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Difference between separation and divorce in Ukraine.

 Law on divorce in Ukraine.

 

Separation and divorce in Ukraine, legally speaking, are different in terms of effects and duration both in Ukraine and in Italy.

The separation can be evaluated as a period of reflection that leads to understanding whether the marriage in Ukraine or with a Ukrainian is recoverable or not, especially for the stability of the children. During this phase, marital obligations are not considered suspended (including fidelity). In Ukraine, although direct divorce is possible, the period of de facto separation (before appealing to the court for divorce in Ukraine) is highly indicative for the subsequent rulings of the judge in Ukraine.

In Ukraine there is the possibility of a so-calledlegal separation. Specifically, several Ukrainians, in order to preserve the right to future Italian and therefore EU citizenship, with all the associated advantages and at the same time still benefit from the residence permit, opt to ask the Ukrainian court only for maintenance during the marriage . This practice has become widespread in the last five years.

Given the changes in the intra-community economic situation, where the Italian standard of living is severely compressed, the well-known pandemic, the repercussions from the point of view of the quality of life and the possibility of circulation, in the last period there has been an increase in the inversion of immigration. In other words, Ukrainian women who return to their homeland are more numerous than those who emigrate. Obviously, with the increase in the phenomenon in question, the return to Ukraine of Ukrainian wives intending to end the marital relationship while preserving its benefits has also increased.

In the case of a legal separation as regulated by art. 119 and 120 of the Family Code of Ukraine, the Ukrainian court is seized of an application which will regulate only the "possible" right to alimony and custody of children. There is no minimum duration of legal separation in Ukraine, divorce from the other party can also be requested with the same judgment.  

 

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In contrast to legal separation, with onede facto separation, if the spouses no longer live together under the same roof in Ukraine or Italy (in the period preceding the application for divorce in Ukraine), for a period of time exceeding one year, this does not allow the other spouse to oppose any veto in the judgment upon obtaining dissolution of marriage (divorce in Ukraine). Otherwise, in the case of de facto separation lasting less than a year, the judge, upon request of a party, in the presence of minor children, can grant a reconciliation period of up to three months. Hypothesis, however, residual and practically disused in the legal system of Ukraine regarding divorce.

 

Direct divorce in Ukraine, however, consists of the definitive dissolution of the marriage and can be established by the judge in any case and even if a period of separation has not elapsed in Ukraine or Italy.

The substantial difference between separation and divorce in Ukraine is: during the separation you continue to be married and can reconcile at any time. Divorce, on the other hand, definitively dissolves the marital bond.

Both in separation with a Ukrainian woman and in divorce in Ukraine, the more economically disadvantaged spouse is not entitled to receive a maintenance allowance, except in very rare cases, while the economic situation for the children must remain unchanged compared to the period in which the parents were married. In this case, the non-custodial spouse will have to guarantee a minimum subsistence to the offspring.

 

News about divorce in Ukraine! It is worth noting that from 2021, the Ukrainian courts in the matter of appeal for divorce in Ukraine by a foreign citizen, require, under penalty of annulment of the process even if already underway, activities and legalization of documents in Italy , which must necessarily be produced by law firms authorized in Italy. In other words, "stylized" appeals submitted on your own through Ukrainian agencies, often submitted by post to Ukrainian courts, for divorce with Ukrainian, are no longer admissible before the courts in Ukraine. 

This international law firm for Ukraine, being authorized to practice law both in Ukraine and in Italy, has already activated the new procedure for its clients, without affecting the regular conduct of trials already underway or to be held.  ;

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The Ukrainian law on divorce, which regulates the termination of marriage, is established by the current Family Code, art. 104 to art. 120.

Below are the main articles of law on divorce and separation in Ukraine:

Termination of marriage in Ukraine (Divorce in Ukraine), articles of the Family Code of Ukraine:

Article 104. Reasons for termination of marriage in Ukraine: 1. Marriage in Ukraine is dissolved following the death of one of the spouses or the declaration of his death; 2. The marriage dissolves due to its dissolution (omissis).

Article 105. Termination of marriage in Ukraine following its dissolution: 1. A marriage in Ukraine is dissolved following its dissolution at the joint request of the spouses under Article 106 or one of them under Article 107 of this Code; 2. A marriage in Ukraine shall be terminated following its dissolution at the joint request of the spouses on the basis of a court decision in Ukraine, in accordance with Article 109 of this Code; 3. A marriage in Ukraine is terminated following its dissolution at the hands of one of the spouses on the basis of a court decision in Ukraine, in accordance with Article 110 of this Code.

Article 106. Divorce in Ukraine by the state registration body of civil status documents at the request of a spouse who has no children: (omissis).

This article is deliberately omitted, since this eventuality is not validly recognized in Italy.

TOArticle 107. Divorce in Ukraine by the state civil status registration body acts at the request of one of the spouses.

This article, like the previous one, is deliberately omitted, since this eventuality is not validly recognized in Italy.

Article 109.Divorce by court decision in Ukraine at the joint request of a spouse who has children: 1. The spouse who has children has the right to apply for divorce to the court in Ukraine together with a written agreement with which of them the children will live, which party of parents who live separately will participate in guaranteeing their living conditions, and also on the conditions for the exercise of the right to personal education of their children; 2. The agreement between the spouses on the amount of child support must be notarized. In case of non-fulfilment of this contract, alimony may be collected on the basis of the execution deed of a notary; 3. The court in Ukraine decides on divorce in Ukraine if it is established that the application for divorce corresponds to the actual will of the wife and husband and that their personal and property rights and the rights of their children will not be violated after the divorce; 4. The court in Ukraine decides on divorce in Ukraine after one month from the date of filing the application. Until the expiration of this period, the wife and husband have the right to withdraw the divorce application.

Article 110. The right to file a divorce action in Ukraine: 1. Divorce action can be brought by one of the spouses; 2. The divorce action cannot be brought during the wife's pregnancy and for one year after the birth of the child, unless one of the spouses has committed illicit conduct which contains elements of a crime against the other spouse or child: 3. Husband and wife have the right to sue for divorce in Ukraine during the wife's pregnancy if the paternity of the conceived child is recognized by another person; 4. Husband and wife have the right to apply for divorce before the child turns one year old, if paternity is recognized by another person or by court decision information about the husband as the father of the child is excluded from the certificate of birth of the child; 5. The guardian has the right to request a divorce if the interests of the declared incompetent spouse require it.

Article 112. Grounds for divorce in Ukraine in the case of one of the spouses: 1. The judge establishes the actual relationship of the spouses, the true reasons for the application for divorce, takes into account the presence of a minor child, a disabled child and other circumstances of the spouse's life; 2. The court in Ukraine issues a decision on divorce in Ukraine if it is established that further cohabitation of the spouses and preservation of the marriage would be contrary to the interests of one of them, the interests of their children, which are essential.

Article 114. The moment of termination of the marriage in case of dissolution: 1. omissis; 2. In case of divorce by a court in Ukraine, the marriage must be terminated on the day of entry into force of the court's decision on divorce in Ukraine.

Article 119. Establishment of a separate residence regime of the spouses: 1. At the request of the spouses or at the request of one of them, the court may decide to establish a separate residence regime for the spouses in case of impossibility or unwillingness of the wife and ( o) of the husband to live together; 2. The separate residence regime ends in the event of resumption of family relations or by court decision in Ukraine at the request of one of the spouses.

Article 120.(On separation) Legal consequences of establishing a separate residence regime for spouses:

The establishment of a separate residence regime does not put an end to the rights and obligations of the spouses, which are established by this Code and which the spouse had before the establishment of this regime, as well as the rights and obligations established by the contracted marriage; 2. In case of establishment of a separate residence regime: 1) property acquired in the future by the wife and husband will not be considered acquired in marriage; 2) a child born to a wife after the expiry of ten months is not considered to be descended from the husband.

 

The international law firm for Ukraine LegalGB Law Firm LLC represents that the aforementioned articles, even if in force, need to be evaluated and compared with the concrete case and in compliance with jurisprudence and comparative and integrated Italian, EU and Ukrainian.

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