This article aims to provide a general overview of the issues concerning the validity in Ukraine of marriage contracts concluded abroad.
Full-scale war, as well as general globalisation, has led to a rising number of international marriages and partnerships. Alongside this trend, more and more couples are seeking to resolve property and other marital issues by agreement.
A marriage contract is a useful tool that can help both partners protect their mental health and financial interests in the event of divorce.
However, given the current circumstances, it is important to understand whether a marriage contract concluded abroad will be valid in Ukraine, whether a separate contract is necessary in each jurisdiction where it may be enforced and how to safeguard against prolonged legal disputes related to the division of marital property.
Everything described below will be relevant for both common situations, when Ukrainian citizens plan to marry foreigners and want to peacefully agree on the distribution of future assets, and for high-net-worth individuals (ultra-high-net-worth individuals) who want to ensure that the marriage contract will definitely be valid in Ukraine, as one of the potential jurisdictions for disputes.
What is a marriage contract?
Essentially, a marriage contract is an agreement between spouses, or persons intending to marry, regarding the property issues in marriage. These property issues include, for example, determining the legal regime of ownership of property acquired by one of the spouses during the marriage. In other words, the parties decide whether such property will be the joint property of the spouses or the private property of the person who will be the title owner. A marriage contract may also define the property rights and obligations of spouses as parents.
However, all of the above applies to the understanding of a marriage contract in the context of Ukrainian law. In other jurisdictions, the understanding of the essence of a marriage contract may differ. For example, in France, a marriage contract also regulates inheritance issues between spouses. In some jurisdictions, a marriage contract may also regulate the personal non-property relations of spouses, which is expressly prohibited in Ukraine.
Now let's move on to more practical matters.
Let's imagine that a Ukrainian citizen married a French citizen, and the couple entered into a marriage contract in France and specified that the contract is governed by French law. According to the terms of the contract, property acquired by the spouses during the marriage is the personal property of the spouse who is the title owner. In addition, the contract stipulates that the spouses will reside together in the husband's house in Kyiv.
Consider a potential situation in which the husband files a lawsuit against the wife in a Ukrainian court, demanding that all property acquired by the wife during the marriage be divided equally between the spouses. Of course, the Ukrainian court will proceed with the presumption of joint ownership of property of the spouses, which is established in the Family Code of Ukraine. In practice, courts hardly ever raise the issue of applicable law in cases with a foreign element on their own; they commonly just use the familiar Family Code of Ukraine.
In the above situation, the wife will need to submit a copy of the marriage contract to the court and prove that this contract is valid in Ukraine to protect her property rights.
Criteria for the validity of a foreign marriage contract in Ukraine
To explore this section of the article, we need to refer to the Law of Ukraine “On Private International Law“ (hereinafter referred to as the “Law“). Also relevant sources of law, in the context of the validity of foreign marriage contracts in Ukraine, are bilateral agreements between Ukraine and other states on legal aid in civil matters. However, such agreements are not very common. For example, no such agreement has been concluded between Ukraine and France.
For a foreign marriage contract to be valid in Ukraine, the law governing the contract must comply with the requirements of Ukrainian law. The law stipulates that the parties to a marriage contract may choose the law applicable to the contract1. This may be either lex personalis (the law of the state of citizenship/permanent residence) of one of the spouses or the law of the state in which one of the spouses has their habitual residence, or, in relation to immovable property, the law of the state in which the property is located2.
In addition, for a foreign marriage contract to be valid in Ukraine, the contract must comply with the requirements of the Law regarding the form of the transaction.
As a general rule, the form of the contract must comply with the requirements of the law applicable to the content of the contract. However, for the contract to be valid, it is also sufficient to comply with the requirements of the law of the place where it was concluded, and if the parties are located in different countries when concluding the contract, then it is sufficient to comply with the law of the country of residence or location of the party that made the proposal to conclude the contract, unless otherwise specified in the contract3.
The validity of the contract, its interpretation and the legal consequences of its invalidity are determined by the law applicable to the content of the contract4.
In turn, the content of the contract may be governed by the law chosen by the parties, unless otherwise provided by law5.
That is, in the hypothetical court case described above in the article, the Ukrainian court must consider the French marriage contract when issuung the judgment, provided that the contract is valid under French law (because the parties specified in the contract that it is governed by French law) and provided that the form of the contract complies with the requirements of French law.
It should be noted that in this kind of dispute, you shouldn't expect the court to actively engage in determining the content and interpretation of foreign law. To succeed, the party to the case must be proactive and independently submit relevant evidence. For example, evidence may include an affidavit from a foreign lawyer regarding the provisions of the relevant foreign law.
Muddy waters a.k.a. public order clause
There are cases where even if a foreign marriage contract complies with all formal requirements of the law, it may be completely, or more often partially, invalid in Ukraine. The reason is a violation of the public (legal) order of Ukraine.
Ukrainian legislation does not provide a definition of public order. However, the Law stipulates that the law of a foreign state shall be not applied in cases where its application leads to consequences that are clearly contrary to the foundations of legal order (ordre public) of Ukraine6.
According to the conclusions of the Supreme Court of Ukraine7, public order should be understood as the legal order of the state, the defining principles and foundations that constitute the basis of the order established therein (related to its independence, integrity, autonomy and inviolability, fundamental constitutional rights, freedoms, guarantees, etc.).
Therefore, public order is a rather flexible legal concept. And the question “Do the terms of a foreign marriage contract violate the public order of Ukraine?“ cannot always be accurately answered. Thus, the inner conviction of the judge will play a significant role in such cases.
Let's return to our hypothetical case regarding the validity of a French marriage contract in Ukraine. As observant readers may have noticed, this marriage contract regulates more than just the property regime of the spouses. The parties also agreed that they would reside together in the husband's house in Kyiv.
This raises the question of whether this provision of the agreement is valid under Ukrainian law. In other words, if the wife refuses to live in the specified house, can the husband compel her to do so through the courts in Ukraine or impose a penalty, if such a penalty is provided for in the agreement?
The answer is no! The reason is precisely the violation of the public order of Ukraine.
The Constitution of Ukraine guarantees everyone who is legally residing in Ukraine the right to freedom of movement and free choice of place of residence8.
Therefore, the provisions of the marriage contract regarding the determination of the spouses' place of residence, if enforced, would violate the fundamental constitutional rights and freedoms of one of the spouses, i.e., they would violate the public order of Ukraine.
As a result, the provisions of the French marriage contract regarding the determination of the spouses' place of residence will be invalid in Ukraine. However, the other parts of the contract will, of course, remain valid.
Conclusions and advice
A foreign marriage contract is always a complex legal instrument that can potentially be recognised and/or enforced in at least two jurisdictions.
The main conditions for the recognition of a foreign marriage contract in Ukraine are 1) compliance of the applicable law with the requirements of Ukrainian law, 2) compliance of the form of the contract with the requirements of the applicable law or the law of the country where the contract was concluded, 3) no violation of the public order of Ukraine.
The most important advice for a future married couple consisting of a Ukrainian citizen and a foreigner is to seek advice in advance as to whether their marriage contract will be valid in all the necessary jurisdictions. This is the way to success and family peace. In such a case, it is also possible to draft the marriage contract in a way that avoids the necessity of signing mirror contracts in each jurisdiction. If the marriage contract is signed without proper prior advice, this is a sure way to future problems.
Choose the right way!
1Art. 59 (1) of the Law of Ukraine “On Private International Law“.
2Art. 61 (1) of the Law of Ukraine “On Private International Law“.
3Art. 31 (1) of the Law of Ukraine “On Private International Law“.
4Art. 33 (1) of the Law of Ukraine “On Private International Law“.
5Art. 32 (1) of the Law of Ukraine “On Private International Law“.
6Art. 12 (1) of the Law of Ukraine “On Private International Law“.
7Para. 12 of the Resolution of the Plenum of the Supreme Court of Ukraine ‘On the practice of consideration by courts of motions for recognition and enforcement of foreign court and arbitration decisions and for annulment of decisions rendered in international commercial arbitration in Ukraine’ dated 24 December 1999.
8Art. 33 of the Constitution of Ukraine.
Author: Yaroslav Nakonechyi