- Fictitious marriage: grounds for recognition in court
- What is a fictitious marriage?
- Fictitious marriage: legal consequences
- The procedure for recognizing a marriage as fictitious
- Claim for annulment of marriage
- Necessary documents to recognize a marriage as fictitious
- The decision to recognize the marriage as fictitious
- Consequences of recognizing a marriage as fictitious
- Responsibility for entering into a fictitious marriage
- Conclusion of a fictitious marriage
- Services of a family lawyer
Fictitious marriage: grounds for recognition in court
Family law provides for a certain list of circumstances in the presence of which a union will be declared illegal. Such examples include a fictitious marriage created without the real intention of creating a full-fledged family.
- Definition of a fictitious marriage
- How to recognize a marriage as fictitious
- Statement of claim to court
- Consequences of fake marriage
What is a fictitious marriage?
Any registered marriage is recognized as legal until the contrary is established by the court.
Current legislation provides for a whole list of facts, if revealed, a marriage is declared invalid. One of these circumstances is the conclusion of a fictitious marriage, created not for the purpose of building a family.
A marriage union is fictitious if there were no real family relationships within it. Such legal relationships are usually concluded to obtain certain material and intangible benefits associated with:
- obtaining citizenship by a foreigner;
- registration in the apartment of one of the parties to the relationship;
- the right to inherit the property of an old person;
- the right to receive benefits, allowances, and so on.
Fictitious marriage: legal consequences
Example
The Pervomaisky District Court of Kyiv, at the request of the prosecutor’s office of the same district, considered the case of recognition of the marriage of a citizen of the Republic of Uzbekistan Usmanov K.T. and citizen of Ukraine Belova A.S. fictitious and, accordingly, invalid. To the man Belova A.S. at the time of marriage she was twenty-four years old, and she herself was fifty-five years old.
An investigation by the district prosecutor’s office found that the brides, starting from the date of marriage registration, did not live together, and the citizens did not have children or a joint household. During the court hearing Belova A.S. reported that Usmanov K.T. for a material reward in the amount of 35,000 UAH. invited her to register a marriage without real and full-fledged family relationships.
During the consideration of the case by the court, Usmanov K.T. admitted that the fake marriage allowed him to quickly obtain citizenship and freely carry out labor activities in Ukraine.
The court, taking into account the irrefutable evidence and testimony of both spouses, decided to recognize the marriage of Usmanov and Belova as fictitious. An extract from the court decision was sent to the territorial department of DRATSS 2 days later.
Thus, a marriage entered into without the desire of one or both partners to begin a full-fledged family relationship, while simultaneously intending to take advantage of all his preferences, is illegal.
A distinctive feature of a fictitious marriage from other reasons for declaring a marriage union invalid is the parties’ compliance with all the conditions for its conclusion.
Signs of a fictitious marriage quite often overlap with cases where the marriage was concluded according to the so-called convenience. The conclusion of a marriage of convenience does not mean the automatic invalidity of such a union. These marital relations differ from the fictitious purposes of the conclusion, which consist not only in obtaining benefits from the marriage, but also in the acceptance by each of the spouses of certain obligations (for example, dynastic marriages can be created to extend an aristocratic family, but in this case, full-fledged family relationships are actually created).
An important point about a fictitious relationship is the fact that the marriage will be recognized as fake regardless of whether the partners admit it or not. Even if both family members deny that the relationship is fictitious, the court can still declare the marriage illegal if the prosecutor’s office provides sufficient evidence.
Thus, even despite the voluntary consent of the partners to enter into marriage, the union may be declared invalid.
The procedure for recognizing a marriage as fictitious
The marriage is recognized as fictitious in court, and the application must be submitted to the district court.
According to the Family Code, the following may demand recognition of a fictitious marriage as invalid in court:
- prosecutor – if such a marriage violates the interests of the state, for example, if it was concluded with the aim of obtaining Ukrainian citizenship;
- one of the spouses who was not aware of the fictitiousness of the marriage (in a unilateral fictitious marriage) – in the event that one of the parties entered into a marriage for selfish purposes, and not with the intention of creating a full-fledged family.
Claim for annulment of marriage
The case of declaring a marriage invalid, including if it is fictitious, is carried out by filing a claim in court by a person authorized to take such actions: the injured man or the prosecutor.
It is impossible to simultaneously go to court with a demand to dissolve a marriage and recognize it as fictitious, since the legal consequences of a divorce differ from the consequences of declaring a marriage invalid.
In the statement of claim to recognize the marriage as fictitious, the following data should be recorded:
- The full name of the judicial body considering the filed claim.
- Information about the plaintiff, including his place of residence.
- Similar information about the defendant.
- The name of the territorial registry office department where the marriage was registered.
- Date of conclusion of the union.
- All the facts and arguments that indicate the fictitiousness of the marriage.
- Petition to recognize marital relations as fictitious.
- The requirement to include a note about the annulment of the marriage in the registration document of the territorial civil registry office.
Necessary documents to recognize a marriage as fictitious
Along with the claim, the following must be submitted to the court:
- Marriage certificate.
- Power of attorney (when the interests of the initiator of the claim are represented by another citizen).
- Written acts indicating the fictitiousness of the marriage relationship.
- Receipt confirming payment of the court fee.
The claim and the accompanying list of documents are handed over to an employee of the office of the judicial authority at the defendant’s place of residence. The plaintiff can submit an application at his place of residence only if one of the following circumstances exists:
- minor children live with him;
- his health condition does not allow him to attend the court at the defendant’s place of residence.
The decision to recognize the marriage as fictitious
The court has the right to recognize a marriage as fictitious, and therefore invalid.
The norms of family law in Ukraine make it possible to protect the interests of participants in marriage relations, regardless of the time of application. Thus, the statute of limitations does not apply in cases of recognition of a marriage as fictitious.
Until the court makes a verdict in the case, married persons are spouses in relation to each other and, thus, are endowed with certain rights and responsibilities.
The judge makes a verdict after carefully studying all the evidence and arguments included in the case, also taking into account:
- the time period during which the union operates;
- the number of minor dependents born during the marriage;
- specific facts indicating the fictitiousness of the registered relationship and similar circumstances.
At the same time, according to the Family Code, the court does not have the right to recognize a marriage relationship as fictitious if those who are married at the time of consideration of the case have actually created a full-fledged family. The existence of real family relationships can be confirmed:
- spouses living together;
- purchase and subsequent joint use of acquired property;
- partners leaving one after another;
- general financial support;
- testimony with whom the spouses communicate;
- other facts typical of full-fledged marital relations.
However, all the above-mentioned facts must be considered together, since the presence of a short-term romantic relationship does not always indicate the desire of fictitious spouses to start a real family life.
Often the evidence used when considering cases of false marriage is the fact of separation of partners after registration of the union. However, spouses living separately from each other may be associated with forced necessity and is not always a circumstance indicating a lack of desire to start a family relationship (for example, when one of the spouses is caring for a seriously ill mother, and so on).
If the judge grants the claim, the marriage union is recognized as fictitious and, accordingly, invalid from the date of its registration. Thus, both parties to the matter will not have any mutual obligations from the date of marriage.
Within three days after the decision comes into force, the judge sends an extract from his decision to the territorial department of the DRATSS, where the relationship was registered.
The territorial body, having received a letter with instructions, in accordance with the current norms of legislation, registers the marriage as invalid, making an appropriate note containing information about the court that satisfied the plaintiff’s request to recognize the marriage as fictitious (Family Code).
Consequences of recognizing a marriage as fictitious
If the court recognizes the fictitiousness of the marriage relationship, a return to the original state of legal relations between the parties at the time of marriage occurs.
Considering that a fictitious marriage is invalid from the date of its registration, all property rights acquired during the marriage will be distributed based on the norms of the Civil and Family Codes.
In this case, the method of dividing the property of the spouses will differ from a similar option in a regular divorce process. All movable and immovable property acquired during the marriage will be considered in the form of shares.
Property is subject to division:
- upon reaching a joint agreement of the parties;
- based on a court decision determining the procedure for transferring property rights to both parties, taking into account the contribution of each spouse to the acquisition of common property.
Also becomes invalid:
- the right to use the property of a former partner (for example, to live in an apartment);
- right to inheritance;
- the right to receive alimony from a man;
- the right to pensions and compensation payments provided for by law, etc.
However, there are exceptions to this rule. They apply to the bona fide side of the relationship, that is, to the spouse who did not know about the fictitiousness of the marriage and who was deceived (misled) by the other party. A conscientious spouse, in accordance with current legislation, has the right to:
- receiving alimony from a former spouse;
- division of property within the framework of family rather than civil law;
- preservation of the terms of the marriage contract (or part thereof);
- preserving the man’s surname;
- compensation payments from an unscrupulous party for moral and material damage caused.
Recognition of a marriage as fictitious does not affect the rights of children born in such a marriage or born within 300 days after it was declared invalid.
The obligation of parents to care for their children until they reach the age of majority, if the marriage is recognized as fictitious, is retained in full due to the fact that the source of these obligations is the fact of marriage, and the fact of the birth of children.
Spouses are obliged to raise and financially support their children, and the court has the right to establish alimony payments in favor of dependents.
Due to the fact that a marriage recognized by the court as fictitious is considered legally void, the persons involved in it when entering into a new marriage union may not indicate the fact of being in such a union.
Responsibility for entering into a fictitious marriage
In Ukraine, as of 2021, there is neither administrative nor criminal liability for entering into a fictitious marriage, despite the fact that such relationships undermine the foundations of family, motherhood and childhood.
The law protects the rights of a conscientious citizen deceived by a partner, giving him the opportunity to recover compensation for moral and material damage from the fictitious man, but such circumstances must be proven to the court.
When we talk about a fictitious marriage on the initiative of two parties, this most often means the situation of entering into a marriage for the sake of obtaining Ukrainian citizenship: one of the parties receives money to facilitate this process for the other spouse. It should be borne in mind that entering into a fictitious marriage is unsafe, since the existence of a marriage relationship implies certain rights and obligations of each party. A fictitious man can deceive the other party and proving this fact will be problematic, and in some cases even impossible.
In addition, the Criminal Code provides for punishment for organizing illegal migration and fictitious registration at the place of residence (stay). This act is punishable by imprisonment for up to 7 years and a fine in favor of the state.
If the marriage was concluded between two parties without the help of outsiders, then the spouses will not be prosecuted, but simply have the relationship annulled. But if the marriage was facilitated by any third party who negotiated with the registry office, looked for a fictitious man, and so on, then such actions can be regarded as criminally punishable.
Conclusion of a fictitious marriage
Fictitious marriages are a common occurrence. Such relationships allow citizens to receive material and other benefits: Ukrainian citizenship in an accelerated manner, registration, which allows them to receive all sorts of benefits, material rewards for agreeing to enter into a fictitious marriage.
In situations where there are compelling facts indicating the fictitious nature of the marriage, a statement of claim can be filed either by the supervisory authority represented by the prosecutor’s office, or by a citizen who is one of the parties to the marriage union, which suffered from the actions of the second spouse.
Along with the claim, a marriage certificate, a power of attorney (if there is a representative of the plaintiff), and a receipt for payment of the state duty are submitted to the court.
If the judge satisfies the claim, the marriage union is recognized as fictitious from the date of its registration. Within 3 days after the decision comes into force, the judge sends an excerpt of his decision to the territorial department of the DRATSS where the marriage was registered.
The obligation of parents to care for their minor children after the marriage is declared fictitious is fully preserved.
Services of a family lawyer
A family lawyer will provide you with legal advice and help you draw up all the necessary documents to recognize the marriage as fictitious.
