Apparently, there is nothing simpler than dividing property between spouses, think average citizens and they are very wrong. Yes, everything is really very simple when you look at the situation as follows – got married – bought an apartment – got divorced – divided the apartment in half. But usually life is much more diverse and interesting, and sometimes those things that seem surprisingly simple to us are incredibly complex as we look at them more closely. From this point of view, it will not be superfluous to re-read the Family Code of Ukraine once again, because when you read the law from the perspective of a specific situation, new facets unexpectedly open up in it.
According to the general rule, the property acquired by the spouses during the marriage belongs to the wife and husband under the right of joint co-ownership, regardless of the fact that one of them did not have independent earnings for a valid reason (education, housekeeping, childcare, illness, etc.) income). It is considered that every thing acquired during the marriage, except for things of individual use, is the object of the right of joint joint property of the spouses. However, there are some exceptions to this general rule.
What exactly are the exceptions and how to establish that the property is really personal private property, comments the lawyers of the “Repeshko and Partners” Bar Association.
The personal private property of a wife or husband is:
- property acquired by her before marriage. In this case, everything is clear – it is enough to compare the date of the agreement on the purchase of such property and the date of marriage registration.
- property acquired by her or him during the marriage, but on the basis of a gift contract or in the order of inheritance. Everything here is also very simple – there must be relevant documents – a certificate of the right to inheritance by law or by will and a gift agreement.
We will remind you about some important nuances:
- A contract for donating personal and household items can be concluded orally;
- The contract of donation of an immovable thing is concluded in writing and is subject to notarization with subsequent state registration;
- The contract for donating movable things that have a special value is concluded in writing. The transfer of such a thing under a verbal contract is legal, if the court does not establish that the donee took possession of it illegally;
- A contract for the donation of currency values for an amount that exceeds fifty times the tax-free minimum income of citizens is concluded in writing and is subject to notarization.
We would like to draw your attention to the fact that fifty times the tax-free minimum income of citizens is only UAH 850. (17 UAH x 50). You need to pay special attention to this point. A banal example: during a divorce, the wife raises the question in court that the apartment, which was purchased by the spouses during the marriage, is her personal private property, because the funds for it were given to her on her birthday a month before the purchase, and the husband has a salary like this all his life. that he does not have enough money to buy an apartment. Therefore, since the funds are a gift, the purchased apartment is her personal property.
To prove her position, the woman brings a written receipt from her parents, where they confirm that they donated 100,000 US dollars, drags the same parents, neighbors and half a village of relatives to court as witnesses… and loses the case… and all because the donation of funds to an amount over UAH 850 must be formalized in a written contract with a notarized certificate. If the wife submitted such a notarized contract to the court, she would win the case. That is why, take care in advance, as you intend to purchase property for a significant amount in marriage and do not spare money for the execution of some “intermediate” contracts – the same contract of donation of 100,000 US dollars, so as not to lose much more – half an apartment.
If the property acquired by the wife or husband during the marriage, but with funds that belonged to her, he personally
Here it is necessary to take into account that, for example, the personal private property of a wife or husband includes prizes, awards that she or he received for personal merits. Therefore, the apartment purchased for such a premium is personal private property. Another very real situation is when one of the spouses has personal savings before marriage and in the future intends to use them to buy, for example, a car. Then you need to get a notarized statement from the other spouse that the purchase is made with personal funds of the husband/wife and the second half does not claim the property purchased with these funds.
There are still important questions:
– housing acquired by the wife or husband during the marriage as a result of its privatization in accordance with of the Law of Ukraine “On Privatization of the State Housing Fund”;
– a land plot acquired by a wife or husband during marriage as a result of the privatization of a land plot that was in her or his use, or obtained as a result of the privatization of land plots of state and communal agricultural enterprises, institutions and organizations, or obtained from state and communal land within norms of free privatization, defined Land Code of Ukraine.
With privatization, the legislator proceeds from the fact that privatized property is a gift of the state to a citizen, and distribution gifts to spouses are not carried out. The personal private property of the wife and husband are things for individual use, including jewelry, even when they were purchased at the expense of joint funds of the spouses. Items of personal use include clothing, cosmetics, hygiene products, accessories, etc., items used for the daily needs of one of the spouses.
Thus, jewelry (wedding rings, necklaces, etc.), clothes (three mink and two sable fur coats of the wife), accessories that the husband gave to the wife are the personal private property of the wife, and in case of divorce, they are not subject to division. Considering this, a man who says to his wife: “I took you naked and barefoot, you will leave me like that!”, to put it mildly, is wrong. At least his wife will leave him in a mink fur coat and earrings with sapphires (of course she has all this).
The personal private property of the wife or husband is the funds received as compensation for the loss (damage) of a thing that belonged to her or him, as well as as compensation for the moral damage caused to her or him. Personal private property of the wife and husband are payments (insurance payments and payments of redemption amounts) received under life and health insurance contracts.
However, the next point is the most interesting. In connection with military actions outside the territory of Ukraine, many families live separately both within the territory of the country, and there are also spouses who are separated not only by the state border, but also by many other countries. At the same time, the husband and wife have been living separately for several years, usually have separate budgets and run a separate household. A number of questions may arise here.
Consider a very likely situation: in the spring of 2022, a man from Kyiv sends his wife and child to a safe place – to Germany. Abroad, the wife is received by volunteers, registered with the same famous Job Center, provided with a social apartment, and sent to learn German. From that time to this day, the man lives in the capital, works, and even sends money to Germany every month. Then, in the middle of 2024, the woman finds out that her husband bought a very expensive car, and later receives a lawsuit for divorce. Believing that she will remain without a husband anyway, even if she will receive significant funds, she files a lawsuit for the division of the same car that her husband purchased in 2024.
It should be noted that everything depends on the evidence presented by the parties in the case, but in the application for divorce, the husband stated that since the beginning of 2022, he and his wife did not live as a family, ran separate farms, had separate budgets, will provide statements from the bank account that he voluntarily sent alimony for the child to his wife every month, will provide a certificate from the border service that the wife crossed the border in the spring of 2022 in the direction of Europe and has not returned to this day, a certificate about her salary, the wife does not have chances to get half of the cost of the car, because the court can recognize as the personal private property of the wife, the husband, the property acquired by her during their separate residence in connection with the actual termination of marital relations.
The law also states that if in addition to joint funds and funds that belonged to one of the spouses were invested in the acquisition of property, then the share in this property, according to the amount of the contribution, is his personal private property. According to this rule, in order to prove personal property without options, you need to go to court. At the same time, you need to remember everything that was written earlier about the donation contract. In addition, this point also includes the situation when, after marriage, for example, the husband sells his premarital apartment and the spouses buy another apartment together.
In order for a man to prove his rights according to this example, several conditions are necessary:
- The amount in the contract of sale of the pre-marital apartment must be the full amount for which the sale was made;
- The time gap between the sale of a pre-marital apartment and the purchase of an apartment in marriage should be minimal, ideally it should all be done in one day, or two days at most. Since the time interval between the sale of one apartment and the purchase of another is several weeks, months or even a year, it is no longer possible to prove that the matrimonial apartment was purchased including for the pre-marital apartment. The exception is that immediately (on the same day or the next) after the sale of the pre-marital apartment, the funds were deposited into the bank account, and a day or two before the purchase of the marital apartment, they were withdrawn from the bank account. At the same time, the court must provide all the documents that confirm the transactions.
Another rule is interesting from a practical point of view. If a thing belonging to one of the spouses bears fruit, gives offspring or income (dividends), he is the owner of these fruits, offspring or income (dividends). For example, if one of the spouses has a premarital apartment, received as a gift or inherited, which he or she rents out (but rents out necessarily officially, with the signing of contracts, submission of declarations to the tax office and payment of personal income tax person), then the rent is a person’s personal funds, and the property that will be purchased with such rent is personal property. Ideally, it is desirable to save such rent in a bank account on the day of receipt or the following day, and then withdraw the funds two days before the purchase of the property, in order to show the court that the rent was not spent at McDonald’s, but was accumulated and then went to purchase another property, which is also not joint joint property of the spouses. A similar rule will apply as if funds are kept on a bank deposit and interest is accrued on them from premarital times. Even in the situation from the well-known cartoon about a cow that gave birth to a calf, and a cat and a dog still could not determine to whom exactly the calf belongs, for the spouses the answer will be obvious – whose cow is the calf.
It should be noted that everyone “sees” the property acquired by the spouses during the marriage as jointly owned, unless something else is stipulated separately in the contract. And so, as a rule, you need to file a claim with the court to recognize the property as personal private property, or to recognize a part of the property as personal private property in the joint property of the spouses, and prove in court that you have a completely legal right, for example, by virtue of the same contract of donating money from the parents, for whom the apartment was subsequently purchased. To a large extent, life has been made easier by the norm, according to which notaries, when certifying the agreement, receive from the second spouse a written consent to purchase property with joint funds or a statement that the property is purchased with personal funds of the spouses, but this is an innovation of recent years, and the property is shared by spouses who they lived both thirty and fifty years in marriage during the times when no statements were notarized by a notary at the time of the agreement.
To apply to the court, you need to prepare copies of all documents that will be used to substantiate your rights to personal private property. They must be submitted immediately with the statement of claim. In the case of loss of any documents, and it is impossible to obtain their copies or duplicates in person, the court must immediately request to do so with a corresponding petition, and the lost evidence will be received by court order in the event of such an opportunity.
The court fee for this category of cases is 1% of the amount of the claim, but for 2024 it is not less than UAH 1,211.20 and not more than UAH 15,140.00.
It must be remembered that lawsuits on the division of marital property are considered by the courts at the defendant’s place of registration. Exceptions are lawsuits, the subject of which is real estate. In such a case, the case is considered by the court on the territory of which such immovable property is located, regardless of the place of registration of the parties.
We would like to remind you once again – the more written evidence you collect during the marriage, the more chances there are for a fair division of property. The main thing is that the mentioned written evidence is proper and admissible.
