An apartment during marriage is not always divided in half: The Supreme Court explained when it belongs to one spouse
Many believe that all property acquired during marriage automatically belongs equally to both spouses. However, the Supreme Court noted that there is an exception to this rule. If an apartment is purchased with the personal funds of one spouse, it may remain their personal property.
As the Supreme Court indicated, property acquired by one spouse during marriage but with funds that belonged personally to them is their personal private property. The presumption of joint ownership of spouses can be rebutted if it is proven that the source of the property acquisition was the personal funds of one spouse, not joint funds or joint labor. The presence of notarized consent from the other spouse for the purchase of the property by itself does not change the legal status of the property from personal to joint if the fact of using personal funds is confirmed.
Case details
The plaintiff filed a lawsuit for the division of marital property, specifying which property, requesting to recognize the disputed apartment as an object of joint ownership and to allocate her a 1/2 share of this apartment, arguing that the apartment was purchased in 2005 when the parties were married.
The defendant opposed the claim, asserting that the apartment is his personal property.
The courts established that in 2004 the defendant received as a gift 40/100 shares of a household. On December 23, 2005, he simultaneously sold these 40/100 shares for 76,589.00 UAH and purchased the disputed apartment for the same amount – 76,589 UAH. On the same day, an agreement on offsetting mutual claims was concluded between the defendant and the apartment seller, according to which payment for the apartment was made by offsetting the funds received by the defendant from the sale of his personal share of the household.
The plaintiff argued that since she gave notarized consent for the purchase of the apartment, the property should be considered joint.
Decisions of the court of first instance and appellate court
The court of first instance, with which the appellate court agreed, denied the claim, reasoning that the disputed apartment does not belong to the joint ownership of the spouses, since although it was purchased by the defendant during the marriage with the plaintiff, it was bought with the defendant’s personal funds received from the sale of his shares of the household obtained by gift.
Position of the Supreme Court
The Supreme Court agreed with the conclusions of the lower courts, noting that property acquired during marriage is considered joint (Article 60 of the Family Code of Ukraine), but this presumption can be rebutted if it is proven that the source of acquisition was the personal funds of one spouse.
In this case, the defendant proved that the source of funds was the sale of property he received as a gift.
The decisive factor in determining the legal status of the property is to clarify the source and time of its acquisition. Since the apartment was actually obtained by exchange (offsetting mutual claims) for the husband’s personal property, it is his personal private property according to Article 57 of the Family Code of Ukraine.
The consent of the other spouse to the purchase and the absence of reference to the use of personal funds in the purchase agreement itself do not refute the personal nature of such property if the fact of using personal funds is confirmed by other proper evidence.
Supreme Court ruling in case No. 199/9770/21 (proceeding No. 61-9350св23).
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