Property rights of a man and a woman living together without marriage registration

Any jurisdiction provides various laws, rules and procedures to regulate marital relationships. And, what about the persons who do not have the marriage registration? What kind of property rights and obligations do they have in such case? This article is dedicated to the issues related to the property rights of a man and a woman who are not marred to each other but have certain relations from the point of view of the Ukrainian Law. Besides, it concerns the risks which can arise for the owner of the property purchased within the period of such relations in view of provisions and requirements of the Ukrainian legislation.

Men and women have a right to equal opportunity and protection under the law. Let us apply to the Ukrainian legislation to see these opportunities.

According to the Article 21 of the Family Code of Ukraine the marriage is the family union of a woman and a man registered in the state Registry office. The Law also provides that in case a woman and a man live together as a family but without registering such relations as a marriage, this is not the ground for arising spouses’ rights and obligations for such a woman and a man. On the one hand, we can see that joint residence is not the ground for any spouses’ rights or obligations.

On the other hand, notwithstanding the determination of marriage quoted above, the Family Code of Ukraine contains certain ambiguity regarding the property rights of a woman and a man living together as a family but without registering such relations as a marriage.

In particular, the Law in this regard also provides for the following (Article 74 of the Family Code of Ukraine):

(1) if a woman or a man jointly reside as one family, but they are not married to each other or any other person, the property acquired during such joint residence belongs to them under the common property right, unless otherwise stipulated by the written agreement concluded between them;

(2) the property being the common ownership of a woman and a man living together as a family but without registering an official marriage is subject to general rules provided by law for the common ownership of the officially married persons, i.e. equal rights as for the possessing, use and disposal of such property.

Considering cited provisions of the Law, once a party to certain relations without registering official marriage purchases an apartment and allows another party of such relations to live in such apartment, the owner is exposed to some risks in this regard. What are these risks?

A. such kind of relations between a man and a woman can be recognized by the court as living like a family, i.e. to be the actual marital relations, subject to presentation of corresponding evidences before the court;

B. realty, purchased by one party to such relations within the period of their duration, can be therefore considered as common ownership of both parties. In such case another party is entitled to exercise its property rights as for the possessing, use and disposal of such property equally as if such another party is married to the other one, i.e. the owner.

Taking into account above stated risks availability let us see the grounds and consideration which can be applied as their evidences and reasons.

1. Kind of relations to which spouses’ right to common ownership can be applied.

The court shall consider the relations as actual marital and are subject to spouses’ right to common ownership only when:

(A) a man and a woman are not married to any other person, and
(B) they have established the long-standing relations typical for the spouses.

According to the Article 3 of the Family Code of Ukraine, the family consists of persons who reside together, are connected by joint household use, have mutual rights and obligations.

The court shall recognize the relations as the actual marital ones taking into consideration evidences and supporting documents confirming joint residue, housekeeping etc., presented by the claiming party. The fact of the joint residence and housekeeping, as a rule, may be proved in the court by the claiming party by means of:

(1) involvement of the witnesses evidencing on joint residence, joint housekeeping etc.;
(2) granting the evidences of the joint purchases (bills), joint pastime, travelling, etc.;
(3) evidencing facts of joint property acquisition by the money of both parties.

2. Kind of property which can be recognized as common ownership. Once the court recognizes the relations between a man and a woman as the actual marital relations, it consequently causes the right of such a man and a woman to common ownership of a property acquired during the period of their joint residence, except for the following cases:

(1) unless otherwise stipulated by the written agreement concluded between the parties, or
(2) if such property cannot be considered as the common ownership by law.

The Ukrainian Law property provides that what can not be considered as the common ownership is the personal private ownership of a spouse.

The Law (Article 57 of the Family Code of Ukraine) determines the property being the personal private ownership of a spouse as follows:

(1) property acquired before marriage (or relationships which might be considered as marriage),
(2) property acquired during the period of marriage but under the deed of a gift or by inheritance,
(3) property acquired during the period of marriage but by money belonged to her or him personally,
(4) things of individual use.

Subject to clear, reasonable and sufficient evidences presented before the court by the owner, the certain property shall be considered as the personal private ownership of a party. For example, it was purchased by money belonged to the owner personally or acquired before parties’ relations had really started. Therefore such property shall not be considered as common ownership even if the relations between the parties were recognized by the court as the actual marital relations.

3. Rights of family members. In case the relations between the parties were or could be recognized by the court as the actual marital relations, the parties therefore can be considered as family members to each other.

In accordance with the Article 156 of the Housing Code of Ukraine the family members of the residential house (apartment) owner that jointly reside with him in the house (apartment) owned by him, make use of the living space equally with the owner of the house (apartment), unless any other agreement regulating the use of such house (apartment) by family members is concluded between them and the owner at the moment when family members move into such house (apartment).

The owner’s family members are considered his wife, their children and parents. Other persons can be recognized as the owner’s family members, if such persons permanently jointly reside with the owner and manage the common household (Article 64 of the Housing Code of Ukraine). It is obviously that the provisions of the Housing Code of Ukraine have common requirements with the Family Code of Ukraine in determining family (marital) relations.

Termination of the family relations with the owner of the realty does not deprive the former family members from their rights to use the house.

Considering provisions of the Housing Code of Ukraine in respect of the actual and former family members’ right to use the apartment (on free or paid basis), the risk of impossibility to evict a party to certain relations without registering the official marriage (even if such relations are already over) on legal grounds is rather high unless all the issues of the apartment’s use by such a party is clearly determined by the agreement with the owner.

Whereas Ukrainian legislation provides the institute of actual marital relations (“de facto marriage”) and equals property rights of the actual spouses to the registered ones, to lower the risks of the property rights the owner should clearly indicate in the Purchase and Sale Agreement that the Purchaser is not married (by the way of drawing up the corresponding statement at the notary office) and that the realty is purchased by the Purchaser’s own money. Besides, the owner is to draw up and sign some kind of the agreement with the other party to the existing relations considering provisions of both Family Code (Article 74) and Housing Code (Article 156) of Ukraine. Such kind of an agreement can be either the lease agreement on free (or paid) use of a house, or any other written agreement between the parties stipulating rights and obligations of the non- owner during his use of the house and living in it.

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