The Increasing Role of Marriage Contracts in the Regulation of Legal Relations in Marriages with Ukrainians
The number of signed marriage contracts is constantly increasing in Ukraine, what is more, it is growing in the segment of international couples when one spouse is a citizen of Ukraine and the other – a foreigner.
This trend is an evidence of a balanced, rational approach of individual to the process of getting married, especially if both parties of the marriage, or one of them, is an economically active person and she/ he purchases significant assets before marriage. An important reason that affects the increase of marriage contracts is increasing of the average age of marrying people. Previously, young people got married in 18-22 years, but now they prefer to gain some financial independence, and only then they think about their own family. And of course, at the marriage-time couples already have variety of assets which they want to protect from claims of the spouse. High numbers of marriage contracts are present if the marriage for spouses is not the first, and people have some experience, often negative, in solving property disputes during divorce procedure.
Unfortunately, Ukrainian mentality treats the requirement to sign a marriage contract as an attribute of distrust or disrespect of one spouse to another. This is the main difference between Ukrainian people and people from other countries where a marriage contract has been popular for a long time before, and the denial to conclude a marriage contract is interpreted as a mistrust or lack of respect to the spouse.
To sign a marriage contract with a non-resident, parties should keep in mind several important points. In some jurisdictions of other countries, with a marriage contract we can settle virtually all aspects of the marital relationship – from property to personal, even intimate. In Ukraine, the marriage contract governs exclusively property relations between spouses, as follow: the legal regime of the property (which property will be the mutual property, and which one – private), the order of using the property, including house, the property of other spouse, as well as the right for maintenance (alimony). According to the Ukrainian law, we cannot regulate personal relations between spouses, as well as personal relationship between them and their children, in the marriage contract. In addition, we cannot reduce the volume of rights of spouses and children, established by the Family Code of Ukraine, put one of spouses in an extremely unfavorable financial situation due to the marriage contract, etc. According to the Ukrainian law, such provisions of the marriage contract are worthless, it means that they do not create any rights and obligations for spouses, so we should carefully choose the jurisdiction for signing the marriage contract.
According to general practice with a marriage contract, such points can be stipulated (but this is not the whole list):
• Change of the legal regime of property acquired during the marriage, because according to the law all purchased property is mutual. The marriage contract can establish the rules under which such property is owned by one of the spouses as private property.
• Wedding gifts as a property. For example, we can set a rule in the marriage contract that wedding gifts are owned as private property of the spouse whose relatives and friends presented it.
• Using of house in the case if one spouse moves into a house of the other spouse. We can stipulate in the marriage contract the procedure for expulsion of spouse from this house in the case of divorce.
• Determining the maintenance for one of the spouses, issues of health insurance or accident insurance at the expense of one of the spouses. Monthly material payments and some conditions under which such payments are terminated can be established, for example, in cases of misconduct in marriage.
Practice shows that signing a marriage contract help the parties not only to protect their property rights but also avoid long-term litigation with significant costs for legal assistance and provide an opportunity to maintain good relations between spouses after divorce, especially if there are children. Moreover, couples who sign a marriage contract divorce much less than couples who do not. Talking about couples where one spouse is a more affluent or more economically active, the marriage contract allows you to remove a lot of tension in the relationship with family members (parents, children) of richer spouse, because everyone sees fraudster in the poorer spouse who encroaches upon their welfare.
The marriage contract must be in written form; and if it is signed on the territory of Ukraine, it also must be notarized. This agreement can be signed before the registration of marriage (in this case, it commences on the date of marriage registration) or after the official registration. Iin this case, it may be signed any time, regardless of the number of years spouses have lived in a marriage (in this case, the agreement comes into force on the date of notarization). The marriage contract can be signed termless or for a specified period. A unilateral change of conditions of the marriage contract or refusal is not allowed. Changes and additions to this contract must be made only by mutual consent of the spouses according to the form of the contract and his assurances. So, if the contract was signed in Ukraine, all changes should be notarized. Like any other contract, the marriage contract can be terminated by a court order or declared invalid.
Separately, we should focus on the possibility to sign a marriage contract in civil marriages. It is almost equalized with officially registered marriages, the rights and responsibilities of spouses who are living as one family without marriage and have a common household are defined by to the Family Code of Ukraine. However, officially unmarried couples cannot sign a marriage contract, as a necessary condition for signing statements is a registered marriage or the information about persons who have submitted an application for registration of marriage, as well as spouses. Because of that, all property rights of spouses in a civil marriage will be defined in accordance with Article 74 of the Family Code of Ukraine. This means that property acquired during cohabitation in civil marriage is theirs by right of mutual ownership. This legislation does not prohibit such persons to conclude a contract in the ordinary written form that will stipulate the regime of mutual ownership of property acquired during the cohabitation in a civil marriage. It will not be the marriage contract within the meaning of the law, but it will be a reliable and legitimate instrument for the protection of parties in legal relations. This nuance should be kept in mind if a person decides to choose a civil marriage as a form of his/her relationship.
To sum it up, we can say that a marriage contract is a good tool to strengthen the family institution that allows to consider interests of each of the spouses and to reduce the number of disputes and conflicts between them. Especially this agreement is important for international marriages, one spouse in which is a Ukrainian. It helps to adapt mentalities of spouses from different countries to each other, makes possible not to worry about property issues and focus on the family and family life. And assistance of a qualified lawyer at the stage of discussion and signing the marriage contract in international marriages is very important for both of the spouses.
Author: Kydalov Igor