Supreme Court: Division of Marital Real Estate Requires a Notarised Agreement Between Spouses
⚖️ Ukraine | Family Disputes | Division of Marital Property
Case Details
Case No.: 266/5267/18
Proceedings No.: 61-6647св19
Court: Supreme Court, Third Judicial Chamber of the Civil Cassation Court
Decision Date: 19 February 2020
Case Category: Family Law
Subject Matter: Division of Marital Property / Inheritance
Sub-Subject: Agreement Between Spouses / Notarial Form / Division of Real Estate
Marriage Period: September 1960 – January 2004
Property in Dispute: Apartment acquired during marriage
Agreement in Dispute: Written agreement concluded between the former spouses in May 2004 concerning division of their jointly acquired property
Key Issue: Whether a simple written agreement between spouses is sufficient to divide jointly owned real estate
Outcome: Appellate judgment rejecting the claim was set aside; the Supreme Court confirmed that an agreement between spouses dividing jointly owned real estate must be notarised
Background of the Dispute
The case concerned a fundamental question about agreements between spouses concerning jointly owned real estate:
Can spouses divide jointly owned real estate by a simple written agreement, or must their agreement be notarised?
The claimant brought proceedings as an heir of her deceased mother seeking determination of the mother's share in the spouses' joint marital property and recognition of ownership of that share through inheritance.
The claimant's mother and the defendant had been married from September 1960 until January 2004.
During their marriage, an apartment was acquired. According to the 1991 sale and purchase agreement and registration certificate, the apartment was held as joint marital property.
In May 2004, after the marriage had ended, the claimant's parents entered into a written agreement which, according to the appellate court, represented an actual division of the property they had acquired during the marriage.
The agreement stated that the former spouses had no mutual claims concerning their property, including the apartment.
The mother subsequently bequeathed all of her property to the claimant.
The dispute therefore required the courts to determine whether the 2004 agreement had validly terminated the mother's ownership interest in the apartment.
The Appellate Court Treated the Written Agreement as a Valid Division
The first-instance court granted the claim.
The appellate court reversed that decision and rejected the claimant's demands.
Its reasoning was based substantially on the May 2004 agreement between the former spouses.
The appellate court considered that the parties had effectively divided their jointly acquired property and had agreed not to raise further property claims against each other.
On that basis, it concluded that the former wife's joint ownership of the apartment had ceased when the agreement was signed.
If that conclusion were correct, the claimant could not subsequently inherit a share of the apartment from her mother.
The Supreme Court disagreed with that approach.
Agreements Dividing Marital Real Estate Must Be Notarised
The Supreme Court referred to Article 69(2) of the Family Code of Ukraine.
That provision establishes a specific formal requirement where spouses agree to divide certain categories of jointly owned property.
An agreement concerning division of:
a residential house;
an apartment;
other immovable property; or
allocation of immovable property to one spouse from the spouses' entire property must be notarised.
The requirement is therefore not merely evidential or procedural.
It concerns the legally prescribed form of the transaction itself.
A Simple Written Agreement Is Not Enough
The May 2004 agreement relied upon by the appellate court had not been notarised.
The Supreme Court held that the statutory requirement governing agreements for division of marital real estate had therefore not been observed.
Accordingly:
The fact that spouses signed a written agreement stating that they had divided their property does not establish a legally effective division of jointly owned real estate where the agreement was not notarised.
The distinction is important.
A document may demonstrate that the parties intended to settle their property relationship, but where legislation requires a particular form for the transaction, the legal consequences depend on compliance with that requirement.
The Presumption of Joint Marital Ownership Continued to Apply
The Supreme Court also emphasised the general principle governing property acquired during marriage.
Acquisition of property while the parties are married creates a presumption of joint marital ownership.
This means that neither spouse is ordinarily required to prove separately that jointly acquired property belongs to both of them.
The apartment had been acquired during the parties' marriage and therefore fell within that presumption.
The appellate court had concluded that the mother's joint ownership subsequently ceased because of the 2004 agreement.
But that conclusion depended on treating the non-notarised agreement as legally effective for division of the apartment.
The Supreme Court found that approach incorrect.
The Formal Requirements Could Affect the Inheritance Claim
The issue was particularly significant because the original property dispute subsequently became an inheritance dispute.
The claimant's mother had bequeathed all property belonging to her to the claimant.
The claimant therefore sought recognition of the share in the apartment that, according to her case, had continued to belong to her mother until her death.
Whether the claimant could inherit that share depended in part on whether the mother's joint ownership had previously been terminated by a legally effective property-division agreement.
The Supreme Court's analysis meant that the appellate court could not simply rely on the non-notarised 2004 agreement as proof that the mother's ownership rights had ceased.
The Supreme Court’s Decision
The Supreme Court concluded that the appellate court had incorrectly treated the May 2004 simple written agreement as sufficient to establish division of the jointly owned apartment.
Under Article 69(2) of the Family Code of Ukraine, an agreement concerning division of jointly owned immovable property between spouses must be notarised.
That statutory requirement had not been satisfied.
The Supreme Court therefore set aside the judgment of the Donetsk Court of Appeal dated 20 March 2019 and remitted the case to the appellate court for a new hearing.
The Court did not simply substitute its own final determination of all aspects of the inheritance dispute. Instead, the appellate court was required to reconsider the case without treating the non-notarised agreement as a legally sufficient basis for division of the apartment.
Why This Decision Matters
1. A written agreement alone may not be sufficient
Where spouses divide jointly owned real estate, reducing their agreement to writing does not necessarily satisfy Ukrainian law.
2. Notarisation is required for division of marital real estate
An agreement concerning division of a house, apartment or other jointly owned immovable property must comply with the notarial-form requirement under Article 69 of the Family Code.
3. Informal property settlements can create future disputes
Even where former spouses consider their financial relationship settled, failure to comply with mandatory formalities may leave ownership questions unresolved.
4. The issue can extend beyond divorce proceedings
An ineffective property-division agreement can subsequently affect inheritance, creditor, sale and other property disputes.
5. Property acquired during marriage remains subject to the joint-ownership presumption
A party arguing that this ownership regime was subsequently terminated must establish a legally sufficient basis for that conclusion.
Lions Lawyers’ Analysis
This decision illustrates why formality is substantive in transactions involving marital real estate.
Former spouses may believe that signing a document stating that they have divided their property and have no further claims against each other finally resolves their ownership relationship. That assumption can be incorrect where Ukrainian legislation requires the relevant agreement to be notarised.
The practical consequences may emerge years later.
If one former spouse dies, sells the property, creates security over it or becomes involved in another property dispute, the validity of the earlier division can determine whether the other spouse — or that spouse's heirs — continues to hold an ownership interest.
For litigation purposes, it is therefore important not merely to establish that an agreement exists. Lawyers should examine what property the agreement covers, when it was concluded, what legal regime applied, whether mandatory formal requirements were observed and whether the transaction actually produced the claimed proprietary consequences.
The case is also a useful reminder that an inheritance dispute may depend on resolving an earlier family-property question. Before determining what passed to an heir, it may first be necessary to establish exactly what property the deceased spouse continued to own at the time of death.
Lions Lawyers advises clients on family and property disputes in Ukraine, including division of marital property, agreements between spouses, real estate, inheritance-related property disputes and cross-border family matters. We provide full-service legal representation as well as standalone legal opinions, enabling clients to assess their existing strategy and, where appropriate, identify alternative legal approaches.
GET IN TOUCH FOR A FREE 1-HOUR INITIAL CONSULTATION.