Establishing the legal facts is a fundamental step in protecting your rights in legal disputes. This process can seem complicated and confusing, especially for those without a legal background. Without clearly established legal facts, no legal issue can be resolved fairly and in accordance with the law, so knowing the basic principles and procedures can make this task much easier.
Lawyers of the “Repeshko and Partners” Bar Association comment in detail on this complex process, having analyzed each stage from the collection of evidence to its presentation in court. This information is valuable for everyone who wants to successfully protect their rights and interests in the legal field.
Once upon a time there was a woman. She lived a long and happy life and died when she was well over eighty years old. Everyone called her Pelageya, her passport was in that name, her pension certificate, and many other things. She and her husband bought a house during their lifetime, but the husband died earlier, then she. It all went like that until the children decided to put all the documents in order and arrange the inheritance house. The notary partially executed the inheritance documents for the children, but refused to execute the other part. Unexpectedly, it turned out that according to the marriage certificate, the husband was not “Pelageya” but “Polina”. The wife is, as it were, but not her. By the way, the Pension Fund found out that “Palagea” was written in the documents. As they say, a surprise comes where you least expect it.
But the situation is different – the daughter lived with her mother at the time of her death, but was registered at a different address. Somewhere, something out of the corner of her ear, she heard that if he lived with the testator, then there was no need to go to the notary. So she didn’t go. I didn’t go for a year or two, but I didn’t even intend to go for five years, until the war and the need to have real estate documents prompted me to turn to a notary for inheritance registration. But the “evil” notary refused to issue the documents, saying: “You would have been in prison for another five years. You are now in court. And submitting an application for an extension of the deadline for accepting the inheritance is pointless – the judge will also ask why they sat for five years, and there is no answer. However, ignorance of the law does not exempt from responsibility.”
At first glance, these situations are completely different, but still they have one common solution – those who find themselves in similar situations are waiting in court with a statement to establish the fact in the order of a separate proceeding.
According to the current legislation, the court considers cases of establishing the following facts:
- family relations between natural persons;
- stay of a natural person on a dependent basis;
- disability, if it is necessary to assign a pension or receive assistance under the mandatory state social insurance;
- marriage registration, divorce, adoption;
- living in the same family of a man and a woman without marriage;
- the ownership of title documents to a person whose surname, first name, patronymic, place and time of birth indicated in the document do not match the surname, first name, patronymic, place and time of birth of this person indicated in the birth certificate or in the passport;
- birth of a person at a certain time in case of impossibility of registration of the fact of birth by the state registration body of acts of civil status;
- death of a person at a certain time in case of impossibility of registration of the fact of death by the state registration body of acts of civil status;
- the death of a person who went missing under circumstances that threatened him with death or give grounds to consider him dead from a certain accident as a result of man-made and natural emergencies.
Other facts, which depend on the emergence, change or termination of personal or property rights of natural persons, may also be established in a judicial procedure, unless another procedure for their establishment is determined by law.
By the way, regarding “other facts”. Currently, in connection with the changes in the mobilization legislation, the question of establishing the fact of sole participation of the father in raising the child has become very relevant. Previously, no one established these facts, but this year, similar statements began to appear in court. Courts currently accept applications for this category of cases, but the proceedings are stopped – they are waiting for what the Supreme Court of Ukraine will say, because by the Resolution of the Great Chamber of the Supreme Court of October 26, 2023, in case No. 201/5972/22, a case was accepted for consideration based on an application to establish the fact of independent education of the child and assigned for consideration. The specified case will be exemplary, and the decision of the Supreme Court will depend on whether citizens will be able to establish a new fact in court in the future – the fact of the sole participation of the father in the upbringing of the child.
Limitations in establishing facts
However, the law has certain limitations in establishing the facts. Cases of establishing the fact of a person’s ownership of a passport, a military ID card, a membership card in a citizens’ association, as well as certificates issued by state registration bodies of civil status acts, are not subject to judicial review in separate proceedings. That is, it is possible to set the demand: “Establish the fact that Dmytro Ivanovich Sydorenko is the husband of Polina Mykhailivna Sydorenko”, but it is forbidden to set the demand: “Establish the fact of the marriage certificate of Dmytro Ivanovich Sydorenko and Polina Mykhailivna Sydorenko, concluded on April 12, 1954, by Pelageya Mykhailivna Sydorenko” .
Thus, in its explanation, the Supreme Court of Ukraine noted that facts regarding:
- length of service (for assigning pensions and temporary disability benefits, calculating allowances and other benefits);
- reasons and degree of disability;
- groups of disability and the time of its onset;
- completion of active military service;
- participation in hostilities, being at the front, in partisan units;
- receiving a wound, contusion in battles in defense of Ukraine, the USSR or in the performance of other duties of military service;
- recognition as a veteran or disabled person of the Great Patriotic War;
- the age of the natural person;
- graduating from an educational institution and receiving the relevant education;
- adoption after the death of the adopted person or the adopter, if it was not properly formalized during the lifetime after 1926;
- belonging to a certain nationality;
- belonging to a person’s passport, military ID card, membership card in a citizen’s association, as well as certificates issued by civil status registration bodies;
- the identity of persons, as well as the name, patronymic and surname of persons recorded differently in the documents;
- receiving government awards;
- decriminalization and administrative eviction of citizens;
- on establishing belonging to war veterans and disabled persons;
- on establishing the fact that a sentence has been passed or a court decision has been issued against the relevant person;
- acquisition of Ukrainian citizenship by a citizen of another state.
In addition, the judge refuses to open proceedings in the case if a legal dispute can be seen from the application to establish a fact of legal significance, and if a legal dispute is discovered during the case, he leaves the application without consideration. This means that in the event that whether a citizen will receive property depends on the establishment of the fact, the court may refuse to establish the fact and offer to apply to the court in the procedure of legal proceedings at the same time with two requirements – establishment of the fact and recognition of the right of ownership in the order of inheritance.
For example, there is a single heir whose spelling differs from the testator’s documents. Most likely, this is a separate proceeding and simply a statement of fact. If there are several heirs and one of them has discrepancies in the spelling with the documents of the testator, then most likely this is a legal proceeding with the establishment of the fact and recognition of the right of ownership in the order of inheritance. However, only a lawyer, taking into account many legal nuances, can decide in which option one should go to court. For all their simplicity, separate proceedings are not so simple.
There is one more nuance. An individual’s application to establish a fact of legal significance is submitted to the court at his place of residence. Here it should be taken into account that some courts consider cases more loyally, based on the fact that – as the dispute can be resolved in favor of the citizen – that is how it should be resolved. There are courts and judges who, in order to prove a fact, need to get an echo from the sky, which, of course, is not possible. Here we can just use the game with the jurisdiction of cases. As we noted above, the establishment of fact can be submitted together with the recognition of ownership. Therefore, there is exclusive jurisdiction for lawsuits related to immovable property – cases can be considered only by the court on the territory of which the immovable property is located.
In practice, it works as follows. In order to inherit a house in the city of Zmiiv, a person needs to establish the fact of family relations. She is the sole heiress and is registered in the city of Kharkiv in the territory of Kyiv district. If you simply submit an application to establish the fact of family relations, it must be submitted to the Kyiv District Court of Kharkiv. If you file a claim for the establishment of a fact and immediate recognition of ownership of a house in Zmiiv, the documents must be submitted to the Zmiiv district court of the Kharkiv region.
Resolution of the Central Committee of the Supreme Court dated 07.02.2024 No. 545/844/23 (61-15775св23) – the need to establish the fact of family relations in order to receive an inheritance – does not in itself indicate the existence of a dispute. The notary’s refusal to issue a certificate of acceptance of inheritance is purely related to the impossibility of establishing the fact of family relations between the applicant and the testator from the relevant state registers. Courts must establish the circle of heirs, as well as between whom there is a dispute, because the existence of a dispute about the right must be real, not hypothetical. Without opening proceedings in the case, it is impossible to establish the factual circumstances regarding the existence of a legal dispute.
In paragraph 7 of the resolution of the Plenum of the Supreme Court of Ukraine dated March 31, 1995 No. 5 “On judicial practice in cases of establishing facts of legal significance” it is explained to the courts that in accordance with paragraph 1 of the first part Article 273 of the Civil Code of Ukraine (paragraph 1 of part one of Article 315 of the current Code of Civil Procedure of Ukraine) the court has the right to consider cases on the establishment of family relations, when this fact directly gives rise to legal consequences, for example, if confirmation of such a fact is necessary for the applicant to obtain a certificate of right from the bodies performing notarial acts for inheritance, for registration of the right to a pension in connection with the loss of a breadwinner.
As you can see, legal facts are established not just like that. In the corresponding application, it is necessary to specify why this or that fact is established. Moreover, in such a statement, interested parties are indicated – those bodies or persons to whom you will later go with the court decision in order to implement it. So, in cases of establishing the fact of family ties, it is a private notary or a state notary office where the inheritance will be processed in the future, the Pension Fund Office – in cases of establishing the appropriateness of the work record for further calculation of seniority for pension payments.
The Supreme Court of Ukraine in the letter dated 01.01.2012 “Judicial practice of consideration of cases on the establishment of facts of legal significance” notes that interested persons in cases on the establishment of the fact of family relations, depending on the purpose of establishing this fact, may also be other persons who have the right to inheritance (brothers, sisters, grandchildren, persons in whose favor a will was drawn up, adopted children, territorial community in the absence of other heirs according to law and will).
However, that is not all. The court will not accept the application for establishing the fact (exception – cases of establishing the fact of death and the fact of birth in the occupied territories) until the applicant, together with all the documents, submits a refusal to the body or person for whom the fact is being established. Therefore, before applying to the court, you need to apply in writing to the appropriate body or bodies, in which you ask to correct what prevents you from taking the action – surname, first name, patronymic, name of the company, etc. Such documents can be – a notary’s decision on refusal to perform a notarial act, the Pension Fund’s refusal to include seniority due to the incorrect spelling of the last name, the refusal of the state civil registration body to make corrections to the act record, and others.
The court fee for submitting an application to establish a fact in 2024 is currently UAH 605.60.
Citizens of Ukraine, who permanently live outside the state, also have the right to apply to the court of general jurisdiction with a statement to establish a fact that has legal significance. Accordance with the requirements Part 2 of Art. 257 of the Code of Civil Procedure the jurisdiction of such cases is determined at the request of the applicant by the decision of a judge of the Supreme Court of Ukraine.
And one last piece of advice – be very careful with your documents. It happens that during a person’s lifetime it is much faster and easier to correct an existing error.
