Divorce in itself is a difficult stage in the life of any couple, but it is made even more complicated by issues related to the division of jointly acquired property. This is not just a legal process, but an emotional challenge where every little detail can be crucial. By understanding the legal nuances, you can avoid unnecessary losses, maintain peace of mind and, most importantly, ensure a fair distribution of property.
What rights does each spouse have to joint property? How to distribute it correctly, taking into account the interests of both parties? Specialists of the Repeshko & Partners Bar Association explain the legal aspects of property division, including the intricacies of legislation, possible pitfalls, and strategies that will help you protect your rights.
Never before have there been so many divorce cases as in the last two years. The stressful situation in the country forced couples to perceive problems more acutely. However, some spouses who had a desire to divorce before, but somehow delayed this moment for various reasons, finally decided to put all the dots on the “and”. For many families, the test they did not pass was the test of distance – a large number of divorces occur precisely in couples where the wife went abroad or to the other end of the country. At the same time, the initiators of divorce in such couples are both the women who left and the men who stayed.
Distribution of marital property
In the event that everything is more or less known and quite uncomplicated with the procedure of dissolution of the marriage itself, many questions arise precisely in connection with the distribution of the property of the spouses acquired during the marriage. Let’s consider the most interesting and unusual questions, quite relevant, but still not clear.
According to part 1 of Art. 60 of the Family Code of Ukraine, the property acquired by the spouses during the marriage belongs to the wife and husband under the right of joint co-ownership. But there is an exception to this law. They are generally known: property received as a gift or as an inheritance is personal property. Privatized property is the most interesting from a practical point of view. As a general rule, the property that was received by one of the spouses during privatization, that is, owned on the basis of the Certificate of Ownership or the State Act on the right to a land plot, is the personal property of the husband or wife. The legislator assumes that privatization is a gift to the citizen from the state. As we noted earlier, gifts are personal property.
There is only one exception to this rule! Housing or land purchased as a result of privatization in the period from 02.08.2011 to 06.12.2012 are considered joint property of the spouses. Therefore, if the date on the document is from the specified period of time, the privatized property of the spouses can and should be divided.
Another point raises many questions. There are rare cases when, during marriage, a couple buys a house and issues documents only for the husband or only for the wife. In the future, the person to whom the purchased residential building is registered will privatize the land plot under it, in his own name, of course, since he is the owner of the house. So, we understand that the house purchased under the contract of sale is subject to distribution, as property acquired during the marriage. In turn, the land plot is privatized – that is, it is the personal property of such a person.
In the legislation, this problem is solved as follows – it is established that the fate of the house and the plot of land are inseparable from each other. The Land Code of Ukraine states:
“In case of acquisition of ownership of an object of immovable property (residential building (except multi-apartment), other building or structure), an object of unfinished construction located on a land plot (except for state-owned, communal land), the ownership right to such land the plot is simultaneously transferred from the alienator (previous owner) of such an object to the acquirer of such an object without changing its purpose. In the event that the alienator (previous owner) of such an object owned a share in the right of joint ownership of a land plot, ownership of such a share is transferred to the acquirer of this object. When performing a transaction involving the transfer of ownership of the specified object, the requirements of part sixteen of this article must be observed.”
That is, the second spouse with ½ part of the residential building will also get 1/2 part of the land plot under it, regardless of the fact that, according to the general rule, the privatized land plot is not subject to division. She will leave on the basis of Art. 120 of the Land Code of Ukraine.
The next question that always arises after a divorce is the time period in which it is possible to divide the joint property of the spouses. It should be noted that the property can be divided:
- While married.
- Simultaneously with the divorce proceedings.
- After the divorce.
At the same time, in all three of these cases, division can be carried out both in a voluntary contractual manner through a notary, and in court through a lawsuit.
One more thing – the children of the spouses have nothing to do with the property of the spouses, even if there are ten of them, even if they are all registered for life in the real estate purchased by the spouses. The age of the children also does not matter. When dividing property, the division is only between husband and wife. Children are related to the property of mom and dad only as heirs after their death.
In what period after the dissolution of the marriage should the division of property be carried out
The biggest question that is usually of interest to divorcing couples is how soon after the dissolution of the marriage should the division of property be carried out? This issue arises due to the fact that the general limitation period is three years. There are rare cases when the wife, who has decided to divorce, has already been driven to despair in her marriage and has no money for court proceedings, but has minor children in her hands. Yes, there is a three-year period, but it does not start from the date of divorce! The three-year countdown for filing a claim to the court on the distribution of property starts from the moment a person learned, or should have learned, that his rights were violated. In practice, it works as follows.
The couple had a car purchased jointly during the marriage. At the beginning of the war, his wife and child left for Poland. Six months later, the husband filed for divorce. The divorce decision entered into force on October 30, 2022. In August 2024, the godmother called her (already ex) wife in Poland and reported that she overheard her husband’s conversation with her ex-husband and found out that a month ago, in July 2024, the ex-husband sold the car. Of course, the ex-wife did not know about this, but of course, no one transferred half of the money for the sold vehicle to her. Thus, the three-year period for submitting an application to the court for the ex-wife did not begin on October 30, 2022, but from July 2024.
However, lawyers always recommend not to delay the division of property, but to decide everything at once. It is easier and faster to divide the existing property than to try to return it in case of illegal alienation or it is easier than to collect the same compensation for it. In the example of a car, the newer it is, the more it costs. The value of a ten-year-old car and the value of a fifteen-year-old car are completely different. In this case, time is not in favor of the other spouse.
Parts 1 and 2 of Art. 70 of the Civil Code of Ukraine establishes that in case of division of property, which is the object of the right of joint co-ownership of spouses, the property shares of the wife and husband are equal, unless otherwise determined by agreement between them or the marriage contract. When resolving a dispute about the division of property, the court may deviate from the principle of equal shares of the spouses in circumstances of significant importance, in particular if one of them did not take care of the material support of the family, hid, destroyed or damaged joint property, spent it to the detriment of the interests of the family “
It should be noted that in 99% of cases, the courts do not depart from the equality of spouses’ shares. In half and that’s it. The point is that to prove the same thing – “he did not care about the financial support of the family.” almost impossible. Because the evidence should not be the testimony of Valentina’s neighbor and Mykhailovych’s neighbor. The fact that a person cannot earn substantial funds does not always indicate his laziness or indifference. Yes, even during married life, no one bothers to collect some papers, acts, certificates, and this is natural, because you get married in order to live together, not to divorce, and there it will go…
If the joint property of the spouses was alienated by one of the spouses without the knowledge of the other
The next question is what to do if the joint property of the spouses was alienated by one of the spouses without the knowledge of the other? Usually, such a question arises in relation to vehicles. It is almost impossible to do this with real estate, however, it is impossible to be sure of anything in advance.
If the property was acquired under a consideration contract from a person who did not have the right to alienate it, about which the acquirer did not know and could not have known (good faith acquirer), the owner has the right to demand this property from the acquirer only if the property:
- was lost by the owner or the person to whom he transferred the property into possession;
- was stolen from the owner or the person to whom he transferred the property into possession;
- has fallen out of the possession of the owner or the person to whom he transferred the property into possession, not against their will in another way.
If the property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to claim it from the bona fide purchaser in all cases.
So, if we are not talking about the joint car of the spouses presented to my mother, then the issue can only be resolved in court. A lawsuit is filed against the person who committed the alienation for the recovery of monetary compensation for the part in the right of joint co-ownership of the property of the spouses.
Let’s consider how it works on the example of the same car that the husband sold without the knowledge of his ex-wife. The car was purchased by an unknown person – a bona fide purchaser. The first thing you need to get is a certificate from the service center of the Ministry of Internal Affairs about who owned the car before and who owns it now. Usually, this certificate is issued at the request of a lawyer. It is the proof that the vehicle used to be there, but now it is not… In addition, the service center of the Ministry of Internal Affairs provides the information needed for the next step in the help. To collect part of the value of the car, you need to understand the value of the same car. Thus, with a certificate from the service center of the Ministry of Internal Affairs, you need to contact a qualified property appraiser. Based on the specified data about the car, the appraiser will derive an average value, which will be noted in the appraisal report. The positive point of this situation is that the car was in an accident three times, repainted five times (which significantly reduces its value), the appraiser does not know about this and cannot find out, because no one gave him the car for inspection. So the cost will be a little higher than the real one. The amount provided by the appraiser is divided in half – these are exactly the funds that can be collected from the second spouse.
The court fee will be 1% of the amount of the claim (half of the value of the car), but for 2024 it will be at least UAH 1,211.20.
Regarding the cost of the car, there is another nuance. At the court session, the defendant can bring a contract for the sale of a vehicle, which will contain an amount that is significantly different from the one indicated by the appraiser. The defendant can say that no one gave more money for this “cow”, that he desperately needed money, that there was war, rain, and in general, the amount specified in the contract was half of it. Fortunately, it doesn’t work that way. Even if the car was really sold for two hryvnias to spite the ex-wife, or for some really small amount, the court will still take the amount specified in the appraiser’s report.
The statement of claim must be submitted to the court at the place of registration of the defendant. In the future, according to the same principle, an appeal to the state executive service is made – also at the debtor’s place of registration. More complex cases with receiving funds by court decision. As lawyers have always said, it is not a problem to get a decision, the problem is to get cash for it. Therefore, if the debtor has property – another car, land or a Cartier watch – this property can be seized and later sold to pay off the debt. If the amount of the debt is not large enough, or the debtor does not have property that can be sold – the seizure of bank cards and deduction from wages.
Life is unpredictable. Of course, it is better to get married, live your whole life together and die on the same day. But it usually happens quite differently. In any case, the main recommendation is not to be afraid to consult a lawyer. Sometimes one of the spouses loses precisely because of ignorance of the law or groundless intimidation by the other spouse and his relatives.
