The procedure for the distribution of joint property of persons living in the same family without marriage registration

In today’s conditions, the idea of ​​marriage among couples is not as popular as it used to be. In recent years, the number of marriages in Ukraine has decreased, while the cohabitation of unmarried couples is growing rapidly. How is common property distributed between persons living in the same family without registering a marriage? Lawyers of the bar association comment and give recommendations “Repeshko and partners”.

Many couples in Ukraine live together for a long time before getting married, and some decide not to marry at all. All this leads to the fact that people who are not in a marital relationship accumulate joint real estate, property and assets over the years, but few think about how to divide the joint property if the relationship ends. Because of this, most long-term cohabiting couples will have to make an important decision before making a purchase, such as buying a house (apartment), a car or other significant property.

Thus, when dividing the property of the spouses, two categories of property are distinguished: personal property and property of the spouses. Anything acquired before the marriage is the personal property of either party, while virtually anything acquired during the marriage is marital property, something that can be equitably divided. What cannot be said about couples who are not married. Most of the acquired property can remain personal property. However, if there is evidence that both parties contributed to the purchase of the item, the property is jointly owned.

The Civil Code of Ukraine provides that property that is jointly jointly owned can be divided between co-owners by agreement between them, except for cases established by law. In the case of division of property that is in common co-ownership, it is considered that the shares of co-owners in the right of co-ownership are equal, unless otherwise established by agreement between them or by law.

So a fair question arises, how to divide common property acquired during living as one family without marriage registration? This question is quite interesting, because the Family Code of Ukraine stipulates that a family consists of persons who live together, are connected by common life, have mutual rights and obligations. However, living in the same family of a woman and a man without marriage is not the basis for the rights and obligations of spouses.

Article 74 of the Civil Code of Ukraine defines that if a woman and a man live in the same family, but are not married to each other or in any other marriage, the property acquired by them during their cohabitation belongs to them under the right of joint co-ownership, unless otherwise not established by a written contract between them. The provisions of Chapter 8 of this Code apply to the property that is the object of the right of joint co-ownership of a woman and a man who are not married to each other or in any other marriage.

In the joint position set out in the Supreme Court ruling as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated 03.06.2021 in case No. 748/1943/19, it is established that in order to define persons as being in a de facto marital relationship, to resolve of a property dispute on the basis of Article 74 of the Civil Code of Ukraine, the court must establish the fact that a man and a woman lived in the same family without marriage registration during the period during which the disputed property was acquired.

However, establishing only the fact that a man and a woman live in the same family and acquire property is not a sufficient basis for the division of the joint property of the spouses. The necessary proof for the court will also be that the source of the acquisition of the property was joint funds or joint work of the spouses, which is confirmed by the legal position set forth in Resolution dated 04.05.2017 No. 6-399 tss17 of the Supreme Court’s Civil Cases Judicial Chamber.

A similar position is also found in the Resolution dated 03.07.2019 on case No. 554/8023/15-ts of the Great Chamber of the Supreme Court, according to which, when resolving a dispute about the division of property, it is necessary to establish both the amount of jointly acquired property and to find out the time and sources of its acquisition, and when deciding the issue of establishing the fact of living together as one family without registering a marriage, the court must establish the following facts: living together as one family; common life; mutual rights and obligations

For example, according to the Resolution dated 15.08.2019 in case No. 588/350/15, the Supreme Court as part of the panel of judges of the Third Judicial Chamber of the Civil Court of Cassation, proper and admissible evidence of a man and a woman living in the same family without marriage registration are, in particular evidence of: joint residence, running a joint household, the parties having a joint budget, spending jointly, purchasing property in the interests of the family, the existence of mutual marital rights and obligations between the parties, other evidence indicating the existence of marital relations established between the parties .

Therefore, without establishing the fact of cohabitation of a man and a woman in the same family without registration of marriage, it excludes the possibility of considering the property as belonging to the right of joint co-ownership, as a woman and a man who live in the same family, but are not married to each other and excludes the possibility of applying the norms established by Article 74 of the Criminal Code of Ukraine. Therefore, before purchasing any property, it is necessary to decide whether the individuals will own the property jointly or separately. This will protect the rights of both the woman and the man in the event that the relationship ends, because the division of joint property is an extremely complex procedure that requires a thorough knowledge of the law.