Features of the Marriage Contract« Back
Despite the considerable popularity of the marriage contract in the Europe, the USA, Canada, the mentality of the Ukrainian people still cant accept this deal as normal. For Ukrainians is not acceptable to combine feeling and money, that’s why the question raises immediately: why do you marry if you are now thinking about the consequences of divorce. However, the legislation of Ukraine, in particular the art.9 Family Code (FC) of Ukraine, still provides that the couple may regulate their relationship by agreement (contract) if it does not conflict with the Code or other laws and morals of the society.
Analyzing the part 1 of the art.92 Family Code of Ukraine, we can determine that the marriage contract - is a civil deal concluded between persons who applied for marriage registration, as well as between the couple.
Benefits of the marriage contract
It should be noted that the marriage contract has a sufficient number of advantages: firstly, it helps couple clearly define the boundaries and set the property relations in the pair; secondly, the divorce will be easier and will save husband’s and wife’s nerves. However, one should understand that this agreement does not provide for divorce as something inevitable, it is only a tool which relieves a couple from property disputes. This type of arrangement is special and individual for each couple. A marriage contract should take into account the wishes of each party and work only in favor, while he can’t create the obstacles for one of the parties.
According to art.94 FC of Ukraine, marriage contract should be in writing form and certified by the notary. If the subject of the marriage contract is a minor, then its concluding requires the written consent of the parents or of the guardian of a minor, certified by a notary (ch. 2, Art. 92 FC of Ukraine). The marriage contract can be concluded before marriage registration, but after the brides submit application to the office of civil registration. In this case, it comes in the force immediately after the marriage. Also, the contract may be concluded by the couple after the marriage, but it enters into the force only after its notarization (Art. 95 FC of Ukraine).
Marriage contract with a foreigner
If the marriage contract was signed with a foreigner, it should be obligatory translated on the relevant language with the appropriate certificate. This agreement is subject to legalization or apostillization only in case of need for the third country. Regarding the legal regulation of marriage contract, Article 59 of the Law of Ukraine «On International Private Law» claims that the parties of the marriage contract may choose the law applicable to the marriage contract, in accordance with the first paragraph of Article 61 of this Law, which states that the couple may choose the right of personal law of the couple or a law of the state in which one of them has his habitual residence, or in relation to real property law of the state in which the property is located, to regulate the property consequences of the marriage.
According to Art.56 of the Law of Ukraine «On International Private Law» the form and the procedure of the marriage in Ukraine between the citizen and a foreigner or stateless person, and between the foreigners or persons without citizenship is regulated by the law of Ukraine.
Marriage between Ukrainians, marriage between citizens of Ukraine and foreigners, marriage between a citizen of Ukraine and stateless persons that was concluded outside Ukraine under the law of a foreign state is valid in Ukraine if the conditions concerning citizen of Ukraine was kept, according to the requirements of the Family Code of Ukraine on the grounds of marriage’s invalidity (Art. 58 of the Law of Ukraine «On international private Law»).
According to the Art.93 FC of Ukraine the feature content of the marriage contract is that it can regulate only property relations between the couple and determine their property rights and obligations. There may also be defined property rights and responsibilities of the couple as parents. Accordingly, the personal relationship of the couple and personal relationships between them and their children the contract does not settle. Due to the marriage contract real estate and other property, the right to which is the subject of state registration can’t be transferred to the ownership of the spouse.
The total term of the marriage contract and timing of the duration of individual rights and responsibilities can be installed in the content. Also the Art.96 FC provides the ability of the contract or its terms to enter into the force even after the termination of marriage.
There is no clearly defined content of the marriage contract, what makes it personal, but the Art.97-99 FC of Ukraine include main types of property relations which can be regulated by this agreement: the legal status of the property, the procedure for housing; right to maintenance.
As for the legal status the art.97 states that marriage contract can determine the property which wife or husband passes for use on common needs of the family, and the legal status of the property, gifted to the couple because of the registration of their marriage. Parties can agree on the nonproliferation on their property right of common property acquired during their marriage and consider it as a common partial property or personal private property of each. The parties may agree on a possible order of the division of property, including in the event of termination of the marriage contract. Parties can provide proper use of both: their common property or of their private property to meet the needs of their children and others.
Regarding the procedure for housing, according to the Art.98 FC of Ukraine, if in connection with the marriage one of the spouses is settled in the apartment, which is owned by the other spouse, the parties in the marriage contract may agree on the procedure for its use. The couple can agree about the release of the dwelling by a spouse who was settled in the event of divorce, with the monetary compensation or not. Moreover, the parties may agree to live in the dwelling, which belongs to one of them or are their common property, the property of their relatives.
Right to maintenance is defined in the art. 99 FC as an opportunity for the parties to agree on the providing maintenance to one of the spouses, regardless of disability and need for material help according to the conditions specified by the marriage contract. If the marriage contract defines certain conditions, the amount and terms of payment of maintenance, so in the event of default of their obligation under the contract by one of the spouses, maintenance may be taken based on the notary. A marriage contract can establish the opportunity for the suspension of the right to the maintenance of a spouse because of the receipt of the property (monetary) compensation.
According to the Art.100, 101 FC change and rejection of the marriage contract unilaterally is not allowed. If the will to change the agreement is bilateral, the agreement to change the marriage contract is concluded, which is then certified by a notary. In the case of bilateral rejection of a marriage contract, the rights and obligations established by the marriage contract, terminated at the option of marriage or after its conclusion or on the day of the notary statement of renunciation.
Dissolution of a marriage contract can take place only by the court on the grounds that are essential, especially if you cant implement the contract. Termination of marriage with a foreigner and its legal consequences, in accordance with the Article 63 of the Law of Ukraine «On private international law» are defined by law, which is valid at this time of the legal consequences of marriage.
Annulment of the marriage contract
Marriage contract at the request of a spouse or other person whose rights and interests affected by this agreement may be found invalid by a court on the grounds established by the Civil Code of Ukraine (Art. 103 SC). Analyzing the norm Civil Code of Ukraine and Family Code can be concluded that the main grounds for annulment of the marriage contract are:
1) violation of the contract form and making the marriage contract by minors who are married without the consent of their parents or guardian (art. Art.92, 94 FC of Ukraine, Art.220 Civil Code of Ukraine);
2) inclusion of conditions that significantly limit the financial situation of a spouse (ch. 4 Art. 93 FC of Ukraine) or the marriage contract under the influence of heavy circumstances (Art. 233 Civil Code of Ukraine);
3) entering into the contract by incapacitated persons (Art. Art. 222, 223, 226 CC of Ukraine);
4) reduction of children's rights, established in the Family Code of Ukraine (part 4 of Art. 93 FC of Ukraine);
5) entering into the contract under the influence of fraud or violence (art. Art. 230, 231 CC of Ukraine);
6) violation of the law while making the marriage contract of;
7) the error of one of the parties (Art. 229 Civil Code of Ukraine) and others.
The nullity of marriages with a foreigner in Ukraine or abroad, is determined by the law of the state of which is the person who applied for the invalidity of the marriage. In the case of annulment in Ukraine, requirements of the Family Code of Ukraine concerning the grounds for nullity of marriage (Art. 64 Law of Ukraine «On International Private Law»).
Thus, the marriage contract is an opportunity for spouses to prevent possible conflicts of material nature and to regulate and clearly establish the rights and obligations of property relations.
Many years of experience of the law firm «APC» which provide services in the field of family law, successfully accompany clients on marriage to a foreigner, divorce, international adoption, surrogacy and drawing up marriage contracts. Lawyers advise and accompany on the marriage contract, their termination, settlement of disputes between the parties spouses, represent in litigation.