Marriage contract: legal security for a modern family

The prenuptial agreement is becoming increasingly important in modern Ukraine, where financial independence, career ambitions and the desire for a fair distribution of responsibilities in the family are becoming important aspects of married life. There is a growing understanding that legally enforceable agreements help to avoid misunderstandings and conflicts that may arise over time. In the realities of Ukrainian society, where property rights issues often become the cause of litigation in divorce, a prenuptial agreement becomes not only a way to protect yourself, but also an indicator of mutual respect and responsibility between partners. Therefore, knowledge of prenuptial agreements and their possibilities is a necessary tool for those who want to plan their future wisely and in advance.

The lawyers of Repeshko & Partners Law Firm commented on the purpose of a prenuptial agreement and how it will affect your relationship.

A prenuptial agreement is not only about the division of property or financial obligations. It is about peace of mind, trust and confidence that both partners know and understand the rules of their ‘game’ in married life. Recently, a case that had been pending in court since the beginning of 2021 has been resolved. The case seemed to be a simple one – the division of marital property acquired during the marriage. The spouses divorced in 2018, and from 2021 to 2024, they were trying to figure out who would own a one-bedroom apartment and who would own 2/3 of a three-bedroom apartment.

As usual, the former spouses agreed on one thing, and then, when ‘new family factors’ intervened, all agreements were cancelled and the case went to court. One of the parties, the wife, has been married for a long time and lives with her children in Canada. When she arrived at the last court hearing by chance (the case ended in a settlement on her terms) and waited outside the judge’s office, she sighed sadly – ‘If we had a prenuptial agreement, we would not have been going to court for almost four years!’

It was difficult to argue with her, as in the lawyer’s opinion, all real estate should be registered in both names at once – half for the husband and half for the wife, so there would be less litigation. The defendant’s lawyer also fully agreed with the idea of a prenuptial agreement at the beginning of marriage, but everyone agreed that the statement of one of the spouses – ‘Let’s sign a prenuptial agreement with a notary!’ before marriage registration or at the beginning of marriage would immediately kill all feelings, trust and the desire to get married and live together with this person.

In turn, our citizen, who has been living in Canada for several years, noted that in this country, marriage is approached very carefully. So much so that they often live without registering a marriage, because if our dispute were considered in Canada, the husband would not get any apartment at all – everything would be left to his wife, along with draconian child support.

It was in an effort to keep pace with the legal heritage of the world that on 23 June 1992 the Verkhovna Rada of Ukraine adopted the Law ‘On Amendments to the Code of Marriage and Family of Ukraine’, according to which the Code was supplemented by Article 27, which provided for the possibility of concluding a marriage contract between persons entering into marriage. This was an innovation in family law that has not been widely used in Ukraine for 32 years. On the one hand, this was due to the moral aspects mentioned above, and on the other hand, since it was a new norm, no one knew in practice how it would work and how the court would look at certain aspects, if the case did come to court. Even lawyers looked at this phenomenon with apprehension, not to mention ordinary citizens. However, the new Family Code of Ukraine (FCU) was subsequently adopted, in which a whole chapter was devoted to the marriage contract, regulating this issue more thoroughly.

What is a prenuptial agreement, when to conclude it

The first thing to note is the moment of entering into a prenuptial agreement. Under the current rules, a prenuptial agreement may be concluded

• by persons who have applied for marriage registration – the bride and groom;
• persons who are married – spouses.

In other words, it is never too late to enter into a prenuptial agreement. Being married, when the relationship is not yet spoilt, and there is something to share, it is even necessary! However, you should know that if a prenuptial agreement is concluded before the marriage is registered, it comes into force on the day of the marriage registration. If the marriage agreement is concluded by the spouses, it comes into force on the day of its notarisation.

It is important to note that:

• persons who live as a family without registering a marriage (civil marriage) cannot enter into a marriage agreement with each other;
• Representatives cannot enter into a marriage contract on the basis of a power of attorney or an order. Since marriage registration is carried out in person, the parties must sign the marriage agreement with a notary only in person.

A prenuptial agreement shall be concluded in writing and notarised in triplicate. In this regard, we advise you to choose a notary carefully, because his or her qualifications and experience, especially in the matter of concluding prenuptial agreements, will determine how firmly the terms and conditions set out in the agreement will be upheld in court.

What can be regulated by a prenuptial agreement

A prenuptial agreement can regulate the following issues and relationships:

• property relations between the spouses, defining their property rights and obligations;
• The property rights and obligations of the spouses as parents may be defined;
• the property that the wife or husband transfers for use for the common needs of the family is defined;
• the legal regime of property donated to the spouses in connection with marriage registration;
• to agree on the residence of their relatives in a dwelling owned by one of them or being their joint property;
• not to extend the provisions of Article 60 of the Family Code of Ukraine (joint joint ownership of property acquired by the spouses during the marriage) to the property acquired by them during the marriage and consider it joint fractional ownership or personal private property of each of them;
• a possible procedure for division of property, including in the event of divorce.
• Provision of maintenance to one of the spouses regardless of disability and the need for financial assistance under the conditions specified in the marriage agreement;
• the terms, amount and timing of alimony payments are defined, and in case of failure of one of the spouses to fulfil his or her obligation under the agreement, alimony may be collected on the basis of an executive inscription by a notary.
• The possibility of termination of the right to maintenance of one of the spouses in connection with the receipt of property (monetary) compensation may be established.
• Provide for the use of property owned by both or one of them to meet the needs of their children and other persons;
• include in the marriage agreement any other conditions regarding the legal regime of property, if they do not contradict the moral principles of society.

A marriage contract may not:

• regulate personal relations between the spouses, as well as personal relations between them and their children:
• reduce the scope of children’s rights established by the Family Code of Ukraine;
• put one of the spouses in an extremely unfavourable financial position. At the same time, the concept of ‘extremely disadvantageous financial situation’ has not yet been defined by the current legislation. In its ruling of 28 January 2015 in case No. 6-230цс14, the Supreme Court noted that the category of ‘extremely disadvantageous financial situation’ is evaluative and subject to proof in accordance with the procedure provided for by procedural law. It is precisely because of these nuances that the prenuptial agreement has not been widely used;
• to transfer real estate and other property to one of the spouses, the right to which is subject to state registration.

The court practice also confirms that the terms of the marriage agreement, under which all property acquired during the marriage (or the vast majority of property) is the personal private property of one of the spouses, put the other spouse at a significant financial disadvantage, as the Supreme Court concluded in its decision of 26 February 2020 in case No. 755/19197/18.

In addition, a prenuptial agreement may establish the general term of its validity, as well as the duration of certain rights and obligations. The agreement or certain of its terms may also be valid after the marriage is terminated.

The law stipulates that unilateral changes to the terms of a prenuptial agreement are not permitted. A marriage contract may be amended only upon a joint application of the spouses. An agreement to amend a marriage contract must also be notarised. It should be noted here that amendments to a prenuptial agreement are also signed exclusively by the parties, and signing by representatives of such an agreement is also prohibited. In addition, this event should take place preferably with the notary who certified the marriage agreement itself, and in case of impossibility to apply to this notary (notary’s termination of his/her activity, death of the notary, etc.), with another notary.

Also, at the request of one of the spouses, a marriage agreement may be amended by a court decision if it is in the interests of the spouse, the interests of the children, as well as the interests of disabled adult daughters and sons that are of significant importance.

At the same time, it is important to note that a unilateral withdrawal from a marriage contract is not allowed. The spouses have the right to withdraw from the marriage agreement by mutual declaration of will. In this case, at the choice of the spouses, the rights and obligations established by the marriage agreement are terminated from the moment of its conclusion or on the day of submission of the application for cancellation to the notary.

At the request of one of the spouses, a marriage agreement may be terminated by a court decision on grounds of material importance, in particular, if it is impossible to perform it.

It should be noted that a marriage agreement at the request of one of the spouses or another person whose rights and interests are violated by this agreement may be declared invalid by a court decision on the grounds established by the Civil Code of Ukraine.

Grounds for invalidity of a marriage contract

According to the practice of the Supreme Court of Ukraine, the following grounds for invalidity of a marriage contract may be the following:

1. Grounds established by the Civil Code of Ukraine:

– the execution of a transaction by a legally capable individual who, at the time of its execution, did not realise the significance of his/her actions and (or) could not control them;

– a transaction by an incapacitated individual;

– a transaction made under the influence of a mistake;

– a transaction made under the influence of fraud;

– a transaction made under the influence of violence;

– execution of a transaction under the influence of a grave circumstance;

– a transaction without the intention of creating the legal consequences that were stipulated by the transaction (fictitious transaction).

1. Invalidity of a marriage contract in case of non-compliance at the time of its execution with the requirements set out in parts one to three, five and six of Article 203 of the Civil Code of Ukraine:

• the content of the transaction may not contradict this Code, other acts of civil legislation, as well as the interests of the state and society, its moral principles;
• the will of a party to a transaction must be free and consistent with its internal will;
• the transaction must be aimed at the actual occurrence of legal consequences caused by it;
• a transaction made by parents (adoptive parents) may not contradict the rights and interests of their minor, underage or disabled children.

1. Violation of the notarial form of the agreement.
2. Conclusion of a marriage contract by minors who marry without the consent of their parents or guardian.
3. The inclusion of conditions that put one of the spouses in an extremely disadvantageous financial position.

It should be noted that any transaction can be challenged, the question is whether there are grounds for doing so and what they are. Due to the rarity of prenuptial agreements, there is currently no extensive court practice on the application of the law, but it still has advantages. For example, a notary’s executive inscription in the event of non-payment of the agreed child support makes a prenuptial agreement very attractive, as in this case there is no need to go to court, and the person with whom the child remains clearly understands what kind of child support he or she will receive.

In our view, drafting a prenuptial agreement is a step that every couple who values transparency and stability in their relationship should consider. Regardless of the level of property assets or life circumstances, such a document helps to discuss and agree on important issues that may affect the family’s well-being in advance. At the same time, a prenuptial agreement does not devalue feelings, but, on the contrary, protects both partners by creating a legal basis for a calm relationship and reducing the risk of future conflicts. Thus, its drafting is not only a sign of wisdom and foresight, but also a demonstration of responsibility to each other.