The appeal for divorce in Ukraine during the separation.

Difference between separation and divorce.

With legal separation, the spouses do not put an end to the marital relationship, but freeze its effects in the event of a reconciliation or a divorce provision if subsequently requested by at least one of the parties.

With divorce in Ukraine or in any state the dissolution of the marriage is pronounced, only following a divorce is it possible to remarry.

Having said this, it is essential to clarify the issue that often involves this International Law Firm for Ukraine, regarding subjects who have undertaken separation proceedings in Italy and intend to immediately appeal for divorce in Ukraine. The reasons may be both the different speed of the judicial system in Ukraine and the greater protection of the male spouse.  

The initiation of divorce in Ukraine pending separation in Italy.

Concurring jurisprudence of the Court of Cassation of Ukraine in favor of the possibility of divorce action in Ukraine during the separation phase in Italy,Sentence n° 61/133 of 2021.

 

Cith the above marginalized decision, reached by this Firm, the Court of Cassation of Ukraine, regarding  what he stated in his speech:

"under Article 29 of the CPC of Ukraine, the jurisdiction of cases involving citizens of Ukraine if both parties reside abroad, as well as cases of divorce between a citizen of Ukraine and a foreigner or stateless person residing outside of Ukraine, is determined by a judge of the Supreme Court in accordance with the procedure provided for in Article 33 of this Code, individually.
According to the first part of Article 4 of the CPC of Ukraine, every person has the right, in the manner prescribed by this Code, to apply to the court for protection of his violated, unrecognized or disputed rights, freedoms or legitimate interests.
In Article 6 of the European Convention on Human Rights provides that every person has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, the determination of his rights and obligations of a civil nature.
From the case materials it is clear thatPERSON_1 is a citizen of the Italian Republic andPERSON_2 He is a citizen of Ukraine.
Information on the loss of Ukrainian citizenship is missing from the filePERSON_2. (The possession of Ukrainian citizenship, in the matter of divorce in Ukraine, is decisive for the choice of jurisdiction. NDR). 
The marriage between the parties was registered on xx xx xxxx in Kiev.
The representatives of the parties did not deny that in fact PERSON_1 and PERSON_2 live in Italy.
The last registered place of residence PERSON_2 in Ukraine is located in xxxx district of Kiev.
In such circumstances, the jurisdiction of the case on the appeal for divorce in Ukraine PERSON_1 to PERSON_2 on the divorce should be determined by the xxxxx district court of Kiev, the last registered place of residence of the defendant in Ukraine.
Guided by Article 29 of the CPC of Ukraine.” 

The answer to the question, also by virtue of what has just been stated on the possibility of following up on the divorce in Ukraine during the separation phase in Italy, is generally affirmative. Obviously, each proceeding has its own prerogatives and each Ukrainian court can have an address in this regard, therefore contrary decisions are always possible, although generally the decisions of the courts of Ukraine generally follow the instructions explained below.

The first element to analyze is whether the separation proceedings have not been concluded in Italy or whether a separation sentence has been issued and in what terms. In the first case, it concerns a pending judgment that nothing has yet established in a definitive form for a proceeding that regulates a phase of the marriage and does not extinguish it. Usually the Ukrainian courts on the subject of divorce in the presence of a separation cause in Italy decide in favor of issuing the divorce decree. In the second case, when there is an Italian sentence, it is necessary to actually evaluate what the court decided. In fact, if the Italian court decides on the same object as the divorce decision in Ukraine, the Ukrainian court, as listed below, can opt for different solutions:

- equally decide on granting divorce in Ukraine,

- or, for the declaration of lis pendens and not continuing the trial by declaring jurisdiction in favor of the Italian court,

- or decide to rule on mere divorce in Ukraine and not decide on what has been decided in Italy, for example on child custody, economic, movable and real estate rulings,

- or, to instruct the higher court with an appeal for regulation of jurisdiction, to decide whether or not the Ukrainian court can judge the divorce in Ukraine during the post-separation sentence phase in Italy;

- finally, the Ukrainian court can consider itself incompetent if there are issues relating to the so-called interests. of higher rank rooted in Italy. The trial, in this case, will be carried out before the Italian court. Typical case in which the decision also affects superior interests such as the well-being of minors residing exclusively in Italy. 

These requirements must be evaluated in the context of integrated and comparative law between the legal regimes on family law, marriage and divorce in Italy and Ukraine.

 

The essential elements for proposing a divorce in Ukraine in conjunction with separation in Italy,

I am:

- the spouse's Ukrainian citizenship and the presence of a registered residence (not revoked) in Ukraine;

- the possibility for the Ukrainian spouse who is sued in court to be able, if he wishes, to participate in the trial in Ukraine without restrictions and violations of the right of defence. For example, the Ukrainian spouse present in Italy is prevented from participating in the trial and, therefore, the right of defense in Ukraine has been violated, for whom the spouse has denied the renewal of the passport for herself or a non-self-sufficient family member entrusted to her exclusively and as a result unable to leave Italy. The simple economic difficulty in moving invoked by the Ukrainian spouse present in Italy or any justification deriving from personal choices not to return to Ukraine (work, difficulty travelling, lack of time, etc.) does not constitute an impediment to participating in the divorce proceedings in Ukraine. . etc.).

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Recognition of divorce sentences issued by Ukrainian courts pending a separation judgment in Italy.

 Regarding the recognition of divorce sentences issued by Ukrainian courts pending a separation judgment in Italy, most recently, precisely for a procedure victoriously sponsored by this firm before the civil court of Rome, the court seised with sentence no. 13060 /2021, dated 07.08.2021, declared the matter of dispute regarding the separation judgment brought by the Ukrainian spouse before the Capitoline judges to be over, stating that: "the divorce decree (of Ukraine - ed.) issued abroad must be recognized even if it was introduced after the separation judgment in Italy".

 

The above represents the extreme summary of what is being discussed regarding the proposition of divorce in Ukraine pending a separation judgment in Italy. Only following an in-depth evaluation of the concrete case based on comparative and integrated Italian/Ukrainian law is it possible to propose a professional action aimed at obtaining a divorce in Ukraine pending judicial separation in Italy.

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If necessary, the Firm has the possibility of assisting, assisting and defending the Client both in the context of separation, divorce and review of sentences, both consensual and judicial, both in Ukraine and in Italy or in the country of origin.