Civil marriage: legal realities

The institution of civil marriage, as well as the institution of a marriage contract, is gaining more and more popularity not only in the world but also in Ukraine. Fewer and fewer couples perceive the traditional official marriage registration as a necessity. But how does our legislation regulate civil marriage?

I think many people have heard the expression: "Civil marriage is a union of an irresponsible man with a woman who does not value herself." Even if we leave aside the issue of the offensiveness of the phrase, this attitude to civil (civil) marriage is no longer relevant. After all, the institution of civil marriage, as well as the institution of a marriage contract, is gaining more and more popularity not only in the world but also in Ukraine. Fewer and fewer couples perceive the traditional official marriage registration as a necessity.

BUT IS OUR LEGISLATION READY FOR THIS?

Current family law knows what a civil marriage is. According to the legislator in Article 74 of the Family Code of Ukraine, this category of legal relations has a rather long name: "a woman and a man who live in the same family but are not married to each other or in any other marriage". For comfort, however, we will continue to call this procedure "civil marriage".

CIVIL MARRIAGE VS OFFICIAL REGISTRATION

JOINTLY ACQUIRED

The decisive difference between a civil marriage is the need to establish, i.e., prove in court, the fact that the parties were in such a marriage during a certain period, and primarily during the period of acquisition of the property to be divided. Proving these circumstances significantly complicates the trial itself.

If the court establishes in its decision that the parties were in a civil marriage during a certain period, the procedure for dividing property in a civil marriage will be governed by the same rules as the procedure for dividing property in an officially registered marriage.

However, in an officially registered marriage, you have a large number of so-called "helpers" - presumptionswhich are not only enshrined in the law, but also confirmed in practice by the Grand Chamber of the Supreme Court. We are talking about the presumption of joint community property and the presumption of equality of shares of marital property in the division of joint community property, which are enshrined in the relevant Articles 60 and 70 of the Family Code of Ukraine.

These "assistants" will be useful to you, among other things, when conducting the procedure for establishing the fact of being in a civil marriage at the time of acquisition of property, since the division of property is also part of this procedure.

INHERITANCE

In the process of inheritance under the law, there is a large gap in the rights of heirs who were in an officially registered marriage or a civil marriage with the deceased. According to the law, when inheriting after the deceased, the spouse from an officially registered marriage who survives the deceased inherits in the first place. In a civil marriage, this is the fourth priority, and only if he or she lived with the deceased for at least five years before his or her death. However, if there are other heirs of the first line, the fourth line of heirs will not receive anything. Of course, there is a way out - a will.

MEDICINE

As for medicine, it's not complicated, given the attitude of medical staff to visitors. Difficulties do not arise at all in situations where certain contracts are signed, including in insurance medicine, where you can specify any person as a contact person, i.e., who needs to be contacted. However, there will definitely be difficulties in obtaining a death certificate, which is issued only to "close relatives".

TO PROVE IN COURT THE FACT OF A CIVIL MARRIAGE...

If the fact of residence is to be proved, it should be based on the general concept of family, as defined in Article 3 of the Family Code of Ukraine: "a family consists of persons who live together, are bound by common life, have mutual rights and obligations." Here, as evidence, you will need all the evidence you have unconsciously shaped our entire lives - photographs, videos, joint large purchases, joint visits to certain institutions (including medical ones), evidence of repairs, joint contracts, joint travels, witnesses, etc.

However, not all of the first date and the beginning of cohabitation form the basis of such evidence, which is why it is difficult to determine that the civil marriage took place during a certain period or began from a certain period.

Before starting this procedure, I recommend that you consider two important points:

First. - is the possibility of concluding a notarized property division agreement. If the other "spouse" recognizes the fact of being in a civil marriage and you want to divide the property acquired in a civil marriage, you can sign a property division agreement.

The second The point is related to the fact that, unlike an officially registered marriage, the fact of being in a civil marriage is not reflected in any official register. Therefore, everything acquired in a civil marriage, both movable and immovable, can be alienated by the person in whose name it is registered (the title owner) without the consent and knowledge of the other "spouse". That is why, in order to prevent the property from "running away", when initiating such a process, it is necessary to use the mechanism provided for by civil procedural law to secure a claim by seizing the property and prohibiting its alienation.

AN ALTERNATIVE TO CIVIL AND OFFICIAL MARRIAGE?

If you are still in a common-law marriage and want to settle all your property relations right now, you can sign a notarized agreement between a woman and a man in a common-law marriage. Unlike a marriage contract, such an agreement is not regulated by law, but the Ministry of Justice of Ukraine recognizes it and the courts accept it. In it, you describe and regulate the main nuances of your relationship.

If you do not have such an agreement, then we can recommend that you do not waste time and collect as much evidence as possible to confirm the fact of being in a civil marriage.



Oleg Golubnychyi, Partner at Syrko & Partners, Head of Litigation Practice