Acquisition and sale of property in marriage: do I need the consent of the second spouse?

04.11.2017 | Legal

Joint property is the basis and an integral attribute of any Ukrainian family. New and used cars, houses, apartments, land plots are purchased every day. However, among other procedural nuances of registration of the purchase, people who are married and dissolving it, are interested in the question of the possibility of buying or selling property without the consent of the spouse. Such questions are most often expressed at the stage of termination of marriage relations and when the division of jointly acquired property begins. Let us consider how the situation is regulated at the legislative level.

As you know, treaties are different. There are contracts that are drawn up in simple written form, and there are also those that are subject to compulsory state registration and / or notarization. For example, a contract for the purchase of a car can be concluded in a simple written form, but the contract of rent or life-long maintenance, as well as the contract of sale of real estate (apartment, house or land) are subject to Art. 657 of the Civil Code of Ukraine with the obligatory notarial certificate. However, there are nuances. For example, in respect of cars, the Civil Code of Ukraine provides for certain exceptions to the general rule (simple written form) – mandatory notarization of the contract of hiring of vehicles with the participation of a physical person (page 799 of the Civil Code) and a vehicle loan agreement in which at least one of the parties acts an individual (Article 828 of the Civil Code). This means that the contract of buying a car on credit (through banking institutions) is subject to notarization.

And what about the joint property of the couple? Is the rights of the second spouse not protected? In accordance with Part 3 of Art. 65 of the Family Code of Ukraine, the conclusion of one of the spouses of a contract requiring notarization and / or state registration, as well as contracts relating to valuable property, the consent of the second spouse must be written. In this case, in cases when it comes to notarially certified contracts – consent is also subject to certification by a notary.

Further ч.ч. 2, 3 tbsp. 61 of the Family Code of Ukraine include money received by one of the spouses as a result of the transaction (including the sale of a car or an apartment) to the objects of joint joint property of the spouses. Part 2 of Art. 60 of the Code establishes the presumption of attributing property acquired during marriage to joint ownership. This indicates that the spouse must be informed in advance of what is acquired or sold by the second spouse during the marriage, as this directly affects their property status.

Part 2 of Art. 65 of the Family Code of Ukraine grants a wife or husband who has not given consent for the acquisition or disposal of property (including a car or a house), the right to apply to the court with a statement of claim to recognize such a transaction as invalid. The exception is only small household contracts for the purchase, for example, of household appliances.

However, do not rush to draw conclusions. Practitioners do not have a common opinion on the issue under consideration. Many lawyers argue that even in the case of a notarized contract for the sale of property, the compulsory consent of the second spouse can be avoided, and that’s how.

Part 3 of Art. 65 of the Family Code of Ukraine extends to the relationship by order of joint ownership by alienation of property. The funds paid by the buyer are not subject to alienation, as they can not be considered as the subject of the contract. Money is just a means of payment. When it comes to the question that the money paid was part of the family budget, it is almost impossible to prove their contribution to the budget. It can be personal money of the spouse. Hence, there are no grounds for recognizing the transaction as the requirements for the transaction provided for in Art. 203 of the Civil Code of Ukraine are observed.

Experts argue that the law is imperfect and the issue of the presence or absence of consent of the spouse for the transaction can be considered in different angles. At the same time, the existence of such consent, and even notarized, is a legal guarantee that the transaction can not be invalidated on the initiative of the second spouse.

One way or another, the need for the consent of the spouse to purchase or sell property should be established in each case individually. If you have planned a similar transaction, protect yourself by contacting an experienced specialist for assistance. Legal advice will help in more detail to consider your situation and to calculate the prospect of the development of events as a result of certain actions. If your spouse (or possibly the former) has already appealed to the court for the recognition of the transaction as invalid, you will need a family lawyer or a housing lawyer (in cases where the matter concerns real estate and housing). A lawyer will definitely find a way to protect your rights and interests, he will also be able to represent your interests in court, saving you time and money.

Remember, the key to successfully solving any problem is its prevention!

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