A soldier was denied discharge because two children were from the wife's previous marriage: the court explained why this is illegal

The Sixth Administrative Court of Appeal upheld the decision of the court of first instance, which obliged the military unit to discharge a mobilized serviceman due to family circumstances.

The court noted that the right to discharge arises in accordance with subparagraph "g" of paragraph 2 of part 4 of article 26 of the Law "On Military Duty and Military Service," since the fourth paragraph of paragraph 3 of part 12 of this article provides such a ground as having three or more children under 18 years of age dependent on the serviceman.

In this case, the court concluded that this condition was met. The plaintiff lived with his wife and three children as one family, and two children of the wife from a previous marriage were also dependent on him. Their biological father died, so according to article 268 of the Family Code of Ukraine, the obligation to support them extended to the plaintiff as their stepfather.

The court also rejected the military unit's arguments that the decision to discharge was within its discretionary powers, noting that if the grounds provided by law are established, the court has the right to oblige the authority to make the appropriate decision.

Circumstances of the case

The plaintiff was called up for military service during mobilization in July 2025.

In September 2025, he submitted a report requesting discharge due to family circumstances, referring to subparagraph "g" of paragraph 2 of part 4 of article 26 of the Law "On Military Duty and Military Service." He cited having three children under 18 years of age dependent on him as the basis.

The commander of the military unit refused to satisfy the report. The refusal was motivated by the fact that two children were the wife's children from a previous marriage and, therefore, according to the military unit, could not be considered when applying this ground for discharge. Additionally, the defendant argued that issuing a discharge order was within the discretionary powers of the command.

The Cherkasy District Administrative Court recognized such refusal as unlawful and obliged the military unit to discharge the serviceman.

Disagreeing with this decision, the military unit filed an appeal.

Position of the appellate court

The Sixth Administrative Court of Appeal agreed with the conclusions of the court of first instance.

The panel of judges emphasized that for applying the relevant ground for discharge, the decisive factor is having three or more children under 18 years of age dependent on the serviceman. This ground is provided by the fourth paragraph of paragraph 3 of part 12 of article 26 of the Law "On Military Duty and Military Service," to which subparagraph "g" of paragraph 2 of part 4 of this article refers.

The court established that the plaintiff is in a registered marriage, living together with his wife and three children as one family. To confirm this, a family composition certificate, an inspection report of material and living conditions, and a certificate of a large family issued to the plaintiff, his wife, and children were examined.

Regarding the two children of the wife from a previous marriage, the panel noted that their biological father had died. Under these circumstances of case 580/12047/25, the court concluded that the obligation under article 268 of the Family Code of Ukraine applied to the plaintiff regarding the maintenance of the stepson and stepdaughter living with him. Therefore, the court recognized that three children under 18 years of age were dependent on the serviceman.

The appellate court also noted that the military unit did not provide any proper evidence to refute the fact of the children's cohabitation with the plaintiff or their dependence on him.

Regarding the discretionary powers of the military unit

The panel rejected the appellant's arguments that the decision to discharge belongs to the discretionary powers of the military unit.

The appellate court stated that the Code of Administrative Procedure of Ukraine empowers the court to apply an effective remedy for the violated right. If all legal grounds for discharge are established, the court may not only recognize the refusal as unlawful but also oblige the authority to take the appropriate actions.

In conclusion, the Sixth Administrative Court of Appeal dismissed the military unit's appeal and left the decision of the Cherkasy District Administrative Court unchanged.

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