Times of trouble create cross-border families


Oksana Voynarovska

Partner, Attorney-at-Law

Labour and Employment,
Private Client and Wealth Management

Since the beginning of Russia's full-scale invasion of Ukraine, about 6.5 million Ukrainian citizens have become refugees in different parts of the world. Almost every one of these people has a family: husband, wife, parents, children, siblings, etc. Due to the fact that since the first days of Russia's full-scale invasion of Ukraine, men between the ages of 18 and 60 have been prohibited from leaving the country, the majority of Ukrainian refugees are women and children. 

When women and children escaped the country because of the war and became refugees abroad, and men could not leave with their relatives, cross-border families eventually emerged. According to sociological studies, at the beginning of the full-scale invasion, in March 2022 44 % of Ukrainians had to be temporarily separated from their families, while in 2023 this number was 21%.

The forced separation has created difficulties in many aspects of Ukrainian family life, including complicating the marriage and divorce process, causing many new custody and child abduction cases, and generating a large number of disputes over the jurisdiction of family dispute resolution. 


The involuntary separation of many thousands of couples has become a trigger for divorce. 

According to the Family Code of Ukraine, if the spouses do not have children under the age of 18, they may divorce by joint application out of court through the civil registry authorities. The joint application must be submitted in person, but if one of the spouses cannot personally apply for divorce to the civil registry authorities for a valid reason, the other spouse may submit such a notarized application on his or her behalf.

If the spouses have joint children who haven’t reached the age of 18, then divorce is possible only in court. If a person resides abroad, he/she can sign a statement of claim with attachments in the country of residence and send it by mail to a Ukrainian court or file an application online through the Electronic Court system with an electronic digital signature.

One of the important issues is the possibility of divorce between Ukrainian citizens in foreign jurisdictions if one of the spouses permanently resides abroad. In such a situation, the fact that one of the spouses is a Ukrainian citizen residing abroad imposes a foreign element on the divorce case (or other family law case).

In order to determine the jurisdiction of a family dispute, it is first necessary to find out whether there is a bilateral treaty between Ukraine and the foreign country where one of the Ukrainian spouses resides that regulates this issue. If there is no such treaty, the Law of Ukraine «On Private International Law» should be applied (hereinafter also referred to as the «Law»).

The Law provides that the parties may choose the jurisdiction unless the rules of exclusive jurisdiction apply.

According to part 1 of Article 75 of the Law: «the jurisdiction of the courts of Ukraine over cases with a foreign element shall be determined at the time of opening the proceedings, notwithstanding that the grounds for such jurisdiction have disappeared or changed in the course of the proceedings».

The Law does not refer the cases of divorce between Ukrainian citizens where one of the spouses resides abroad to the exclusive jurisdiction of Ukrainian courts. Therefore, a residing abroad spouse may file a claim for divorce in the country of actual residence, if this does not contradict the domestic law of that country. 

Meanwhile, since Russia's full-scale invasion of Ukraine, the number of registered marriages has increased within the country. This is primarily due to the fact that a significant number of people have joined the military and started receiving high salaries. As a result, the improved financial situation of soldiers combined with the increasing risk to their lives has led to a higher number of marriages.

However, a problem arose when people who joined the military were unable to appear at civil registry offices to register their marriages. Nevertheless, on 07 March 2022, the Cabinet of Ministers of Ukraine issued a resolution according to which persons who joined the Ukrainian defense forces can get married without personal presence. In such a case, a man or woman serving in the defense forces submits a written application for consent to enter into a marriage to their commander, and the commander certifies the authenticity of the signature on the application and ensures that the application is delivered to the civil registry authority.

In addition, the Ukrainian government plans to provide an opportunity to marry online. In February of this year, the Minister of Digital Transformation of Ukraine announced that the state online application "Diia" would launch the option to get married online, via video, with several stages of verification.

Children’s matters (custody/abduction)

In the first days of the full-scale invasion of Ukraine, the legislation was amended to allow a child to travel abroad accompanied by one parent without the consent of the other parent. This was a justified decision as children were at risk. As of March 2024, 537 children were killed in Ukraine as a result of the war, and the total number of victims exceeded 1,806 children (and this is only official, recorded statistics). However, such amendments gave rise to a large number of disputes over child abduction and custody. Usually, mothers with children travel abroad without the father providing written, notarized permission for the child to leave. Subsequently, the borders for men were closed and many cases emerged when a father was deprived or restricted in exercising his parental rights and applied to the Ministry of Justice of Ukraine for the return of the child under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (hereinafter also referred to as the «Convention»).

In all these disputes, there is one cross-cutting question: «Is it safe to return the child to Ukraine?». There is no absolute answer as of now.

Under Article 13(b) of the Convention: «notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution, or other body which opposes its return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation».

According to part 1 of Article 162 of the Family Code of Ukraine: «if one of the parents or another person unauthorisedly, without the consent of the other parent or other persons with whom the minor child lived on the basis of the law or a court decision, or of the children's institution (facility) where the child lived by decision of the guardianship and custody authority or court, changes the child's place of residence, including by abduction, the court, at the request of the person concerned, has the right to immediately order the child's removal and return to the previous place of residence. The child may not be returned only if leaving him or her at the previous place of residence would pose a real danger to his or her life and health or the circumstances have changed so that the return is contrary to his or her interests».

Based on the data of the Ministry of Justice of Ukraine, from February 2022 to February 2024, there are eleven decisions of foreign courts on children's return to Ukraine.

In particular:

On 04 October 2022, a Polish court ordered the return of a child to Ukraine and the child was handed over to the applicant in the courtroom.

On 12 July 2022, a Swedish court ordered the return of a child from Sweden to Ukraine.

In Italy, the court closed the case when the applicant stated in court that he wished to return the child to Ukraine after the end of martial law, and the court confirmed the applicant's right to apply for return after the end of martial law.

At the same time, since 24 February 2022, 50 court decisions have been issued dismissing claims for child return to Ukraine under the 1980 Hague Convention.

Court decisions to dismiss the return of the child are mostly based on Articles 3, 12, and 13 1(b) of the Convention:

1. Expiry of the one-year period (Article 12 of the Convention), problem: lack of understanding by the courts of the period of the beginning of the illegal detention of a child abroad.

2. Threat to the child's life and health posed by the return (Article 13 of the Convention): failure of the courts to take into account the current security situation in the region to which the child's return is requested.

3. Groundlessness of the application (Article 3 of the Convention): the plaintiff has not proved that his or her right to care for the child has been violated.

The matter of the «safety» of Ukraine in the context of the possibility of a child's return remains unresolved. After all, depending on the region, the war threatens children's safety in different ways: on the one hand, there are cities like Kharkiv, where children have to go to school in the subway because of shelling every day, and on the other hand, there are cities in the west of Ukraine, where shelling is far less frequent and children live almost «normal» lives, although they still suffer from the war.

Another important issue is the jurisdiction in the cases of child custody.

In such cases, one of the key legal frameworks is the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter also referred to as the «1996 Convention»).

Under Article 5 of the 1996 Convention: «(1) The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property. (2)  Subject to Article 7, in case of a change of the child's habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction».

Under Article 6 of the 1996 Convention: «for refugee children and children who, due to disturbances occurring in their country, are internationally displaced, the authorities of the Contracting State on the territory of which these children are present as a result of their displacement have the jurisdiction provided for in paragraph 1 of Article 5».

Thus, the general rule has been established according to which cases on child custody, should be handled by the authorities of the state in which the child has habitual residence at the time of the opening of the proceedings.

However, Article 7 of the 1996 Convention states that in the case of unlawful removal of a child out of the country of habitual residence, jurisdiction is vested in the authorities of the state of habitual residence from which the child was unlawfully removed. These authorities keep jurisdiction until the child has acquired a habitual residence in another State, and a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or b) the child has resided in that other State for a period of at least one year after the person, institution, or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.

Pursuant to Article 17 of the 1996 Convention: «the exercise of parental responsibility is governed by the law of the State of the child's habitual residence. If the child's habitual residence changes, it is governed by the law of the State of the new habitual residence».

Consequently, to determine the jurisdiction in child custody cases of cross-border families, it is important to determine, in particular, the lawfulness of the child's removal from the state of permanent residence and the issue of the child's acquisition of a new habitual residence in the state where the child is actually living.

Military mobilization as a factor forcing children to be separated from their parents

Pursuant to a decree of the President of Ukraine dated 24 February 2022, a state of martial law was implemented throughout Ukraine from 05.30 a.m. Under this decree, restrictions may be imposed on the constitutional rights and freedoms of citizens, including the right to freedom of mobility. Although martial law was initially introduced in Ukraine for 30 days, given that the war has not yet ended, the decree is constantly being extended.

An integral aspect of war and martial law is mobilization, as the professional Ukrainian army, which as of January 2022 numbered about 300,000 people, could not cope with a much more numerous enemy. Thus, as of April 2024, according to various estimates (exact information is hidden), the Ukrainian defense forces amounted to approximately 1 million people. Most of those currently defending Ukraine were mobilized into the army.

For Ukrainians, being mobilized means being obliged to become part of Ukraine's defense forces and fulfill their constitutional duty to defend the state; if they refuse to do so, they will be charged with criminal liability.

Thus, mobilization is another factor that creates cross-border families, as men cannot leave the country and women with children often seek refuge from the war abroad.

On the other hand, military mobilization also encourages migration. Today men in Ukraine are mobilized only from the age of 25, but to preserve the mobilization reserve, men are banned from traveling abroad from the age of 18. Given the above, a significant number of parents take their 17-year-old sons out of Ukraine to avoid their future mobilization.

Since the beginning of the Russian-Ukrainian war in 2014, a large number of families have been separated, with some people moving abroad, others moving to safer regions of the country, and others remaining under occupation. With the start of the full-scale invasion on 24 February 2024, the war affected every family in Ukraine, without exception. It caused queues at the borders that lasted for several days, and families gained «cross-border» status.

As of now, family matters have entered a completely new legal context. For cross-border families, the ways in which they interact, and even more so, the procedures for resolving disputes, have changed significantly. It is now more important than ever for Ukrainian lawyers to master the provisions of international law because, without its understanding, it is often impossible to provide quality support in family law cases for Ukrainian citizens.

Author: Oksana Voynarovska

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