How to Divide Joint Property and Stay Married: Analysis of Laws and Judicial Practice

There is a common belief that the division of joint property is only possible after the dissolution of marriage. In fact, Ukrainian legislation provides much broader opportunities. In particular, if spouses have property disputes or want to determine in advance who will own the apartment, house, car, or other property, it is not necessary to get a divorce for this. The law allows dividing joint property even while the marriage continues to exist.

Is it necessary to divorce to divide property?

If a husband and wife want to determine who will own certain property, they can do so without terminating their marital relationship.

This right is enshrined in Article 69 of the Family Code of Ukraine. It explicitly states that the wife and husband can divide property that is in their joint ownership regardless of the fact of divorce. In other words, legally, property issues and family status issues are not interconnected. Spouses can remain married while simultaneously determining which property belongs to each of them separately.

According to Article 60 of the Family Code of Ukraine, all property acquired during the marriage is presumed to be joint regardless of who exactly acquired it or in whose name it is registered. It also does not matter whether one of the spouses had a personal income, since managing the household, caring for children, or other family duties are also recognized as contributions to the creation of joint property.

At the same time, this rule does not apply to personal private property.

In particular, Article 57 of the Family Code defines that property acquired before marriage registration, inherited or received as a gift, as well as certain personal use items, remain the property of the spouse to whom they belong. Such property is not subject to division regardless of the duration of the marriage.

How can spouses divide joint property?

The law allows spouses to independently determine who will own the jointly acquired property or to resolve this issue in court.

If there is no dispute between the husband and wife, they can conclude an agreement on the division of joint property. This option allows resolving property issues without court proceedings. At the same time, if it concerns an apartment, residential house, land plot, or other real estate object, according to part two of Article 69 of the Family Code of Ukraine, the agreement must be notarized. After that, the ownership rights of each spouse must be registered in the State Register of Property Rights to Real Estate.

If an agreement cannot be reached, the dispute can be resolved in court. Either spouse has the right to file such a claim. During the case review, the court determines which property belongs to joint ownership, examines evidence regarding its acquisition, defines the shares of each party, and decides to whom the property should be transferred or whether there are grounds for monetary compensation to one of the spouses.

Is property always divided equally?

The general rule is defined by Article 70 of the Family Code of Ukraine: in the case of dividing property that is the object of joint ownership of spouses, the shares of the wife and husband are considered equal.

At the same time, the law allows exceptions. If the dispute is considered by the court, it has the right to deviate from the principle of equal shares if there are circumstances of significant importance. In particular, this is possible if one of the spouses did not care for the material support of the family, avoided participation in child support, concealed, destroyed, or damaged joint property, or used it to the detriment of the family’s interests.

Additionally, the court may increase the share of one spouse if children or adult disabled son or daughter live with them, and the amount of alimony is insufficient to meet their needs.

When resolving such disputes, not only the provisions of the Family Code of Ukraine apply but also the norms of the Civil Code of Ukraine. In particular, Article 368 of the Civil Code defines the legal regime of joint ownership, and Article 372 of the Civil Code establishes that when dividing it, the shares of co-owners are equal unless otherwise provided by law or agreement between them.

What does judicial practice say about property division disputes?

The practice of the Supreme Court is based on the fact that the right to divide joint property arises not only after the termination of marriage.

The court has repeatedly emphasized that divorce is not a mandatory condition for filing a claim for property division, since Article 69 of the Family Code of Ukraine explicitly grants this right to spouses regardless of whether the marriage continues to exist.

This conclusion was made, in particular, by the Cassation Civil Court in ruling No. 754/944/24. The court noted that the provisions of Articles 69–71 of the Family Code of Ukraine guarantee the husband and wife the opportunity to regulate property relations both by mutual agreement and in court. At the same time, the general rule is the equality of shares of each spouse in joint property unless a different order is established by a marriage contract or agreement between the parties.

The Supreme Court expressed a similar legal position in case No. 357/1662/23. The court pointed out that the mere fact of spouses being in a registered marriage does not deprive either of them of the right to demand the division of joint property. Moreover, the Supreme Court clarified that if the property cannot be divided between spouses, the court may leave it to one of them and award compensation to the other for the value of their share.

At the same time, the Supreme Court reminded that the principle of equality of shares is not absolute. In the ruling dated April 24, 2023, in case No. 462/1024/21, the court emphasized that although Article 70 of the Family Code of Ukraine establishes the presumption of equality of spouses' shares, the court may deviate from this rule if there are grounds provided by law. Such a decision is possible only after a comprehensive examination of evidence and establishment of circumstances that are significant for the case.

Thus, judicial practice confirms that the right to divide property exists regardless of divorce, but in each specific case, the court assesses the factual circumstances, the nature of the property, the behavior of the parties, and applies an individual approach to ensure a fair resolution of the dispute.

Earlier, the "Judicial and Legal Newspaper" wrote that the status of an individual entrepreneur is not subject to division between spouses, but property and income acquired during the marriage can be divided under certain conditions.

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