Contractual regime of marital property

Contractual regime of marital property

The regulation of property relations between spouses can be carried out both legally and contractually. The legal regime of property means the order of joint property of spouses (Family Code of Ukraine). The contractual regime for the property of spouses is the order established under the marriage contract.

The Family Code of Ukraine stipulates that the legal regime for the property of spouses can only apply if other conditions are not established by the marriage contract.

A marriage contract, drawn up in compliance with all necessary requirements, is the most important document that determines the order of the property of the spouses upon termination of their marriage and family relations.

The norms of the Family Code of Ukraine include the conditions of the contractual regime of spouses. Currently, in legal practice, this agreement is gaining popularity and makes it possible to resolve issues related to the division of property upon termination of marriage and family relations.

Contents of the marriage contract on the property of the spouses

A prenuptial agreement, or as it is commonly called, a marriage contract, is a similar concept. This is some kind of agreement that contains a mutual agreement between the spouse, aimed at property rights and obligations in marriage, and also determines the procedure for acquiring property in the event of dissolution of marital relations (Family Code of Ukraine). Simply put, this is an agreement that contains the conditions – who will get what property in the event of a divorce, as well as during the marriage process itself.

The content of the marriage contract is regulated by the Family Code of Ukraine. Based on this document, spouses have the right to change the legal regime of common property. It is concluded for the existing property of the spouses or for property that will be acquired in the future.

Conclude a marriage contract regarding the property of the spouses

The contract may include the following information:

  • rights and obligations of spouses regarding mutual maintenance;
  • ways to share in each other’s income;
  • the procedure for bearing family expenses by each spouse individually;
  • what kind of property will belong to the spouses in the event of termination of marriage and family relations;
  • what will happen to the property acquired by the spouses before marriage;
  • regime of separate ownership of property acquired during marriage;
  • shared ownership regime;
  • other information about property rights and obligations;

All these rights and obligations may be limited to a specific period and time established in the document, and may also be subject to any specified conditions.

Restriction in a marriage contract in a contractual regime of spouses

Example

The Ivakhnenko spouses entered into a mutual agreement in which they indicated the following conditions: from the moment of registration of the marriage relationship, namely from 2018, property acquired during marriage is separate. After five years, namely from 2022, property that will be acquired during marriage and family relations will be subject to joint ownership.

The contract cannot contain the following conditions:

  • restriction of legal capacity or capacity of married persons;
  • prohibition on turning to judicial authorities to protect one’s rights;
  • regulation of relations regarding children (it is not allowed to set conditions – with whom the child will live after a divorce, how much alimony will be paid by the man in the event of termination of the marital relationship, etc.);
  • conditions that somehow limit the rights of a disabled man who, in his
  • the queue needs content;
  • other conditions that place a man at a disadvantage;

If there is at least one such condition in the document, the agreement between the spouses can be declared invalid.

Example

The Kalitenko spouses entered into an agreement between themselves, the terms of which establish that in the event of divorce, all property owned by the spouses, namely: a two-room apartment and a car will belong to A.I. Kalitenko. The marriage was broken up. Kalitenko V.I., the ex-husband of Kalitenko A.I., went to court with a demand to declare the contract invalid, on the basis that after the divorce he lost his only place of residence. In this case, the terms of the marriage contract placed the man at a disadvantage. Based on the norms specified in the Family Code of Ukraine, the court satisfied the claim of V.I. Kalitenko.

Conclusion of a marriage contract – contractual regime of property

The main conditions and the procedure for concluding an agreement are determined by the Family Code of Ukraine. This article tells us that an agreement can be concluded both before the state registration of marriage and family relations, and at any time while the spouses are married.

If the transaction was concluded before the registration of the marriage, then it comes into force precisely from the day on which the marriage relationship was registered; if after, then from the date specified in the contract. In addition, the document must be drawn up in writing and certified by a notary.

Example

The Petrov spouses drew up a marriage contract in writing, in which they indicated that in the event of divorce, the three-room apartment, which is in common ownership of the spouses, would belong to the spouse, V.A. Petrova, and the summer cottage to the husband, G.V. Petrov. The document was signed and executed in two copies. The marriage was broken up. Since the form of the document was violated, namely, it was not certified by a notary, this agreement was declared void, and the division of property by the court took place on the basis of the legal regime of joint property of the former spouses.

Change and termination of the marriage contract of spouses on property

A marriage contract can be terminated or modified at any time and only with the mutual consent of both spouses. The agreement itself is formalized in a separate document in writing. Consent of only one of the spouses is not permitted by law.

A person has the right to demand that the contract be changed or terminated by a court decision (Family Code of Ukraine). The marriage contract terminates from the moment of divorce. If, however, the agreement specifies the conditions of property relations for the period after the dissolution of the marriage relationship, then such an agreement is valid for the corresponding period.

Invalidation of a marriage contract

In addition to the norms specified in the IC of Ukraine, an agreement can be considered insignificant in cases where:

  • it was concluded in violation of the notarial form (Civil Code of the Russian Federation);
  • does not meet the requirements of the law (Civil Code of Ukraine);
  • concluded only as a distraction (Civil Code of Ukraine);
  • concluded for the purpose of covering up another agreement (Civil Code of Ukraine);
  • concluded with an incapacitated person (Civil Code of Ukraine).

In addition, a marriage contract is considered controversial if it:

  • concluded by a person whose legal capacity has been limited by the court (Civil Code of Ukraine);
  • concluded by a person who is unable to account for his actions and manage them (Civil Code of Ukraine);
  • concluded with a person who was misled (Civil Code of Ukraine);
  • concluded with a person under the influence of deception, violence, threat, etc. (Civil Code of Ukraine).

You should also know that the court can invalidate only a certain part of the marriage contract.

Example

The Sidorenko spouses drew up a marriage contract, which determined the property that belonged to each of them separately after the divorce. They also indicated the conditions under which a man is obliged to pay alimony in the amount of 2,500 UAH. for a month. In this case, on the basis of the Family Code of Ukraine, the court has the right to declare the marriage contract invalid, namely that part of it that specifies the conditions for monetary obligations for the child.

Answers from a lawyer about the contractual regime of spouses

I got married, my parents want to give me an apartment, but they are afraid that in case of divorce, ½ will go to my husband. What should be included in the marriage contract? And how to protect yourself from such a situation?
Is it possible to include conditions such as:
• in case of infidelity by a man, all property that is in common ownership will be divided equally;
• in case of termination of marriage, every year the man will be obliged to pay a certain amount of money for the child’s vacation.

Contractual regime of property of spouses: marriage contract

A marriage contract between spouses is increasingly becoming popular in the legal practice of family relations. This is an agreement concluded between a spouse regarding property relations during the marriage, as well as after its dissolution.

In its form, the document must be in writing and also notarized by a notary. In addition, it must include the conditions defined by the Law and not contradict it.

The conclusion of an agreement can be declared invalid if there are certain grounds for this. A marriage contract can be declared invalid if the form of such an agreement is violated: the agreement is concluded in writing and signed accordingly, but is not notarized.

  • The man’s incapacity is also grounds for declaring the transaction invalid. Incapacity means that a person, due to his physical and mental illness, is unable to account for and control his actions.
  • If the operation was carried out under the influence of deception, violence, delusion or threat, then the person has the right to appeal the marriage contract in court.

A contract drawn up in writing can be terminated or changes made only with the consent of both spouses.

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