1 Which law applies?
1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?
The property acquired by the spouses during the marriage is their shared property, even if one of them had no independent income either from study, maintenance of the household or custody of the children, etc., unless otherwise provided for by their contract or by law.
It is considered that anything acquired during the marriage, with the exception of things for individual use and the exceptions provided for in Article 57 of the Ukrainian Family Code, is an object of the spouses’ common property.
This presumption is established by Article 368 of the Ukrainian Civil Code and Article 60 of the Ukrainian Family Code. The current Ukrainian legislation follows the concept of the ‘single status of the consequences of marriage’, according to which all legal relationships (personal and marital) between spouses are subject to the status of the general effects of marriage. This provision is included in the recommendations of the EU Committee of Ministers of 1981 “On the rights of spouses with regard to the maintenance of the household and the use of the family home”.
Ukraine ratified the Convention on Legal Assistance and Judicial Relations in Civil, Family and Criminal Matters, 1993, Minsk (http://zakon3.rada.gov.ua/laws/show/997_009).
Ukraine has also signed agreements on legal assistance in family relations with countries such as:
- Lithuania (http://zakon3.rada.gov.ua/laws/show/440_002),
- Uzbekistan (http://zakon3.rada.gov.ua/laws/show/860_013),
- Finland (http://zakon2.rada.gov.ua/laws/show/246_008),
- Albania (http://zakon2.rada.gov.ua/laws/show/246_008) where property issues arising between spouses are regulated.
It is important to stress that spouses have the right to refuse the general rules of the matrimonial property regime by law by concluding a marriage contract between them.
1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?
Article 63 of the Ukrainian Family Code establishes that spouses have equal rights to own, use and dispose of property belonging to them by virtue of shared property, unless their contract provides otherwise.
In accordance with the provisions of Articles 59 and 61 of the Law of Ukraine ‘On Private International Law’, in order to settle the consequences of the matrimonial property regime, the spouses may choose the law of the personal law of one of them or the law of the State in which one of the spouses has a habitual residence, or, as regards immovable property, the law of the State in which the property is located.
