Property acquired during marriage may be subject to seizure. The legislation defines the grounds when this is possible, while leaving room for judicial interpretation. In the material, we will consider how the law and practice differentiate the responsibility of spouses, and in which cases joint property may be lost by both.
Concept and Legal Regime of Spouses’ Joint Property
The issue of spouses’ joint property is regulated by the provisions of the Family Code of Ukraine (hereinafter – FC) and the Civil Code of Ukraine (hereinafter – CC).
According to Article 60 of the FC, property acquired by spouses during marriage belongs to the wife and husband as joint property regardless of whether one of them did not have independent earnings (income) for valid reasons (education, household management, childcare, illness, etc.). It is considered that each item acquired during marriage, except for items for personal use, is an object of the spouses’ joint property right.
Part three of Article 368 of the CC specifies that property acquired by spouses during marriage is their joint property unless otherwise provided by contract or law. Thus, Article 64 of the FC provides that the wife and husband have the right to conclude all agreements not prohibited by law, both regarding property that is their personal private property and regarding property that is the object of the spouses’ joint property right. In turn, Article 57 of the FC establishes that, in particular, property acquired by gift agreement, inheritance, or purchased with funds belonging to one of them personally cannot be joint property. Such property is considered the personal private property of the wife and husband.
The wife and husband have equal rights to possess, use, and dispose of property belonging to them as joint property unless otherwise agreed between them (Article 63 of the FC).
They manage the property that is the object of the spouses’ joint property right by mutual consent.
Conclusion of Agreements by One of the Spouses
When one of the spouses concludes agreements, it is considered that they act with the consent of the other spouse. The wife, husband have the right to apply to the court with a claim to declare the agreement invalid if it was concluded by the other spouse without their consent, if this agreement goes beyond minor household matters.
To conclude agreements by one of the spouses requiring notarial certification and/or state registration, as well as agreements regarding valuable property, the consent of the other spouse must be provided in writing. The consent to conclude an agreement requiring notarial certification and/or state registration must be notarized.
An agreement concluded by one of the spouses in the interests of the family creates obligations for the other spouse if the property obtained under the agreement is used for family purposes (Article 65 of the FC).
Grounds for Seizing Spouses’ Property
- According to the second part of Article 73 of the FC, seizure may be imposed on property that is the spouses’ joint property if the court finds that an agreement was concluded by one of the spouses in the interests of the family and that what was obtained under the agreement was used for its needs.
According to Article 48 of the Law of Ukraine “On Enforcement Proceedings,” the application of seizure on the debtor’s property involves its arrest, seizure (writing off funds from accounts), and forced realization (presentation of electronic money for payment in exchange for funds transferred to the account of the state enforcement service or private bailiff).
In the ruling of December 13, 2023, in case No. 489/1101/21, the Cassation Civil Court of the Supreme Court stated that for joint obligations of spouses, the latter are liable with all their property.
The dissolution of marriage does not terminate the joint property right to property acquired during marriage (first part of Article 68 of the FC). The wife and husband have the right to divide the property belonging to them as joint property, regardless of the dissolution of marriage (first part of Article 69 of the FC).
The legal regime of spouses’ joint property, exceptions to which are directly established by law, provides for the indivisibility of the spouses’ obligations, which by their content indicates the joint nature of such obligations, despite the absence in the law of a direct reference to the joint liability of spouses for obligations arising from legal acts made in the interests of the family.
The Grand Chamber of the Supreme Court in the ruling of June 30, 2020, in case No. 638/18231/15-c (proceedings No. 14-712cs19) agreed with the relevant conclusion of the Supreme Court of Ukraine, set out in the rulings of April 27, 2016, in case No. 537/6639/13-c (proceedings No. 6-486cs16) and September 14, 2016, in case No. 334/5907/14-c (proceedings No. 6-539cs16), about the joint nature of spouses’ liability for obligations arising from legal acts made in the interests of the family, unless otherwise provided by such legal acts.
According to Article 520 of the CC, the debtor in an obligation may be replaced by another person (assignment of debt) only with the creditor’s consent, unless otherwise provided by law.
The transfer of part of the debt from one of the spouses to another cannot occur automatically and without the creditor’s consent based solely on the agreement or court decision on the division of the spouses’ property.
Therefore, when resolving a dispute over the enforcement of former spouses’ obligations arising from legal acts made in the interests of the family, if the issue of dividing these obligations was not resolved with the creditor’s consent during the division of the property of this couple, the courts must be guided by the fact that the spouses are jointly responsible for such obligations with all their property.
This legal conclusion is set out in the aforementioned ruling of the Grand Chamber of the Supreme Court of June 30, 2020, in case No. 638/18231/15-c (proceedings No. 14-712cs19).
In addition, in the ruling of October 07, 2020, No. 752/7501/18, the Cassation Civil Court of the Supreme Court stated that the interpretation of the fourth part of Article 65 of the FC provides grounds for the conclusion that the one of the spouses who did not directly participate in the conclusion of the agreement becomes a liable party (debtor) if two conditions are met: 1) the agreement was concluded by the other spouse in the interests of the family; 2) the property obtained under the agreement was used for family purposes. Only the combination of these conditions allows the other spouse to be qualified as a liable person (debtor).
- Another ground for seizing joint property of spouses is provided in the FC. According to the third part of Article 73 of the FC, when compensating for damage caused by a criminal offense of one of the spouses, seizure may be imposed on property acquired during marriage if the court decision establishes that this property was acquired with funds obtained as a result of committing a criminal offense.
- If the agreement was not concluded in the interests of the spouses, then according to the first part of Article 73 of the FC, seizure for the obligations of one of the spouses can be imposed only on their personal property and on the share in the right of joint property of the spouses, which is allocated to them in kind.
According to Article 371 of the CC, a creditor of a co-owner of property that is in joint ownership, in case of insufficient other property that can be seized, may file a claim for the allocation of a share from the joint property in kind for seizure, except in cases established by law.
The allocation of a share from property that is in joint ownership for seizure is carried out in the manner established by Article 366 of this Code.
According to the specified article, if the allocation in kind of a share from joint property results in a change in its purpose or other co-owners object to it, the dispute is resolved by the court.
If it is impossible to allocate a share in kind from joint property or other co-owners object to such allocation, the creditor has the right to demand the sale of the debtor’s share in the right of joint partial ownership with the transfer of the proceeds to repay the debt.
If the debtor refuses to sell their share in the right of joint partial ownership or if other co-owners refuse to purchase the debtor’s share, the creditor has the right to demand the sale of this share through public auctions or the transfer of rights and obligations of the co-owner-debtor to them, with a corresponding recalculation.
According to Article 370 of the CC, when allocating a share from property that is in joint ownership, the shares of each co-owner in the right of joint partial ownership are considered equal unless otherwise agreed between them, by law, or by a court decision.
Information as of 08/25/2025
Based on the materials of the Ministry of Justice of Ukraine