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Details 09:30 20 Sep 2021

Have you decided to live in a civil marriage: how to deal with property, children, and medicine?

What rights do spouses have in a classic, legal marriage, but what don't partners have in a civil marriage? Is it possible to get around it and is it worth it? We asked family law experts and lawyers.

Rubryka

Civil marriage is a common form of relationship today. Weddings take a back seat, couples just get together and lead a family life together, buy property, take care of each other and build relationships. However, not everyone understands this form of relationship. This is natural because 30-40 years ago cohabitation was condemned by society, and children born in such civil marriages were considered illegitimate. Public condemnation is just one of the reasons. Opponents of civil marriage are also on the side of those who think about a possible break-up and know that in this case there will be questions about the division of jointly acquired property, child support, the order of their residence with parents, and so on.

We'll talk about how these issues are regulated by Ukrainian law, what are the advantages and disadvantages of civil marriage, and whether it's as terrible (or beautiful) as it is portrayed.

First, we need to determine that the concept of "civil marriage" doesn't exist in the legislation. Natalia Chatskis, a family law expert and senior lawyer at NAKAZ, explains that the concept of "civil marriage" is not enshrined in law, but is the concept of "living as one family without registering a marriage." This is a civil marriage, and if the court manages to establish the fact of such residence, then the property will be divided as a legal spouse might have it. In addition, there are several other rights and responsibilities, such as the right to inherit, the right to maintenance, and others.

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How is the inheritance divided in a civil marriage?

Judge of the Court of Appeal of Chernihiv region Viktor Shevchenko tells the story:

"A civilian husband died. His wife ended up with nothing. After the tragedy, all the property went to the relatives of the deceased. They lived, made money, talked emotionally. But after the death of the civilian husband, a strict legal law came into force. Everything to the relatives of the deceased."

This is, unfortunately, a common story. There's a way out of it, even two, but in both cases, it requires the advanced preparation of the "spouses." The first is that both partners have made a will or a gift agreement. Then, in the event of death, the property will go to another, even if the marriage hasn't been registered. The second one is that the partner of the deceased was dependent on the deceased. For example, as a person with a disability, the right to support will be described below.

If these conditions aren't met, the spouse can still count on an inheritance, but there are difficulties too. The mandatory condition is cohabitation with the family for at least 5 years; it is proved in court. The second complication is the order of inheritance, because the "civilian" spouse inherits the fourth in line, after the relatives of the deceased: children, parents, siblings, grandparents, uncles, and aunts. In any case, part of the property received by the civilian spouse will be less than it could've been in the case of marriage or early will.

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How to protect children?

If the couple lived together but didn't marry, there are usually two main stumbling blocks. The first is the paternity of children, and in this case, everything is quite simple, says the lawyer. Article 142 of the Family Code of Ukraine states that children are equal in their rights regardless of their origin, and also have equal rights and responsibilities towards their parents, regardless of whether their parents were married to each other. Therefore, child support obligations arise similarly.

In a registered marriage, the woman's husband is automatically recognized as the child's father, but in a civil marriage, this rule doesn't apply and the fact of paternity must be established. For a man to be recognized as the child's father, it's necessary to go to the local registry office and submit an appropriate application; after that, the child is registered with a father. If the civilian husband doesn't agree to this or the child's father is recorded only from the words of the mother, in the absence of the consent of the actual father, paternity may have to be proved in court. To do this, go to court and establish paternity through DNA testing.

It's important and necessary to establish the child's paternity because this fact will be the basis for the father, for example, to claim residence with the child in case of separation, or the mother, for alimony from the father.

The right to support in a civil marriage? 

According to Article 91 of the Family Code of Ukraine, if a woman and a man who aren't married to each other have lived in the same family for a long time, the one of them who became incapacitated during the joint residence is entitled to support. In this case, the same rules of law will apply to the couple as to the spouses. But in case of refusal of support by one of "spouses," the second will need to prove in court both existence of the fact of residence by one family, and the long period of such residence. At the same time, the law doesn't determine how long it is, leaving it to the court's discretion.

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Is it possible to divide property after ending a civil marriage?

In the case of the acquisition of property in a registered marriage, it's considered jointly acquired, and even if, for instance, a car or apartment is registered to one of the members of the marriage, during the divorce it is "by default" divided in half. Many believe that a husband and wife in a civil marriage don't have the right to jointly acquired property. However, it's not the case.

A man and a woman living in a civil marriage also have the right to jointly acquired property, but in this case, as in the case of the right to support, the fact of cohabitation will have to be established in court. To do this, you must file a lawsuit to establish the fact of cohabitation without marriage registration and the division of property. Both claims must be combined and each must be brought to justice.

Property acquired during the period of cohabitation can be considered joint only if neither of the couples was officially married. That is if you have lived in civil marriage with a person who hasn't divorced his previous marriage, and this happens very often, then even if you have all the above evidence, the court must deny you. The only chance, in this case, is to recognize your right to property under the Civil Code, and this is a completely different story.

"The fact that you live together for 10 years doesn't guarantee a positive solution to the dispute, so if you don't want to legalize your relationship, then legalize your property rights, register it for two," Natalia Chatskis advises.

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How to prove the fact of cohabitation?

The first thing to prove is the time of the beginning of a civil marriage. Evidence can be shared with photos with the specified date, correspondence on social media and messengers, stamps in passports about joint trips abroad. It is important to establish the period of civil marriage to determine whether the property was purchased at that time.

The second is running a joint household and life, the presence of rights and responsibilities inherent in the spouses. Witnesses are usually trained for this and they tell themselves what family life was like. Maybe you did repairs together? This is a good marker.

The third is the existence of a joint budget and the fact of acquisition of property as a result of joint financial and labor investments, as well as the purpose of the acquisition of such property. That is, you need to describe what you bought together for the family, how you managed the money, who had earnings.

"For example, we recently conducted a case where a client negotiated the purchase of an apartment, did all the repair work. We provided the court with contracts between her and the company that did the repairs, contracts for the purchase of furniture," says Natalia. Thus it was possible to prove in court that the property is joint, and the wife in equal part with the husband made efforts for its acquisition.

What rights does a civil spouse not have?

Children, common property, the right to inheritance: for some reason these things aren't discussed in pairs living together. First, because it's an awkward conversation, which usually doesn't rise if everything goes smoothly with partners. But there's one argument in favor of marriage, the importance of which cannot be overestimated. The fact is that under Ukrainian law, only a legal spouse can visit a patient in intensive care or decide to perform surgery. There's no such possibility without a marriage certificate, as all this is allowed only to close relatives or spouses whose marriage is registered per the laws of Ukraine. However, there's an alternative; such an agreement can be concluded in advance with a notary.

But some rules can not be bypassed. According to the Criminal Code, spouses have the right not to testify against each other in court. But the cohabitants don't have such a right. Moreover, refusing to testify against an illegitimate spouse under Article 385 of the Criminal Code of Ukraine is considered a crime and punishable by a fine of fifty to three hundred non-taxable minimum incomes or arrest for up to six months.

To marry or not to marry is the decision of every couple. It's only important to know what rights the couple will have and how satisfied they are. In any case, a couple who's thinking about the future of the common property, about children, and what will happen if an accident occurs, is likely to conclude that by getting married, they will simplify their lives, not complicate them. And in the case of civil marriage, all the rights listed above will exist only if the fact of cohabitation is proved in court, and in addition, extra documents and agreements on the joint right to property, inheritance, and the right to decide in critical cases for a partner.

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