Child’s share in the division of property

Child’s share in the division of property

Almost any divorce process is accompanied by the division of property belonging to the spouses. The procedure for this procedure is regulated by articles of the Family Code (Family Code of Ukraine). At the same time, the current legislation of Ukraine establishes certain guarantees for the observance of the rights of minor children whose parents decide to take such a step. The property rights of children, including those related to the allocation of shares in real estate, are no exception to this rule.

Therefore, this article draws attention to the nuances of granting a minor child a share in the common joint property of the spouses, as well as the possibility of receiving a larger share of the property by those parents with whom the child remains to live.

Property rights of a child in case of divorce of parents

According to the current legislation of Ukraine, in particular the Family Code of Ukraine, the Civil Code of Ukraine (CC of Ukraine), a child is a person until he/she reaches the age of majority. In this regard, such minors have certain rights from birth. The main ones can be seen in the section of the Family Code, among which property rights are not the least important (Family Code of Ukraine). The following are highlighted here:

• the right to receive support from parents, including alimony;
• the right to one’s own income;
• the right to acquire property.

Let us dwell in more detail on each of the specified rights of the child in the sphere of property relations. Receiving abstinence from parents provides for their obligation to do so in accordance with the Family Code of Ukraine. At the same time, the form and procedure for maintenance are determined by them independently. If one of them evades this obligation, these funds are collected in court. Considering the above, the child has the right to his/her maintenance in the amounts stipulated by the section of the Family Code of Ukraine, since this is the minimum that is established directly by law, which is a certain guarantee in relation to the child. The amount may be larger, it all depends on the child’s parents and their capabilities.

It is important to note that the funds received as alimony have a strictly targeted purpose (upbringing, education, maintenance). At the same time, they, as well as all kinds of benefits and pensions, are at the disposal of not the child, but his legal representative.

Property rights of a child in the division of property between parents

Among the income that a minor can receive, it is necessary to note scholarships, wages, funds received as gifts, etc. At the same time, it is necessary to remember that in accordance with the Labor Code of Ukraine, minors aged from years can enter into employment contracts only with the consent of their legal representatives.

Another property right of a child in accordance with the Family Code of Ukraine is the acquisition of property. The methods of obtaining such property are strictly defined by law. This can be a grant, inheritance, purchase at the expense of the child’s own funds. It is important to note that in some cases, minors have certain restrictions on the acquisition of property and in their disposal. This is provided for by the Civil Code of Ukraine.

It should also be noted that when disposing of a child’s property by his legal representatives, the rules of the Civil Code of Ukraine on the disposal of the property of a ward are applied.

Is the child allocated a share in the common property of the spouses?

Many married couples, coming to the conclusion that they cannot avoid divorce, ask themselves the question of how to divide jointly acquired property and what should be the child’s share in it?

The Investigative Committee of Ukraine gives a clear answer to this question. In particular, this clause states that children do not have the right of ownership of their parents’ property and vice versa. This means that when dividing jointly acquired property between spouses, their minor child is not a party to the “division” under any circumstances.

However, there are some changes to this rule. This concerns the situation when one of the parents or both of them made a gift of any part of the jointly acquired property to their minor child. In this case, he also becomes a co-owner of this property. But if his parents divorce, this share will no longer be considered as jointly acquired property of the spouses, and it will not be subject to division.

As for transactions reflecting the subject of property rights (Civil Code of Ukraine), it should be noted that ownership, use and disposal of it is carried out by all persons living together by mutual consent.

Taking into account the interests of children when dividing the property of spouses

The division of jointly acquired property of spouses is determined in detail by the Family Code of Ukraine. However, if there is no agreement between them on this, then the decision of this issue is transferred to the court. What is important here is that the court first proceeds from the equality of the spouses’ shares.

As stated earlier, such property does not apply to children, and, therefore, they cannot lay claim to it in the event of a divorce of their parents. However, the legislator in the Family Code of Ukraine makes some exceptions to this rule. In particular, it provided for the right of the court to deviate from the principle of equality of shares of spouses in the event of divorce proceedings, in which division of property is possible.

Since this is a right and not an obligation of the court, the interested party must comply with the following conditions to obtain the desired result:

• the presence of minor children of the spouses;
• their residence with one of the parents;
• exceptional circumstances indicating the need to take into account the interests of the child;
• this petition must be filed in a claim related to the division of property.

Only if they are observed, the court can increase the share of one of the spouses with whom minor children live. It is important to take into account the fact that in the interests of the child, the court should include the possibility of his/her further maintenance at the previous level.

When considering the issue of distributing the property and interests of a child in a divorce process, one cannot ignore such a circumstance as the impossibility of “dividing” the property necessary for the immediate satisfaction of the child’s needs (clothing, footwear, school and sports equipment, etc.). This also includes deposits opened by parents in his name.

Child’s share in the apartment during division of property of spouses

On the real estate market, you can often see advertisements for the purchase and sale of apartments using maternity capital. However, not everyone always knows about certain nuances associated with the registration of ownership of such housing.

The issue of the procedure for issuing and using these budget funds is regulated in detail by the Law of Ukraine “On Additional Measures of State Support for Families with Children”. Our goal is not to cover this regulatory legal act, so we will focus only on such key points as:

1. Maternity capital funds or part of them can be used, respectively, for the acquisition, construction, reconstruction of residential premises, improvement of housing conditions, as well as for the repayment of loans (loans, mortgages) taken for the above purposes.
2. The direction of these funds in the specified direction must necessarily be accompanied by the allocation of a share in the apartment (house, etc.). For all minor children present in the family before the right to receive a certificate is obtained. This requirement is established.
3. The purchased residential premises (including those previously acquired through a mortgage, loans) are registered as the common property (private) of both parents and children.
4. The obligation to determine the shares in this case occurs in the form of a transaction requiring a notarial form. The allocation itself can also be carried out by agreement or by drawing up a deed of gift. If we are talking about an agreement, then it must provide for the possibility of redistributing shares, since circumstances in the family can change at any time.
5. The allocation of a share to a child is carried out within six months from the date of purchase of the apartment or the removal of the encumbrance in the form of a mortgage.

Thus, the above establishes another basis for the acquisition by a minor child of a share in the jointly acquired property of the parents. In this case, the common property changes to partial.

Lawyer’s answers about the child’s share in the division of property between parents

Determining the share of a child’s property during division of property and divorce

In conclusion of the issue under consideration regarding the child’s share in the division of the common jointly acquired property of the spouses, it is necessary to once again note the following provisions:

• From the moment of birth, a child has a certain set of property rights.
• Minor children do not participate in the division of jointly acquired property of parents.
• The rights and interests of common minor children may influence the court’s decision and its deviation from the principle of equality of shares of spouses in the division of property.
• A child can receive a share in the common property by way of gift or inheritance, subject to the conditions established by the civil legislation of Ukraine.
• When purchasing residential premises using maternity capital funds, shares in it must be allocated to all family members.