We all know that property acquired by spouses during marriage belongs to the wife and husband on the right of joint ownership regardless of the fact that one of them had a good reason (for training, housekeeping, child care, illness, etc.) independent of earnings (income). However, in this publication we want to tell of escaping from equity shares and special grounds for changing the legal regime of the common property. Unfortunately, the existing jurisprudence, even at the level of appeal is rather ambiguous.
This fact is obvious analysis is important for families in which one spouse majority of their time engaged in business activities and the other on household chores, parenting and property should be divided.
So if voluntarily agree on a procedure for division of joint property failed, such as by marriage contract or agreement on division of joint property of spouses and the parties were in court.
Property of individual entrepreneur is his personal private property. In support available n. 29 Resolution of the Plenum MAT “On the practice of courts of law in cases of the right to marriage, divorce, declaring it null and division of joint property of spouses”; Articles 57, 61 of the Family Code of Ukraine, art. 52 of the Civil Code of Ukraine.
By virtue of Article 42 of the Constitution of Ukraine, art. c. 50-52 CC Ukraine has every right to entrepreneurial activity that is not prohibited by law. An individual entrepreneur who is married, is responsible for obligations associated with business activities, all their personal property and shares in joint matrimonial property that belongs to him, the division of the property.
One type of disposition of property is the right owner to use his property for economic activities, including business activities regulated by Art. 50-52 Civil Code of Ukraine and art. 3, 42-43, 62-67, 113 of the Civil Code of Ukraine. When economic activity refers to the activity of economic entities in the field of social production aimed at manufacturing and sale of goods, works or services of value character that have price certainty (ch. 1, Art. 3 of the Civil Code of Ukraine). According to Part 2 of Art. 55 Ukraine CC entity is in including individuals – citizens engaged in business activities and registered under the law as entrepreneurs.
If a narrow approach, to determine the status of the property as a private (personal) is sufficient for the parties to the transaction acquisitive made entrepreneur and the transaction concluded during the “legal” existence of marriage. Interesting questions are: 1. How to deal with the property that has been invested into marriage against registration of property rights held by the certificate of marriage. 2. What is proof that commercial immovable property built an entrepreneur, not as an individual citizen. 3. What probative value to the court must carry notarized consent of the other spouse on the acquisition of property in favor of the entrepreneur. After such consent is required under the order of notarial acts and do not necessarily given the status of assets issued in the name of the entrepreneur.
It is advisable to give the position set out in the legal opinion of the Supreme Court case of 18.05.2016r .: №6-1327tss15 property belonging to joint matrimonial property depends not only on the acquisition during his marriage, but the couple joint participation costs or difficulty in acquiring property. Applying this rule of law (Article 60 of the Family Code of Ukraine) and recognizing the right to joint matrimonial property to property, the court shall, on the basis of evidence to establish not only the fact of acquiring property during the marriage, but the fact that the source of the acquisition is joint funds of the spouses or their joint work.
Thus we conclude that the courts may sometimes be interpreted broadly grounds for exclusion of property entrepreneur regime joint. And again raises several questions: 1. Will the proof of the sources of funds only the turnover or revenue from sales and premarital personal property. 2. How to bring together work when a man engaged in business, and she helps not making out reciprocal employment. What always happens in practice, given the desire to optimize the tax burden. 3. In taking into account income or net income from business activities.
Source of the money is also very variable in nature. So money does not have individual features, but only function as a measure of the value of goods and means of treatment. That is exactly what the money was spent on the purchase of real estate to purchase jewelry that can remain in a woman, and that for domestic needs of the family – is almost impossible to establish and prove. This is the case when the high court clarifications can be used in legal proceedings as will comfortably side.
Exploring these legal opinion available APU reference to the fact that the property of an individual – entrepreneur, which is acquired with funds from its entrepreneur and not for the family and used in its business activities for profit should be regarded as his personal private property .
In general is absurd that such a thing is not purchased for the family. How to identify those interests. According to common understanding proof that one spouse was acting in the interests of the family and its needs can be the use of credit / loan for the purchase or construction of real estate for the family residence, repairing a family estate, buying a car to share, tuition of children and so on. However, the acquisition businessman working products or manufacturing equipment can also be perfect for the family. Since these things affect the profits of business. A profit can be spent on immediate needs of family members.
It is necessary to stay in such facilities as corporate law, property rights to real property, the right to deposit and loan commitments.
According to the Supreme Court Plenum Resolution №29 common property of spouses, in particular, are: cash, shares and other securities payenakopychennya in housing, cottage building, garage cooperatives; monies and property, appropriate for couples in other binding legal relationship, and so on. When deciding on the division of property in the form of shares (share, stakes) in funds of corporate business organizations courts should proceed from the fact that the question of division decided depending on the type of legal entity, the legal form of its activities, the nature of marriage relations with this entity.
The contribution to the statutory fund management community is not the object of joint matrimonial property. However, dividends from such rights have a chance to share.
It is obvious that one spouse claim to a share in another limited liability company is very difficult. By analogy with the purchase or sale of movable property or vehicles during the marriage – the consent of the other spouse is not legally required. Corporate party rights may be sold or allocated in nature, making them a cost specified or expressed in things, but even this fact makes it difficult to establish the property regime joint.
However, once again encounter unequal practice of the Supreme Court. According to the Resolution of the Supreme Court of 03.07.2013, the Trial Chamber finds that the share in the authorized capital (deposit) a spouse is the common property of spouses, so its exclusion without the consent of the other spouse is grounds for invalidation of the contract of sale of share respectively. It is therefore possible to choose a way of protecting the rights as invalidating the contract on alienation of shares in the authorized capital.
According to the legal opinions of the Chamber, at the same time taking into account the provisions of Art. 115 CC of Ukraine, art. 85 Civil Code of Ukraine and art. 12 of the Law of Ukraine “On Business Associations”, in which the owner of the property transferred to the partnership the ownership of its members as a contribution to the authorized (share) capital, there is society, the alienation of Members of the Company in the share capital to the other person does not stop ownership society the property, which is recorded on its balance sheet, including those made to the charter capital contributions of participants.
Separation of deposit and loan obligations are the subject of litigation, but must take into account the time factor. That is, when stacked credit agreement, on behalf of whom happened repay liabilities. Due to family funds or funds from other business activities of spouses. Also important is what the purpose of the loan or for consumer purposes, or business development.
According to the Resolution of the Supreme Court of 27.04.2016r. noted that for the proper settlement of the case should determine: 1. Due spouse who carried out the repayment of their joint debt; 2. Do not introduced personal funds to repay the loan obligations; 3. Do not change the amount of compensation from sales of joint property due consideration made on account of implementation of the general debt of the other spouse personal funds.
Convinced that identify former party debtor spouse solidarity loan commitments as possible during the marriage and after its dissolution.
In terms of the division of the deposit is essential to ensure their claims through the seizure of cash. After all, if money is the only deposit accumulation family that shares common property is not possible to make an equal division of all property and ensure rapid execution, especially if the other party intends to abuse the rights.
Having made credit commitments of individual entrepreneurs to large sums of money that divides the joint marital property convincing evidence of an active economic activity, and therefore the source of funds to purchase the property entrepreneur.
At the trial division of common property spouses should be considered unequal judicial practice and a number of factual circumstances that may be confirmation of direct and indirect evidence, so I advise to leave the execution of this complex and sometimes emotionally unpleasant procedure professional lawyers with extensive experience.