Separation of a common property of a couple
Happens so that the family breaks up, and still yesterday close people become today strangers, if not enemies. How to divide general joint property, in a case if consent in this question between spouses it is not reached.
In property relations of spouses (including persons who stay in actual matrimonial relations) the traditional approach in questions of section of joint property dominates. The majority of spouses address to this question only at the moment of divorce.
The family code of Ukraine (further СК Ukraine) determines marriage principles, personal non-property both laws of estate and obligations of spouses, origin bases, the maintenance personal non-property and laws of estate and obligations of parents and children, adoptive fathers and adopted, other members of a family and relatives.
Chapter 8 СК of Ukraine regulates the right of general joint property of spouses.
According to item 60 СК of Ukraine the property acquired during marriage, belongs to the wife and the husband on the right of general joint property regardless of the fact that one of them had no on reasonable excuse. Study, housekeeping conducting, care of children, illness and so forth can be such reasonable excuses.
It is considered that each thing acquired during marriage, except things of individual using, are object of the right of general joint property of spouses.
Object of the right of general joint property of spouses is the salary, the grant, pension, other incomes received by one of spouses, and also money, the fee, a prize, to another the property received by one of spouses on the prisoners by it in interests of a family to contracts, and also things for professional works (for example, musical instruments, office equipment, the medical equipment and so forth), acquired during marriage for one of spouses, and other property, except the property excluded from civil turnover, or the property, considered on rules СК personal private property of the spouse acquired to a marriage or acquired in an order of succession, gifts, etc.
In this case it is necessary to remember that in case the property of the spouse belonging to it on the right of personal private ownership, before marriage has essentially increased the cost as a result of joint labour or monetary costs of spouses or at the expense of the second spouse on a judgement such property can be recognised by general joint property of spouses.
Also if one of spouses the work and (or) means participated in the maintenance of the property belonging to other of spouses, in management of this property or care of it the income (dividends) received from this property, on a judgement can be recognised by court general joint property of spouses.
These rules of origin of general joint property of spouses extend not only on the property acquired by spouses in registered marriage, but also on the property acquired by the man and the woman in joint residing by one family without registration of marriage, but at one exception - the man and the woman do not stay in any registered marriage.
Spouses have equal rights concerning general joint property. While spouses are married, it is considered that each of them uses property by a mutual consent. At the conclusion of any transactions concerning such joint property consists one of spouses with the consent of the second spouse (a consent presumption). Concerning valuable property or the transaction consists In a case of the conclusion of the transaction with the certificate at the notary and (or) is subject to the state registration, the written assent of the second spouse is necessary.
The wife, the husband has the right to a reference to the court with the claim about agreement acknowledgement void as of the prisoner other of spouses without е, its consent if this agreement falls outside the limits small, household.
It is necessary to consider and that circumstance that the general joint property is connected not only with the rights, but also with general obligations. So, for example, obligations under the agreement concluded by one of spouses in interests of a family, are obligatory and for the second spouse if the property under the concluded agreement is used in interests of a family. Hence, in case of non-execution of obligations under the agreement and their compulsory execution on a judgement, court on such property collecting can be turned.
The question on section of general joint property of spouses, in a case when the consent concerning section and use of this property it is not reached, will dare in court, and it is unessential at divorce.
СК Ukraine allows to permit dispute on section of joint acquired property of spouses and before marriage. But, as a rule, the question on section of jointly acquired property of spouses in the absence of the consent between them dares at divorce in court.
To spouses, whose marriage was earlier will terminate it is necessary to mean that divorce does not cease the right of general joint property of spouses to the property acquired in marriage.
After divorce if the question on section of joint property of spouses is not solved in court, the order such property after divorce is performed by the former spouses exclusively under their joint consent, thus it is necessary to consider that on each transaction concerning the order such property it is necessary to receive each time written assent of other co-owner of the former spouse as in this case the consent presumption does not act.
At section of general joint property of spouses it is necessary to remember that does not belong to joint property of spouses (item 57 СК of Ukraine):
· property of one of the spouses, acquired before marriage;
· acquired in marriage on the basis of the gift contract or inherited;
· acquired during marriage as privatisation;
· acquired during marriage, but for the means belonging to one of spouses personally;
· things of individual use, including jewelry even if they also have been acquired at the expense of general means of spouses;
· the means received for loss (damage) of a thing, belonging to the person, and also compensation of the moral harm caused to it;
· the insurance reimbursements received on obligatory or voluntary personal insurance in case insurance instalments were paid at the expense of means which were personal private ownership of the spouse.
At circulatuion with the action for declaration about section of general joint property of spouses at absence at the applicant of proofs confirming property acquisition at the expense of general means of spouses or during a finding in marriage, and the second spouse interferes in reception of such proofs (does not give copies of documents), the applicant has the right to address in court with the petition for reclamation of such proofs from the employer, banking establishments, Bureau of technical inventory, МРЭО GAI, bodies of a notariate, the bodies which are engaged in registration ground site, etc. or about attraction of witnesses which can confirm the specified circumstances.
Here it is necessary to notice that at section of general joint property of spouses, to section is subject not only joint property. But also debts of spouses and the obligations which have arisen in interests of a family (credits for purchasing of apartment, cars, etc.). Promissory notes are subject to section between spouses to proportionally section jointly property.
Concerning features of section of separate kinds of property. At section of property which is indivisible, it is necessary for applicant to be specified accurately with the requirement. If the consent with the second spouse on reception of such object in personal property with payment of monetary compensation to the second spouse is not reached, and the sum of monetary compensation is not brought into the depositary account of court previously, the court will leave such indivisible property in joint property of spouses and circulatuion with the claim in court about an order of sharing of such indivisible object of joint property will be the following your step.
At the decision of a question on section of property in the form of shares, shares (the share, a part), in funds (capitals) the corporate economic organisations, he dares depending on a kind of the legal entity, the organisation-legal form of its activity, character of legal relationship of spouses with such subject. For example, shares can be object of the right of joint property of spouses and a section subject between them if they have been acquired for their joint means. At the same time by clause 12 of the Law of Ukraine «About economic societies» it is established that the proprietor of the property transferred to a society by founders, (participants) is the society (in case the property is not transferred a society in using).
Accordingly, the property brought as an instalment in an authorised capital stock of an economic society in its property is not object of the right of general joint property of spouses. Proceeding from the maintenance of parts of 2 and 3 clauses 61 СК of Ukraine if the contribution to the authorised capital of an economic society is performed for couples of general joint property of spouses, in interests of a family a subject joint property of spouses is the corporate right received instead of the transferred contribution, in particular the right on:
· a society administrative office in an order specified by constituent documents of a society;
· participation in distribution of profit of a society and reception of its corresponding part, and also money resources in case of society liquidation according to the current legislation;
· at an exit, for example, from restricted liability society, on payment of cost of a part of property of a society, it is proportional to a share in a society authorised capital stock;
After divorce the consent presumption does not act, in this connection on realisation of the corporate right which is joint property of the former spouses, the consent of both co-owners is necessary.
In case of section of general joint property of spouses, shares of property of the wife and the husband are equal if other is not specified by the arrangement between them or the marriage contract.
At the dispute resolution about section of property the court can recede from equality of shares of spouses under the circumstances having essential value, in particular, if one of them not to care of material provision of a family, has hidden, has destroyed or has damaged common property, spent it to the detriment of interests of a family. However, if the applicant refers to such circumstances, they should be proved actual proofs or the testimony, and boats are considered exclusively at the discretion of.
On a judgement the share of property of the wife can be increased, if with it, it, children, and also the invalid son or the daughter provided that the size of the alimony received by them is insufficient for provision of their physical, spiritual development and treatment live.
By rules СК of Ukraine the property which is object of the right of general joint property of spouses, shares between them in nature.
If the wife and the husband have not agreed about an order of section of property, dispute can be permitted court, thus the court takes into consideration interests of the wife, the husband, children and other circumstances having essential value.
Indivisible things are awarded to one of spouses if other is not specified by the arrangement between them.
Things for professional works are awarded to that from spouses who used them in the professional activity. Cost of these things is considered at award of other other property to other of spouses.
Award to one of spouses of monetary compensation instead of its share in the right of general joint property to property, in particular, on an apartment house, apartment, the ground area, is supposed only from its consent, except the cases provided by the Civil code of Ukraine.
Award to one of spouses of monetary compensation is possible under condition of preliminary entering by other of spouses corresponding monetary сумы on depositary court couples.
Limitation of actions on affairs about property section - three years from the moment of official divorce (adjudication about divorce).
Limitation of actions is not applied to requirements about section of general joint property of spouses if marriage between them is not terminated.
And if the applicant was late, and an ownership right for apartments, garages, "factories, newspapers and steamships" is registered (even before marriage) on one of spouses - to take offence it is necessary to it on itself as it has missed the share.
Terms of limitation of actions can be recovered only on reasonable excuses which concern a serious illness of the claimant or its near relations.
That fact that the applicant did not know about term of limitation of actions, to reasonable excuses at which availability terms of limitation of actions are recovered, does not concern.
The following moment is a jurisdiction. With the action for declaration about section of general joint property of spouses it is necessary to address in district court in a residence of the respondent. But if the railroad train of disputable property includes apartment the claim moves in district court in the location of the given apartment even if the respondent lives in other area.
If the apartments which are subject to section some it is possible to address in district court in the location of any of apartments (so-called, alternative jurisdiction).
Lawyers of our firm are ready to consult you and to constitute necessary documents on any questions, connected with section of general joint property of spouses.
Olga Rukosueva
The lawyer of the International law firm
«Neocleous, Vorobiev and Co»