Familial relations with a foreign element

LOVE KNOWS NO BORDERS. IS THIS ALWAYS TRUE?

Is it possible to get married during a romantic getaway abroad? And what about getting divorced when one of the spouses is a foreigner or, for example, has permanently relocated to a different country? Definitely and absolutely. However, all of those actions are legal facts and therefore have legal significance and consequence, which may differ depending on whether or not there is a foreign element involved.

What is a foreign element in familial relations?

A foreign element is present when:

• One or more participants in familial relations is either a Ukrainian citizen residing abroad, or a foreigner, or stateless.
• The legal fact that established, altered, or terminated the legal relationship occurred or occurs abroad (e.g., the marriage was entered into abroad).
• The subject matter of the legal relations exists in a foreign country.

The foreign element in familial relations can manifest as the subject of legal relations, or a legal event, as well as a combination of both.

A marriage registered in Ukraine between a Ukrainian citizen and a foreigner, or between two foreigners, is an illustration of how a foreign element manifests as a subject of legal relations.

Conversely, when a marriage between two Ukrainian citizens is registered in a foreign country, it exemplifies the foreign element as a legal event of marriage.

In case of a cross-border marriage – a marriage abroad between a foreigner and a Ukrainian citizen –a foreign element manifests as a combination of both the subject of legal relations and the legal event of marriage.

What difference does the foreign element make in familial relations?

A foreign element alters the process of legal regulation of relations between spouses, parents and children, and even between the engaged couple.

Familial relations involving a foreign element are governed by:

• international agreements duly ratified by the Ukrainian Parliament;
• if such international agreements are not in place, then by the Law of Ukraine “On International Private Law”, which determines the jurisdiction whose laws will govern an issue in question.

International agreements, that were duly ratified by the Ukrainian Parliament and are in force, constitute an integral part of Ukraine’s national legislation. Moreover, in Ukraine applies the principle of the primacy of international agreements, that comply with applicable national legislation, over Ukrainian legislation currently in force. This means that if an international agreement in force for Ukraine provides for the regulation of legal relations different from that determined by the applicable Ukrainian legislation, the international agreement shall prevail.

Therefore, if there is an international agreement in place between Ukraine and the country of origin of the foreign element, one must apply to its provisions to determine how a certain matter in familial or other related relations should be regulated. If such an international agreement is not in place, the law applicable to the private and property relations of spouses must be determined in accordance with the provisions of the Law of Ukraine “On International Private Law”.

Legal framework for cross-border marriages

The general rules are the following:

• The procedure for registering the marriage is determined by the laws of the country where such registration takes place.
• The legal conditions for marriage applicable to each member of the couple are determined by the laws of the country of their citizenship.

Therefore, if, for example, a Ukrainian citizen is to get married in Ukraine to a Polish citizen, the rules of procedure for registering the marriage will be determined by Ukrainian laws, but the marriageable age will be determined respectively by Ukrainian legislation for one of the couple and by Polish legislation for the other.

Does one need to register in Ukraine a marriage that has already been registered abroad?

 No, there is no need to do this. A marriage between two Ukrainian citizens, as well as a marriage between a Ukrainian citizen and a foreigner (stateless persons) registered abroad, is valid in Ukraine provided that the Ukrainian citizen complies with the rules stipulated by applicable Ukrainian legislation concerning the legal grounds for annulment.

One should keep in mind that in Ukraine the following marriages shall be declared null and void:

• One or both parties were under 18 years of age (unless the right to marry has been granted by court decision to an individual over 16 years of age).
• One or both parties were already married.
• Marriage between relatives in the direct line of descent, as well as between full siblings.
• One party was declared incapacitated or unable to understand their actions and consequences and/or unable to control them.

All marriages between foreigners or stateless persons that were registered abroad in compliance with the laws of the country where they were registered are recognized as valid in Ukraine.

The document certifying the marriage abroad must be issued by a competent authority of the country where the marriage was registered and duly legalized with an apostille, unless there is an international agreement between Ukraine and the country of marriage registration that allows for the acknowledgment of official documents without legalization.

Therefore, when getting married abroad, a Ukrainian citizen must keep in mind that for the marriage to be valid in Ukraine, one must ensure that the marriage meets both the requirements of the country of marriage registration and the requirements of the Ukrainian legislation regarding the validity of marriage. This includes being at least 18 years old and capable of making conscious decisions, to at least avoid marrying one’s sibling.

Can one deal with marital property issues before marriage?

When one is lovestruck he or she often chooses not to think about ‘trivial’ thing. Thus, few couples in love, when starting a family, consider scenarios for handling cases when ‘something goes wrong’. After all, who would want to program oneself for failure? Yet oftentimes a well-thought-out separation plan can prevent such failures. If a couple can agree on such a plan while being ‘head over heels in love’, they will be capable of resolving any conflicts in their married life peacefully and respectfully. The key lies in the ability to negotiate.

One of the best ways to deal with marital property issues, which in Ukraine is still unfairly underrated and stigmatized, is a marriage contract.

A marriage contract is an agreement between an engaged couple (i.e. persons who have filed an application for marriage) or spouses that is to define their marital property rights and obligations during the duration of their marriage and in case of divorce.

The marriage contract between an engaged couple becomes effective on the day of marriage registration, while for spouses the marriage agreement takes effect on the day of its notarial certification.

A marriage contract must be made in writing and its validity requires notarial certification.

It must be noted that partners in de-facto unions (i.e., partners in a stable relationship living together but not married) may not enter into a marriage contract. However, such partners may opt for a property division agreement to establish either separate private property or of joint shared ownership regarding property acquired by them during their cohabitation. This option can prevent disputes in case of termination of such cohabitation.

One must remember that a marriage contract is inherently tied to the individual who is party to it. Therefore, such a contract must be executed in person. A marriage contract cannot be entered into through a legal representative or agent acting under a power of attorney. Moreover, novation of a marriage contract is not permitted.

What can be regulated by a marriage contract?

A marriage contract can regulate the following:

• Marital property relations: Determine which property each spouse transfers for common family use; establish rules for property received as wedding gifts; agree on the exclusion of property acquired during the marriage from joint shared ownership, designating it e.g. as private property of one spouse; or establish guidelines for property division in case of divorce.
• Property rights and obligations between spouses: Agree on allocation of allowances for one spouse, regardless of disability or financial need, and specify the amount of such allowances.
• Property rights and obligations of spouses as parents: Determine the amount of child support payments; outline obligations for additional expenses related to child maintenance.

Can the marriage contract regulate personal rights and obligations between the spouses, as well as between the spouses and their children?

No, a marriage contract cannot regulate the following:

• Personal relations between spouses:  It cannot establish obligations such as requiring a certain number of children or stipulating that one spouse must work to support the family, while the other manages the household and raises children.
• Personal relations between spouses and their children (parent-child relationships): It cannot dictate agreements such as which parent the children will live with in case of divorce, or how the non-residential parent will participate in the lives of the children.

Does a foreign element prevent one from entering a marriage contract?

If at least one spouse is a Ukrainian citizen residing abroad, a foreigner, or stateless person, the couple may choose the legislation to apply to their respective relations. Therefore, the choice of law is only possible if a foreign element is present.

According to Ukrainian legislation, parties to a marriage contract may choose the law that will govern such a contract. This can be the personal law of a spouse, the law of the country of their residence, or the law of the country where real estate subject to the marriage contract is located.

One should remember that a personal law of a natural person is the law of the country of which he/she is a citizen. If a natural person has multiple citizenships, their personal law will that of the country where they have the closes connection, such as their country of residence or business. For stateless persons, their personal law is governed by the law of the country where they reside or stay. A refugee’s personal law is determined by the law of the country in which they have their place of stay.

In other words, when spouses from different countries execute a marriage contract, they can choose the governing law that will define their rights and obligations. Similarly, the parties are free to choose the jurisdiction whose courts will have the authority to resolve any legal disputes that may arise out of the marriage contract.

Therefore, the marriage contract shall be both enforced and contested in accordance with the law chosen by the spouses in the contract.

It would be incorrect to view a marriage contract as an omen for future conflicts. Nor should it be seen as a cure to all potential disputes. However, if drafted in a balanced manner that considers the interests of both parties, neither spouse will feel unjustly treated by the marriage contract. Thus, a marriage contract can be a valuable tool to prevent possible conflicts, as well as loss of property and peace of mind.

Therefore, dear reader, love indeed knows no borders. But there is always a ‘but’, which one must keep in mind even while being lovestruck.