The Supreme Court refused to recognize the 'marriage for the sake of discharge from service' as fictitious

The Supreme Court, in the composition of the panel of judges of the First Judicial Chamber of the Cassation Civil Court, after reviewing case No. 439/2430/23, upheld the decisions of the two previous instances and refused to declare the marriage invalid. The court concluded that mere assumptions about the absence of family intentions to create a family do not prove the fictitiousness of the marriage without proper and admissible evidence.

Essence of the dispute

The plaintiff filed a lawsuit seeking to declare the marriage invalid. She claimed that the marriage, concluded on November 19, 2022, was fictitious and was not intended to create a family. The plaintiff insisted that the defendant entered into the marriage with her allegedly without the intention of family relations, but with the purpose of using the marital status for the subsequent adoption of her minor son and obtaining grounds for discharge from military service.

The courts of first and appellate instances established that on November 19, 2022, the parties entered into marriage with a ceremonial registration at the Civil Registry Office. After that, the parties maintained family relations, and after the defendant's return from military service in May 2023, he lived together with the plaintiff and her parents for some time.

It was also established that there was a joint family budget: the defendant made regular money transfers for family needs, including child support and household expenses, and the parties spent leisure time together.

In view of this, the courts concluded that there were no grounds to declare the marriage invalid as fictitious, since the factual circumstances indicated the existence of family relations between the parties.

Position of the Supreme Court

The Supreme Court noted that according to the provisions of the Family Code of Ukraine, when considering disputes regarding the fictitiousness of marriage, courts must establish all circumstances of the case, including the spouses' relationship before marriage, its duration, cohabitation, in case of temporary or separate living, its reasons, management of the household by the spouses during the marriage, acquisition of joint property, and other evidence indicating the desire to create a family or its absence.

It should be noted that the fictitiousness of marriage is characterized by the absence of the parties' intention to create a family, that is, like any legal transaction, it can be recognized as fictitious if it does not aim to establish legal consequences.

According to part two of Article 40 of the Family Code of Ukraine, a marriage is declared invalid by court decision in case of its fictitiousness. A marriage is fictitious if it is concluded by a woman and a man or by one of them without the intention to create a family and acquire the rights and obligations of spouses.

By court decision, a marriage is mandatorily declared invalid if it was registered without the free consent of the woman or man, as well as in case of its fictitiousness.

The Supreme Court agreed with the arguments of the courts of previous instances and noted that prolonged non-cohabitation of spouses due to one spouse serving in the military cannot indicate the fictitiousness of the concluded marriage.

The courts of previous instances properly evaluated the evidence in the case, took into account the voluntary registration of the marriage between the parties, the intention to create a family and acquire the rights and obligations of spouses, the absence of proper and admissible evidence of the marriage's fictitiousness, and reached a well-founded conclusion to deny the claim to declare the marriage invalid.

As a result, the cassation appeal was dismissed.

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