A man reached the Supreme Court to confirm the support of three children for deferral from mobilization: why he was denied

The Supreme Court, composed of a panel of judges of the First Judicial Chamber of the Civil Cassation Court, considered a case regarding the establishment of the fact that a man supports three minor children, as well as living as one family without registering a marriage. The applicant applied to the court to confirm legal facts which, in his opinion, were necessary for processing documents related to the exercise of rights provided by law during martial law.

The Supreme Court upheld the decisions of the lower courts refusing to establish the fact that the applicant supports three minor children. At the same time, the cassation court explained in detail the conditions for establishing such a legal fact, the requirements for evidence, and the limits of the separate proceedings.

Case summary

In May 2024, the applicant filed a petition to establish facts of legal significance. He requested to establish the fact of living as one family without registering a marriage with a woman with whom he had actually lived since March 2021, as well as the fact of supporting three minor children. The applicant stated that establishing these facts was necessary for him to obtain a legal basis for periodic crossing of the state border of Ukraine during martial law.

The case materials show that the applicant was previously in a registered marriage, which was dissolved by court decision. A daughter was born in that marriage. After the divorce, another court decision determined the amount of alimony, which the applicant paid in a fixed monetary amount for her support.

Since March 2021, the applicant began living as one family without registering a marriage with another woman. According to him, they ran a joint household, had a joint budget, and effectively exercised the rights and duties of spouses. At the start of cohabitation, the woman already had a minor son. Information about his father was entered into the birth certificate at the mother's request, and the man recorded as the child's father did not participate in his upbringing or financial support.

The applicant claimed that he actually supported this boy, treated him as his own son, provided for his material needs, paid for his education, lived together with him and his mother, and actively participated in the upbringing and provision of the child's needs.

Additionally, the applicant and his common-law wife had a daughter together. After her birth, the mother was on childcare leave until the child reached three years of age, during which, according to the applicant, he provided financial support for the family and supported the two children living with him. At the same time, he continued to comply with the court decision regarding alimony payments for the daughter from the previous marriage. For these reasons, he requested to establish the fact of supporting all three minor children.

The case materials included certificates of actual residence of the applicant with his common-law wife and children, inspection reports of the residence, birth certificates of the children, documents regarding alimony payments, income certificates of the applicant and his partner, as well as other documents with which the applicant tried to confirm his financial support of the children.

Decisions of the courts of first and appellate instances

The case was repeatedly considered by courts.

Initially, the Cherkasy District Court closed the proceedings, stating that the issue of documenting children as dependents could be resolved out of court, and the applicant had the right to seek protection of the violated right in administrative court. However, the Cherkasy Court of Appeal overturned this ruling and sent the case back to the court of first instance for further consideration.

Following the renewed consideration, the Cherkasy District Court denied the application.

The court noted that the applicant did not confirm with proper and admissible evidence the existence of grounds to establish the fact of supporting three minor children.

Regarding the daughter from the previous marriage, the court proceeded from the fact that the applicant complies with the court decision to pay alimony in the minimum amount provided by part two of Article 182 of the Family Code of Ukraine. At the same time, he did not prove that these funds were the child's main source of livelihood, which is a necessary condition to establish the fact of being supported by a person.

Regarding the partner's son, the court noted that this child is not the applicant's child. There was also no evidence that the applicant provided material support to the child to an extent that would make him the main source of the child's livelihood. Furthermore, the applicant did not prove the absence of other persons legally obliged to support the child or their inability to fulfill this obligation. The court emphasized that voluntary financial assistance alone does not mean the child is considered supported by the person under Article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization."

Regarding the joint daughter of the applicant and his partner, the court stated that establishing the fact of supporting only one child would not have independent legal significance given the purpose of the court application. Since the court concluded there were no grounds to establish support for the other two children, establishing support for only the joint child would not create the legal consequences the applicant sought.

The court of first instance also refused to establish the fact of living as one family without registering a marriage, noting that given the applicant's purpose, establishing this fact alone would not grant him the right to cross the state border.

The Cherkasy Court of Appeal agreed with these conclusions.

The appellate court noted that the applicant appealed only the part of the decision refusing to establish the fact of supporting three minor children. The part regarding refusal to establish the fact of living as one family without registering a marriage was not subject to appeal because after the first instance decision, the applicant and his partner registered their marriage.

After reviewing the appeal arguments, the appellate court concluded that the local court's decision refusing to establish the fact of supporting three minor children was lawful and justified, and the applicant's arguments did not refute the correctness of the first instance court's conclusions.

Legal conclusions of the Supreme Court

Reviewing case No. 707/1353/24, the Supreme Court first focused on the limits of cassation review. The panel noted that the first instance decision was appealed only regarding the refusal to establish the fact of supporting three minor children. The appellate court also considered the case within these limits. Accordingly, under Article 400 of the Civil Procedure Code of Ukraine, the cassation court reviewed the legality of court decisions only regarding these claims.

The Supreme Court reminded that separate proceedings are a type of non-contentious civil procedure in which the court confirms the presence or absence of legal facts necessary to protect rights and interests or create conditions for their exercise. At the same time, cases to establish legal facts can only be considered by the court if certain legal conditions are met. In particular, the fact must produce legal consequences, its establishment must not be related to resolving a dispute over a right, the applicant must not have another way to obtain a document certifying the fact, and the law must not provide another procedure for its establishment. These legal approaches have been formulated by the Grand Chamber of the Supreme Court.

The court also noted that legal facts are those with which the law associates the emergence, change, or termination of civil rights and obligations. Therefore, when considering applications to establish legal facts, the court must primarily assess whether establishing such a fact will have corresponding legal consequences for the applicant.

The Supreme Court separately explained the concept of being supported by a person. Children can be considered supported if they are actually fully supported by the person or receive assistance that is their constant and main source of livelihood. This circumstance must be confirmed by proper and admissible evidence. Such evidence may include documents on family composition, cohabitation, income certificates, bank statements, receipts for payment of education, medical treatment or other expenses, contracts, witness testimony, photographs, videos, and other evidence that can establish actual material support.

The panel emphasized that the purpose of establishing any legal fact is to enable the exercise of a certain right provided by law. At the same time, a court decision issued in separate proceedings does not itself confirm the existence of a corresponding subjective right but only establishes or denies a certain legal fact. The legal significance of such a fact is determined considering the purpose of the person's application to the court.

Assessing the circumstances of this case, the Supreme Court agreed with the lower courts' conclusions refusing to establish the fact of supporting the wife's son from previous relationships. The court noted that this child is not the applicant's child, and the case materials do not contain proper evidence that the applicant fully supported the child or that his assistance was the child's constant and main source of livelihood. The mere fact of cohabitation with the child's mother and voluntary financial assistance does not mean the child is fully supported by the applicant under Article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization."

Regarding the applicant's joint daughter, the Supreme Court agreed with the lower courts that establishing the fact of her support alone would not have legal significance for the applicant given his stated purpose. The court noted that supporting only one minor child does not create the legal consequences the applicant sought, and therefore establishing such a fact will not lead to effective protection or recognition of the desired right.

At the same time, the Supreme Court noted one conclusion of the lower courts regarding the applicant's daughter from the previous marriage. The panel found erroneous the courts' assertion that the applicant did not provide evidence of supporting her. The Supreme Court stated that the applicant paid alimony pursuant to a court decision, so the conclusion about the complete absence of evidence of support is incorrect. However, this error did not affect the correctness of the final decision, as the applicant generally did not prove grounds to establish the legal fact of supporting three minor children.

The panel concluded that the courts of first and appellate instances fully and comprehensively examined the case circumstances, properly evaluated the submitted evidence, and reasonably established the absence of proper and admissible evidence confirming the support of three minor children by the applicant. Therefore, the refusal to satisfy the application is lawful and justified.

The Supreme Court also separately noted its established practice according to which cases to establish the fact of children being supported cannot be considered in separate proceedings, since establishing such a fact directly affects the rights and interests of the other parent. In such cases, the dispute must be resolved in a lawsuit involving the other parent as a defendant. At the same time, the cassation court noted that erroneous consideration of this case in separate proceedings alone is not sufficient grounds to overturn lawful court decisions on the merits, as it would lead to excessive formalism in applying procedural law. Moreover, the applicant did not rely on this circumstance as a basis for cassation appeal.

The Supreme Court rejected the arguments of the cassation appeal about discriminatory treatment of the applicant, noting that the courts did not deny his right to obtain a deferral from mobilization. Instead, the issue was solely the proof of the fact of supporting three children, for which the applicant did not provide necessary evidence. The arguments that the appellate court reviewed a part of the decision not subject to appeal were also found unfounded. The case materials confirm that the appellate review was conducted only within the scope of the appeal arguments.

The Supreme Court refused to form a new legal conclusion regarding the application of paragraph 3 of part one of Article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization," the Procedure for conscription during mobilization approved by Cabinet of Ministers Resolution No. 560, and Article 38 of the Law of Ukraine "On Pension Provision." The court noted that the subject of the case was not the application of these substantive law norms, and the courts' conclusions were based solely on the applicant's failure to prove the circumstances he referred to. Therefore, there were no grounds for forming a new legal conclusion.

In conclusion, the Supreme Court dismissed the cassation appeal and left unchanged the decision of the Cherkasy District Court and the ruling of the Cherkasy Court of Appeal regarding the refusal to establish the fact that the applicant supports three minor children.

The cassation court's ruling enters into force upon adoption, is final, and not subject to appeal.

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