Supreme Court: A Spouse’s Share of Marital Property May Be Increased Where the Other Spouse Fails to Support the Family and Children

⚖️ Ukraine | Family Disputes | Division of Marital Property

Case Details

Case No.: 456/828/17
Proceedings No.: 61-252св17
Court: Supreme Court, First Judicial Chamber of the Civil Cassation Court
Decision Date: 5 December 2018
Case Category: Family Law
Subject Matter: Division of Marital Property
Sub-Subject: Unequal Shares / Failure to Support Family and Children
Property in Dispute: Apartment
Marriage Period: August 1999 – January 2010
Children: Two
Outcome: Claimant awarded 3/4 of the apartment

Background of the Dispute

The case concerned an important exception to the general principle that marital property should be divided equally between spouses.

The parties had been married from August 1999 until January 2010. During the marriage, they acquired an apartment and had two children.

The parties accepted that the apartment constituted their joint marital property, as it had been acquired during the marriage. The respondent also acknowledged the claimant's ownership of a 1/2 share of the apartment.

The dispute concerned whether the claimant was entitled to more than one-half because of the respondent's conduct toward the family and their children.

The first-instance court partially granted the claim and recognised the claimant's ownership of one-half of the apartment.

The appellate court subsequently changed the decision and increased the claimant's share from 1/2 to 3/4 of the apartment.

The respondent challenged that conclusion before the Supreme Court.

Can a Court Award One Spouse More Than Half of Marital Property?

Yes — but only where the statutory grounds for departing from equal shares have been established.

The Supreme Court relied on Article 70 of the Family Code of Ukraine, which establishes equality of spouses' shares as the general rule when their jointly owned property is divided.

However, parts two and three of Article 70 allow a court to depart from equal shares in certain circumstances of substantial importance.

The case concerned circumstances relating to:

• inadequate performance of parental obligations;

• inadequate financial support of the family; and

• one spouse effectively bearing the financial burden of supporting the children.

The Supreme Court agreed that the circumstances established in this case justified an unequal division.

The Claimant Proved the Respondent's Failure to Support the Family

The claimant established that, for a prolonged period, the respondent had failed to perform his obligations relating to the maintenance, care and treatment of their minor children.

The source specifically notes that the children suffered from serious chronic illnesses.

The claimant also demonstrated that the respondent had failed to provide adequate financial support to the family.

As a result, the claimant had effectively assumed the family's financial responsibilities herself.

The Supreme Court considered these circumstances sufficient to engage the exceptions provided by parts two and three of Article 70 of the Family Code.

The Burden of Proof Lies With the Spouse Seeking a Larger Share

An important aspect of the Supreme Court's reasoning concerned evidence.

The Court explained that the obligation to prove circumstances justifying departure from equal shares rests on the person who asks the court to increase his or her share in the spouses' joint property.

In other words, unequal division is not automatic.

A claimant must establish the facts relied upon to demonstrate why the ordinary 50/50 division should not apply.

In this case, the claimant satisfied that evidential burden.

Why This Case Differs From Cases Where Children Simply Live With One Parent

This decision should be distinguished from cases in which a spouse seeks a larger share merely because the children live with that spouse.

The Supreme Court's approach is more specific.

Here, the claimant did not rely solely on the fact that the children were living with her. She proved circumstances concerning the respondent's prolonged failure to perform parental responsibilities and provide adequate material support, while she independently assumed those responsibilities.

Those additional facts were decisive.

Accordingly, the legal distinction is significant:

Children living with one spouse, by itself, does not necessarily justify unequal division.

But:

A proven failure by the other spouse to fulfil parental obligations and adequately support the family may provide grounds for increasing the first spouse's share.

The Supreme Court's Decision

On 5 December 2018, the Supreme Court agreed with the appellate court's conclusion that there were sufficient legal grounds to depart from the principle of equal shares.

The claimant was therefore entitled to 3/4 of the apartment, rather than the ordinary 1/2 share.

The Supreme Court left unchanged the decision of the Court of Appeal of Lviv Region dated 21 November 2017.

The source also notes that a similar legal position was subsequently expressed by the Supreme Court in its decision of 16 December 2019 in Case No. 308/4390/18.

Why This Decision Matters

1. Equal division is the rule — but not an absolute rule

Property acquired during marriage will ordinarily be divided equally between the spouses. Article 70 of the Family Code nevertheless allows courts to depart from equality where the necessary circumstances are established.

2. Failure to support the family can affect property division

A spouse's prolonged failure to provide adequate financial support to the family may become relevant when determining the respective shares in marital property.

3. Parental conduct may be relevant

In this case, the respondent's failure to perform obligations relating to the maintenance, care and treatment of the minor children formed part of the circumstances supporting unequal division.

4. Evidence determines whether the exception applies

The spouse seeking a larger share bears the burden of proving the circumstances relied upon.

5. A substantially larger share is possible

The decision demonstrates that departure from equality can be significant. Here, the claimant's share of the apartment was increased from 1/2 to 3/4.

Lions Lawyers' Analysis

This decision provides a useful illustration of the difference between the existence of children and evidence of one spouse's failure to meet family and parental obligations.

The former does not automatically change the 50/50 principle. The latter, where properly established and falling within Article 70 of the Family Code, may justify a materially different division.

From a litigation perspective, a claim for an increased share should therefore be built around evidence of the specific circumstances justifying departure from equality.

Where the argument concerns inadequate support of the family or children, the factual record becomes particularly important. A court must be able to determine not merely that one parent assumed greater responsibility, but that circumstances existed which satisfy the statutory grounds for departing from equal shares.

The case also demonstrates the potential financial significance of Article 70. The difference between 1/2 and 3/4 ownership of real estate can be substantial, making the evidential strategy central to this type of marital property litigation.

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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