Spousal property regime

Spousal property regime

The legislation of Ukraine establishes two types of regime for spouses: contractual and legal. Let’s look at each of them.

The legal regime determines the conditions of ownership, use and disposal of common property after registration of marriage. Property acquired before marriage will be governed by civil law.

As a general rule, property acquired during marriage is acquired jointly without determining shares. Therefore, spouses are obliged to dispose of property by mutual consent.

Joint property of spouses

Common property – this concept is characterized by the fact that property is in the possession, use, and disposal of several persons. Common property, as a rule, arises only by force of law and differs from shared property in that shares in property are not specifically defined.

Community property can arise under certain circumstances and is characterized by closely related personal relationships between individuals. Such circumstances are strictly defined in the law, but they can be distinguished:

  • Joint property of spouses. As a general rule, the regime of joint property of spouses is equal, that is, all acquired property in a marriage will be divided equally. The exception is if a marriage contract was concluded between the spouses.
  • Joint ownership of a peasant farm.

We will talk about the first type of property, namely the property of spouses (what features and regimes may arise among spouses). Spouses dispose of property by mutual agreement, otherwise may be provided for in a marriage contract (an agreement determining the disposal of property).

It should be noted that this type of property arises only after state registration of marriage. The concept of de facto or civil marriage does not exist, so this type of marriage will be regulated by law.

The concept of common property is provided for in the Civil and Family Codes of Ukraine. The Civil Code outlines the general principles of jointly acquired property. Directly the types of common property are provided for in the Family Code of Ukraine:

  • The first type is property acquired during marriage (any movable and immovable property, for example, an apartment, a car, and so on).
  • Securities and bank deposits are also recognized as common property.
  • The next type of property is the income of individuals, as well as income as an entrepreneur, income from copyright, intellectual activity (for example, disability benefits, unemployment benefits, etc.)

It should also be noted that if, for example, one of the spouses did not have independent income during the marriage, but cared for children and ran a household, then he also has the right to common property.

Spouses have a common right to property (possession, disposal, use). Even if one person participates in a transaction, the consent of the other is automatically implied. If an agreement is concluded, for example, for the purchase and sale of real estate, then the mandatory notarial consent of the other spouse is required.

Personal property of spouses

The legislation provides that the personal property of spouses can be separated from the common acquired property. It is necessary to highlight certain types of property that are not subject to the rules provided above:

  • Items acquired before marriage.
  • Property transferred under gratuitous transactions (donation agreement).
  • Things passed on by inheritance.
  • Property intended for personal use (clothing, hygiene items, medications, watches, etc.).
  • Property purchased during marriage with funds accumulated before marriage.

Exceptions to this list are personal luxury items owned by each spouse. Such things include precious items (jewelry), fur products, etc. Such items will be subject to the concepts of common property (Family Code of Ukraine).

Recognition of the property of each spouse as their common property

As a result of long-term family life, personal belongings belonging to spouses may undergo significant changes. Things can break, some improvements may be provided for them.

Complex legal situations often arise when real estate was acquired by a spouse before marriage, and at the time of cohabitation, significant changes were made to this apartment or residential building. In what ownership will the residential premises be given after the divorce: in common or belong only to one of the persons.

In this case, to transfer the disputed property to the category of common property, several factors must be present:

  • whether any changes have been made or exist that have significantly improved the living space and, accordingly, increased its value;
  • whether major repairs or redevelopment were carried out. Mode of lane friendship when separated

During a divorce, if any changes were made to the disputed property, for example, repairs, and the cost of repairs was small, then the court may not recognize the apartment as common property. In this case, one of the parties will have to compensate the other for repairs.

Example

Kravchenko A. filed a claim with the district court against Kravchenko M. to recognize the house as jointly owned. The disputed house passed to M. Kravchenko by inheritance. During the marriage, as the court found, major renovations were made to the house and the living space was increased. Based on the study, guided by the norms of the Family Code of Ukraine, the court made a decision to recognize the residential premises as jointly owned.

  • When considering this category of cases, courts must take into account the actual value of the property before and after making significant changes.
  • You also need to take into account a number of reasons (finances for construction materials, transport services, the likely degree of use of the living space, the degree of wear and tear, and so on).

It should be remembered that spouses need to prove exactly what improvements they made by providing receipts and other evidence.

Contractual regime of marital property

The contractual regime of the spouses’ property is determined by the marriage contract and may differ from the legal one. A prenuptial agreement is an agreement between spouses regarding property owned or acquired in the future.

The agreement is the right of the parties, so whether to enter into such an agreement or not depends on personal preferences. But first of all, the contractual regime will help the parties protect themselves from any attacks on personal property.

Contents of the marriage contract on the property of the spouses

The general rule provided for by family law states that property acquired during marriage is community property, unless otherwise provided by the marriage contract. Further, we will talk about the purpose for which a marriage contract is concluded, its content, form, and conditions.

A prenuptial agreement must be concluded for more free disposal of property. To make sure that the property does not become community property, for example, if one of the spouses has real estate or parts, shares in the capital. Therefore, when concluding a marriage contract, you can highlight both pros and cons.

Pros:

  1. Clear delineation of marital property.
  2. Absence of property disputes upon divorce.

Minuses:

  1. Inability to predict all aspects of life and the emergence of new property. When making changes to the contract, you must additionally pay a state fee to the notary.
  2. A situation may arise in which one party invalidates the contract, for example, if it considers that the terms are unfavorable.

A prenuptial agreement presupposes the settlement of property relations between spouses. A marriage contract can be concluded both before marriage and during marriage.

The marriage contract is concluded in writing and requires notarization. Failure to comply with these conditions entails the invalidity of the contract and does not bear any legal consequences for the parties. Yes, if changes are made to the marriage contract, they are subject to notarization.

The prenuptial agreement may include property acquired in the future. Therefore, the content of the marriage contract may be different:

  • items acquired during marriage will be the personal belongings of the spouses;
  • things will be considered partial property;
  • a mixed legal regime is possible, including a general regime, for example for real estate, and wages will relate to personal property.

A prenuptial agreement may contain an excellent and suspensive condition. An excellent condition is the termination of any obligations, depending on their occurrence (for example, in the event of infidelity by one of the spouses). A suspensive condition occurs after the occurrence of any circumstances whose occurrence is unknown (for example, the birth of a child).

Law on marriage contracts between spouses

According to the law, there are conditions that cannot be provided for in a marriage contract. If these conditions are included, the contract will be considered invalid:

  • Conditions limiting the legal capacity of an individual (for example, restrictions on judicial protection).
  • Conditions related to personal non-property rights (for example, it cannot be established who will run the household or raise children).
  • Conditions that will significantly limit the rights of the second spouse. Such an agreement can be appealed.

Conclusion, amendment and termination of a marriage contract on the property of spouses

Changes are made to the marriage contract in writing and are subject to notarization. A marriage contract can be terminated by agreement of the parties or in court.

Please remember that unilateral withdrawal from the contract is invalid.

The court may terminate the marriage contract if:

  1. One of the parties committed significant violations in the agreement.
  2. The circumstances under which the contract was concluded have changed. This implies significant changes, upon the occurrence of which this agreement would not be concluded.
  3. If the contract contains conditions under which it is considered terminated, and these circumstances occur.

The legislation provides for other changes and termination of the contract. If one of the spouses wants to change or terminate the contract in court, he is obliged to comply with the pre-trial procedure. That is, first send a claim to the other party.

Invalidation of a marriage contract

A prenuptial agreement is an agreement between two persons defining property relations. A contract is an agreement, therefore the law contains a list of conditions when an agreement can be declared invalid. In relation to a marriage contract, the following conditions can be distinguished:

  1. Completion of a transaction by an incapacitated person means that at the time of concluding the transaction the person could not understand the meaning of his actions.
  2. Completion of a transaction under the influence of error, deception, violence, threat.
  3. If the terms of the contract put one of the spouses in unfavorable conditions.
  4. The contract is recognized as invalid if the marriage itself is recognized as such (for example, a fictitious marriage).

A marriage contract declared invalid by a court does not entail legal consequences and is considered terminated from the moment of signing.

Answers from a lawyer about the marital property regime

Before the marriage was concluded, a prenuptial agreement was drawn up. According to this agreement, in the event of a divorce, the apartment goes to me, since it was purchased with my money. The person agreed to this condition at the time of imprisonment. After we filed for divorce, the man said that he was claiming the apartment. Does he have the right to appeal this clause in the contract?
I entered into a marriage contract with my wife. The apartment for which I pay a mortgage, according to the contract, goes entirely to me in the event of a divorce. Can anything change if a child is born?

Two types of regime can be provided between spouses: legal and contractual.

Under the legal regime, acquired property and personal property are allocated together.

  • Jointly acquired property should include property acquired during marriage (various items, earnings of both spouses, including from author’s activities, luxury items, etc.)
  • Personal property includes items for individual use, property transferred under a gratuitous transaction (donation, inheritance, etc.).

There are a number of conditions when personal property can become joint property: if the property of one of the spouses has significantly improved, for example, during major repairs.

The contractual regime provides for the conclusion of a marriage contract between spouses. This agreement is drawn up in writing and is subject to notarization. A marriage contract allows you to define property relations between spouses.

Like this post? Please share to your friends:
Family lawyer
Leave a Reply

;-) :| :x :twisted: :smile: :shock: :sad: :roll: :razz: :oops: :o :mrgreen: :lol: :idea: :grin: :evil: :cry: :cool: :arrow: :???: :?: :!: