Jurisdiction for the division of marital property

Jurisdiction for the division of marital property

As a general rule, a claim for division of property is filed at the defendant’s place of residence. However, the legislator has introduced a number of exceptions allowing the filing of a claim at the place of residence of the plaintiff, and in exceptional cases – at the location of the property.

Along with filing a claim, the plaintiff must take measures to preserve property, namely, make demands for the seizure of disputed items and a ban on actions with them. In addition, you can notify the registration authorities about the dispute and carry out a description of the movable property. However, these rules apply only to spouses who were previously officially married. In the case of cohabitation, the division of property seems more difficult.

Territorial jurisdiction for the division of property of spouses during divorce

Territorial jurisdiction should be understood as the principle of distribution of civil cases, including cases regarding the division of common property of spouses between courts of the same instance. Simply put, such jurisdiction allows the plaintiff to determine a specific judicial body whose competence will include consideration of a particular case. It is based on the territorial nature – the distribution of powers of specific courts over the territory of specific territorial entities.

The basic principle of territorial jurisdiction, enshrined by the legislator in the Civil Procedure Code, according to which the claim is filed at the place of residence or stay of the defendant. Thus, when distributing property, the claim must be filed at the place of residence of the second spouse, even if he lives in another city or another part of the country.

This rule is the basis for avoiding judicial division of property. The legislator took this into account and provided for cases when a plaintiff interested in the division of property can avoid compliance with this principle, in particular:

  • So, if a man lives in another locality, but his more precise address is unknown, according to the Civil Procedure Code, a claim for the division of common property can be filed at his last known place of residence or at the location of his property (or the common property of the spouses). Such a place may also include the plaintiff’s address if his last known place of residence was the spouses’ apartment or house.
  • If demands for distribution are presented in a claim in conjunction with claims for divorce, provided that the parties have a common minor child who remains living with the plaintiff, then such a claim can be filed at the place of residence of the plaintiff. Moreover, the Code of Civil Procedure allows filing claims for divorce along with division of property at the plaintiff’s place of residence if his health makes it difficult to go to court at the defendant’s place of residence.
  • In addition, based on the provisions of the Civil Procedure Code, if demands for the division of jointly acquired property are presented in addition to demands for the collection of alimony (for himself or a common child), then the claim can also be filed by a man at his place of residence.
  • At the same time, if the main subject of a dispute about the division of property is any piece of real estate, then, regardless of other circumstances of the case, a claim can be filed by a person at the location of such real estate (Civil Procedure Code of Ukraine).

Determination of jurisdiction for division of property during divorce through court

Example

Sirenko G. and Sirenko B. recently divorced. After the divorce, Sirenko B. left the locality in which he and Sirenko G. lived. Some time after the divorce, Sirenko G. remembered that Sirenko B. had purchased cars with their common money, one of which she decided to receive by way of division common property.

Since her husband’s new place of residence was unknown to her, the last place of residence was her apartment, and the cost of the car for which she was applying was 200,000 UAH. Guided by the norms of the Civil Procedure Code, Sirenko G. filed a claim for division in the district court at her place of residence.

Division of property in court during divorce

The competence of the judge includes consideration of cases on the division of the common property of spouses, regardless of whether their marriage is broken up or not (Family Code of Ukraine). As for the price of the claim, it should be understood as the value of the claimed property, the amount of money collected as common property or other property rights that have a value expression.

When determining the cost of a claim as the main factor determining the jurisdiction of cases on the division of common property, it should be taken into account that:

  • The price of a claim consisting of several independent claims will consist of the sum of all claims, regardless of their nature. Thus, in the case of a claim with heterogeneous claims, including some that are subject to valuation (division of property) and others not (divorce), the price of the claim will be determined based on the totality of claims that are subject to valuation.
  • When a judge brings a lawsuit demanding only the division of the spouses’ common property, the price of the claim will be determined by the value that the plaintiff will claim upon division. Thus, in general cases, based on the provisions of the Insurance Code, the price of the claim will be equal to half the estimated value of the spouses’ common property.

So, for example, a claim for the division of common property in the presence of other requirements that are not within the competence of the judge (if there is any dispute about children), such a claim can be immediately filed in the district court.

Statement of claim for division of property during divorce through court

In addition, when filing a claim for division of common property in a district court, it should be taken into account that:

  1. Before filing a claim, you must pay a court fee, the amount of which depends on the cost of the claim and is determined according to the rules established by the Code of Civil Procedure. The payment receipt must be attached to the submitted documents.
  2. In the statement of claim, the plaintiff must list all the things the distribution of which is in question, indicating the approximate or exact time of their acquisition, as well as their cost. Moreover, claims may contain a request to allocate specific things to the plaintiff, and all other things to the defendant.
  3. In cases where the defendant does not agree with the value of the property to be distributed or the value of individual items indicated in the statement of claim, he has the right to file a petition for an assessment of the property. It must be taken into account that, based on the results of the assessment, the jurisdiction of the case may change.

How to ensure the safety of property during a divorce

Quite often, conflict situations between spouses during divorce proceedings lead to unscrupulous spouses trying to hide jointly acquired property in order to avoid its division with the other spouse. To avoid this, you need to take care of the security of shared items in their section. The most effective tool for this is the court taking measures to secure the claim (Civil Procedure Code of Ukraine).

Thus, as part of the legal process for the division of property, a person may apply for the application of one or more security measures, in particular, the seizure of property and funds of other spouses, a ban on carrying out certain actions with specific things, as well as other measures that meet the goals of their application (Civil Procedure Code of Ukraine).

The procedure for dividing property through the court upon divorce

However, such measures are applied only within the framework of a judicial process. Before its consideration, the legislation does not provide for any mechanisms, which is why it is necessary to proceed from the specifics of the situation. Thus, an interested party can ensure the safety of property in the following ways:

  1. If we are talking about real estate and an unscrupulous person is alienating it, before taking measures to secure the claim, a statement about the existence of a dispute regarding the property should be sent to the territorial body of the
  2. State Register. This will not allow the apartment to be re-registered to the new owner.
    If a person tries to hide title documents, they can be obtained by requesting an extract from the State Register regarding basic information about the object (cadastral number, title record number, form of ownership, owner’s name, etc.). Based on this extract, you can request a copy of the title documents through the court.
  3. If the interested party owns a share in the property right, he can obtain these documents independently from the State Register.
  4. As for other things that are subject to registration (cars, uncertificated shares, shares in an LLC), you can do the same and obtain information from the State Traffic Inspectorate, depositories and tax office, respectively.
  5. As for other movable property, its safety can be ensured by drawing up its description. In such a document, each thing is described separately, and the document itself is signed by both spouses. In case of refusal to sign, this fact is recorded in the document and certified by the signatures of uninterested persons.

Division of property in a civil marriage

A civil marriage is the cohabitation of a man and a woman that is not formalized accordingly. Being in such a marriage does not form community property. If persons live in a civil marriage, then the application of the norms of the Family Code of Ukraine to them is impossible, therefore, the division of property is unacceptable. Thus, the ownership of property by each of these “spouses” is determined solely by the person in whose name such property is registered or by whom it was acquired.

Based on this, in order to protect the property rights of such persons, property purchased with common funds must be registered as common shared ownership, defining the contribution and part of each of them (GC). Then its division will be carried out according to the rules provided for by the Civil Code.

If such actions were not taken, then the division of such property will be very difficult. Its division is possible in court through claims for recognition of common shared ownership of specific property and its division. However, the legislation does not provide for the unconditional emergence of such a property regime for the property of cohabitants, especially considering that there are no criteria for determining such property in a civil marriage.

Based on this, the spouses interested in the division of property need to formulate a substantiated position for the court, consisting of a set of criteria indicating the common ownership of the disputed property, which will be discussed:

  • the fact of cohabitation, long-term relationships that create the appearance of a family from others;
  • maintaining a joint household and forming a common budget;
  • formation of property that was considered common to the cohabitant (calculation of total income when taking out a loan, guarantee, etc.);
  • the investment of personal funds by each of the cohabitants in the purchase of one thing.

The final decision of the court will depend on the degree of proof of the circumstances referred to by the interested cohabitant.

Division of marital property: jurisdiction

Protecting the property rights of former spouses by dividing property inevitably requires compliance with the principles of jurisdiction. Failure to comply with these principles may lead, in particular, to the return of the claim without consideration (Civil Procedure Code of Ukraine). Of course, this does not prevent re-application, however, it significantly delays the division process, which can result in even more unfavorable consequences.

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