Division of marital property: problematic issues and tips

The property that the spouses acquired during the marriage belongs to the husband and wife on the right of common joint ownership, regardless of the fact that one of them did not have their own earnings (income) for a good reason (education, childcare, housekeeping, illness, etc.). Every thing that the spouses acquired during marriage, except for things of individual use, is considered an object of the right of common joint property of the husband and wife.

How then to divide the common property if the spouses decide to terminate the marriage?

If the wife and husband could not agree on the size of the shares or the method of distribution of the common property belonging to them, then this is decided in court. When dividing the property of spouses, three types of objects are taken into account:
1. things (a separate thing or their totality) belonging to a wife and husband on the right of common joint ownership;
2. debt obligations of spouses (obligations under which the husband and wife act as debtors and are obliged to repay the debt, or return or transfer the thing).
3. creditor claims of the spouses (the right of claim under the contract of sale, loan, when the spouses act as a creditor and have the right to demand repayment of the debt or transfer of the thing);

The distribution of property is made taking into account the value of things belonging to the spouses on the right of common ownership, and the size of their debt obligations and creditor claims.

Important! Property belonging to persons living as one family without marriage registration, and which was acquired during cohabitation, belongs to them on the right of common ownership.

It is quite common for a husband and wife to buy real estate together, and the ownership of this property is registered only for one of the spouses. There are indeed certain advantages here (for example, a lower tax), but this has significantly more disadvantages:

• in case of divorce, if the spouses do not determine the share of this property by concluding a contract for the distribution of common property (or other civil law contract), then the owner indicated in the documents may mistakenly consider themselves the sole owner. However, in a few years, a problem may arise when, in the process of selling such real estate, a notary will require the consent of the second of the former spouses;

• in case of death of a non-titular owner (who is not recorded in the contract for the acquisition of real estate). At the moment, a unified approach regarding the method of registration of such a share is not legally fixed. Many people believe that in the event of death, the non-titular owner is deprived of their right to property. However, according to the norms of the Family Code of Ukraine, the property is joint from the moment of purchase and does not cease to be it in case of death. Therefore, there will be misunderstandings between the owner, who is recorded in the contract for the acquisition of real estate, and other heirs;

• in case of divorce and death of one of the co-owners, the difficulties described in the above paragraphs may appear at the same time.

How to prevent such cases:

• Buy real estate for both spouses at once in equal shares or according to the contributions made, and indicate this in the contract;

• Conclude prenuptial agreements, which immediately provide for provisions regarding the rights to the property of the husband and wife, as well as conditions for obtaining the consent of the other spouse in the event of his alienation;

• Conclude contracts for the distribution of the common property of the spouses during the marriage or immediately after its dissolution;

• Consider, in case of divorce, other options for solving the problem of joint property. This, for example, can be done by concluding an agreement on the termination of the right to alimony in the event of the transfer of a real estate object.