The legislative basis for the formulation of the right to refuse a marriage contract was Art.
As for the form of the marriage contract, the law requires a written form certified by a notary. No other official or official can certify such an agreement in Ukraine. However, it should be borne in mind that such strict conditions of the marriage contract a man may not accept, refusing to marry at all.
St. 94 of the IC does not determine the consequences of non-compliance with the requirement of notarization of the contract. In this situation, the subsidiary application of Art. 220 of the Civil Code of Ukraine.
Beginning and terms of the marriage contract
The moment of concluding a marriage contract and the beginning of its validity may not coincide. The contract is concluded before the registration of the marriage, enters into force on the day of registration of the marital status of the spouses, concluded by the spouses, enters into force on the day of its notarization. It is possible that the entry into force of the marriage contract or part of its terms may be related by the parties to the adjournment.
A suspensive circumstance is one in which it is not known in advance whether it will occur or not. Until the adjournment occurs, the entire contract or part of it seems to be dormant. As soon as it occurs, the rights and obligations under the contract take effect in full. Such a deferral condition may be divorce, separate residence, etc.
Sometimes the peculiarity of the marriage contract may be that its effect should begin only in the event of divorce.
As a rule, the parties do not determine the duration of the marriage contract, although they can agree on this. The parties may determine the duration of a particular property right, such as the period of residence of the spouse after the divorce or the period of validity of the alimony right of one of them.
The marriage contract is terminated in the event of the death of one of the spouses. That condition of the marriage contract, which gives the wife or husband the right to live in the apartment for life (ie personal easement), imposes a corresponding obligation on the deceased’s heir.
Definition of the legal regime in the marriage contract
The marriage contract may specify the property that one of the parties to the spouse transfers for use for the joint needs of the family, as well as the legal regime of the property donated by the spouse in connection with the registration of the marriage.
The main purpose of a marriage contract is often to level (cancel, soften) the provisions of Article 60 of the IC of Ukraine, which establishes a general rule: property acquired by the spouses during the marriage is the joint property of the spouses. According to Part 2 of Art. 97 of the IC, such property by agreement may be considered joint partial property or personal private property of each of them.
With the help of a marriage contract, a fair solution to the problem of division of property can be found. There may be several such decisions: to consider the property as joint partial property, with a definition for the husband, for example, 3/4, and for the wife – 1/4; to consider as personal property of everyone what is acquired for his income. The parties may agree to pay the wife monetary compensation without having the right to property acquired during the marriage for the husband’s income. The parties can determine in advance which share in the event of a division will belong to each of them and which real thing will be transferred to whom.
The Code provides for the possibility to stipulate in the marriage contract that the parents of one of them or a child from a https://123helpme.me/write-my-lab-report/ previous marriage will live in the couple’s apartment.
The parties may include in the contract any other conditions regarding the legal regime of property, its use to satisfy the interests of the spouses, children and other family members.
Definition in the marriage contract of the order of use of housing
The most problematic in the deterioration of marital relations is their cohabitation in one apartment.
According to Article 64 of the Housing Code of the USSR of 1983, the person whom the tenant moved into the apartment as a member of his family, in particular his wife or husband, has the right to housing on an equal footing with the tenant, and therefore "my" apartment becomes "ours" without any reservations.
According to Article 156 of the Housing Code, members of the family of the owner of a dwelling house, apartment living with him, use the apartment on an equal footing with the owner, unless there was another agreement on the procedure for using it.
Divorce does not terminate the right of the ex-wife or ex-husband to continue living in the apartment. This rule, which many people are unaware of, leads to the fact that one of the spouses often regrets that he neglected the possibility of concluding a marriage contract.
The marriage contract may specify the procedure for use, the grounds for eviction not only in respect of a dwelling that is the private property of one of the spouses, but also in respect of a dwelling of the state or cooperative housing stock (Part 1 of Article 98 of the Civil Code).
The parties may agree that from the moment of settlement the spouse will not have an independent right to housing and may be evicted at the request of the tenant at any time, as well as payment to the vacant, monetary compensation or transfer of other property ( Part 2 of Article 98 of the IC of Ukraine).
Definition in the marriage contract of the right to maintenance
According to Art. 75 of the Criminal Code, the right to maintenance arises from a spouse who is incapacitated and needs financial assistance. The marriage contract may provide for the right to maintenance for those who are able to work, as well as the right of one of the spouses to alimony, regardless of his financial status. At the same time, the right to alimony of a person who is able to work may be conditioned by other additional circumstances: the duration of cohabitation, the presence of children, continuing education, etc.
If the marriage contract specifies only the amount of alimony, the right to alimony will arise in the presence of general grounds, in accordance with Art. 75 SC.
The parties may agree on the termination of the right to maintenance, with the payment of monetary compensation, ie the payment of a kind of monetary resignation.
In Art. 99 of the Criminal Code presents only the main options for the maintenance agreement. The parties may include other conditions in the marriage contract. However, there can be no condition in a marriage contract under which a person is deprived of the right to maintenance that he or she has by law, or his or her interests are otherwise violated. Therefore, the condition of the contract, under which, for example, the wife will be entitled to alimony only if they have been married for at least ten years, will not be considered valid.
Therefore, a marriage contract may not deprive the spouse of the right to maintenance, which is determined by law, or change for the worse the conditions of its occurrence or implementation.
St. 99 of the Criminal Code establishes a simplified procedure for enforcement of the obligation to maintain. Granting a notary the right to make a writ of execution on a marriage contract confirms the fact that the notary is a body to protect the family rights of the person.
Changing the terms of the marriage contract
Because a marriage contract is a contract, it, like other contracts, cannot be insured against changes in life situations that may occur against the will of the wife or husband. That is why it is possible to make appropriate changes and additions to the marriage contract.
Only unilateral change of the terms of the marriage contract, ie at the will of only one party, is prohibited. The marriage contract can be changed at the will of the wife and husband at any time. If after the divorce the marriage contract has not expired, it may be changed by the ex-wife and husband by common will on general grounds.
St. 100 SC allows the possibility of making changes to the marriage contract on the basis of a court decision at the request of one of the spouses. But this, contrary to the position of Professor O. Dzera, cannot be considered a unilateral change in the terms of the agreement. To ensure the fairness of the court should compare how much the situation has changed compared to what existed at the time of the marriage contract, analyze the importance of the new interest of the plaintiff and on the basis of such analytical activities to conclude that the content of the marriage contract. In turn, the plaintiff must gather relevant evidence that if such an interest existed at the time of the marriage contract, he would not have signed it.
Provisions of Part 3 of Art. 100 of the Criminal Code is a means of protecting the interests of the weaker party, a kind of counterweight to those who are stronger, a warning against his attempts to establish in the marriage contract of his dictation. Thus, if the marriage contract stated that the wife’s share in the property during the marriage would be 1/10, then later in the case of her serious illness or disability of the child who remained with her, the wife would have grounds to go to court with a lawsuit to increase this share.
The right to refuse the marriage contract
Freedom of contract, which fully applies to the marriage contract, allows the spouses to renounce it. Such a refusal can also be filed by those whose marriage has been dissolved.
The legislative basis for the formulation of the right to refuse a marriage contract was Art. on the waiver of the transaction, which is first enshrined in Art. 214 of the Civil Code of Ukraine. According to Professor OV Dzera, in this situation it should not be a question of abandoning the contract, but of its termination.
But the waiver of the contract and the termination of the contract are different legal categories. Withdrawal from the contract results in bilateral restitution, and in case of termination of the contract it becomes invalid only for the future.
The marriage contract will cease to be valid from the moment of submitting such an application to the notary, which means that certain material benefits that have already been received under this contract will not be subject to return or monetary compensation.
Termination of the marriage contract
Termination of a marriage contract is possible when none of its conditions can be fulfilled either in its original or in a modified form. This can be caused by various circumstances, including the objective or subjective impossibility of their implementation. Objective impossibility of performance may be due, for example, to the destruction of property that provided income, and subjective – injury, serious illness, which precludes the possibility of one of the spouses to act personally.
The right to demand the termination of the marriage contract is given to one of the spouses. If the spouse is declared incapable, a corresponding action may be brought by the guardian or the guardianship authority. The plaintiff must prove that the ground that necessitated the termination of the marriage contract is essential.