VOLUNTARY DIVISION OF COMMON PROPERTY OF SPOUSES: EXPERIENCE OF UKRAINE AND FOREIGN COUNTRIES

Abstract

The scientific article examines the family legislation of Ukraine and foreign states (Austria, Bulgaria, Belgium, Denmark, France, Hungary, Sweden, etc.) regarding the voluntary division of joint property by concluding agreements. It is proven that the engaged have the right to conclude a marriage contract, which will enter into force from the date of marriage, which can not only regulate the property relations of the spouses, but also determine the legal regime of property and the possible procedure for its division, including after the dissolution of the marriage. Spouses have a similar right, but such a contract will begin to operate from the date of notarization. In addition, spouses have the right to conclude an agreement on the alienation of the share of one spouse to the other without its allocation, as well as to agree on the division of joint property, while the agreement on the division or allocation of real estate must be notarized. It is substantiated that the voluntary procedure for the division of joint property of spouses has a number of advantages compared to the forced one, first of all, the speed of the division of property, the absence of conflict between the parties, the possibility of departing from the principle of equality of shares.Problematic aspects of the notarial practice of certification of agreements on the division of joint property are identified. The peculiarities of the division of marital property under the legislation of Bulgaria, Belgium, Denmark, France, Slovenia, Sweden, and Hungary are established.Judicial practice in Ukraine is analyzed and it is revealed that courts apply the general provisions of the Civil Code of Ukraine regarding the recognition of agreements on the division of joint property of spouses as invalid, while a voluntary informed departure from the principle of equality of shares is allowed, only in the case of actual proof of the presence of errors or malicious agreement are agreements on the division of property recognized as invalid. Based on the analysis, the following groups of marital agreements on property and its division are distinguished: 1) depending on the subject composition (fiancée agreements, marital agreements and agreements of former spouses); 2) depending on the subject of the contract (complex contracts; direct contracts on the division of joint property and contracts that may be relevant for the division of property).