Marriage contract in Ukraine. Why pandemic is the right time?

Bizar Male

Usually divorce is a highly stressful moment in a person’s life, even if it is a deliberate step. Combined with today’s pandemic challenges, emotions can easily override logic when navigating the important decisions inherent in divorce proceedings.

If somebody has any concerns about real pandemic impact on divorce filings, the best illustration would be numerous internet memes on this topic in social media. One of the most popular one is where a divorce lawyer thriving on a belief that too much closeness of couples will ruin a marriage. This would be funny if it weren’t so sadly true.

Initially the quarantine was adopted for 3-4 weeks. In fact, such restriction forced spouses to stay at home together most of this time. Some people have adopted to such changes, but not all. It does not mean that every second couple applied for divorce. No. However, lots of spouses remain together just for economic reasons – sharing expenses, living costs etc. But not for love. Such tactic may work for a while. Sooner or later each partner will realize that such cohabitation is not a longstanding option. Just after that, scenario usually develops in two alternative ways:

  1. Aggressive divorce in court with division of marital property and covering other related issues.
  2. “Soft” divorce upon mutual consent with division of marital property through the notarized agreements.

Needless to say, that second variant is much faster, cheaper and less emotionally toxic. But it is also far from ideal. As practice shows none of spouses give up on financial issues during this stressful period (even when divorce is a deliberate step, as mentioned in the beginning).

How to prevent any troubles with the division of marital property? The best way is to regulate spouses’ financial issues beforehand, while two persons trust each other and are focused on a “fair play”. One of the best options which Ukrainian legislation provides in this context is conclusion of a marriage contract (hereinafter – the Contract).

The form of the Contract

The Contract in Ukraine shall be concluded in written and notarized. If a spouse (bride) is a foreigner, the best way is to make it bilingual (Ukrainian and native language of a foreigner). This will eliminate the risk of incorrect understanding of its provisions. For this purpose a certified translator will be invited for notarization and will sign the Contract confirming the accuracy of translation.

Being an official notarized document, the Contract can be used outside Ukraine only after its legalization (for the most countries Apostille stamp will be enough).

Who can conclude the Contract?

The Contract in Ukraine can be either prenuptial or postnuptial. It means that once a couple has applied to the authorities for the marriage registration, they can conclude the Contract. In this case it becomes effective from the moment of marriage registration. If spouses (already married) decide to conclude the Contract, it comes into force from the moment of its notarization.

Restrictions:

– the Contract can not be concluded through representatives (including attorneys). Personal presence and signing by both spouses (bridal couple) are obligatory;

– couples living in a “civil marriage” (without its official registration) cannot conclude the Contract;

– same-sex or third-gender partners cannot conclude the Contract (since Ukraine does not permit marriages between such persons).

What the Contract regulates?

In accordance with the general rule, every asset obtained during the marriage become common spousal property. It means that each spouse is entitled for ½ part in such asset during division of marital property.    

The main purpose of the Contract in Ukraine is to regulate spouses’ property rights and obligations (a) between themselves, and (b) in respect of their children, in a way which is different from the law provided.

Contrary to the general rule, spouses can establish in the Contract that any asset obtained during the marriage shall become personal. The sole owner would be the person in whose name the asset is registered (or whose name is mentioned within the title certificate).

Moreover, the Contract may establish the maintenance for a spouse, either during the marriage and/or in case of divorce. Children’s maintenance can also be the subject of the Contract.

Ukrainian family law establishes several features for the Contract, which substantially differ it from a foreign analogue:

– the Contract cannot regulate non-property relations between spouses (for example, behavior/actions which may result the divorce) and in respect of their children (establish the upbringing procedure or schedule of children’s communication with each parent in case of divorce, etc.);

– prohibition on the transfer of ownership over real estate (and other property subject to state registration) from one spouse to another. It means, that if one spouse is registered as the owner of a house, another spouse cannot become the owner of such house by means of the Contract.

– the Contract cannot put a spouse into “extremely disadvantageous” financial position. The term “extremely disadvantageous” is not provided by law. However, on practice it means that the Contract cannot provide all assets to one spouse, and left other spouse holding an empty bag. Under such circumstances the Contract may be challenged in court. The prospects of every court proceeding depend largely on the legal position chosen by a party. Therefore, before applying to the court with any demands, legal consultation and careful strategy development is highly recommended.

Cut the long story short, conclusion of the Contract may become the best option to secure spouse’s finances in perspective. It not only saves the time, but also the money for potential legal battles in future. 

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