Personal or joint marital property

The issue of personal and joint property arises at different life cycles: how to register real estate before or during marriage so that it does not go to the spouse in the event of discord in the family? When is the spouse’s consent required to sell real estate? In what cases is the spouse’s consent not required when selling real estate?

The issue of personal and joint property is reflected in the Family Code of Ukraine. In order to understand the nuances of the property regime, we will consider the legislative norms regarding the most frequently arising issues.

1. Privatized property: common or joint property?

1.1) According to Part 2 of Article 60 of the Family Code of Ukraine (which has not been amended since the entry into force of the Family Code of Ukraine), property (real estate) privatized up to and including February 7, 2011 is the personal property of the person to whom the ownership right is registered.

So, when registering privatization documents during this period and in the event of a possible sale of property (real estate) in the future, regardless of whether this property was registered before or after marriage, the consent of the second spouse to the disposal of the property is not required.

1.2) According to Part 5 of Article 61 of the Family Code of Ukraine (in connection with amendments based on the Law of Ukraine No. 2913-VI of January 11, 2011) property (real estate) the ownership of which was registered in the process of privatization from February 8, 2011 to June 12, 2012 inclusive is common joint property.

So, when registering privatization documents, if the party was married during this period, in the event of a possible sale of property (real estate) in the future, the consent of the other spouse is required, the authenticity of which is certified by a notary. Additionally, the notary is provided with a marriage certificate, passport and tax code of the second spouse.

1.3) According to Part 4 and Part 5 of Article 57 of the Family Code of Ukraine (in connection with the amendments based on the Law of Ukraine No. 4766 of May 17, 2012), property (real estate), the ownership of which was registered in the process of privatization from June 13, 2012 to the present day is the personal property of the person to whom the ownership is registered.

So, when registering privatization documents during this period and in the event of a possible sale of property (real estate) in the future, regardless of whether this property was registered before or after the marriage, the consent of the second spouse to the disposal of the property is not required.

2. Property (real estate), the right of ownership of which was registered before marriage: personal or joint property?

According to Part 1 of Article 57 of the Family Code of Ukraine, property (real estate) for which the right of ownership was registered before marriage is the personal property of the spouse in whose name the right of ownership was registered.

So, if the property (real estate) the right of ownership of which was registered before marriage, when selling such property in the future, the consent of the second spouse to dispose of the property is not required.

3. Property (real estate), the ownership of which is registered by one of the spouses during the marriage: personal or joint property?

According to Part 2 and Part 3 of Article 57 of the Family Code of Ukraine, property (real estate) for which the ownership is registered by one of the spouses during the marriage, but on the basis of a gift agreement; registration of inheritance or for funds that belonged to him or her personally, is the personal property of the spouse in whose name the ownership is registered. If the issue of acquiring property during marriage using personal funds of one of the spouses, in whose name they want to register the right of ownership of real estate with the personal property regime, arises, with mutual consent, an application is taken from the other spouse, confirming that the funds used for the purchase are not joint, otherwise this fact must be confirmed by a deed of gift, a certificate of inheritance, another agreement or a court decision.

So, if the property (real estate), the right of ownership of which was registered by one of the spouses during marriage, but on the basis of a deed of gift; registration of inheritance or using funds that belonged to him or her personally, – when selling such property in the future, the consent of the second spouse to dispose of the property is not required.

In all other cases, the acquisition of property during marriage, regardless of who the documents are registered to, – this property has the regime of common joint ownership. In case of further sale of the property, the consent of the other spouse is required for the sale, which will be carried out for a price and on terms known to him/her and in the interests of the family. The property regime can be changed by an appropriate agreement, for example, a marriage contract or by court order.