2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?

The matrimonial property regime is defined by the Family Code of Ukraine.

National legal practice is also in line with the provisions of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (http://zakon3.rada.gov.ua/laws/show/997_009), as well as with the international treaties on legal assistance in family relations signed with

• 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)
• and Albania (http://zakon2.rada.gov.ua/laws/show/246_008).

Article 61 of the Ukrainian Family Code provides that all property, except property excluded from civil circulation, may be subject to the spouses’ joint right of ownership.

The object of the spouses’ joint property right is salary, pension, scholarship and other income received by one of them.

If one of the spouses had signed a contract in the interests of the family, then the money, other assets, including fees and gains received under this contract, shall be jointly owned by them.

Objects intended for professional activity (musical instruments, office equipment, medical equipment, etc.) acquired during the marriage by one of the spouses are subject to the right to their shared property.

Article 57 of this Code defines the property which is the property of a spouse/spouse, in particular:

• (1) property acquired by her/him before the marriage;
• (2) property acquired by him/her during the marriage by a contract of gift or inheritance;
• (3) property acquired by her/her during the marriage in respect of funds belonging to him personally;
• (4) a dwelling acquired by her/her during the marriage as a result of her/her privatisation in accordance with the Ukrainian Law “On Privatisation of the State Housing Fund”;
• (5) land operated and acquired by her/her during her marriage as a result of its privatisation, or obtained as a result of the privatisation of state land, municipal agricultural enterprises, institutions and organisations, or obtainedfrom State-owned and municipal land within the limits of the free privatisation standards laid down in the Land Code of Ukraine.

Own goods are also:

• objects for personal use, including jewellery, even when acquired with the spouses’ common money;
• prizes or awards received for personal merits (the court may recognize the right of the other spouse to one part of that prize or award if it is found that his or her actions (maintenance of the household, bringing up the children, etc.) have contributed to obtaining the prize);
• money received as compensation for the loss (damage) of property belonging to one of the spouses, as well as compensation for non-material damage;
• insurance benefits received for compulsory personal insurance and voluntary personal insurance, if the insurance premiums have been paid from the personal funds of each spouse.

In the event of termination of the de facto marital relationship, the court may recognise the property acquired by each of the spouses at the time of their separation as their own property.

If, in addition to mutual funds, funds belonging to one of the spouses have been invested in the acquisition of the property, the proportion of that property corresponding to the extent of the contribution is part of his own assets.

2.2. Are there legal assumptions concerning the attribution of property?

Article 70 of the Code de la famille de l’Ukraine stipulates that, when allocating the property of the spouses which are jointly owned, the size of the shares in the property shall be equal, unless their agreement or marriage contract decides otherwise.

In the event of a dispute concerning the allocation of property, the court may derogate from the principle of equality of shares in the essential circumstances, in particular if one of the spouses was not involved in the financial maintenance of his or her family, if he or she had concealed, destroyed, damaged or spent common property to the detriment of their family.

The share of the property of one of the spouses may be increased by decision of the court if she/he resides with the disabled adult children or children, provided that the amount of support they receive is insufficient to ensure their physical and spiritual development and treatment.

The spouses’ common property may be shared by consent of the parties by concluding an agreement on the division of the spouses’ common property or before a court. In Ukraine, over the last 10 years, the division of the spouses’ common property on a contractual basis, without legal proceedings, has been significantly increased, helping to overcome conflicts and to take into account the interests of each spouse as much as possible.

The division of the spouses’ common property is possible both during the period of the registered marriage and after its dissolution. The agreement on the division of the joint property of the spouses (ex-spouses) is subject to mandatory notarisation.

Moreover, when drawing up a succession, a notary issuing a certificate of succession as a title to the inherited property must clarify the question of the existence of joint ownership of those assets by the spouses (formerly spouses). If the property is jointly owned by the spouses (former spouses), one of whom has died, the notary issues a certificate of ownership of part of the property to the surviving spouse.

2.3. Should the spouses establish an inventory of assets? If so, when and how?

This is not mandatory. The inventory and valuation of property may be required only if the property is divided between the spouses or at the request of a court in order to settle the dispute over the common property.

2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?

Articles 65 and 67 of the Ukrainian Family Code establish that the spouses have the property which is the subject of the joint right of ownership by mutual consent.

When a contract is concluded by one of the spouses, he or she shall be deemed to be acting with the consent of the other spouse. A spouse has the right to apply to the court to declare the contract concluded by the other spouse without her consent to be void, if that contract exceeds the limits of a small domestic contract. In order to conclude a contract requiring notarisation and (or) state registration, as well as a contract for valuable property by one of the spouses, the consent of the other spouse must be submitted in writing.

If consent is given for the conclusion of a contract which requires notarisation and (or) state registration, consent must be notarised. That consent shall be drawn up in the form of an application, the authenticity of the signature of one of the spouses on which a notary is made.

A contract concluded by one spouse in the interests of the family creates obligations for the other spouse if the property received under the contract is used in the interests of the family. A spouse is only entitled to enter into a contract of sale, exchange, gift, maintenance (care) or pledge in the spouses’ joint ownership rights with a third party only after his/her determination and assignment in kind or determination of the procedure for the use of the property.

The spouses have the right to verify their share of the joint ownership right before it is determined and allocated in kind.

According to the second part of Article 369 of the Ukrainian Civil Code and the second part of Article 65 of the Ukrainian Family Code, when one of the spouses enters into a contract on the disposition of the common property, he is deemed to be acting with the consent of the other spouse.

However, the conclusion of a contract on the disposition of the common property by one of the spouses without the consent of the other spouse may be a ground for declaring such a contract void only if the court finds that the spouse who concluded the contract on the disposition of the common property and a third party — the consideration under such a contract — acted in bad faith, in particular, that a third party knew or according to the circumstances of the case could not have been unaware that the property belonged to the spouses on the common right of ownership, and that the spouse concluding the contract did not obtain the consent of the other spouse.

The Supreme Court of Ukraine considers that the lack of consent of one of the spouses to the disposal of the common property cannot in itself constitute a ground for declaring the contract void — in that case the other spouse is entitled to compensation for the value of that spouse.

2.5. Are any legal transactions made by one spouse also binding on the other?

When one of the spouses concludes contracts, they are deemed to be acting with the consent of the other spouse. A spouse has the right to apply to the court to declare the contract concluded by the other spouse without her consent to be void, if that contract exceeds the limits of a small domestic contract.

2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?

Each spouse is personally liable for their debts, unless otherwise provided for in a contract of guarantee or marriage contract. According to Part 1 of Article 1054 of the Civil Code of Ukraine, a loan agreement is a transaction to receive ownership of the funds and does not create obligations for the other spouse, but only for the borrower as a party to the contract. The signing of a loan agreement by one of the spouses must not render the other spouse liable, unless he or she has not signed a contract of guarantee. In Ukraine, the current legal practice of concluding a loan agreement by one of the spouses provides for the simultaneous conclusion of a guarantee contract with the other spouse. In accordance with Article 553 of the Ukrainian Civil Code, the guarantor guarantees the debtor’s creditor the performance of his obligations. The guarantor shall be liable to the creditor for the breach of obligations by the debtor. In other words, a guarantor is a means of ensuring the fulfilment of obligations (usually monetary), not a transaction to dispose of property belonging to the guarantor. The guarantee contract shall not create obligations for any person other than the parties to the contract. It is important to pay attention to the provisions of Article 578 of the Civil Code, according to which common property may be pledged only with the consent of all the co-owners. Thus, the conclusion of a loan agreement by one of the spouses does not give rise to liability on the part of the other spouse, except where a guarantee contract is concluded at the same time. Collection is permitted only in respect of property which is not excluded from civil circulation, as well as property belonging to spouses in co-ownership and pledge (mortgage) with the consent of all the co-owners. The recovery of claims in respect of the obligations of one of the spouses may be imposed only on their own assets and their share of the common property allocated to them in kind. The recovery of debts may be imposed on the community reduced by acquisition, if the court has ruled that the contract was concluded by one of the spouses in the interests of the family and all what it was received under the contract was used for his or her needs. In the case of compensation for damage caused by a spouse’s criminal offence, the penalty may be imposed on common property acquired during the marriage, if the court has found that the property was acquired with money obtained as a result of a criminal offence.

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