general order. However, there is also an opposite jurisprudence. For example, the Supreme Court of Ukraine in case No. 6-1327 cc15 of May 18, 2016. that such property is the personal private property of the spouse registered as SPD and is not subject to division. However, provided that this property is not used in the interests of the family and is used in the interests of business for profit.
In accordance with the Decree of the Plenum of the Supreme Armed Forces “On the practice of courts applying legislation in cases involving the right to marry, divorce, recognition as invalid and division of common property of spouses,” unambiguous explanation is given to lower courts that the property of a private enterprise or an individual entrepreneur is not is the object of common joint property of the spouses. At the same time, in practice, it is not often that the family litigation lawyer has legal title documents for real estate that are designed specifically for the spouses in the status of FLP. Usually the documents are designed simply for a citizen without an indication of entrepreneurial activity. These circumstances make it difficult to prove the relationship of property to the property of the entrepreneur. In addition, we should not forget about the norm of the Constitution, which is directly valid and states that the legal regime of property can be established and changed only by laws, and not by decisions, even by a court of the highest judicial level.
When sharing common property of spouses an important role is played by many different nuances that are individual for each single family. This may be the issues of dividing debt obligations, and the issue of the division of property between spouses in cases where one of them (or both) are physical persons-entrepreneurs, or there is unfinished property among the property. For a more detailed analysis of the situation of each individual person, we recommend that you consult a family lawyer.