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02.05.2023

The division of the property of the spouses can be carried out both by agreement and by court decision during the marriage or after its dissolution

On March 8, 2023, the Supreme Court, as part of the panel of judges of the First Judicial Chamber of the Cassation Civil Court in case No. 307/2148/16, satisfied the cassation appeal of the plaintiff's representative on the original claim, recognizing the disputed house as joint property of the spouses.

The husband appealed to the court with a claim against his ex-wife for the recognition of the right of joint co-ownership of the property of the spouses and its division, since the disputed house was built during his stay with the defendant in marriage and was built with joint funds.

The defendant appealed to the court with a counterclaim against him for recognition of the right of ownership of a share of real estate by statute of limitations, noting that after the dissolution of the marriage between them, he did not live in the disputed house for a single day, and also did not participate in the maintenance of the house and did not pay utility bills payments

By the decision of the district court, the original claim was satisfied, the counterclaim was refused due to the lack of evidence of the circumstances provided for in Art. 344 of the Civil Code of Ukraine, on the grounds that since the parties built a residential building while in a registered marriage, such real estate is joint property of the spouses. In connection with the fact that the disputed building has been put into operation, there are legal grounds for recognizing the husband's ownership of 1/2 part of the disputed residential building.

The appellate court overturned the decision on the grounds that the satisfaction of the requirements of the original claim in any amount or in any proportion regarding the husband's share in the ownership of the home (house) would mean the emergence of two competing valid legal titles (property of one person on the whole object and the property of another person on its half) in relation to the same property, would create legal uncertainty, would not resolve the dispute on the merits and instead would give rise to a new dispute and conflict.

Having considered the cassation appeal of the plaintiff's representative on the original claim, the Supreme Court indicated that the procedure for the acquisition of joint property and its legal regime in this case should be determined by the Civil Code of Ukraine, which was in force at the time of the acquisition of the disputed real estate, and the division of the property of the spouses should be carried out according to the rules provided by SC of Ukraine.

Norms of Art. 22 , Art. 28 and Part 1 of Art. 29 of the Criminal Code of Ukraine are similar to the provisions of Art. 60 , 70 of the Criminal Code of Ukraine and Art. 368 of the Civil Code of Ukraine.

The object of the right of joint co-ownership of spouses can be any property, with the exception of property excluded from civil circulation ( Part 1 of Article 61 of the Civil Code of Ukraine).

According to Art. 68 of the Civil Code of Ukraine, dissolution of marriage does not terminate the right of joint co-ownership of property acquired during marriage.

Part 1 of Art. 69 of the Civil Code of Ukraine stipulates that the wife and husband have the right to divide the property that belongs to them under the right of joint co-ownership, regardless of the dissolution of the marriage.

The subjective right to divide the property, which is under the right of joint co-ownership of the spouses, belongs to each of them, regardless of when the division is carried out: during the marriage or after its dissolution. The division can be carried out both by agreement of the spouses and by a court decision.

The court of first instance established that the defendant registered the ownership of the disputed residential building on April 15, 2010 as a developer after the termination of the marriage. However, the house was actually built in 1996, that is, during the marriage of the parties in the case. Taking into account the lack of proper and admissible evidence to refute the presumption of joint property of the spouses and equality of their shares, the court came to the correct conclusion that the disputed house is joint property of the spouses, therefore it is subject to division in equal shares.

In legal relations about the division of property of spouses , the subject of proof is the fact that the parties are married and they acquired the disputed property during the marriage , the joint acquisition of which is presumed by family law, and the refutation of such presumption and the proof of the acquisition of the disputed property with personal funds is the responsibility of the defendant by virtue of the law.

Therefore, the Supreme Court annulled the decision of the court of appeal and upheld the decision of the court of first instance.

Prepared by Leonid Lazebnyi

Full text of the decision

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