Can a One-Time Cash Assistance Be Assigned to a Person Who Lived with a Deceased Serviceman Without Marriage Registration – Position of the Administrative Cassation Court of the Supreme Court

The Administrative Cassation Court within the Supreme Court considered a case regarding the appeal of the protocol of the Ministry of Defense of Ukraine commission on the appointment and payment of one-time cash assistance (OCA) and compensatory payments.

The key issue was whether a person, as of the date of the serviceman's death, was classified by a special law among those entitled to the appointment and receipt of OCA.

Article 16-1 of the Law of Ukraine "On Social and Legal Protection of Servicemen and Their Families" (hereinafter - Law No. 2011-XII) establishes the list of persons entitled to the appointment and receipt of OCA.

According to Article 16-1 of Law No. 2011-XII (in the version effective at the time of the serviceman's death), the right to OCA belongs to: parents, one of the spouses (who has not remarried), minor children, and dependents of the deceased. Dependents are family members entitled to a pension in case of loss of a breadwinner according to Law No. 2262-XII.

Subsequently, the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine Regarding the Appointment and Payment of One-Time Cash Assistance" No. 3515-IX updated the wording of this article and presented it as follows, where the family members of deceased persons listed in subparagraphs 1-3 of paragraph 2 of Article 16 of Law No. 2011-XII include:

• children, including adopted children, conceived during the life of the deceased person and born after their death, as well as children whose parental rights were terminated during the deceased person's lifetime;
• widow (widower);
• parents (adoptive parents) of the deceased person, if they were not deprived of parental rights or their parental rights were restored at the time of the death;
• grandchildren of the deceased person, if their parents died before the deceased;
• a woman (man) with whom the deceased person lived as one family but was not married to, provided this fact is established by a court decision that has entered into legal force;
• dependents of the deceased person as defined by the Law of Ukraine "On Pension Provision for Persons Released from Military Service and Some Other Persons".

The legislative regulation of the disputed legal relations has undergone changes, including in defining the circle of persons entitled to receive OCA. Therefore, to correctly resolve the dispute, it is necessary to determine which version of the norm applies in this case, which in turn requires clarifying the moment when the right to the relevant payment arises.

The court noted that the right to receive OCA is derivative of the legal fact of the serviceman's death and arises precisely from the moment this event occurs.

Thus, it is the status as of the date of the serviceman's death, which is the moment the right to the relevant payment arises, that determines the circle of persons entitled to receive OCA according to Article 16-1 of Law No. 2011-XII. This ensures the principle of legal certainty, stability of the state's budgetary obligations, and prevents changes (increase or decrease) in the composition of recipients after the occurrence of the legal fact to which the law links the emergence of the right.

The Administrative Cassation Court of the Supreme Court concluded that the findings of the lower courts regarding the possibility of classifying the plaintiff as an OCA recipient by applying the category "family member" in a broad sense are unfounded, as they effectively lead to an expansion of the list of persons defined by Law No. 2011-XII. The legislator, in the version of the norm effective at the time of the serviceman's death, established an exhaustive list of persons entitled to receive the disputed payment, and subsequent legislative changes, including the expansion of the list of persons who may be considered family members of the serviceman, do not have retroactive effect and cannot affect the determination of the composition of persons who acquired the right to receive OCA if such right arose before the amendments came into force.

Under these circumstances, there are no grounds to recognize the contested decision of the Ministry of Defense commission as unlawful, and therefore the decisions of the lower courts are subject to cancellation with the adoption of a new decision to deny the claim.

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