Supreme Court: Children Living With One Parent Does Not by Itself Justify a Larger Share of Marital Property
⚖️ Ukraine | Family Disputes | Division of Marital Property
Case Details
Case No.: 297/2837/17
Proceedings No.: 61-7846св19
Court: Supreme Court, Second Judicial Chamber of the Civil Cassation Court
Decision Date: 27 December 2019
Case Category: Family Law
Subject Matter: Division of Marital Property
Sub-Subject: Departure from Equal Shares / Interests of Children
Property in Dispute: Apartment
Claimed Division: 2/3 to the mother and 1/3 to the father
Outcome: Equal 1/2 shares maintained
Background of the Dispute
The case concerned whether a spouse should receive a larger share of jointly owned marital property because the couple's minor children lived with that spouse.
The parties had been married since November 2005 and had two children.
During their marriage, they acquired an apartment.
The claimant subsequently brought proceedings seeking:
dissolution of the marriage;
child maintenance;
division of the spouses' joint marital property; and
recognition of her ownership rights in part of the apartment.
The first-instance court partially granted the claim. The marriage was dissolved, child maintenance was awarded, and each spouse was recognised as owning a 1/2 share of the apartment.
The appellate court upheld that decision.
The claimant challenged the property division before the Supreme Court.
The Claim for a Larger Share of the Apartment
Before the Supreme Court, the claimant argued that the apartment should not be divided equally.
Instead, she sought:
2/3 of the apartment for herself, and
1/3 of the apartment for her former husband.
Her principal argument was that the couple's minor children lived with her and were financially supported by her.
She also argued that the respondent did not adequately provide for the family and avoided participating in the children's maintenance.
The Supreme Court therefore had to consider whether these circumstances justified departing from the statutory principle of equal shares in marital property.
The Legal Rule: Equal Shares Remain the Starting Point
The Supreme Court referred to Article 70 of the Family Code of Ukraine.
When spouses divide property forming part of their joint marital ownership, the general rule is that their respective shares are equal.
However, Article 70 permits a court, in certain circumstances, to depart from this principle.
The Court may take into account circumstances of substantial importance to the case, as well as the interests of minor or adult children who are unable to work.
Accordingly, Ukrainian law does not make equal division absolute.
But a spouse seeking more than one-half must establish circumstances sufficient to justify departure from the general rule.
Children Living With One Spouse Is Not Enough by Itself
The Supreme Court rejected the argument that the mere fact that the children lived with the claimant justified increasing her share of the apartment.
The Court stated, in substance, that:
The fact that children live with one of the spouses is not, by itself, a sufficient basis for increasing that spouse's share when jointly owned marital property is divided.
The Supreme Court therefore distinguished between considering children's interests and automatically awarding additional marital property to the parent with whom the children reside.
The existence of children and their residence with one parent may be relevant, but they do not automatically alter the spouses' property shares.
When Can a Court Depart From Equal Shares?
The Supreme Court explained that Article 70 of the Family Code permits departure from equality where circumstances of substantial importance have been established.
The source identifies examples that may potentially be relevant, including situations where one spouse:
failed to contribute to the family's material support;
concealed joint property;
destroyed or damaged joint property;
spent joint property contrary to the interests of the family; or
lacked independent earnings or income without a valid reason.
The Court may also take account of the interests of children in circumstances specified by Article 70.
However, the existence of such circumstances must be established in the particular case.
Child Maintenance May Be Relevant — But the Statutory Conditions Must Be Met
The Supreme Court specifically addressed the relationship between child maintenance and unequal division of marital property.
The interests of children may justify increasing one spouse's share where the amount of maintenance received is insufficient to provide for their physical and spiritual development and medical treatment.
This means that the analysis requires more than establishing that the children reside primarily with one parent.
The party asking the court to depart from equal shares must establish the additional circumstances required by law.
In this case, the Supreme Court found that the claimant had not proved circumstances sufficient to justify awarding her a larger share.
The Claimant Did Not Prove Grounds for a 2/3 Share
The Supreme Court agreed with the first-instance and appellate courts that the claimant had failed to establish the necessary basis for departing from the principle of equality.
The apartment had been acquired by the spouses during their marriage.
It was therefore their joint marital property.
The starting position was consequently equal ownership.
The claimant sought to replace that division with a 2/3 versus 1/3 allocation, but the Supreme Court found that the fact that the children lived with her was not sufficient on its own.
Nor had she established other circumstances capable of justifying a departure from equal shares under Article 70.
The 1/2 share for each spouse therefore remained unchanged.
The Supreme Court's Decision
On 27 December 2019, the Supreme Court upheld the lower courts' decisions concerning the division of the spouses' joint property.
The relevant decisions were:
the decision of the Berehove District Court of Zakarpattia Region dated 21 March 2018; and
the decision of the Zakarpattia Court of Appeal dated 12 March 2019.
The Supreme Court therefore confirmed the equal division of the apartment.
Each former spouse retained a 1/2 ownership share.
Why This Decision Matters
1. Children living with one parent does not automatically change the property division
Residence of minor children with one spouse is not, standing alone, sufficient to award that spouse more than 50% of jointly owned marital property.
2. Equal division remains the general rule
Where an apartment or other property constitutes joint marital property, equal shares remain the statutory starting point.
3. Unequal division is possible
Article 70 allows Ukrainian courts to depart from equality. However, legally relevant circumstances must be established.
4. Children's interests remain relevant
The decision does not mean that children's interests are irrelevant to marital property disputes. Rather, the statutory requirements for departing from equality must be satisfied.
5. Evidence is critical
A spouse seeking a larger share should be prepared to establish the specific circumstances relied upon rather than relying solely on the fact that the children live with him or her.
Lions Lawyers' Analysis
This decision draws an important distinction between child-related arrangements and proprietary rights between former spouses.
Where children remain primarily with one parent after separation, it may appear intuitive that the parent carrying the greater day-to-day responsibility should automatically receive a larger proportion of the marital home. Ukrainian family law does not establish such an automatic rule.
The statutory starting point remains equality.
A court can depart from that position, but the spouse seeking a larger share must demonstrate circumstances recognised by Article 70 of the Family Code.
For litigation strategy, this means that a request for a 2/3, 3/4 or other increased share should not simply state that the children reside with the claimant. The evidential case should address the particular statutory grounds said to justify departure from equality.
The distinction is also relevant when negotiating settlements. Child residence, child maintenance and division of marital property are interconnected in practical terms, but they do not necessarily produce the same legal consequences.
The source material notes that a similar position was subsequently expressed by the Supreme Court in its decision of 2 March 2020 in Case No. 448/1722/16-ц.
Lions Lawyers advises clients on family disputes in Ukraine, including the division of marital property, ownership disputes between spouses, real estate matters, family-related asset disputes and cross-border family matters. We provide both full-service legal representation and standalone legal opinions, enabling clients to assess their existing strategy and, where appropriate, identify alternative legal approaches.
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