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Publications
Over the last years significant changes have taken place in the legal regulation of surrogacy program in Ukraine.

Irina Moroz, Partner at AGA Partners
(exclusively for Yurydychna Gazeta (Legal newspaper)

Ukraine is one of the several countries that allows married couples to give birth to a child through the Assisted Reproductive Technologies (hereinafter - ART) and provides opportunity to use it not only for Ukrainians, but for foreign couples as well. The main legal act, which regulates procedure for the application of ART, is the Order of the Ministry of Health Care of Ukraine No. 787 adopted on the 09 of September 2013 “On the Approval of the Procedure of Assisted Reproductive Technologies Application in Ukraine” (hereinafter - Order No. 787).

Unfortunately, Ukrainian legislation in the sphere of application of ART does not cover all aspects of the surrogacy program, especially when it comes to foreigners. However, it worth noting that in recent years there has been significant changes in the legal regulation of surrogacy programs, in particular:

  1. The right to undertake surrogacy program was given only for married couples, for husband and wife. Meanwhile, singles cannot exercise such a right. 
  2. The right to use donor gametes in surrogacy program was clearly provided by law.
  3. The need to confirm the genetic link between the parents or one of the parents and child was provided by law. Such connection must be confirmed by a certificate in the form prescribed by the Order № 787.
  4. The need to execute written consent of the surrogate mother’s husband in the form prescribed by the Order № 787 was provided by law.
  5. The need to execute notarized agreement between the surrogate mother and the couple was provided by law.

In 2012 the Parliament of Ukraine has been considering the draft law number 8282 “On Amending Some Laws of Ukraine” (regarding limitations in the use of assisted reproductive technologies). Most important aspects of the bill included:

-          Prohibition to establish the genetic link between the child and the surrogate mother, unless the surrogate mother is a relative;

-          Limitation of the age of surrogate mother;

-          An attempt to permit surrogacy programs for foreign couples.

However, the attempts to adopt that draft were not successful and that draft is still pending its further elaboration.

I would like to draw your attention to the legislation concerning the surrogacy application by foreign couples and legal aspects of recognition of parental rights over the child born through surrogacy programs in some countries.

Ukrainian legislation that prescribes surrogacy programs procedure for foreign couples requires major changes and improvement. However, while proposing amendments one should bear in mind the legal aspects of paternity for the child born via surrogacy programs in the foreign countries. Surrogacy is permitted in India, Ukraine, Georgia, Russia, and some states of America. France, Germany, Italy, Spain, Portugal, Bulgaria, Sweden prohibit the use of any form of surrogacy. In Belgium, Finland, law does not regulate the birth of the child through surrogacy programs. Australia, United Kingdom, Denmark, Israel, Canada, the Netherlands and some US states allow the use of non-commercial surrogacy only.

Ireland

Until recently, there was no legal regulation of surrogacy programs in Ireland. To fill this gap, the legislators drafted the Child and Family Relationship Bill (2014), which will enter into force after publication. The bill is expected to allow the use of a non-commercial surrogacy only. Surrogate mother will be entitled to obtain compensation only of reasonable costs, which may include medical expenses, relocation, the cost of medicines and compensation for lost earnings.

How can parents establish parental rights for a child born via surrogacy programs? Under Irish law, a woman who gave birth to a child is considered to be a mother of this child, and future parents have no parental rights over the child. However, the parents who gave birth to a baby abroad after passing through surrogacy program have the right to obtain parental rights for the child by a Court Order for a Declaration of Parentage and Guardianship. For example, we advised the Irish citizens who after passing through surrogacy program in Ukraine have successfully recognized their paternity rights for a child born in Ukraine by obtaining a court order in Ireland.

Great Britain

The case RE: X and Y (Foreign Surrogacy) 2010 had a precedential effect for the recognition of parental rights to a child born via foreign surrogacy program.

According to the provisions of Section 27 of Human Fertilization and Embryology Act 1990 ( hereinafter - Act) a woman who carried a child as the result of the placing in her of an embryo is considered to be  a  mother of the child, regardless of where fertilization was done and where she was at the time of placing in her of the embryo. English court practice recognizes this provision as extra-territorial, i.e. applicable even when the parents were passing the surrogacy program in another country. British parents can establish their paternity by obtaining a Parental Order. Future parents should meet the following requirements of Section 30 of the Act in order to successfully fill application for Parental Order:

1. The husband and the wife must apply for the order within six months of the birth of the child.

2. At the time of the application and of the making of the order the child’s home must be with the husband and the wife, and the husband or the wife, or both of them, must be domiciled in a part of the United Kingdom or in the Channel Islands or the Isle of Man.

3. At the time of the making of the order both the husband and the wife must have attained the age of eighteen.

4. The father of the child (including a person who is the father by virtue of section 28 of this Act), where he is not the husband, and the woman who carried the child must have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

5. The woman who carried the child should give the agreement for making of the order not less than six weeks after the child’s birth.

6. The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the husband or the wife for or in consideration of—

(a) the making of the order,

(b) any agreement required by item(4) above,

(c) the handing over of the child to the husband and the wife, or

(d) the making of any arrangements with a view to the making of the order, unless authorized by the court.

In the above case, the court found that "reasonable costs" that may be reimbursed to surrogate mother in terms of item. 5 above may include loss of earnings, cost of treatment, medicine etc. According to the agreement signed between the surrogate mother and parents, the surrogate mother received compensation of 235 euros per month, and a fixed compensation of 25 000 euro. At the same time, 80% of this amount was paid to surrogate mother after giving her notarized consent to register parents in the birth certificate of the child, and the balance was paid to surrogate mother after giving her written consent to parents for making of parental order in England. The court concluded that these costs exceed the amount of «reasonable expenses» incurred by a surrogate mother and were in contradiction with the requirements of the Act. However, the court granted the Parental Order and found this compensation legitimate based on the principle of the welfare of children and the priority of the interests of children. Furthermore, the court noted that the lawfulness of such costs is a question of interpretation of the facts of each case and the parents who undertake treatment program abroad have to be very careful when agreeing all payments under the contract of surrogacy that might be legal in the country of medical treatment and illegal in the country of residence of parents and eventually become an obstacle to the establishment of parental rights over the child. The subject of a separate legal analysis in this case was also the good faith of parents and lack of fraudulent intent.

In one more case Re: IJ (A Child), 2011, concerning the recognition of parental rights over a child born in Ukraine using surrogacy, the court emphasized that foreign jurisdiction may provide commissioning parents with the legal status of parents, however this status is not recognized by national laws of England. Parents who go abroad to undertake the surrogacy program should receive professional advice in order to be sure that signed documents will comply with the national laws of England, not only in respect of matters of immigration, but also in relation to payments and will not be an obstacle for parents to recognize their parental rights in England.

The rules of law of England and Ireland indicate that obtaining a certificate of the child's birth in Ukraine is only the beginning of the legal path that parents should undertake to establish their parental rights over the child in the country of residence. Thus, the peculiarities of legal regulation of surrogacy in the country of residence must be considered at the initial stage of the paperwork with the clinic and the surrogate mother. Particular attention should be drawn to the payments made under surrogacy agreements.

Another important issue that should be mentioned is the lack of appropriate legal advice for foreign couples concerning the legal status of the born child and the procedure of establishing of parental rights for the child. This is the reason why different problems appear with obtaining travel documents for the child, registration of citizenship and establishment of parental rights to the child in the country of residence of foreign parents.

Problems that occur in conjunction with surrogacy programs for foreign couples cannot be resolved by simple prohibition or allowance to apply surrogacy programs. There are  number of foreign countries where having a baby via surrogacy is permitted under certain requirements.

Summarizing all the above, we can conclude that Ukrainian legislation in the sphere of surrogacy treatment should be improved in the following areas:

1. Legal advice to future parents.  To provide in law the need for foreign couples to obtain legal advice in the home country and in Ukraine concerning the legal status of the surrogate born child, rights and duties of parents.

2. Legal regulation of surrogacy agreement. To provide in law legal definition of the surrogacy agreement, payments under the agreement, the form of the agreement.

3. State control of the clinics. To provide strict control over compliance with legislation concerning ART application and prescribe the clinics’ liability for violations of requirements of the Order No. 787.

Ukrainian legislation on the application of the ART keeps up with the development of new technologies and provides the opportunity for couples to feel the happiness of parenthood, even when nature creates barriers to it. However, practicing lawyers in this field should remember that foreign couples can successfully establish parental rights over the child only when they comply with the requirements of Ukrainian legislation as well as with the laws of the country of residence of the future parents.

Irina Moroz, Partner at AGA Partners

17.11.14
Today one of the parents has all possibilities to use new mechanisms of recovery of maintenance between state parties to the Convention on international recovery of child support and other forms of family maintenance.

Irina Moroz
(exclusively for “Yuridicheskaya Praktika”)

Now the Convention is being applied between Ukraine and Albania, Norway, Bosnia and Herzegovina. Since August 1, 2014 the Convention has come into force in the countries of European Union.

In comparison with New York Convention on the Recovery Abroad of Maintenance of 20 June 1956, the Convention provides greater opportunities for the recovery of maintenance abroad. The innovations that can be mentioned are: availability to receive preliminary information about the place of residence and financial situation of the defendant, possibility to recognize parentage for the recovery of maintenance, possibility of recognition and enforcement of the maintenance agreements.

Upon ratification of the Convention, Ukraine made a reservation and asserted its right not to recognize and not to enforce the maintenance agreements. In connection with this reservation, recognition and enforcement of the maintenance agreements, concluded in another country could be impeded in Ukraine. Nevertheless, the Convention provides the basis in order to recognize and enforce the maintenance agreements signed in Ukraine in another country.

At its core, the Convention could be applied not only to the citizens of foreign states, that are participants to the Convention but also to foreign citizens, whom  are long-time residents or habitually reside on the territory of participant state. For example, these are persons, who are temporarily and legally working on the territory of foreign country.

Scope of the Convention

Each State, by ratifying the Convention, has right to set specific types of maintenance, covered by the Convention. Ukraine, in turn, upon ratification of the Convention, has set up that the Convention is being applied to obligation of maintenance of a child under the age of 18 years. In addition, Articles 5, 8 of the Convention provide opportunity to apply for the recognition and enforcement of decisions regarding maintenance recovery:

-from parents to adult incapable children;

-from parents to adult children continuing their education until the age of 23;

-from adult children to incapable parents;

-from grandmother or grandfather in favour of grandchildren, who have not reached the age of majority;

-from adult grandchildren, great- grandchildren to incapable grandmother, grandfather, great-grandmother, great- grandfather;

-from adult brothers, sisters to brothers, sisters, who have not reached the age of majority and adult incapable brothers and sisters;

-from stepmother, stepfather to stepdaughter, stepson who has not reached the age of majority;

-from adult stepdaughter, stepson to incapable stepmother, stepfather.

We are focusing more in detail on the analysis of mechanisms of maintenance recovery for the child up to 18 years.

Preliminary Measures

The applicant has right to submit application to the central authority of another country with a request to take specific preliminary measures to establish place of location of the debtor, to receive information about his income and financial situation, to receive the documents, that could be used as evidences, to establish paternity with the view of further recovery of maintenance and apply for interim measures. Thus, the Convention gives opportunity to preliminary find out perspectives of submitting of the application to the requested state and assists the applicant in preparation of the documents for application. Application of the preliminary request is not mandatory and can be exercised at discretion of the applicant.

Available Applications

If the applicant decides to submit the application, he can request for:

-recognition or recognition and enforcement of a decision, regarding recovery of maintenance, made in the requesting state;

-enforcement of a decision, made or recognized in the requested State;

-establishment of a decision in the requested State, in case if a decision on recovery of maintenance has not been made yet, or if necessary, establishment of parentage;

-establishment of a decision in the requested state, where recognition and enforcement of a decision is not possible;

-modification of a decision made in the requested state;

-modification of a decision made in a state other than the requesting state.

One of the most interesting mechanisms is opportunity to receive a decision on the recovery of maintenance in the debtor’s country of residence and subsequently enforce it, that provides facilities to apply the legislation of another country for determination of amount of the child support and impose provisional measures, that as a result secure more effective and fast enforcement of a decision.

Some practical tips for the application of this mechanism may be found in the guidelines of the application of the Convention in the Northern Ireland of Great Britain.

While making a decision on determination of amount of the child support, the Court will apply only the material and procedural law of England. Under the English law, child support may include: periodic payments for maintenance, payments in fixed amount, child care costs, expenditures for additional training, health -care expenses etc. Child support payments in each case are established individually, taking into account the peculiarities of development of the child, health condition and creative skills and may include other fees, which the party incur in the up-bringing of the child.

The specific feature of the English jurisdiction is possibility to establish the child support for the past time. Child support may be established from the date of the child’s birth or the date of the filling of a claim for support.

Child support payments are usually established until the child reaches 17 years. In case of continuation of studying, probation training, incapacity of a child or in other cases, the alimony may be established up to 18 years or even more.

Responsibility for Evasion

In case of evasion of the debtor from child support payments, the debtor may be prosecuted or deprived of licensed documents, such as driver’s license. To use coercive measures against the debtor, the applicant should prove intentional evasion of the debtor to pay alimony and to exhaust all the available mechanisms for the enforcement of the decision or prove that all the available methods of enforcement are ineffective.

Such coercive measures may include: wage withholding; seizure of bank accounts and other financial resources; seizure or confiscation of property or assets; tax refund withholding; withholding or attachment of pension benefits; withholding or seizure of lump-sum payments; denial, suspension or revocation of various licenses; imprisonment.

The central authority in Northern Ireland organizes all the available procedures regarding recovery of maintenance in accordance with the provisions of the Convention. In case of necessity, the central authority also provides free legal assistance.

The Convention recently has come into force in Ukraine. At present, the Ministry of Justice of Ukraine that acts as the Central Authority has not yet adopted the instruction that details order of implementation of the Convention in Ukraine. The judicial practice of its application has not been developed yet. Despite this, today one of the parents has the ability to run in action new mechanisms of recovery of maintenance between state parties of the Convention.

However, in each case, practitioners must carefully analyse available mechanisms taking into account the peculiarities of legal system of involved foreign State, determine and subsequently apply the most effective methods, that help to achieve the final goal and obtain child support payments promptly.

Irina Moroz

Partner AGA Partners Law Firm

YP № 30-31 of August 12, 2014.

08.08.14
It is possible to prevent large drawdown of funds by the respondent using the Worldwide Freezing Order

Dmitry Koval
(exclusively for "Yuridicheskaya praktika")

The article is available in Russian only.

11.07.14
Protection of property rights in case of non-payment in the scope of international sales of commodities and agricultural products.

Ivan Kasynyuk, Partner of AGA Partners law firm
(exclusively for "Yurist i zakon")

The article is available in Russian only.

05.07.14
Upon conducting pre-arbitration correspondence not only subject of the dispute should be taken into account, but also jurisdiction in which the case would be considered.

Elena Perepelinskaya
Dmitry Koval
(exclusively for "Yuridicheskaya praktika")

The article is available in Russian only.

11.03.14
Please kindly find below our key advices for the intended parents from abroad who go to Ukraine to use the assisted reproductory technologies services

Key Advices for Intended Parents Who Go to Ukraine to Have Children through ART

Ukraine is one of not numerous states that have legally provided the use of assisted reproductive technologies.

The methods of treatment by assisted reproductive technologies include: in-vitro fertilization (IVF); insemination; application of donors gametal cells and embryos; surrogacy motherhood.

Under Ukrainian law, the intended parents are considered as the patients of assisted reproductive technologies treatment and shall pass the treatment according to Order of the Ministry of Health of Ukraine No. 787 adopted on the 09 of September 2013 “On the Approval of the Procedure of assisted reproductive technologies appliance in Ukraine” (hereinafter Order No. 787).

The relations with medical institution are designed by filling the necessary applications by the patients (intended parents). Order No. 787 provides the forms of these applications.

Assisted reproductive technologies shall be applied only under medical indications by the written free will of the patient and by the statement of the patient (patients) concerning the application of assisted reproductive technologies, (the form of this statement is provided by the Order No. 787).

ART can be carried out only in Ukrainian clinics that are licensed to the business of medical practice, hold accreditation certificate and own appropriate equipment and machinery.

Intended parents have the right to choose freely the clinic on their own discretion, there is no need to receive official direction for treatment.

It is allowed to use assisted reproductive technologies only for married couples.

Intended parents file all necessary documents directly in the clinic. The issue regarding the method of treatment to apply is solved after the intended parents file application in clinic and pass the appropriate medical examination.

The scheme of application of ART is as following:

  1. Intended parents choose the clinic; agree the terms of their cooperation and fees.
  2. Execute necessary documents in clinic, pass examination and treatment, carry the pregnancy, and gave birth to a child.
  3. Register the childbirth according to Ukrainian law.
  4. Receive child travel document at the consulate (embassy) of their country situated in Ukraine.
  5. Take the child abroad.

Ukrainian legislation recognizes the intended parents as the sole legal parents of a child born with assisted reproductive technologies; accordingly, they bear all parental rights under Ukrainian law and are obliged to register the child birth in accordance with the requirements of Ukrainian law.

Those couples who temporarily enter Ukraine for treatment with assisted reproductive technologies do not have any right to receive state monetary support for child birth with the assisted reproductive technologies. Foreigners have right to receive state monetary support for the child birth only if they live on the territory of Ukraine permanently.

The costs for medical treatment with assisted reproductive technologies differ depending from the methods of treatment, clinic tariffs for services, the scope of services, attempts of fertilization etc.

To take the child through Ukrainian border custom authorities, apart from the child certificate of birth, will require travel document for the child issued by the consulate of parents’ country of residence. 

Ukraine has set free visa regime for citizens of US, Canada, Japan, European Union countries, Norway, Monaco, San Marino, Andorra, Iceland, Swiss Confederation and Liechtenstein. Free visa regime is established for the period of up to 90 days staying in the country.

If intended parents come from the country that does not have free visa regime with Ukraine the possible solution for them is to get short term visa marked as type C or VC.  Short term visa is processed as one-time, two-time or multiple visa for the period of six month or other period, depending from the documents which are the basis to process visa but no longer than for 5 years period.

The ground to process visa may be invitation from medical institution of Ukraine.

Unfortunately, Ukrainian insurance companies do not have insurance programs covering treatment by supporting reproductive technologies (including surrogate motherhood).  Therefore, intended parents shall personally bear all expenses of supporting reproductive technologies treatment.

Surrogacy Motherhood

One of the methods of ART treatment is surrogacy motherhood. Only married spouses have the right to use surrogate motherhood method.  The intended parents have to pass medical examination in the clinic and file at the clinic all necessary documents among which the application for use of assisted reproductive technologies treatment, the application of the recipient of donor gametal cell etc.

Intended parents may use surrogate motherhood method only under certain medical indications provided by the Order (e.g. absence of womb, unsuccessful 4 or more attempts to use assisted reproductive technologies treatment, difficult somatic disease that make impossible to carry the pregnancy, deformation of womb etc.).

It is worth to pay attention that surrogate mother cannot be biologically connected with the child. Therefore, the surrogacy motherhood in Ukraine is allowed only with use of spouses and donors gametal cells.

Usually each clinic has its database of potential surrogate mothers and the intended parents have opportunity to choose the woman from this database. The surrogate mother may also be the woman acquainted with the intended parents or their relative, provided she meets particular requirements.

List of documents to be submitted by a surrogate mother:

-          application of a surrogate mother;

-          copy of the passport of a surrogate mother;

-          copy of marriage certificate or divorce of surrogate mother (exception for single women);

-          copy of the birth certificate of the child (children);

-          consent of the husband of a surrogate mother for her participation in the surrogacy program (exception for single women).

The list of documents required from intended parents:

-          statement of patient/patients on the use of ART;

-          copies of passports;

-          copy of marriage certificate;

-          notarized copy of the written joint agreement between the surrogate mother and spouses.

The intended parents are recognized automatically as the parents of a child by virtue of law provisions and are registered as the sole legal parents of a child on child certificate of birth.

To register the child birth the intended parents shall also submit to register office:

  • Notarized written consent of the surrogate mother to record the spouses as the parents of child;
  • Certificate verifying genetic connection of the parents (father or mother) with the child;

Surrogacy motherhood is allowed only in 15 countries, the rest of counties forbid it, establish criminal responsibility or allow under certain conditions. Some countries permit only non-commercial surrogacy and very often recognition of the spouse’s paternity over the surrogate born child is possible only through the court proceeding (England, Ireland).

The fact is that in the majority of cases, legal recognition of the spouses’ paternity in Ukraine does not create any parental rights for them in the country of their residence. Therefore, before entering Ukraine for surrogacy arrangements it is necessary to investigate the legal regulation of surrogacy in the domestic jurisdiction of foreign parents and make sure that there is a legal possibility to take the child home and recognize the paternity in the country of the parent’s residence.

Assisted reproductive technologies are lawful in Ukraine and are recognized as the methods of infertility treatment. Ukrainian jurisdiction allows for intended parents to be legally recognized as the parents of the child and to be registered as such in child certificate of birth. However, Ukrainian recognition of child paternity does not create any grounds for the intended parents to recognize their paternity in the country of their domicile if assisted reproductive technologies are restricted or forbidden there. Therefore, before entering Ukraine for assisted reproductive technologies treatment, intended parents have to consider all legal aspects of their paternity recognition in Ukraine and abroad and receive competent legal counselling. Only cognizance of domestic and Ukrainian law may serve as a good pledge of their legal paternity over the tiny baby.

10.02.14
Convention contains limiting list of the circumstances upon which the court can deny the return of the child

Irina Moroz, Partner of AGA Partners law firm
Alexander Gubin, Lawyer of AGA Partners law firm
(exclusively for «Yuridicheskaya praktika»)

The article is available in Russian only.

07.02.14
Sound understanding of fact to be proven - is the ground for successful consideration of the application on return of the child under Hague Convention 1980.

Irina Moroz, Partner of AGA Partners law firm
Alexander Gubin, Lawyer of AGA Partners law firm
(exclusively for «Yuridicheskaya praktika»)

The article is available in Russian only.

22.12.13
This is second comparative edition of family law in 46 of the world’s principal jurisdictions. It provides as essential resourse to family law professionals around the globe for the purposes of dealing with international cases.

Aminat Suleymanova, Managing Partner of AGA Partners Law Firm,
Ivan Kasynyuk and Irina Moroz, Senior Associates of AGA Partners Law Firm.

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.

To purchase the book, please visit the Thomson Reuters/Sweet & Maxwell website:

http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=610526&recordid=5483

14.09.13
International recognition

"We managed to minimise our legal practice in Ukrainian jurisdiction" - says Managing Partner of AGA Partners Law Firm, Aminat Suleymanova

The article is available only in Russian.

10.09.13
Ivan Kasynyuk as an expert comments on arbitration issues in Yuridichna gazeta
The article is available in Ukrainian only.
 
12.04.13
This is the first comparative edition of family law in 31 of the world’s principal jurisdictions.

Aminat Suleymanova, Managing Partner of AGA Partners Law Firm,
Ivan Kasynyuk and Irina Moroz, Senior Associates of AGA Partners Law Firm.

A: JURISDICTION AND CONFLICT OF LAW

1. SOURCES OF LAW

  • 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. A 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.

The Ukraine ratified the Convention on the Rights of the Child in 1991. International conventions (treaties) that have been ratified by the Verhovna Rada of Ukraine are a substantial part of the Ukrainian legislation and, therefore, the Convention is a part of the Ukrainian law. In fact, if the Ukrainian law on the Protection of Children conflicts with the Convention, the international law will apply.

  • Which are the main statutes governing matrimonial law in the jurisdiction?

The 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 the principles of 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.

Pursuant to Article 1 of the Civil Code of Ukraine 2003, civil legislation regulates personal non-property and property relations (civil relations) based on judicial equality, free will expression and property independence of their participants. The matrimonial relationship is a substantial part of civil legislation.

 

2. JURISDICTION

•    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 at 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. The courts consider cases on the protection of violated, non-recognised or disputed civil rights and freedom or interests.

A separate chapter in the Civil Procedure Code defines the procedure for cases involving the participation of foreigners. Pursuant to family disputes, they have procedural rights and duties equally with natural persons of the Ukraine.

The representative of parties to civil proceedings may be an attorney or another person who is over eighteen years of age and has civil procedural capability with certified authorities, and will be representative in court, except in cases where personal participation required.

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 citizen living in the Ukraine or abroad may apply to a Ukrainian court only in specific cases, namely:

  • if the spouses indicated the jurisdiction of the Ukrainian courts in their agreement;
  • if the defendant spouse has their residence, immovable or movable property, in the territory of Ukraine;
  • if the ground for the claim took place in the territory of the Ukraine (eg, the pre-nuptial agreement was concluded in the territory of the Ukraine; the spouses got married in the territory of the Ukraine);
  • in other cases foreseen by the international agreements and laws of the Ukraine.

A Ukrainian citizen is also obliged to apply to a Ukrainian court if the dispute concerns real estate located in the territory of the Ukraine. In the case where both spouses are nationals of the Ukraine, they may apply to a Ukrainian court irrespective of their habitual residence.

 

3. DOMICILE AND HABITUAL RESIDENCE

•   Explain the concepts of domicile and habitual residence as they apply to the jurisdiction.

The civil jurisdiction regime in the Ukraine is formally based on the principle of conclusiveness and does not affect habitual residence. 

Freedom of movement and choice of the place of residence in the territory of the Ukraine shall be guaranteed to the citizens of the Ukraine, foreigners and stateless persons who stay in the Ukraine legally. 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 the Ukraine.

According to the law of the Ukraine on Freedom of Movement and Free Choice of Place of Residence in Ukraine 2004, habitual residence is normally understood as the place of permanent residence or, in case of absence, the place where the person resides for over six months of the year.

A claim to the Ukrainian court may be initiated in respect of the habitual residence of respondent or the habitual residence of the plaintiff in alimony, paternity and/or divorce cases.

Foreigners and stateless persons are eligible to apply to the courts of the Ukraine for the protection of their rights, freedom or interests. 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

•   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 the case where one of the parties during a Ukrainian court proceeding applies in favour of foreign jurisdiction, it is for the court only to decide whether it is in position to have jurisdiction over the dispute.

According to the law of Ukraine on International Public Law 2005, parties may independently choose the law that shall apply to legal relations. The choice of law shall be clear follow directly from the actions of the parties to legal proceeding.

Application of a norm of a foreign state shall not be limited, by reason of the fact that this norm is part of public law. While determining the applicable law, the court shall be guided by the interpretation of norms and notions according to the law of the Ukraine, unless otherwise is envisaged by law. If the content of the legal norms of a foreign state has not been established in reasonable time, the law of the Ukraine shall apply.

The court shall apply foreign law regardless of whether the law of the Ukraine is applicable to similar legal relations in the respective foreign state, except for cases where the application of the law of a foreign state on a mutual basis is envisaged by a law of the Ukraine or an international agreement of the Ukraine.

In the absence of a pre-nuptial agreement on applicable law, it is for the court to initially seek to apply the following:

  • the shared national law of the spouses (if both are foreign nationals); or in the absence of this;
  • the law of the state where the spouses had their last common place of residence, provided that one spouse remains there and is a national; or in the absence of this;
  • the law of the state most closely connected with the spouses.

 

B: PRE AND POST-NUPTIAL AGREEMENTS

5. VALIDITY OF PRE AND POST NUPTIAL AGREEMENTS

•    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. Spouses may indicate the jurisdiction of the Ukrainian courts in their agreement.

A Ukrainian pre-nuptial agreement is described as a carriage contract 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 marriage, it shall come into effect from the date of the state registration of marriage. It shall not regulate the personal relations of a married couple, or personal relations between the married couple and children. A marriage contract is dealt only with privity (property relationships) and specifies the rights and duties of the spouses. A marriage contract may be cancelled on the demand of one of the parties only on the basis of a judicial decision or by mutual consent of both spouses.

There is undoubtedly an incentive for the higher net worth divorcing spouse to seek a watertight pre-nuptial agreement to reduce the impact of the law, whilst still allowing them to enjoy its comparative benefits. The comparative harshness of the jurisdiction to the lower net worth spouse is important to consider, as it is against this subjective standard that a pre-nuptial agreement will be judged for whether it places a lower net worth spouse in ’an extremely disadvantageous material situation’. If the metaphorical bar is low, a marriage agreement that appears objectively unfair may still survive, to the benefit of the higher net worth client.

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 children expenses 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 a pre-nuptial, 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

  • Summarise the position in your jurisdiction.

The Law of Ukraine on Private International Law 2005 sets the procedure for the regulation of private legal relations which are related through at least one of their elements to one or some legal orders different from the Ukrainian legal order and includes the material aspects of foreign marriages/divorces recognition.

Article 58 on The Law of Ukraine on Private International Law states that marriage  recognised by the law of foreign state, regardless of the nationality of spouses, is valid and enforceable in the Ukraine.

The applicable law of the spouses specifies the procedure of divorce/annulment of marriage(Article 63 of the law of the Ukraine of Private International Law)

Documents issued by the authorised bodies of foreign states according to the set form shall be valid in the Ukraine in the case of their legalisation, unless it is otherwise envisaged by a law or an international agreement of the Ukraine.

 

7. DIVORCE

•    Give an explanation of grounds for divorce within the jurisdiction (please also deal with nullity and judicial separation if appropriate).

Under the law of the Ukraine of Private International Law, the divorce matters of spouses shall be regulated by personal joint law or, in the case of its absence, by the law of the state where the spouses had their last place of residence, provided at least one spouse resides in that state, or in case of that absence, by the law of the state most closely connected with the spouses. In any case, the choice of law during the divorce procedure is restricted by the personal law of one spouse.

The Ukraine follows the regional trend of offering considerable advantages to a higher net worth spouse seeking to guard against the possibility of future divorce. The breakdown of marriage is the only formal ground for divorce. Even without a pre-nuptial agreement, the jurisdiction demands strictly limited obligations for maintenance and a refusal to consider assets invested in offshore trusts or companies.

The Family Code of Ukraine envisages that, for breaking marriage relations, the interested party shall apply to the body of state civil state acts registration and, in some cases, to the court. While settling a family dispute the court, on the application of the interested party, may take into account local custom as well as the customs of the national minority that either parties or one of them refers to, if the customs do not contradict the requirements mentioned in the Family Code, other laws of the Ukraine and public moral.

The court is not obliged to enquire about the reason(s) for divorce and the spouses can apply for divorce on the ground of mutual consent. In a case where one of the spouses does not give their consent to the dissolution of the marriage, the court will give a reconciliation period. After this period of time has elapsed, the court will establish irretrievable breakdown and grant a decree. The marriage is finally dissolved on registration of the divorce in the state civil state acts registration.

The circumstances where a marriage may be nullified by the Ukrainian court are:

the marriage was concluded with a person under the age of consent and legally not allowed to marry;

  • the marriage was registered with a previously married person;
  • the marriage exists as a result of mental or physical violence;
  • the marriage was registered between an adopter and the adopted;
  • the marriage is with person who has concealed a serious disease to the other spouse;
  • 6the marriage is without the free consent of the spouses (a person during the marriage did not fully realise their actions and were unable to control it).

Article 119 of the Family Code of Ukraine provides the court with the option for both or one of the spouses, on their demand, to assign a judicial separation of habitual residence. The court also has the power to reverse a judgment. 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.

The judicial separation of spouses has some peculiarities. Property acquired by one of the spouses during the time of the judicial separation is considered to be separate personal property. A child born after the expiration of 10 months from the day of the judicial separation will not be considered to be from the husband.

 

8.         FINANCES/CAPITAL, PROPERTY

  • What powers does the court have to allocate financial resources and property on the breakdown of marriage?

The Family Code of the Ukraine determines the procedure for the division of property acquired before, as well as during the marriage, between the married couple after divorce.

A ‘common joint property’ regime is the default position for the property of spouses within the Ukraine, established by Article 60 of the Family Code. The court is in a position to have full power to allocate property and financial resources on the territory of the Ukraine. The court is likely to find that assets placed offshore in foreign companies or trusts are beyond its jurisdiction.

‘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, 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.

It is stipulated that the property acquired by a man and a woman who live together as a family, but who are not married (cohabitation regime), will be common considered joint property, if it is not otherwise set by a written agreement (marriage contract) between them.

The spouses may wish to vary this default regime in their agreement, re-designating present and future separate personal property and common joint property.

  • Explain and illustrate with reference to recent cases the court's thinking on
    division of assets.

On 21 of December 2007, the Supreme Court of the Ukraine interpreted the provisions of the Family and Civil Code of the Ukraine on the division of assets and stated that divorce itself does not effect a regime of the common joint property of the spouss. Divorce may effect a regime of the joint property in following cases only:

  • where the spouses dispose their property;
  • where the spouse after divorce evaluate the sum of the common joint property;
  • where the court determines the actual value of the joint property of the spouses;
  • where the court considers the family debts of the spouses during the procedure of division of property of the spouses.

 

9.       FINANCES/MAINTENANCE

  • Explain the operation of maintenance for spouses on an ongoing basis after the
    breakdown of marriage.

Article 76 of the Family Code of Ukraine determines that divorce does not make spouses free from maintenance obligations that originated during marriage. A former spouse is obliged to support the other in certain cases described in Article 75 of the Family Code of Ukraine if that spouse became disabled (ie, unable to work) during the marriage or within a year from the day 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.

  • Is it common for maintenance to be awarded?

Spouses are obliged to support each other materially during marriage, as well as after divorce. Article 77 of the Family Code of Ukraine provides that spouses are free to decide the manner of maintenance. The provision of maintenance is also possible through an agreement of a fixed sum of money or in natural (material) form. The family code assigns spouses support (alimonies) that are imposed by the court with a certain percentage of the total net income and to be fixed in money. Alimonies are to be paid on 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 the Ukraine, they may be obliged to pay alimonies in advance.

  • Explain and illustrate with reference to recent cases the court’s thinking on
    maintenance.

The Supreme Court of Ukraine interpreted the provisions of the Family and Civil code of Ukraine on the maintenance of spouses and stated that divorce does not make a former spouse free from the obligations of maintenance and a cohabitant spouse has the right to maintenance where they are unable to work during joint habitation.

 

10.    CHILD MAINTENANCE

•    On what basis is child maintenance calculated within the jurisdiction?

According to the Family Code of Ukraine, after the breakdown of the marriage, the parent is required to pay child support (alimonies). Maintenance is also possible through a support agreement. The Family Code of Ukraine states that child support is to be imposed by the court allowing a certain percentage 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 sum of alimonies 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 alimonies; the availability of other family members, children, availability of legally incapable wife(husband) and/or children from 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% of the minimum level of wage for one child. The minimum level of wage will be revised every year according to the law of the Ukraine upon the establishment of a living wage and a minimum wage.

 

11. RECIPROCAL ENFORCEMENT OF FINANCIAL ORDERS:

  • Summarise the position in your jurisdiction.

A variety of international bilateral and multilateral treaties exist between the Ukraine and other countries, which provide the enforcement of maintenance orders made in the Ukraine and vice-versa. Maintenance is defined as periodical payments. Sometimes it may include capital lump sums. The reciprocal enforcement proceedings available in each case depend on the terms of the treaty or other arrangements that are in place between the Ukraine and the other country concerned. Ratification of such treaty by Verhovna Rada of the Ukraine is a mandatory requirement.

The Civil Procedure Code of Ukraine 2005 defines two different procedures for the recognition and execution of a decision of the foreign court. The first establishes the order of execution with force and second on a voluntary basis.

In the Ukraine, the judgment of the international court is fully transportable only during a period of three years. An exclusion to this rule is periodical payments, which may be collected during a period of sanction (Articles. 390, 391 of the Civil Procedure Code of Ukraine). Due to the civil legislation of the Ukraine, it is necessary to commence a civil petition action in the local court of a general jurisdiction of the Ukraine to seek enforcement of a foreign judgment. Enforcement by this method is generally limited to the enforcement of a lump sum or costs orders.

 

12. FINANCIAL RELIEF AFTER FOREIGN DIVORCE PROCEEDINGS

  • What powers are available to make orders following a foreign divorce?

According to Article 398 of the Civil Procedure Code of Ukraine, after granting a positive decision, the court issues a writ on execution. The writ should be forwarded by the applicant to the execution authority of Ukraine, according to the law of the Ukraine on the Execution Procedure 1999. This law defines conditions and procedures for the execution of decisions of the courts, including divorce which, according to the law, shall be subject to forced execution in the case of their voluntary non-fulfilment.

The execution authority has powers which are strictly limited by the content of the Ukrainian court decision and which may also be granted solely on foreign court orders. 

Generally, the following legal measures for the forced execution of decisions are envisaged by the Ukrainian court as follows:

  • the imposition of a penalty on the debtor's property;
  • the imposition of a penalty on the debtor's salary (earnings), incomes, pensions, grants;
  • a seizure from the debtor, and transmission to the beneficiary, of some of the things indicated in the decision;
  • other measures stipulated by the decision.

 

D: CHILDREN

13. INTERNATIONAL ABDUCTION

  • Summarise the position in your jurisdiction.

The Ukraine follows a global trend of child protection. Firstly, the Ukraine ratified UN Convention on the Rights of a Child since 1991.

In 2006, Verhovna Rada of Ukraine passed the Act of Ukraine on Accession of Ukraine to Convention on the Civil Aspects of International Child Abduction.

The objectives of the present Convention are to secure the prompt return of children wrongfully removed to or retained in any contracting state and to ensure that the rights of custody and access under the law of one contracting state are effectively respected in the other contracting states.

Contracting states, including the Ukraine, shall take all of the appropriate measures to secure within their territories the implementation of the objectives of the Convention. For this purpose they shall use the most expeditious procedures available.

 

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

  •      Summarise the position in your jurisdiction.

Pursuant to Article 66 of the law of the Ukraine on International Private Law, the rights and duties of a child and their parents are determined by the personal law of a child and the parents or according to that law which is closest to the relevant relationships and is favourable for the child.

The private law of a child shall be the law of the state in which they are a citizen. If it is impossible to determine the applicable law, the law that is closest to the private legal relations of child shall apply. The law applicable to the private legal relations on the basis of conflict rule shall not be determined if an international agreement of the Ukraine envisages the application to the respective relations of material legal norms.

In cases envisaged by the law, the participant(s) of legal relations may independently choose the law that shall apply to their legal relations. The choice of the law shall be clear or follow directly from the actions of parties to the legal proceeding, the conditions of legal the proceedings or the circumstances of the case that are considered as a unity, unless otherwise is envisaged by law.

The choice of law, or a change from the previously chosen law, conducted after the commitment of legal proceedings have a reverse action and are valid from the moment of conducting the legal proceeding.

•       Under what circumstances may a parent apply to remove their child from the
         jurisdiction against the wishes of the other parent?

The court is in a position to decide whether it has jurisdiction to decide family disputes between the parents and the law of a child that is to be applied. The court relies upon article 66 of the law of the Ukraine on International Private Law and determines the most favourable and closest law for the child.

Exclusively, the courts of the Ukraine shall consider the cases with the participation of foreigners, provided that both parties to the case with regard to the legal relations between the parents and the children reside in Ukraine.



E: COHABITATION

15. COHABITATION

  • What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?

The main source of law on cohabitation in the Ukraine is the Family and Civil Code of Ukraine. The Ukraine has moved away from the most former Soviet states in its law on cohabitation. Under Article 74 of the Family Code, property acquired during any joint cohabitation within the Ukraine belongs to the parties by right of common joint property, unless otherwise provided for in an agreement. The effect of this, for parties who subsequently marry, is to widen the bracket of common joint property beyond assets acquired within the marriage to include those acquired while cohabiting.

In practice the Family Code has created a situation where, in the absence of a pre-nuptial agreement, the divorcing spouses apply for division of their assets (including assets arising from cohabitation) to a notary public officer. However, the notary lacks the power to rule on the status of any property that is not officially registered as being held in joint names. The notary must, therefore request a court decision. The court will then attempt to determine when any cohabitation began. This is not aided by the lack of either a formal Family Code test or a settled precedent. In practice this is settled evidentially on the basis of demonstrable joint property purchases while cohabiting or by witness testimony. The relevant period of cohabitation may be found to have begun abroad.

There must also be consideration for all property against Article 57, which defines ‘separate personal property’.

The cumulative effect of this is to introduce delay and uncertainty as to what will be held personal and what will be commonly shared. This makes it all the more important that the parties follow the suggested alternative of Article 74, and designate separate personal property and common joint property in an agreement.



F: OTHER

16.  CIVIL PARTNERSHIP/SAME SEX MARRIAGE

  • What is the status of civil partnership/same sex marriage within the jurisdiction?

According to Article 21 of the Family Code of the Ukraine, the family is defined as solely between a man and a woman who live together, who are connected by common everyday life and who have mutual rights and duties. Legislation for same-sex marriages in the Ukraine will probably not happen in the near future, due to a current legislative ban on same-sex marriage.

  • What legislation governs civil partnership/same sex marriage?

There is no provision for gay marriage/civil partnership in Ukrainian legislation.



17. CONTROVERSIAL AREAS/RAPIDLY DEVELOPING AREAS OF LAW

  • Is there a particular area of the law within the jurisdiction that is currently undergoing major change?

The government recently initiated changes to the Civil Code of Ukraine to ensure the effective and efficient handling of cases by the courts of the Ukraine on international child abduction.
The aims and objectives of the draft law is to facilitate the use by the Ukrainian courts of the Convention on the Civil Aspects of International Child Abduction, and to ensure an effective and efficient review of the relevant categories of cases in the interests of a child. The document particularly establishes rules of jurisdiction and determines the content of the statements, especially the cases for the return of a child who has not reached the age of sixteen under the Convention on the Civil Aspects of International Child Abduction. The bill also defines a list of issues which the court decides and the grounds for refusal to return the child, as well as the timing of cases at the courts of first instance and appellate courts.

The draft law is intended to create legislative conditions for the effective implementation of the Ukraine's international commitments under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

  • 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 and, as mentioned in the Ljubljana family law conference in 2007: ’the Ukraine creates European family Law’. Nevertheless, there are some areas which need to be reformed within Ukrainian family Law.

Gender equality in family law is one sphere which is expected to be reformed in the near future. In general, the Ukraine’s legislation upholds the rights of women and guarantees their protection. It establishes equality with men in their rights and duties. The Family Code of Ukraine, in general, protects women relatively well within the family context, but gender stereotyping is still pervasive.

The legal minimum age for marriage is 17 years of age for women and 18 years of age for men. The courts can authorise marriage from the age of 14 years if it is clear that ‘the marriage is in the person’s interests’. The incidence of early marriage is quite high for a European country. It is estimated that 10% of girls between 15 and 19 years of age are married, divorced or widowed. (UN report 2004).  

Parental authority in the Ukraine is shared by the mother and the father and parents have equal rights and responsibilities regarding their children’s development and education. However, social stereotypes within the family remain strong. It is not uncommon for men to divorce and then refuse to fulfill their parental obligations, which leaves mothers and their children with limited material resources.

Obviously, such women have legal options to pursue action against their ex-husbands, but the execution of such orders still needs to be reformed and innovated as the servicing of court alimony orders are at a very low level.

The other area of family law which needs to be reformed is surrogacy, which is more commonly used by couples to resolve problems arising from different reproductive dysfunctions which lead to the impossibility of conceiving and giving birth to a child in a natural way.

The legal framework in the Ukraine is far less developed than in most European countries and needs to be improved. This includes the rights and obligations of genetic parents, the legal relations between the parents and the surrogate mother and between the parents and the medical institution carrying out the procedure, defining parental rights for the future of the child, and the rights of all involved parties in terms of the confidentiality of the child's origin.

The primary legislative act in this sphere is the Family Code of Ukraine, which guarantees, according to Article 123, the unimpeded realisation of the rights of all citizens to motherhood and fatherhood. General procedure is provided by the Order on Approval of Conditions and Order of Employment of Artificial Insemination and Implantation of Embryo and Methods of their Performance, established by the Ministry of Health Care. An order outlines the detailed medical procedure of artificial insemination and embryo implantation.

Nevertheless, areas regarding the regulation of relationships between the involved parties still have omissions in their legal background supporting surrogate motherhood. The most common gaps in legislation, which are an open field and need change, include:

  • the responsibility for the blackmailing of future parents with abortion;
  • or the potential refusal to hand the child over to parents after the birth of the child;
  • the disclosure of information regarding the fact that the parents are using a surrogate mother's services in order to substantially increase the price for the services;
  • providing a pregnant women who has been dissuaded from aborting their pregnancy as a potential surrogate mother and the couple receive another child instead of one that is genetically related.

However, Ukrainian legislation does still leave some advantages to its citizens to resolve important issues on a contractual basis. 

05.04.13
The article is available in Russian only
В условиях современной международной торговли довольно часто встречаются ограничительные меры, осложняющие или делающие невозможным экспорт определенного вида товаров. Особенно важным и горячим этот вопрос является для экспортеров зерновых из Украины. Примерами ограничения экспорта могут быть: введение на Украине в 2008 и 2010 годах режима квотирования и лицензирования экспорта зерновых; запрет экспорта в Российскую Федерацию в 2010 году.

Ввиду того, что доминирующее большинство внешнеэкономических контрактов, особенно в сфере торговли зерновыми и масличными культурами, инкорпорируют английское право, приведем анализ формулировки положения о запрете, эффективно работающего в английской правовой системе, и в частности в арбитражной практике.

Режим запрета

Согласно общим принципам английского права, сторона может освобождаться от ответственности за неисполнение контракта в случае введения ограничений на экспорт, если такая возможность предусмотрена в самом контракте.

Стандартные формы договоров GAFTA и FOSFA, включают свою, специфическую дефиницию положения о запрете,  которая предусматривает возможность освобождения продавца от ответственности за неисполнение контракта в определенных случаях. К ним, в частности, относятся: запрет экспорта; блокады; военные действия; принятия исполнительного или законодательного акта, правительством страны происхождения товара либо страны, откуда будет производиться отгрузка товара, который ограничивает или запрещает экспорт.

В арбитражной практике выработаны некоторые правила применения положения о запрете, при соблюдении которых, продавец может ссылаться на них, и освобождаться от ответственности по контракту:

  1. Наступившие ограничительные обстоятельства должны охватываться контрактным положением о запрете. Введение режима квотирования и лицензирования некоторых видов зерновых из Украины в 2008 и 2010 годах подпадали под действие этого положения.
  2. Запрет должен быть введен путем принятия соответствующего законодательного или нормативного акта правительством страны происхождения товара. В ситуации, если государственные власти фактически ограничивают вывоз товара из страны, при этом, не принято соответствующего законодательного акта, сторона не может ссылаться на положение о запрете;  
  3. Контракт был подписан и заключен до момента возникновения обстоятельств запрещающих или ограничивающих экспорт. Если стороны подписали контракт уже в момент действия ограничительных  обстоятельств, положения о запрете применяться не будет, или будет применяться с ограничениями;
  4. Контрактный товар должен подпадать под режим запрета;
  5. Запрет должен действовать на протяжении всего контрактного периода.

Правовые последствия введения запрета в большинстве стандартных форм контрактов GAFTA и FOSFA заключаются в возможности продавца аннулировать контракт.

В связи с тем, что каждый контракт имеет свои особенности и детали, возможно рассмотреть лишь общие рекомендации, которые необходимо учитывать юридическим советникам в ситуации с введением запрета или ограничения экспорта.

В первую очередь, необходимо определить препятствуют ли возникшие для продавца обстоятельства исполнению контракта и могут ли они подпадать под положение о запрете. Также стоит соотнести срок поставки товара и период действия запрета. Если запрет охватывает период поставки только частично, продавец должен осуществить поставку в любые возможные периоды.

Несмотря на введенные ограничения, необходимо определить существует ли возможность и обязанность продавца поставить товар, осуществив дополнительные действия. Если да, - необходимо сделать все возможные законные действия для исполнения контракта.

И конечно же, обязательно уведомлять покупателя о возникших обстоятельствах ограничивающих экспорт и возможных сложностях с исполнением контракта.

Дальнейшие действия будут зависеть от установленного режима запрета и должны осуществляться в соответствие с контрактным положением о запрете.

Рамки ответственности 

Обычно сложности появляются в случае частичного ограничения экспорта: введения квотирования, лицензирования, запрета экспорта из отдельных портов и прочего.

Важно помнить, что основным принципом освобождения от ответственности в арбитраже при применении положения о запрете, является реальная невозможность исполнить контракт, в связи с введенными ограничениями.  Если у продавца будет обязанность и возможность в соответствии с контрактными положениями поставить товар предприняв дополнительные действия, он должен предпринять все возможные меры для того чтобы исполнить контракт. Например: получить лицензию, квоту; поставить товар из другой страны; поставить из другого порта; поставить другим видом транспорта (если контракт предусматривает такие возможности).

Объём продавца по осуществлению дополнительных действий для экспорта товара в режиме ограничения определяется положением контракта о порядке оформления товара для экспорта. Зачастую стороны прямо предусматривают в контракте обязанность продавца  получить экспортную лицензию, квоту, и/или какие-либо другие разрешения на экспорт товара, требуемые страной происхождения товара. Такое положение может применяться даже  по умолчанию в случае инкорпорации правил  ИКОТЕРМС.

При определении рамок ответственности продавца в арбитраже, особое внимание уделяется толкованию такого положения контракта. В английском праве степень ответственности продавца может, зависит от того, взял ли он на себя безусловную (absolutely) обязанность по получению лицензии или, обязывался осуществить только все необходимые (reasonable) действия для того чтобы получить лицензию или квоту.

Стоит отметить, что положение о запрете в контрактах GAFTA может преодолевать даже безусловную обязанность на получение квоты или лицензии. Прецедентным делом по данному вопросу, которое прошло все инстанции арбитража GAFTA и пересматривалось английским судом, является Pagnan Spa v. Tradax Ocean Transportation [1986] 2 Lloyd’s Rep. 646. В нем продавец не смог получить сертификат для экспорта товара, при этом нарушив свою безусловную (absolute) обязанность по его получению. Суд постановил освободить продавца от ответственности по контракту, в силу применения положений GAFTA 119 о запрете, которое, по мнению арбитража и суда, имеет преобладающее действие даже над безусловной обязанностью получить документы, необходимые для осуществления экспорта товара.  

Наиболее важным аспектом при применении положения о запрете является определение момента, когда контракт может быть расторгнут. Этот вопрос особенно актуален в ситуации, если режим экспорта товара может быть изменен или акт устанавливающий ограничение отменен. Слишком раннее аннулирование контракта может расцениваться как отказ от его исполнения. Поэтому продавцам стоит уведомлять о расторжение контракта после окончания контрактных сроков поставки с учетом всех возможных продлений.

В заключение, хочется подчеркнуть, что в данной статье изложены только некоторые нюансы применения положения о запрете. Хочется отметить, что только правильное применение положения о запрете может служить надежной гарантией освобождения от ответственности за неисполнение контракта и залогом успешного разрешения дела в арбитраже.

Юридическая практика № 8 (19.02)
МОРОЗ Ирина 
- старший юрист ЮФ AGA Partners, г.Киев

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The article is available in Russian only.

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AVELLUM and A.G.A. Partners announced that two law firms have agreed to combine effective 9 July 2018. This strategic combination brings together renowned transactional practice of AVELLUM and experienced dispute resolution practice of A.G.A. Partners.