On December 8, 2021, the Supreme Court, as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation in case No. 531/295/19, annulled the decision of the Court of Appeal and upheld the decision of the Court of First Instance, finding that the plaintiff did not provide adequate and admissible evidence in support cohabitation
The woman appealed to the court with a claim against the mother of the deceased, the son of the deceased to establish the fact of living in the same family of a man and a woman without entering into marriage, to recognize the property as joint joint property of the spouses and to recognize the ownership of real estate.
In the lawsuit, she stated that for more than 17 years she had lived with one family without registering her marriage, managed a joint household, had a joint budget and life with her husband.
The decision of the district court rejected the claim on the grounds that the written evidence examined in the court together with the testimonies of the witnesses confirm only the fact of neighborly, friendly, intimate relations. The photographs provided by the plaintiff, on which she is depicted together with the deceased, cannot serve as confirmation of the fact of joint permanent residence together as one family, since they were godfathers, often rested together, in the same company. The plaintiff's participation in the burial of the deceased could be due to friendly relations.
The appellate court canceled the decision of the district court and adopted a new one, which partially satisfied the claim.
Having considered the cassation appeal of the son of the deceased, the Supreme Court indicated that when applying Art. 74 of the Civil Code of Ukraine should be based on the fact that the specified norm applies to cases when a man and a woman are not in any other marriage and between them established relations characteristic of spouses have developed.
In addition, to identify persons as being in de facto marital relations, to resolve a property dispute on the basis of Art. 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 purchased.
According to Part 4 of Art. 368 of the Civil Code of Ukraine, the property acquired as a result of joint work and with the joint funds of family members is their joint joint property, unless otherwise established by a contract concluded in writing.
According to the legal opinion set out in the decision of the Supreme Court of Ukraine dated September 23, 2015 in case No. 6-1026цс15 , the property acquired during cohabitation by persons who are not in a registered marriage with each other is the object of their joint co-ownership, if: 1) property acquired as a result of the joint labor of such persons as a family (at the same time, the joint labor of persons should be considered their joint or individual labor efforts, as a result of which they received joint or personal incomes, combined in the future for the acquisition of joint property, conducting them of the common economy, household and budget); 2) otherwise is not established by a written agreement between them. In this regard, when resolving a dispute regarding the division of property acquired by the family, the court should establish not only the fact of joint residence of the parties in the case, but also the circumstances of the acquisition of the disputed property as a result of joint work.
In order to establish cohabitation by one family, the testimony of witnesses about the cohabitation of the de facto spouses and their joint life, documents regarding the place of registration (de facto residence) of the husband and wife, photographs of certain events, documents confirming the purchase of property for the benefit of the families are taken into account. and spending funds for joint purposes (fiscal checks, sales contracts, bank account opening contracts, deposit contracts and other written evidence), etc.
Testimony of witnesses and joint photographs cannot be the only basis for establishing the fact that a man and a woman live together in the same family without marriage registration.
A similar position is stated in the resolutions of the Supreme Court: dated December 12, 2019 in case No. 466/3769/16 , dated February 27, 2019 in case No. 522/25049/16-ts , dated December 11, 2019 in case No. 712 /14547/16-ts , dated January 24, 2020, in case No. 490/10757/16-ts .