Marriage or prenuptial contract in Ukraine.

 

Advice and assistance for asset protection in marriage in Ukraine or with a Ukrainian spouse

also in Italy. 

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The process of drafting the marriage contract.

It should be noted that prenuptial agreements, agreements or contracts in Ukraine are legitimate and

pthey are practically equivalent to the separation of assets in Italy, with non-derogable provisions

not even in court.

Phases:

1) documented negotiation with effective cross-examination to demonstrate that it took place

a negotiation that led to the meeting of wills between the parties;

2) drafting of the deed in a format compatible with the legal regimes between Ukraine and Italy;

3) preparation and formalization of the bilingual document in Ukrainian and Italian;

4) signature of all parties, including the lawyers who assisted the spouses;

5) stipulation and registration with a notary in Ukraine.

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Who can stipulate it and what is the purpose of the prenuptial or marital agreement?

Today, spouses can choose the couple's property regime when applying for a marriage registration abroad. By not choosing it - the property regime - the legal community of property regime is in force by law, both for Ukrainian and Italian marriages. If there are assets that you do not wish to share or it is not advisable to do so during a marriage, the Firm recommends opting for the separation of assets, given that improvements on assets in the marital state fall within any community property.

The legislation of Ukraine allows the spouses to decide, before celebrating the union or even at a later time, to negotiate with a deed stipulated by a lawyer with a joint signature and authenticated by a notary, which deed will define the economic relations future, mutually protecting each other in the event of a possible separation or divorce.

If the marriage is celebrated in Italy, the prenuptial contract can accompany the registration in Ukraine as if it had been celebrated there. With the aforementioned registration, in the unfortunate event of marital problems, if a spouse decides to appeal to Ukrainian justice for a divorce, however, the Italian spouse will be protected by the duly registered marital agreement. 

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The prenuptial agreement it is a contract for all purposes of Ukrainian law, with patrimonial legal content between the parties. In technical jargon, a shop. Hence the prerequisites for having legal validity and effect are: compliance with appropriate, clear and stringent legal parameters. It should be noted that the point in question is burdened by the principle that the relationship has its effects not in Ukraine but also in Italy. Obviously the cases that interest this firm also legally involve Italian, Ukrainian, EU and international legal institutions with associated jurisprudence and international treaties. 

Hence the need for a careful and specialized service. Too often, unfortunately, it happens that people have turned to "consultants" who have treated the issue from the Ukrainian point of view only, without taking into account the complications inherent in the different jurisdictions. 

Prenuptial agreements that do not take due account, for example and not only of the "Vienna Convention", ratified in 1986 also by Ukraine, and recently modified in 2015, are destined to suffer annulments from Italian, Ukrainian and European courts. Hence the need to stipulate a detailed and precise deed, also correct in form and content compatibility with the dictates especially of the Italian Supreme Court of Cassation, Ukraine, the European Court of Justice and the ECHR. 

The act must provide for the stringent doctrinal and jurisprudential parameters regarding the presence,  occurrence of children even if unknown "even if outside marriage"; the protection of rights that are unavailable and therefore inalienable by law. In short, the provision must protect both spouses and the parties related to them, even those who are not known or not yet born in an appropriate manner and without preclusions or abuses of rights or dominant positions. 

What has been expressed in brief makes it clear that the particular professionalism that requires the stipulation of such a broad and detailed private deed with plurilateral effects in different legal regimes is clearly perceived. 

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Termination of the contract mmatrimonial law in Ukraine.

It should be stated on the point that the prenuptial contract and marital agreement in Ukraine is terminable, therefore it can be rendered ineffective pursuant to articles. 102 and 103 of the Ukrainian Family Code.

The aforementioned article 102 states under the title "Termination of the marriage contract: at the request of one of the spouses, the marriage contract can e.geveningsresolved by court decision for reasons of considerable importance, in particular in the event of impossibility of its execution".

Furthermore, and more penetratingly, art. 103 of the Family Code of Ukraine, establishes on "recognition of invalid marriage contract: amarriage contract at the request of one of the spouses or another person, whose rights and interests are violated by this contract, may be declared null and void by court decision for the reasons established by Civil Code of Ukraine" .

The preceding article favors the possibility of challenging the nullity of the prenuptial contract in Ukraine for all the possible situations that the Ukrainian Civil Code offers in abstract. Indeed, Ukrainian law gives the possibility to injured third parties to challenge the marriage contract in Ukraine, such as the spouse's relatives who feel injured by what was stipulated. This suggests an enormous number of possibilities that must be taken into consideration in a professional manner before drafting the act and in order to avoid serious future results.This Article highlights that the prenuptial contract in Ukraine can always be challenged in court, even in conjunction with divorce or even subsequently as a reason for reviewing the divorce itself in Ukraine.

In the opinion of this firm, in order to avoid the contract being challenged under the Family Code of Ukraine, after years of experience, it can be stated that the deed must be stipulated in two languages, with the express provision that in case of conflict on the interpretation of the agreement, there must be prevalence of the Ukrainian language. The reason is easy to say, the deed is stipulated in Ukraine. Various conventions could lead to the belief that the "economically strong" spouse has imposed his own wishes and, hence, a defect in consent. Therefore the clause would be vexatious. This is just one of the points to consider. 

Following the agreement, it is advisable, especially for future reference, to involve both spouses and document the negotiation that has taken place, not one strong party proposing, disposing and the other silent: it would be an irremediable error and censured in the appropriate forums.  

The deed must be drawn up with a qualified dual-language translator, subject to the signature of an Italian and a Ukrainian lawyer. Obviously the Italian lawyer will represent the compatriot and vice versa. Nothing prevents them from being within the same law firm. 

Once this has been done, the deed and related attachments must be registered by a Ukrainian notary for Ukraine and at the Italian municipality of residence as division of assets in Italy and at the registry office.  

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To summarize: the Firm with regard to what has been stated on the point of marriage and matrimonial or pre-nuptial contract, has a broad knowledge of the relevant law in Ukraine and Italy and is authorized in Ukraine and Italy to exercise all the rights of clients before all tribunals and courts of appeal of both States. If necessary, the firm can present requests, appeals, produce documents and certificates, validate registers, register individuals, partnerships and applications.  The Firm also has the right to extract, forward and request certificates and copies on the socioeconomic status of any public or private entity.  

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Tax regime and the transfer of joint properties between spouses in Italy,

in the case of divorce in Ukraine of the foreigner.

The importance of an incontrovertible prenuptial contract.

 

The transfer of a property located in Italy is exempt from stamp duty and registration tax even if the divorce proceedings were concluded abroad, for example in Ukraine between a Ukrainian and a foreigner. Therefore, said address, even if originating from another State, in this case Spain, is to be considered extremely valid for the divorce of a foreigner in Ukraine (ed.).

The clarification comes from the Revenue Agency, regarding the case of a divorce concluded by mutual consent abroad, and concerning the transfer of ownership from one spouse to another of some properties located in Italy.

The divorce agreement stipulated abroad concerning real estate located in Italy is exempt from registration tax. The Revenue Agency clarified this with the Response to Question No. 351/2023(text attached).

In the specific case and therefore applicable to divorce in Ukraine and unequivocally to the prenuptial contract drawn up in Ukraine and reported in the divorce decree with express wording of the agreement in all its parts. The spouses had purchased properties in Italy, but had then obtained a divorce abroad and, precisely, with a marital agreement for the distribution and adjudication of the assets of the marital community, they had regulated their financial relationships by deciding to transfer the Italian properties to only one of the two. They therefore proposed a request to the Italian Revenue Agency to find out whether the taxation of the aforementioned deed could benefit from the exemption from registration tax as happens for asset transfers relating to separations and divorces concluded in Italy.

According to Italian law (art. 19 of Law 6 March 1987, n. 74) in fact, all deeds, documents and provisions relating to the proceedings for dissolution of marriage or termination of the civil effects of marriage, as well as proceedings, including executive ones and precautionary measures aimed at obtaining the payment or revision of divorce checks are exempt from stamp duty, registration tax and any other tax.

The Constitutional Court has also extended the tax exemption to mortgage registrations made to guarantee the obligations assumed by the spouse in the separation proceedings (Constitutional Court ruling 176/1992) and then to the documents and provisions of personal separation of the spouses (Constitutional Court 154/1999). Circular no. 27/E of 21 June 2012, specified that the reason for the relief lies in the need to facilitate access to judicial protection, preventing taxation from being a burden on the spouses, making it even more difficult to overcome the marital crisis. Therefore, all agreements that regulate the marital crisis are viewed favorably, not only in relation to necessary contents such as maintenance or custody of children, but also with respect to possible contents such as the transfer of real estate.

When the agreement is reached in Ukraine in case of divorce between the local spouse and the foreign husband.

It should be noted that the prenuptial contract is an anticipation of an agreement. Therefore, a party can demand that this agreement be reported in the sentence.

In the case in question, the spouses had signed a specific deed before the foreign notary to define the property agreements in the context of the divorce application according to the procedure provided for by local law, and concluded with a sentence of the Court, deciding on the transfer from one to the other spouse of the properties purchased by the couple in Italy. Here the law on the organization of the Notary and notarial archives comes into play (Law 16 February 1913, n. 89) according to which the use in Italy of drawn up public documents and private deeds authenticated abroad is subject to prior deposit of the same at the district notarial archive or at an Italian notary. The art. 68 of the implementation regulation of the notary system (R.D. 1326/1914) then provides that the notary must receive for deposit, in original or copy, duly legalized documents drawn up abroad, drawing up a specific report and noting it in the repertoire. The drafting of the report and the annotation in the repertoire incorporate the foreign deed and make it usable in Italy. By formally transforming the foreign deed into the Italian notary's own deed, the latter would normally be obliged to request registration and payment of the relevant tax, as well as reporting the necessary certificates of urban planning and cadastral compliance in the minutes. But given that in this case the deposit with the Italian notary constitutes a condition for executing the divorce agreements concluded abroad, therefore Ukraine not excluded, the Revenue Agency considered the exemption of the relevant deed from the tax applicable stamp duty, registration and any other tax, as established by the art. 19 of Law 74 of 1987.

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The firm is able to offer consultancy and stipulation of prenuptial agreements based on enormous experience in the sector, especially with mixed Italy-Ukraine celebrations or with the creation of so-called extended families.

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