During the cooperation of Lion's Mark Law Company with foreign partners and clients who legally stay in the territory of Ukraine, a lot of them (and Ukrainian citizens as well) has been asking us about the marriage agreement or contract. And the range of issues is rather broad, from the possibility of conclusion to the list of possible conditions, which find their reflection in the marriage contract. An interesting observation is that none of our foreign clients think about whether he needs it or not, as this matter was already settled long before the arrival in the territory of Ukraine, perhaps even before we developed a business plan and the contents of the list of activities in the founding document. It shows that people, who have accumulated a certain property, try to protect it legally and identify the borders of ownership, in order not to lose it or its part subsequently on absolutely legal grounds.
Emphasis on a marriage contract is dictated not that much by mutual distrust of spouses, but rather by their wish not to seek the truth in court and not to expose any details of their personal life in public in the course of possible divorce. The marriage contract resolves the issues of material nature, regarding both the marriage and divorce. Thus, it results in the absence of divorce litigations. Surely, it depends on the correctness of the marriage contract.
It is possible to enter into a marriage contract in Ukraine since 1994. Unfortunately, because of their national mentality, the most of Ukrainian citizens believe the marriage contract to be a display of distrust and find no objective reasons for its conclusion, and therefore they don’t know what it's actually for. According to statistics, in Kyiv, during the first eight months of 2012 the number of registered marriages was 13888 and the number of dissolved marriages was 5871, it means 42 divorces for every 100 marriages. These statistical observations cannot be called positive. And we’d better keep silence about what divorce proceedings can become. It is only appropriate to remind of the movie called The War of the Roses.
Not minding the economic crisis affects the overall income of the most Ukrainians, the growth of welfare of certain sections of population is visible, especially in big cities. But at the same time it is not correct to say that the marriage contract is more oriented to the wealthy people who have decided to anticipate all possible situations - first of all those with their property - prior to marriage. It is not easy to divide the property in the event of divorce for all categories of the population, and if the case comes to trial - it will also be very expensive. However, we note that in most cases the marriage contract is concluded in marriage with a foreigner and at his request. As a rule, minimum age of persons who want to enter into marriage contract is 30. One of the main conditions in the marriage contract is intention to keep ownership of the property by one of the spouses, while the other spouse waives his/her rights for the said property.
According to Ukrainian legislation, the subject matter of the marriage contract covers a fairly narrow frame of issues in the life of spouses. Unlike the U.S., where the condition of the marriage contract is an integral part of the marital relationship, in Ukraine it is only defined by the range of matters, which affects the spouses' relationships in the areas of finance, monetary obligations, property, use of property etc. No personal relationship like the frequency of the "marital duty", development of mental abilities of one of the spouses, keeping the body in sports form, respect, love and so on can be settled by the marriage contract. Interference with private relations between spouses is not provided by marriage legislation of Ukraine. Moreover, it is difficult to imagine the way to exercise control over the execution of material requirements and to provide their physical proof for possible disclosure of evidence. In accordance with provisions of The Family Code of Ukraine, only financial aspects of marriage are the subject of the marriage contract, and not the relationship of a personal nature. It is also possible to specify the issues related to the custody of children. For example, it would be problematic for one parent to make a trip abroad with a child if the other parent didn’t give his notarized permission. This is where the marriage contract can help too.
The right to enter into a marriage contract is granted both to persons applying for registration of marriage and those who are already married. For the first ones the marriage contract is valid from the date of marriage registration, for the second ones - only after its notarization. The marriage contract is made only in writing and shall be certified by a notary, otherwise it wouldn’t have any legal force. Persons who are in the so-called "Civil marriage" (cohabitants) are not entitled to enter into marriage contract, because their relations are not formalized officially. And this is a prerequisite. But they may well enter into a contract regarding the procedures of use of joint property. Duration of the marriage contract, as well as duration of the rights and responsibilities specifically stated therein can be determined by the spouses upon their request or a general term can be used. Anyway, a rupture of relations terminates the contract. However, the duration can be changed by mutual consent of the parties. Unilateral termination of the contract is unacceptable. Note that any change in conditions or any provisions contained in the marriage contract shall be notarized. There is an option to terminate the marriage contract by a court decision.
One way or another, everyone decides for himself the necessity of a marriage contract, its terms and duration. The main thing is to make such an agreement in a strict accordance with current legislation, so that it will have effect for its entire duration and will not be recognized as invalid by virtue of any circumstances. Thus, the marriage contract may be invalidated if its contents contradict with the law, morality, if there were circumstances that interfere with the freedom of expression of will of one of the parties, if it is concluded with a person who is limited in capacity by law, if the contract contradicts the interests and rights of children. That is why it’s not enough to find the standard form of contract in the Internet to fill it and visit a notary. It is necessary to analyze each and everyclause of the contract by explaining it in terms of The Family Code of Ukraine, and, most importantly, paying attention to the possible consequences of its violation for each party. Individual attention to all the erquests of spouses are taken into account in the contract in a form prescribed by law. After all, if the condition stipulated in the contract, even notarized, is contrary to The Family Code of Ukraine, it is automatically cancelled. So it is better to let the experts deal with the subtleties of the family law.
When the future or current spouses decide to enter into the marriage contract, it is better to consult an expert in this domain, if there are any doubts about the necessity and appropriateness of the contract and its conditions. The
expert will provide you with detailed information concerning your question. It will properly save your energy and nerves in the future and will ensure the rights upon the occurrence of real legal consequences.
