Division of property and the Civil Procedure Code

Division of property and the Civil Procedure Code

The procedure and procedure for applying to the court on the issue of dividing the common property of spouses, as well as the procedure for considering the case and making a decision on it, are determined by the norms of the Civil Procedure Code of Ukraine (hereinafter referred to as the CPC).

Family lawyer

Skryabina Darya Sergeevna

Candidate of Law

Hello! In this article I will talk about the division of property and the Civil Procedure Code, jurisdiction for considering a claim for the division of property under the Civil Procedure Code of Ukraine, the division of property under the Civil Procedure Code, the division of property through the court under the Civil Procedure Code.

Jurisdiction for consideration of a claim for division of property under the Civil Procedure Code of Ukraine

The choice of the court competent to consider a claim for the division of jointly acquired property depends on several factors. Yes, the following are important:

• the moment of filing the application (during the divorce process, after it, or during the marriage);
• the price of the claim (the value of the common property subject to distribution);
• the presence of real estate among the property to be divided.

There are two types of jurisdiction: generic and territorial. Territorial jurisdiction determines the location of the judicial authority to which the application must be submitted, and generic jurisdiction determines the level of instance of the judicial body authorized to consider a particular issue (court, district, city, appellate, etc.), that is, it delimits the competence between courts of the same level.

Division of property according to the Code of Civil Procedure (Civil Procedure Code)

The judge’s activities are aimed at resolving contentious issues in the area of ​​violation of family and property legislation. It should be taken into account that justices of the peace work to resolve only simple conflicts and disputes. It is in this regard that the Code of Civil Procedure contains the appropriate restrictive framework for the consideration of cases by this instance.

Judges have jurisdiction over cases involving claims for the division of jointly acquired property of spouses, in which the value of the claim does not exceed (Civil Procedure Code of Ukraine).

Disputes about the division of property between spouses may be considered by the judge simultaneously with the consideration of the issue of divorce (in the absence of a dispute about minor children) and the collection of alimony.

The judge is obliged to refer the case to the appropriate jurisdiction if one of the circumstances has arisen in the case that makes the claim of the defendant to the district court:

• during the proceedings, it became necessary to combine related claims;
• the price of the claim and its subject matter changed;
• a counterclaim was received from the defendant, the price of which exceeds (Civil Procedure Code of Ukraine).

Based on the decision taken, the court issues a ruling on transferring the case to the appropriate jurisdiction.

Division of property through the court under the Code of Civil Procedure (Civil Procedure Code)

The range of issues resolved by the district court as a court of first instance includes disputes over the division of property between spouses, burdened with additional controversial circumstances or high value of property.

Thus, district courts have jurisdiction over administrative cases on claims for division of property, the value of which exceeds, as well as on cases in which issues of divorce, collection of alimony and division of property are simultaneously decided, if there is a dispute about children, even if the value of the claim in such a dispute is less (Civil Procedure Code of Ukraine).

Example

Citizen K. files a claim against his wife, citizen S., for divorce, in which he also asks to determine the place of residence of their joint minor son with him and to establish the procedure for the child’s communication with the mother. The price of the claim is rubles. In any case, such a claim will be subject to the jurisdiction of the district court, since the court is also considering a contentious issue regarding children, the resolution of which is directly attributed by law to the competence of the district court.

Jurisdiction for division of property under the Civil Procedure Code

The determination of territorial jurisdiction depends on whether the claim for division of property is filed separately or together with the claim for divorce.

The general rule of territorial jurisdiction, which may be applied, in particular, to cases on division of jointly acquired property of spouses, is the following: the claim is filed at the place of residence (location) of the defendant (Civil Procedure Code of Ukraine).

The place of residence is considered to be the place where a person permanently or predominantly resides (GC).

However, there are exceptions to the general rule:

• If the division of property is planned to be carried out with a husband who is in prison, the claim must be filed at the last place of residence, since places of imprisonment cannot be considered a place of residence.
• In cases where a claim for division of property is filed after a claim for divorce has already been filed, it must be sent to the same court where the divorce proceedings are being conducted. Changing the status of the common property of spouses is an issue closely related to the termination of marital relations, so the claims in this case must be combined into one proceeding.
• If the subject of the dispute is real estate (land, subsoil, buildings, residential and non-residential premises), then the application for its division must be filed with the court at the location of it (Civil Procedure Code of Ukraine). When the subject of the dispute (divided property) includes several real estate objects, the application may be filed with the court at the location of one of the objects (at the choice of the plaintiff).
• In a situation where claims for the division of common property are presented by the plaintiff simultaneously with claims for divorce, alimony, or establishment of paternity, the statement of claim may, at the plaintiff’s discretion, be filed with the court at his place of residence.

The legislator also provided for the possibility of changing territorial jurisdiction based on a voluntary agreement between the spouses. This type of jurisdiction is called contractual. The conditions for changing in this case are the existence of an agreement between the spouses and the conclusion of an agreement before the acceptance of the claim for proceedings by any court (Civil Procedure Code of Ukraine).

Filing a claim to the court for the division of property of spouses under the Code of Civil Procedure

A claim for division of common property may be filed with the court by the plaintiff personally or by his official representative. It is possible to send the document by mail.

The statement of claim is drawn up in writing and must meet the requirements set out in the legislation. Yes, the document must necessarily contain the following details:

1. Full name of the court to which it is submitted
2. Last name, first name and patronymic, as well as contact information of the plaintiff (place of residence, telephone, fax, e-mail), and in the case of an official representative – the last name, first name, patronymic and contact information of the plaintiff’s representative
3. Last name, first name and patronymic of the defendant, as well as his contact information (Civil Procedure Code of Ukraine)

The document determines the price of the claim, which will show the value of the property subject to distribution, justified by the corresponding calculation attached to the claim. In addition, the plaintiff must provide documents confirming and substantiating his position on the case, as well as payment of the state fee. The mandatory attachments also include copies of the statement of claim to the defendant and third parties, a document certifying the authority of the plaintiff’s representative, if any (Civil Procedure Code of Ukraine).

Statement of claim for division of property under the Civil Procedure Code (CPC)

As for the content of the statement of claim, the law establishes that the document must contain: information about what exactly constitutes a violation or threat of violation of the rights and legitimate interests of the plaintiff; information about the circumstances supporting the plaintiff’s position in the case, as well as references to evidence confirming his position.

The statement of claim is signed by the plaintiff or his official representative.

Within five days from the moment the statement of claim is received by the court, the judge must make a decision on accepting the claim for proceedings or on refusing to accept it for proceedings. The judge’s decision is formalized by the issuance of a decision.

At the same time as filing a claim for division of common property, the plaintiff has the right to apply to the court with a motion to seize the property subject to division to ensure its safety.

Refusal to accept a claim for division of property under the Code of Civil Procedure

The court has the right to refuse to accept a claim for the division of property of spouses for proceedings in cases where:

• a court decision has already been made on the dispute and has entered into legal force
• a court ruling has been made on the dispute to terminate proceedings in connection with the plaintiff’s withdrawal of the claim or the conclusion of a settlement agreement between the spouses (Civil Procedure Code of Ukraine)

The issuance of such a ruling excludes the possibility of the plaintiff re-filing a claim against the defendant on the same grounds, but it can be appealed privately.

The statement of claim may be returned to the plaintiff if it:

• not signed by the plaintiff or his official representative
• the plaintiff violated the rules of jurisdiction when filing it

The judge’s decision in this case is also formalized by a ruling. The return of the statement of claim does not prevent its re-submission upon elimination of existing deficiencies or according to jurisdiction (Civil Procedure Code of Ukraine).

The judge may decide to leave the statement of claim without action if the plaintiff has not complied with the rules for the execution of the document, as well as the appendix to it. The court’s ruling sets a reasonable period for eliminating the deficiencies in the statement of claim. If the deficiencies are not eliminated, the statement of claim is returned to the plaintiff with all the supporting documents (Civil Procedure Code of Ukraine).

How to file a counterclaim for division of property under the Civil Procedure Code of Ukraine

Spouses-defendants in a case on the distribution of common property have the right to file a counterclaim, which must be considered together with the original claim (Civil Procedure Code of Ukraine).

A counterclaim can be filed before the court makes a final decision on the original claim. The document is drawn up in accordance with the requirements of the Civil Procedure Code for the preparation of all statements of claim.

A counterclaim is filed with the court in whose proceedings the original claim is being heard.

It should be noted that the defendant may also state his opinion regarding the plaintiff’s demands, disagreement with his position, in another document – a response to the claim, attached to the case materials. However, a counterclaim still remains a more effective instrument of defense.

A counterclaim in a property division case may be accepted by the judge for consideration only if:

• its satisfaction completely or partially excludes the satisfaction of the original claim;
• there is a clear connection between the two claims and their joint consideration will allow the dispute to be resolved more quickly (Civil Procedure Code of Ukraine).

Hearing in court of a claim for division of property of spouses under the Code of Civil Procedure

The case on the claim for division of jointly acquired property of spouses is considered in the same order and according to the same rules as all civil cases. The total period of consideration of the case should not exceed months (Civil Procedure Code of Ukraine).

If a claim for division of property is filed together with a claim for divorce, the court has the right to separate the claim for division of property into a separate proceeding (Civil Procedure Code of Ukraine). This is due to the presence of a number of circumstances that require establishment and confirmation in court, and, accordingly, a longer period of time than the decision to dissolve the marriage.

When applying to the court, a man and a woman can ask for the division of not only, but only part of the property. This means that after a period of time, one of the spouses can again apply to the court with claims for the division of property that has not yet been divided.

The issues decided by the court when making a decision on the division of property can be formulated as follows:

• what property of the spouses is their common property?
• how to determine the shares of each of the spouses in the specified property?

The subject of proof in a property division case includes:

• determination of the composition and value of common property;
• time of acquisition of property;
• being in a family relationship at the time of acquisition of a particular property;
• the presence of investments in the acquired property by each of the spouses, which significantly increases the cost of acquisition.

Evidence in court may include a party substantiating its position with documents or by involving witnesses.

If necessary, the court may involve experts and specialists who are able to provide competent clarification on a particular issue of interest to the court and which is important for making a decision on the case.

Ensuring the safety of divided property under the Civil Procedure Code

The division of property between former spouses is usually accompanied by an unfavorable and even hostile attitude towards each other, so it is advisable to use the right to petition the court to take measures to secure the claim (seizure of property, prohibition of the defendant and other persons from performing certain actions). Such an application may be filed by any person participating in the consideration of the case, i.e. the spouses or a third party (Civil Procedure Code of Ukraine).

The court or judge makes a decision on securing a claim with appropriate measures on the day of receipt of the application, without notifying the parties or third parties. A ruling is issued on the decision made (Civil Procedure Code of Ukraine). The legislator allows for the replacement of some security measures with others if necessary, as well as the replacement of security measures by placing funds in the court account (Civil Procedure Code of Ukraine).

Court decision on the division of common property of spouses according to the Civil Procedure Code of Ukraine

When making a decision on a specific case, the court:

1. evaluates the evidence examined in court
2. establishes what property is considered common property, how and when it was purchased
3. which of the spouses, how and how much they invested, increased the value of common property and other significant circumstances

If in the deliberation room the judge comes to the conclusion that some evidence in the case is insufficient or that additional data should be verified, he issues a ruling to resume the trial (Civil Procedure Code of Ukraine).

The court makes a decision within the limits of the claims stated by the plaintiff.

The court’s decision on the case is made immediately after its consideration and is announced at the same court session. If the decision on the case is voluminous and requires a long time to draw up, the court has the right to announce an abbreviated version of the decision at the session, consisting of an introductory and operative part. The court may postpone the writing of the reasoning part for a period not exceeding days (Civil Procedure Code of Ukraine).

The judge has the right not to draw up a reasoned decision on the case. Such a decision is drawn up by him only if the parties involved in the case have applied to the court with a corresponding application for the issuance of a reasoned decision (Civil Procedure Code of Ukraine).

Persons participating in the case and present at the hearing have the opportunity to receive copies of the court decision on the day of its adoption. The court is obliged to send copies of the decision by mail to those participants who were not present at the hearing within a period of no more than days from the moment of its finalization (Civil Procedure Code of Ukraine).

Division of property of spouses during divorce and the Civil Procedure Code

The Civil Procedure Code of Ukraine on the distribution of property of spouses establishes the following:

1. The division of property of spouses, current or former, can take place through the consideration of a statement of claim by a justice of the peace or a district court.
2. A claim for the division of property of spouses is drawn up according to the general rules for drawing up statements of claim and must contain the same mandatory details.
3. During the consideration of a case on the division of common property, the defendant may file a counterclaim setting out its demands in terms of determining shares. The price of a counterclaim may differ significantly from the price of the original claim.
4. To substantiate their position in court, the parties (spouses) may use both written, material evidence and witnesses’ explanations.
5. The court’s decision is drawn up in printed form and signed by the judge. A copy of it is given to each of the participants in the proceedings.

Family lawyer

Alexey Nikolaevich Skryabin

Doctor of Law

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