Leading Expat Divorce Lawyer Team
Ukraine’s Series of Divorce Questions
Contributors
- Voinarovska Oksana voynarovska@vkp.ua
A. General
- The Family Code of Ukraine of 2002 primarily governs divorce proceedings in Ukraine;
- The Civil Procedure Code of Ukraine of 2004 governs the procedural aspects in divorce proceedings.
B. Divorce Process in Ukraine
In Ukraine, everyone is entitled to apply for a divorce.
The are no special grounds for divorce. For example, Parties may divorce should maintenance during the marriage contradict the interests and desire of one or both spouses.
- Uncontested Divorce: Parties can file a joint application for marriage dissolution (uncontested divorce). In this case, parties must also submit to the court their notarized agreement on custody regarding the child(ren) and on child(ren) maintenance. If so, the court must order divorce within one month. During this time the spouses may withdraw their application for a divorce.
- Contested Divorce: In the case of a contested divorce, one party has the right to apply to the court with the claim on marriage dissolution. Generally, a party may not initiate divorce proceedings during the wife’s pregnancy and until their child reaches one (1) year old. Usually, the court will take up to 6 months in considering whether divorce should be granted. During this period, the court is empowered to take measures to reconcile the spouses. Do note this is a right of the Court, not an obligation.
C. Jurisdiction Requirements in Ukraine
Expats have the same rights to file for a divorce as Ukrainian citizens. Therefore, there are no special requirements for expats to initiate a divorce in Ukraine.
However, there are some jurisdictional matters worth noting. If one party or both parties are expats, Ukrainian courts may decide on divorce if (1) the marriage was entered into in Ukraine, and/or (2) the respondent has registered place of residence in Ukraine, and/or (3) the choice of Ukrainian jurisdiction was made by both parties.
D. Child Issues in Ukraine
When deciding on child issues, the Court must be guided by the following:-
- The best interests of the children; and
- Ensure their development is in a safe, secure stable and not dysfunctional environment.
In Ukraine, custody primarily determines with whom a child will live post-divorce, which is an equivalent of the “care and control” concept in Singapore. Access provides for visitation and communication rights.
The parents may decide on custody issues concerning their child by way of mutual consent. Otherwise, courts and local guardianship authorities are entitled to render a custody order.
Despite a presumption of equality of the parental rights, the Ukrainian Court can order that the mother may be separated with her minor child only if exceptional circumstances exist, such as the mother has no source of income or an alcohol or drug abuser or may harm the development of her child by immoral behaviour.
According to available court practices, custody decisions are more often made in favour of the mother. However, at present, the Ukrainian courts are gradually moving away from the preference for the mother to take care of the child.
The parent who obtained a custody order regarding the child may make almost all decisions on child issues at his/her own discretion. However, the parent with custody rights must not hinder the other parent to take part in the upbringing of the child and communication with the child.
As a general rule, if the parent with custody rights of the child is going to leave Ukraine with the child for more than one month, the parent must receive the appropriate written and notarized consent of the other parent.
Both parents have an equal obligation to maintain their child. Divorce does not affect this obligation.
The parents may decide on child maintenance under mutual agreement. Otherwise, the court may oblige a parent who lives separately from the child to pay child maintenance (alimony).
Child maintenance must be paid until the child is 18. This obligation to pay alimony is prolonged until the child turns 23 years if he/she continues studying and requires financial support. The Court will also consider if the parent is able to provide such support.
In addition, the parent who lives separately should share the child’s additional expenses. Such expenses may be caused by special circumstances including but not limited to the development of the child’s abilities (such as singing, dancing), illnesses or mutilation.
When deciding on the amount of child maintenance, the Ukrainian court considers the following factors:
- The health and financial status of the child;
- The health and financial status of the alimony payer;
- Whether the alimony payer has other minor children, disabled spouse, parents and/or children;
- Whether the alimony payer has movable, immovable property, funds and/or corporate rights.
Child maintenance payments may be paid in instalments from a certain portion of the total income of the parent or they can be paid as a lump sum.
The form and amount of the child support are determined by the court based on the application of parent concerned. According to Court’s practices, alimony is usually ordered as 25 percent of the parent’s income.
E. Division of Matrimonial Assets in Ukraine
As a general rule, all assets acquired by parties during the marriage constitutes joint matrimonial property. However, the following types of property do not fall within the joint status and constitutes as personal (private) property of each spouse:
- Any assets acquired before marriage;
- Any assets acquired during marriage but as a gift;
- Any inherited assets;
- Any assets acquired during marriage at own costs;
- Any personal belongings, including jewellery and luxury items;
- Any property acquired through privatization;
- Any prizes, awards received for personal merit (with some exceptions);
- Any compensation for the loss (damage) of private assets,
- Any compensation for moral damage;
- Any insurance amounts received under compulsory or voluntary insurance;
- Any income and dividends received from private assets;
- Any assets acquired during separation of spouses due to termination of their relationship;
- Any assets acquired by spouses at joint and own costs in proportion to the amount of spent own costs (Art. 57 of the Family Code of Ukraine).
Also, parties may decide on issues in relation to matrimonial assets in their pre-nuptial or nuptial agreements
Division of joint assets in equal proportion is the key principle in the matrimonial regime of liquidating spouses’ assets. The Court deems spouses’ shares to be equal unless otherwise agreed by them in the pre-nuptial or nuptial contract.
In some cases, the Ukrainian court may disregard the principle of equal shares of the spouses and consider the actual circumstances of marital life. Should the value of personal property items substantially increased as a result of joint labour and/or financial efforts or efforts made by the other spouse during the marriage, the court may designate such property as joint matrimonial property.
In addition, should one of the spouses contribute with finance or labour to keep or manage personal property objects of another spouse during the marriage, the Ukrainian court can consider the income generated by such property objects as a common one.
In practice, usually, the deviation from 50/50 rule is rare.
F. Spousal Maintenance in Ukraine
A wife is entitled to maintenance during her pregnancy and until parties’ children reaches three (3) years (in some cases, six (6) years).
A wife has the right to spousal maintenance if she is a disabled person who needs financial support and her Husband is able to provide such support. In this regard, a disabled wife is the one of pension age or the person with a disability of group I, II or III.
A wife is also considered as being in need of financial support if her salary, pension and/or other earnings do not cover the minimum wage established by the Ukrainian legislation.
However, a wife is not entitled to spousal maintenance if she has failed to conduct herself fairly during the marriage or if she has become disabled because of the commission of a crime.
Divorce does not affect the ex-wife’s right to spousal maintenance if she has obtained this right during the marriage.
During a divorce, an ex-wife may claim for spousal maintenance in the following cases:
- If the ex-wife has become disabled during the marriage or during one year after the divorce and she needs financial support and her husband is able to provide such support;
- If regardless of the date of divorce, the ex-wife has become a person with a disability because of the unlawful conduct of her husband during the marriage.
Moreover, if at the date of divorce, the ex-wife has no more than 5 years to reach the pension age, she will be entitled to spousal maintenance when she reaches the pension age. This rule is only applicable if parties’ length of marriage is more than 10 years.
Also, if due to substantial grounds, the ex-wife was not able to receive education and/or work, she has the right to post-marriage maintenance even if she is not disabled but she needs financial support and her husband can provide such support. In this case, the ex-wife may enjoy her right to spousal maintenance for only three years.
- If the ex-husband has become disabled during the marriage or during one year after the divorce and he needs financial support and his wife is able to provide such support;
- If regardless of the date of divorce, the ex-husband has become a person with a disability because of the unlawful conduct of his wife during the marriage.
The Court must be guided by the general rule that parties have an obligation to maintain each other.
Spousal maintenance payments may be paid in instalments from a portion of the total income of the spouse paid or paid as a lump sum.
When deciding the amount for spousal maintenance, the court considers whether the spouse concerned has the opportunity to receive maintenance from his/her children and/or parents. The court also takes into account other essential circumstances.
Thereafter, the amount of spousal maintenance may be decreased under the court order. This rule applies in case of changes in the financial and/or family status of the spouse obliged to pay.
Under special grounds, the spouse may be deprived of the right to spousal maintenance. Also, this right may be limited in time.
The court may issue an enforcement writ regarding spousal maintenance.
Under this writ, the enforcement officials can take measures to forcefully recover ordered spousal maintenance.