A. JURISDICTION AND CONFLICT OF LAW

1. SOURCES OF LAW

1.1 What is the primary source of law in relation to the breakdown of
marriage and the welfare of children within the jurisdiction?
The provisions on the breakdown of marriage and welfare of children are
mostly detailed in the chapters II-IV of the Family Code of Ukraine 2002.
Child protection law in the Ukraine is based on the Constitution of Ukraine
and on the Convention on the Rights of the Child. Some provisions on
welfare in the Convention on the Rights of the Child have been codified in
the Family Code of Ukraine and in the law on the protection of children.
Ukraine ratified the Convention on the Rights of the Child in 1991.
International conventions (treaties) that have been ratified by the Supreme
Council of Ukraine are a substantial part of the Ukrainian legislation.
1.2 Which are the main statutes governing matrimonial law in the
jurisdiction?
Ukraine is a civil law jurisdiction. The overarching code of Ukrainian civil
law is the Civil Code of Ukraine 2003, which is supplemented by the Family
Code of Ukraine 2002. The Ukrainian courts rely upon the codes, and there
is no formally recognised doctrine of precedent.
The Family Code of Ukraine 2002, determines matters relating to
marriage, personal non-property and property rights, the duties of the
married couple, the content of personal non-property and property rights,
and the duties of parents and children, foster parents and adopted children
and relatives.

2. JURISDICTION

2.1 What are the main jurisdictional requirements for the institution of
proceedings in relation to divorce, property and children?
The Civil Procedural Code of Ukraine 2005 aims for the just and timely
consideration and settlement of family cases in the courts of Ukraine for the
protection of rights and the freedom and interests of the persons involved.
A separate chapter in the Civil Procedural Code defines the procedure for
cases involving the participation of foreigners. Foreigners in family disputes
have procedural rights and duties equal to those of natural persons of Ukraine.
The choice of jurisdiction, according to Ukrainian legislation, has some
peculiarities where one of the spouses is not a Ukrainian national. In this
instance, the Ukrainian court has jurisdiction to consider disputes with
a foreign element (if one of the party is a foreigner, stateless person or
Ukrainian national living abroad) only in specific cases, namely:
• if the spouses invoked the jurisdiction of the Ukrainian courts by
agreement;
• if the defendant spouse has residence, immovable or movable property
in the territory of Ukraine;
• if the plaintiff has his residence in Ukraine in cases that concern
payment of maintenance or establishment of fatherhood;
• if the ground for the claim took place in the territory of Ukraine (eg, a
pre-nuptial agreement was concluded in the territory of Ukraine; or the
spouses got married in the territory of Ukraine);
• in other cases foreseen by international agreements and the laws of
Ukraine.
Ukrainian courts have exclusive jurisdiction over disputes that concern
real estate located in the territory of Ukraine and over cases involving
relationships between children and parents where both parties have
residence in Ukraine.
In a case where both spouses are nationals of Ukraine, they may apply to
a Ukrainian court irrespective of their place of residence.

3. DOMICILE AND HABITUAL RESIDENCE

3.1 Explain the concepts of domicile and habitual residence as they
apply to the jurisdiction in relation to divorce, the finances and children
Ukrainian law follows the concept of domicile (residence), rather than
habitual residence.
The term ‘residence’ is understood according to the Article 3 of Law of
Ukraine on Freedom of Movement and Free Choice of Place of Residence
in Ukraine adopted on 11 December 2003. The place of residence is the
administrative unit, where an individual resides more than six months per year.
Ukrainian law has a requirement for registration of place of residence. As
the general rule, claims in family/civil matters shall be brought to the court
locally situated at the place of registration of residence. However, registration
of the place of residence or temporary address of the person or the absence
of such shall not be a condition or grounds for exercising the rights and
freedoms provided for by the Constitution, laws or international agreements
of Ukraine. Therefore, even if the person has no registration of place of
residence, but resides in an administrative unit over six months per year it
is considered that they reside at that administrative unit and it is possible to
bring a claim at the place of their residence.
A claim to the Ukrainian court may be initiated, if:
Divorce
• the defendant spouse has their residence in the territory of Ukraine.
Finances
• the defendant spouse has their residence in the territory of Ukraine;
• the plaintiff spouse has their residence in Ukraine in cases involving
payment of maintenance.
Children
• the defendant spouse has their residence in the territory of Ukraine;
• the plaintiff has their residence in Ukraine in the cases involving
payment of maintenance or establishment of fatherhood;
• both parties have residence in Ukraine.
The procedural capacity and capability for foreigners in Ukraine are equal
to Ukrainian citizens and determined according to Ukrainian legislation.

4. CONFLICT OF LAW/APPLICABLE LAW TO BE APPLIED

4.1 What happens when one party applies to stay proceedings in
favour of a foreign jurisdiction? What factors will the local court take
into account when determining forum issues?
In deciding the issue of whether to stay the proceedings or close the
proceedings for the reason that the Ukrainian court is not appropriate
forum to determine the dispute, the Ukrainian court is governed by the
requirements of Civil Procedural Code of Ukraine 2004 and Law of Ukraine
on International Private Law 2005.
If an application to stay the proceedings was made before the court
opened the proceedings the court shall refuse to open the proceedings on
the basis of Article 75(2) of Law of Ukraine on International Private Law,
stipulating that, the Ukrainian court shall refuse to open proceedings if a
court or other jurisdictional authority of a foreign state considers the dispute
between the same parties on the same subject and on the same grounds.
If an application to stay the proceedings was made after the court opened
the proceedings, article 207 (1) (4) of Civil Procedural Code of Ukraine shall
be applied. According to this article the court is obliged to leave the claim
without consideration if a dispute between the same parties on the same
subject and the same grounds is considered in another court.
For instance if a divorce application was filled first in a foreign jurisdiction
and thereafter a application for the dissolution of the marriage was initiated
in Ukraine between the same parties and on the same basis the Ukrainian
court shall refuse to open the proceedings or leave the application without
consideration.
Four elements must exist for the court to refuse to open the proceedings
or leave the application without consideration in favour of a foreign court:
1. the dispute is between the same parties;
2. the dispute concerns the same subject;
3. the dispute is on the same grounds; and
4. the dispute is already under consideration in a foreign court.

B. PRE AND POST-NUPTIAL AGREEMENTS

5. VALIDITY OF PRE- AND POST-NUPTIAL AGREEMENTS

5.1 To what extent are pre- and post-nups binding within the
jurisdiction? Could you provide a brief discussion of the most
significant recent case law on this issue?
Pre-nuptial agreements are valid and enforceable under Ukrainian
legislation. A Ukrainian pre-nuptial agreement is described as a marriage
agreement and dealt with in chapter 10 of the Family Code of Ukraine. The
nub of any agreement will be a clause to misapply or vary Article 60 of the
Family Code, which creates the common joint property regime for spouses.
Therefore, there are three primary purposes of a marriage agreement:
• to regulate the division of common joint property arising from the
marriage;
• to regulate or exclude the division of common joint property arising
from any pre-marital cohabitation;
• to anchor governing jurisdiction and law.
The Family Code of Ukraine states that a marriage agreement may be
concluded between the persons who applied for the registration of marriage,
as well as between married couples. If it has been concluded before the
registration of the marriage, it shall come into effect from the date of the
state registration or the marriage. It shall not regulate the personal relations
of a married couple, or personal relations between the married couple
and children. A marriage agreement deals only with privity (property
relationships) and specifies the rights and duties of the spouses. A marriage
agreement may be cancelled on the demand of one of the parties only on
the basis of a judicial decision or by the mutual consent of both spouses.
The formalities for executing the agreement are minimal. Both parties
must attend before a Ukrainian notary public official and sign the agreement
in front of them. If required by the circumstances, an agreement in
Ukrainian and an official translation into the other language of any party
must be signed in front of notary public official. No lawyers, translators or
witnesses are required to be present or to sign the agreement. There is no
obligation for legal advice or full and frank disclosure of assets or liabilities.
There is also no obligation to show that either side has taken legal advice
and no obligation at this point to show that no undue pressure has been
put on either party. There is no assessment at this point of whether the
agreement is arguably fair.
It is possible under the Family Code to include expenses for children
in the main text of an agreement. This arrangement would make these
expenses enforceable in most other jurisdictions which allow provision for
children’s maintenance within the body of such agreements.
The Ukrainian courts do not recognise the doctrine of precedent and rely
only upon Ukrainian legislation (codes, laws). The judge deciding a case
may take into account interpretations of law stated by the Supreme Court of
Ukraine.
A Ukrainian pre-nuptial agreement can be challenged by the court on
the basis that it places one spouse in an ‘extremely unfavourable material
position’, under Article 93 Family Code of Ukraine. However, the question
for the court is whether the spouse has, as a result of an agreement, been
placed in a position significantly less favourable than the position they
would have been in under the Family Code.

C. Divorce, Nullity and Judicial SEPARATION

6. RECOGNITION OF FOREIGN MARRIAGES/DIVORCES

6.1 Summarise the position in your jurisdiction
Article 58 of the Law of Ukraine on International Private Law 2005 provides
that a marriage between citizens of Ukraine, marriage between a citizen
of Ukraine and a foreigner, marriage between a citizen of Ukraine and a
stateless person, registered outside of Ukraine under the law of foreign
country is valid in Ukraine, subject to the condition that the citizen of
Ukraine complied with the requirements of the Family Code of Ukraine and
concluded the marriage without the grounds of invalidity of marriage under
Ukrainian law.
Marriage between foreigners, marriage between a foreigner and a stateless
person and marriage between persons without citizenship, concluded under
the law of a foreign country are valid in Ukraine.
Foreign divorce is recognised in Ukraine on the basis of international
multilateral or bilateral agreements ratified by the Supreme Council of
Ukraine or under the principle of reciprocity.
The order of recognition of foreign divorce in Ukraine is provided in
Articles 399-401 of Civil Procedural Code of Ukraine.

7. DIVORCE

7.1 Explain the grounds for divorce within the jurisdiction (please also
deal with nullity and judicial separation if appropriate)
The Family Code of Ukraine envisages that if the spouses do not have
children, they may get a divorce in bodies of civil state acts registration.
If spouses have children they may get divorced only through court
proceedings.
The formal grounds for divorce are breakdown of the marriage,
breakdown of common housekeeping, failure of other spouse to perform
marital rights and obligations, physical or moral harm toward other
spouse or the children. In a case where one of the spouses does not give
his or her consent to the dissolution of the marriage, the court will give a
reconciliation period. After this period of time has elapsed, the court will
grant a divorce if it is found that the further joint life of the spouses and
continuance of their marriage is contradictory to the interests of either party
and the interests of their children. The marriage is considered to be dissolved
from the moment of registration of the divorce with the bodies civil state
acts registration if the marriage was dissolved by the body of registration of
civil status acts. If the marriage was dissolved by the court order the marriage
is considered to be dissolved from the moment the court order entered into
force.
Nullity of marriage
Upon the application of an interested person, the body of registration of
civil status acts nullifies the marriage if:
• the marriage was registered with a person who at the same time
remained in another registered marriage;
• the marriage was registered between people who are relatives in a
‘straight line’ relationship, as well as between siblings, brother and sister;
• the marriage was registered with a person who is recognised as
‘incapable’.
The marriage shall be nullified by the Ukrainian court order if:
• the marriage was registered without the free will of the wife or husband
(where a party to the marriage did not fully realise his/her actions and
was unable to control it);
• the registered marriage was fictitious;
The marriage may be nullified by the Ukrainian court order if:
• the marriage was concluded with a person under the age of consent and
legally not allowed to marry;
• the marriage was registered between an adopter and the adoptee
in violation of the requirements of art. 26 (5) of the Family Code of
Ukraine;
• the marriage was to a person with hidden serious illness or a disease
which is dangerous for the other spouse and (or) their descendants;
• the marriage was registered between cousins; between aunt and uncle
and nephew and niece;
Those who have the right to apply to the court for the nullity of
the marriage are spouses, other people whose rights are affected by the
registration of the marriage, parents, guardians, custodians, guardians of
‘incapable’ parties, the prosecutor and the custody and care body.
The marriage is considered to be nullified from the date of its state
registration.
Judicial separation
Article 119 of the Family Code of Ukraine provides that upon the
application of one or both spouses, the court may order a separate
arrangement for the residence of the parties in cases where there is inability
or unwillingness of a wife and (or) husband to live together. Before a court
grants a judicial separation, there are many factors to be taken into account.
These will include the current and future financial situations of both of the
spouses, accommodation and property, and dependent children and their
future needs and welfare.
Establishing a regime of judicial separation does not terminate the rights
and responsibilities of the spouses as established by the Family Code of
Ukraine or the rights and duties as are prescribed by a marriage agreement.
However, the judicial separation of spouses has some peculiarities:
(i) property acquired by one of the spouses during the period of judicial
separation is considered to be separate personal property;
(ii) a child born more than 10 months after the date of the judicial
separation will not be considered to be the child of the husband.
Judicial separation ceases in the event of reconciliation of family
relationships or by acourt order upon application of one of the spouses.

8. FINANCES/CAPITAL, PROPERTY

8.1 What powers does the court have to allocate financial resources
and property on the breakdown of marriage?
The Family Code of Ukraine determines the procedure for the division
of property acquired before, as well as during, the marriage between the
spouses upon divorce.
A ‘common joint property’ regime is the default position for the property
of spouses within Ukraine, established by Article 60 of the Family Code.
‘Separate personal property’, by contrast, are assets acquired prior to the
marriage, or by gift or for personal money (Article 57). If separate personal
property produces income during the marriage, that income will also be
separate personal property.
However, if an increase in the value of one spouse’s separate personal
property has been due to the efforts or contribution of the other spouse, that
separate personal property may be held as common joint property by the
court and the other spouse will be entitled to a share of it.
Property acquired by a man and a woman who live together as a family,
but who are not married (under a cohabitation regime), will be considered
joint property, unless a written agreement (marriage agreement) between
them provides otherwise.
The spouses may wish to vary this default regime in their agreement,
re-designating present and future separate personal property and common
joint property.
The court has a wide range of powers to share a spouse’s common joint
property. The court has the power:
(i) to share common joint property between the wife and husband;
(ii) to award indivisible items to one spouse unless otherwise agreed
between the parties;
(iii) to award assets relating to professional occupations (eg, musical
instruments; office, medical, photography equipment etc.) to the spouse
who used them in their professional activities. The cost of these things is
taken into account when awarding other property to the other spouse;
(iv) to award the other spouse a lump-sum as compensation instead of their
share in the joint common property, including a house, apartment and
land. However, the court may exercise this power only with the consent
of that spouse, except in cases foreseen by the Civil Code of Ukraine.
The awarding of monetary compensation is possible only if the second
spouse makes an advance deposit of the respective sum of money into
the court account;
(v) to recognise that some or all items of separate personal property are
common joint property or recognise that some or all items of common
joint property are separate personal property if the appropriate
circumstances are proven.
8.2 Explain and illustrate with reference to recent cases the court's
thinking on division of assets
The court practice in division of assets is generalised in the Decree of the
Plenum of Supreme Council of Ukraine dated 21 of December 2011 No.11.
The division of a spouse’s assets is carried out in accordance with
Articles 69-72 of Family Code of Ukraine and Article 372 of the Civil Code
of Ukraine. The value of property subject to division is determined by
agreement between the spouses, or is based on its actual value at the time of
the hearing.
If the marriage agreement has modified the statutory regime of joint
property, then a court must proceed and divide the property according to
the terms of any such agreement.
In resolving disputes between spouses it is necessary for the court to
decide on the amount of property which has been jointly acquired and find
out the source and time of its acquisition. Joint assets of spouses that are
subject to division may include any kind of property, except those excluded
from civil turnover, regardless of whose the property was purchased in.
Property owned by a spouse can be designated as joint property by
signing the parties signing a marriage agreement or recognised as such by
the court on the grounds that during the marriage the value of this property
has significantly increased due to the efforts of financial investnment of the
other spouse, or both.
Under the general rule of Article 70 of the Family Code of Ukraine, during
the division of the spouses’ joint property, the wife’s and husband’s shares
in the assets are equal unless otherwise provided for by agreement between
them or under a marriage agreement.
In resolving any dispute over the division of property the court may
deviate from equality of shares in circumstances that are of essential
importance, particularly if one party did not care about the material support
of the family, hid, destroyed or damaged joint property or spent property to
the detriment of his family.
A spouse’s share in the joint assets may be increased if children or
disabled adult children are living with him/her.

9. FINANCES/MAINTENANCE

9.1 Explain the operation of maintenance for spouses on an ongoing
basis after the breakdown of marriage
Under Article 76 of the Family Code of Ukraine, divorce does not release
spouses from maintenance obligations that originated during marriage.
A former spouse is obliged to support the other in certain circumstances
described in Article 75 of the Family Code of Ukraine if that spouse became
disabled during the marriage or within a year from the date of the marriage
breakdown; if the spouse is pregnant; raising a child under the age of three
or caring for a disabled child; is set to reach pension age within five years; or
in other certain cases listed in the Family Code.
9.2 Is it common for maintenance to be awarded?
Article 77 of the Family Code of Ukraine provides that spouses are free to
decide the manner of maintenance.
If the parties have not reached an agreement, maintenance may be
imposed by the court order with a certain percentage of the total net income
and/or a fixed sum of money. Alimonies are to be paid on a monthly basis.
The court has the discretion to increase or decrease these sums to reflect
other relevant circumstances. In certain circumstances, where the spouse
responsible for the alimony leaves the territory of Ukraine, they may be
obliged to pay alimonies in advance.
9.3 Explain and illustrate with reference to recent cases the court’s
thinking on maintenance
The Supreme Court of Ukraine has interpreted the provisions of the Family
and Civil code of Ukraine on the maintenance of spouses and decided that
divorce does not release a former spouse from their obligations in relation to
maintenance and a cohabitant spouse has the right to maintenance where
they are unable to work during cohabitation.

10. CHILD MAINTENANCE

10.1 On what basis is child maintenance calculated within the
jurisdiction?
According to the Family Code of Ukraine, after the breakdown of the
marriage, a parent is required to pay child support (alimonies). Maintenance
can also be paid under a support agreement. The Family Code of Ukraine
states that child support is to be imposed by the court allowing a certain part
of the total net income for one child or it could be fixed in money.
Pursuant to Article 182 of the Family Code of Ukraine, the court has
the discretion to increase or decrease the level of alimony to reflect other
relevant circumstances, such as the health and welfare of a child; the health
and welfare of the spouse responsible for paying the alimony; the availability
of other family members, presence of legally incapable wife (or husband)
and/or children from a new marriage, and other circumstances which may
be relevant for the court.
The Family Code of Ukraine provides that alimonies should not be
decreased lower than 30 per cent of the minimum level of wage for one child.
The minimum level of wage will be revised every year according to the law of
Ukraine on State Budget upon the establishment of a minimum living wage.

11. RECIPROCAL ENFORCEMENT OF FINANCIAL ORDERS

11.1 Summarise the position in your jurisdiction
A common and acknowledged method of enforcing foreign court orders
is according to international bilateral and multilateral treaties which exist
between Ukraine and other countries.
The enforcement proceedings available in each case depend on the terms
of the treaty or other arrangements that are in place between Ukraine and
the other country concerned.
The Civil Procedure Code of Ukraine 2005 defines the order of
enforcement of foreign financial orders in Articles 390-398.
In Ukraine, the judgment of an international court shall be enforced
during a period of three years from the moment the judgment comes into
force. An exception to this rule is periodical payments, which may be
enforced and collected during the whole period of sanction.
The principle of reciprocal enforcement of foreign court orders may be
applied only if there are no international bilateral and multilateral treaties
between Ukraine and the foreign country. The principle of reciprocal
enforcement of foreign court orders including financial orders is rather new
in Ukraine and Article 390 of the Civil Procedural Code of Ukraine stipulates
if the recognition and enforcement of foreign court order depends on the
principle of reciprocity, it is believed that it exists, unless proven otherwise.
The principle of reciprocity has only been applied in few court cases.
There is no special procedure for the enforcement of court orders,
including financial orders, on the principle of reciprocity as there is no list
of countries whose court orders will be enforced in Ukraine in accordance
with the principle of reciprocity. The general interpretation of the principle
of reciprocity under Ukrainian law means that if Ukrainian court orders
are enforced in a particular foreign country, the court orders of that foreign
country shall be enforced in Ukraine.

12. FINANCIAL RELIEF AFTER FOREIGN DIVORCE
PROCEEDINGS

12.1 What powers are available to make orders following a foreign
divorce?
Under Ukrainian law there is no special procedure allowing the receipt of
financial relief after a foreign divorce. After a foreign divorce, either spouse
may apply to the Ukrainian court to settle financial matters (eg, property
division, child alimony, maintenance obligations between spouses) if the
Ukrainian courts have jurisdiction to consider such matters on the general
basis provided by the Civil Procedural Code of Ukraine and the Law of
Ukraine on International Private Law.

D. CHILDREN

13. Custody/Parental Responsibility

13.1 Briefly explain the legal position in relation to custody/parental
responsibility following the breakdown of a relationship or marriage
The breakdown of a marriage does not influence the scope of parental rights
and obligations toward the child provided by the Family Code of Ukraine.
Even after the breakdown of a marriage, the parents have equal rights to
participate in the child’s upbringing. The parents retain the full scope of
personal non-property and property rights and obligations towards the
child. After the breakdown of the marriage each of the parents is obliged
to contribute towards the child’s maintenance until they attain the age of
majority (18 years in Ukraine) and in some circumstances maintain the child
after the age of 23 years old. Under Ukrainian legislation the parents are
also obliged to share additional expenses for the child, which may include
medical treatment and other costs for the improvement of the child’s health
and development of the child’s skills etc.
The parent who does not live with the child has a right to personal
communication with the child. The parent with whom the child lives has
no right to prevent the parent who lives separately from participating in
the upbringing of the child and communicating with the child unless such
communication negatively affects the normal development of the child.
The parents have the right to enter into an agreement dealing with the
implementation of parental rights and responsibilities of the parent who
lives separately. The agreement shall be in writing and notarised.
13.2 Briefly explain the legal position in relation to access/contact/
visitation following the breakdown of a relationship or marriage
The place of residence of child after breakdown of marriage
The place of residence of a child under the age of 10 is determined by the
parents’ mutual consent. The place of residence of a child who has reached
10 years is agreed by the mutual parents’ consent and the child. If the
parents live separately, the place of residence of a child who has reached 14
years of age is determined by the child.
If the parents cannot reach an agreement about the child’s place of
residence the dispute may be solved by custodian bodies or by the court.
The following circumstances are taken into account when considering
such a dispute: the parents’ attitude towards their parental obligations, the
personal feelings of the child towards each of the parents, the child’s age,
state of health, the financial conditions of each of the parents (ownership of
personal apartments), steady income, the living conditions of each parent,
the current marital status of each parent and the presence of other children
etc. Custodian bodies or the court are unlikely to allow the child to live with
a parent who has no independent income, is abusing alcohol or drugs or
who, by his/her immoral behaviour, may harm the development of child.
Visitation order
If the parent with whom the child lives prevents the parent who lives
separately from involvement with the child and the child’s upbringing and,
in particular, avoids the enforcement of the decision of custodian bodies, the
other parent may apply to the court for a visiting order.
In such a case the court determines the level of participation of the other
parent in the child’s upbringing: periodic and systematic access, the ability
to spend vacations together, visiting a child at his/her place of residence,
places and times for communication etc.
In a case of non-enforcement of a visiting order by the person with whom
child lives, the court, upon the application of the other parent, may order
the child to live with the parent who lives separately.

14. INTERNATIONAL ABDUCTION

14.1 Summarise the position in your jurisdiction
In 2006, the Supreme Council of Ukraine passed the Act of Ukraine on
Accession of Ukraine to the Convention on the Civil Aspects of International
Child Abduction. The Convention is applied between Ukraine and countries
that have accepted Ukrainian accession to this convention.
The Convention is enforced and executed in Ukraine according to the
Order of Execution in Ukraine of the Convention on the Civil Aspects of
International Child Abduction, adopted by the Decree of the Cabinet of
Ministers of Ukraine on 10 June 2006 No 952.
The application forms on child return and access to children and a list of
necessary documents are provided at the Decree of the Cabinet of Ministers
of Ukraine No 952.
The Competent authority in Ukraine to deal with the Convention is the
Ministry of Justice of Ukraine. Upon receipt of an application for the return
of a child, the Ministry of Justice will firstly take measures to obtain the
agreement of the other parent to return the child voluntarily. If the other
parent refuses to return the child voluntarily, the Ministry of Justice of
Ukraine, on behalf of the parent, can initiate court proceedings concerning
the child’s return.
The parents are also free to initiate proceedings regarding the return of
the child directly in a Ukrainian court without involving the Ministry of
Justice of Ukraine under Article 29 of the Convention.
All the actions and services of the Ministry of Justice of Ukraine,
including court representation, are free of charge. However, it is always
advisable to have a private lawyer to assist with the case and represent the
parent’s interests in the court.

15. LEAVE TO REMOVE/APPLICATIONS TO TAKE A CHILD OUT
OF THE JURISDICTION

15.1 Summarise the position in your jurisdiction
The general rules for removing a child outside the border of Ukraine are
provided in the Law of Ukraine On the Procedure for Leaving and Entering
Ukraine by Ukrainian Citizens adopted on 21 January 1994.
Under Ukrainian law, citizens who have not reached the age of 16 can
only travel outside of Ukraine with the consent of both parents (adoptive
parents) or guardians and accompanied by them, or by persons authorised
by them.
Otherwise, travelling outside of Ukraine where a Ukrainian citizen
has not attained the age of 16, is not accompanied by one parent or
accompanied by persons who are authorised by a parent is only possible
with the notarised consent of the other parent or both parents, indicating
the state of destination and the corresponding length of stay in this state.
A departure from Ukraine without notarised consent from the other
parent is possible when:
• the other parent is a foreigner or a stateless person, and this is
confirmed on the child’s birth certificate;
• the passport for travelling abroad or the child’s travel document shows
evidence of permanent residence outside Ukraine or evidence of consular
registration in Ukrainian embassies abroad. (Ukrainian nationals who
live abroad can rely on consular registration and the registration mark
of the Ukrainian embassy of ‘permanent residence abroad’ or ‘consular
registration’ in the child’s passport or travel document).
The child may travel abroad without the notarised consent of the other
parent in a case where they are able to show at the points of crossing of state
borders, an original document or notarised copy of one of the following:
• the death certificate of the other parent;
• a court order demonstrating the termination of the parental rights of the
other parent;
• a court order recognising that the other parent has ‘disappeared’;
• a court order recognising the other parent as incapable;
• a court order granting permission to travel outside Ukraine for a citizen
who has not reached the age of 16 and is without the consent and
support of the other parent;
• a certificate of birth issued by the bodies of civil status acts registration,
specifying that the record about the father was made on the basis of first
paragraph of Article 135 of the Family Code of Ukraine.
15.2 Under what circumstances may a parent apply to remove their
child from the jurisdiction against the wishes of the other parent?
If the other parent refuses to give notarised consent for removing a child
abroad, the only way to gain permission to take the child abroad is through
an application to a Ukrainian court.
While applying to a Ukrainian court, the parent shall prove that the
travel is in the best interests of the child (eg, travel to relatives, for rest,
tourism, education, improvement of health). It is necessary to indicate the
aim of travel, and the duration of travel, as proof of a present invitation for
travelling, hotel booking, tickets booking etc. The court gives permission
for travel specifically to some period of time and this permission relates to
specific travel.
If the applicant wishes to obtain permission to remove a child
abroad without the consent of the other parent for numerous trips, it is
recommended that the applicant ask the court to allow the making of a
travel document to remove a child from Ukraine without the consent of the
other parent and to allow for a parent temporary trips abroad with a child
without the consent and accompaniment of the other parent.
Upon consideration of an application, the court issues an order and may
grant permission to take the child abroad without the consent of the other
parent. To deny such a claim, the respondent must provide reasonable
evidence to demonstrate that a trip abroad does not meet the child’s interests,
the child’s stay with one parent harms the child, and/or that the other parent
does not participate in proper upbringing of the child and child support.
However, in practice. these circumstances are rarely proven and as a
general rule, permission is granted to take the child abroad.

E. Surrogacy and Adoption

16. Validity of Surrogacy agreements

16.1 Briefly summarise the position in your jurisdiction
Assisted reproductive technologies and surrogacy in particular, are legally
recognised in Ukraine by law and are regulated by the Family Code of
Ukraine 2002, the decree of the Ministry of Health Care of Ukraine No.
771 adopted on 23 December 2008 On the Approval of the Instruction
about the Order of Assisted Reproductive Technologies Application. As a
rule, in practice, in order to settle the arrangements for the surrogacy, the
parties conclude a surrogacy agreement which presents their consent to the
surrogacy arrangement. Ukrainian law is silent as to the necessity of signing
such a surrogacy agreement, its form, content and the party’s rights and
responsibilities under such agreement. Therefore the parties may upon their
own discretion decide whether to sign the surrogacy agreement and the
terms on which they would like to do so.
The content of this agreement shall not contradict the provisions of the
Family Code of Ukraine, or other acts of civil legislation.
It is necessary to point out some requirements for the successful
conclusion of surrogacy agreements which are necessary to secure its validity
under Ukrainian law:
• The surrogacy agreement should be concluded prior to the conception
of the embryo and its transference to the surrogate mother. A surrogacy
agreement concluded after the child’s conception may be considered as
an agreement on the transfer of a child and may be invalidated;
• A person cannot be the subject of a civil agreement, therefore the
wording of the subject of the surrogacy agreement cannot provide for
the transfer of a child or the transfer/relinquishment of parental rights;
• Assisted reproductive technologies may be used only by spouses who
have registered their marriage, consequently the surrogacy agreement
shall be concluded only by the spouses who have registered their
marriage (art. 123 of the Family Code of Ukraine 2002);
• The surrogate mother shall be an adult capable woman who has her
own healthy child, who has entered into the agreement freely and has
no medical contraindications. The surrogate mother shall be objectively
informed concerning the procedure of surrogacy treatment.
Special attention shall be paid to the wording of the surrogacy agreement
in relation to payments. The payments cannot be made for the transfer of
a child or the transfer or deprivation of the parental rights of the surrogate
mother, as this will conflict with Ukrainian legislation. At the same time,
Ukrainian law does not prohibit the provision of special remuneration
to the surrogate mother for the rendering of services of pregnancy and
childbirth and/or compensation of all reasonable expenses connected with
the rendering of such services, in particular costs for loss of salary, medical
treatment, medicines, clothes, housing etc. A surrogacy agreement is usually
made in simple written form.

17. Adoption

17.1 Briefly explain the legal position in relation to adoption in your
jurisdiction. Is adoption available to individuals, cohabiting couples
(both heterosexual and same-sex)?
Adoption procedure is regulated in Ukraine by Articles 207-242 of Family
Code of Ukraine and Decree of the Cabinet of Ministers of Ukraine dated 8
October 2008 No. 905 On Approval of the Procedure of the Adoption and
Supervision the Rights of Adopted Children.
An adoption can be made only by court order. The adopter of the child
must be a capable person over the age of 21 years, unless the adopter is a
relative of the child.
The adopter may be a person who is at least 15 years older than the child.
In the case of an adoption of an adult person, the age difference cannot be
less than 18 years.
Adopters may be spouses. However, adopters may not be a person of the
same sex. Legislation also establishes the possibility of one spouse adopting
a child if the other spouse does not want to become an adoptive parent. In
this case, the second spouse gives notarised consent to the adoption of the
child. With such a legal construction the other spouse only agrees to the
adoption, and does not acquire the legal status of the adoptive parentor the
rights and obligations of the adopter.
Individuals who are not married, but who cohabitat may adopt a child if
the court allows them to do so. A child may be adopted by a single man or
woman if the child has only a mother or a father who will lose their legal
connection with the child due to adoption. The number of children who
may be adopted by an adoptive parent is not limited.
The procedure of adoption is rather complicated and strictly regulated by
law.

F. COHABITATION

18. COHABITATION

18.1 What legislation (if any) governs division of property for unmarried
couples on the breakdown of the relationship?
Ukrainian law recognises cohabitation and allocates property rights to
cohabitating couples. Article 74 of the Family Code of Ukraine provides that
if a woman and man live as a family but are not married to each other or to
any other person, property acquired during their cohabitation belongs to
them as joint property, unless otherwise provided for by written agreement
between them. The provisions of Chapter 8 of the Family Code apply to the
property that is the subject of joint ownership by the cohabitating couple.
These provisions means that property acquired during cohabitation
belongs to the couple as common joint property. Although, in each case,
the fact of cohabitation must be proven if the matter regarding division of
property is put before the court. The fact of cohabitation may be established
if it is proven that parties lived together, have common housekeeping, and
were registered at the same place, rent an apartment together etc. According
to Ukrainian law, a cohabitating couple may conclude an agreement to
exclude the joint property regime and to agree a different property regime
and to regulate the order of disposition of the property.
This makes it all the more important that cohabitating spouses follow the
suggested alternative of Article 74, and designate separate personal property
and common joint property in any agreement.

G. Family Dispute Resolution

19. Mediation , Collaborative Law and Arbitration

19.1 Briefly summarise the non-court-based processes available in
your jurisdiction and the current status of agreements reached under
the auspices of mediation, collaborative law and arbitration
Arbitration
The non-court-based processes for the settlement of disputes which are
generally available in Ukraine are mediation and arbitration.
The availability of arbitration in family disputes is very limited in
Ukraine.
Under Ukrainian law the parties are not allowed to refer matters to an
arbitral tribunal for settlement if the dispute concerns immovable property;
disputes where one party is non-resident or disputes that arise from
family relations (with the exception of disputes that arise from a marriage
agreement).
So, the parties may only refer to arbitration disputes that arise from a
marriage agreement where both parties are residents of Ukraine and the
disputes do not concern immovable property.
Mediation
There is no legal basis for mediation in Ukraine. However, there are a
number of mediation centres that may assist parties in resolving their
dispute. Mediation is a sphere that is rapidly developing in Ukraine and a
numbers of laws are discussed nowadays in Ukraine that attempt to provide
legal regulation for mediation.
There is no legal regulation of agreements reached under the auspices of
mediation, collaborative law or arbitration in Ukraine.
In order to be enforceable and binding upon the parties, any agreement
reached between the parties in the course of mediation or arbitration must
meet the special and general requirements of the Family Code of Ukraine
(2004) and/or the Civil Code of Ukraine (2004) which apply to agreements
of this specific type..
19.2 What is the statutory basis (if any), for mediation, collaborative
law and arbitration in your jurisdiction? In particular, are the parties
required to attempt a family dispute resolution in advance of the
institution of proceedings?
Currently there is no legal basis for mediation and collaborative law in
Ukraine. The legal basis for arbitration in Ukraine is the Law of Ukraine on
Arbitral Courts adopted on 11 May, 2004. However, as described above, the
availability of arbitration in family disputes is very limited.
There is no requirement that the parties must attempt dispute resolution
before issuing court proceedings.
The parties are free to try prejudicial dispute resolution. Prejudicial
dispute resolution does not affect their right to apply directly to the court at
any time and any stage.

H. OTHER

20. CIVIL PARTNERSHIP/SAME-SEX MARRIAGE

20.1 What is the status of civil partnership/same-sex marriage within
the jurisdiction?
20.2 What legislation governs civil partnership/same sex marriage?
According to Article 21 of the Family Code of Ukraine, the family is
defined as a ‘union between a man and a woman who live together, who
are connected by common everyday life and who have mutual rights and
duties’. There is no legal allowance for same-sex marriage/civil partnership
in Ukrainian legislation.

21. CONTROVERSIAL AREAS/RAPIDLY DEVELOPING AREAS
OF LAW

21.1 Is there a particular area of the law within the jurisdiction that is
currently undergoing major change?
Recent changes of importance in the area of Family Law in Ukraine concerns
the application of assisted reproductive technologies.
The Supreme Council of Ukraine has recently adopted changes to the
Family Code of Ukraine, allowing an application for surrogacy treatment to
be made only by a married couple (a man and a woman).
The Supreme Council of Ukraine is currently actively discussing new
amendments regarding the application of ART, in particular, an upper
age limit of 51 years on the age of a woman who can apply for ART.
Furthermore, there is a restriction on the availability of surrogacy treatment
for foreigners, in particular, it is proposed that surrogacy treatment should
only be available to the citizens of Ukraine and foreigners – citizens of the
countries in which this method of assisted reproductive technology is not
prohibited by law, and in cases where foreigners live in a state other than
the state of their citizenship – by the law of the state of their residence. A
proposed obligatory precondition for making an application for surrogacy is
a genetic connection of the child to at least one of the future parents and an
absence of direct genetic connection of the child with the surrogate mother.
It is probable that these discussed amendments (albeit with some
corrections) will be adopted in law.
Recent changes also mean that the minimum age of marriage is now 18
years for both men and women.
21.2 Which areas of law are most out-of-step? Which areas would you
most like to see reformed/changed?
Ukrainian family law is one of most innovative and advanced within
Europe. Nevertheless, there are some areas which need to be reformed.
The execution of court orders for children or alimony payable by the
other spouse still needs to be reformed and innovated. In practice the
enforcement of court alimony orders is at a very low level.
The other area of family law which needs to be reformed is surrogacy.
The legal framework in Ukraine is rather developed compared with most
European countries, however, some issues still need to be addressed. The
majority of difficulties arise after the child’s birth and espceially when the
foreign parents encounter problems in getting the child abroad to their
home. Surrogacy is allowed only in 15 countries; all other counties forbid
surrogacy, and some even make the practice a crime or only allow surrogacy
under certain conditions. For these reasons, the parents often encounter
problems in getting their surrogate born child abroad and in having their
paternity recognised in the country of their residence.
The most common gaps in Ukrainian surrogacy legislation, which need
reform, include:
(i) To provide obligatory legal advice to parents regarding the legal status
of their surrogate-born child in Ukraine as well as in the country of the
parents’ residence, the possibility to recognise their paternity in the
country of their residence;
(ii) To provide legal regulation for surrogacy agreements: to define in law
the subject of such agreements and addressthe issue of payments under
the surrogacy agreement and, the order of execution of the agreement.
Ukraine needs to adopt a law preventing domestic violence and creating a
social network to counteract domestic violence. A draft of such a law is now
being debated at the Supreme Council of Ukraine.

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