Sham Marriage: When It Can Be Declared Invalid and the Consequences for the Spouses

Marriage in Ukraine is an officially registered family union between a woman and a man. It is the state registration that grants the spouses mutual rights and obligations, as well as ensures the protection of their interests, children’s rights, and legal certainty in family relations. At the same time, the mere fact of entering into marriage does not automatically grant benefits or advantages and cannot be a basis for restricting a person’s constitutional rights.

Before registering the marriage, employees of the civil status registration authorities are obliged to inform the bride and groom about their rights and obligations as future spouses and parents, as well as warn about the responsibility for concealing circumstances that may hinder the conclusion of the marriage.

However, not everyone marries with the intention of creating a family. Sometimes marriages are concluded for personal gain — to obtain citizenship or a residence permit, to register property, conceal assets, receive inheritance, housing, or other benefits.

The Ministry of Justice reminds that such cases may be grounds for recognizing a marriage as sham.

According to Article 40 of the Family Code of Ukraine, a sham marriage is considered a marriage concluded without the intention to create a family and fulfill the rights and obligations of spouses. The absence of such intention may be on the part of both spouses or only one, if the other was convinced of the sincerity of the partner’s intentions.

A sham marriage can be declared invalid only by a court decision. During the case review, the court evaluates not only formal documents but also the actual family relations: whether the spouses lived together, managed a joint household, maintained family life, cared for each other, and planned a common future.

If the court establishes that the marriage was sham, it is declared invalid from the date of its state registration. After the court decision becomes final, the civil status registration authority cancels the marriage record, and the marriage certificate is subject to confiscation. If the document is not returned, information about the termination of its validity will be published on the official website of the Ministry of Justice.

At the same time, the law provides exceptions. If during the court proceedings it is found that after the marriage registration the spouses actually created a family, began living together, managed a household, had children, or built family relations, such a marriage will not be declared invalid. That is, even if there were signs of sham initially, but genuine family relations later developed between the people, the court may deny the claim.

Legal consequences of marriage invalidity

1. A marriage declared invalid by a court decision does not give rise to the rights and obligations of spouses between the persons registered in it, nor the rights and obligations established for spouses by other laws of Ukraine.

2. If during the invalid marriage the persons acquired property, it is considered to belong to them as joint partial ownership. The size of each share is determined according to their participation in acquiring this property through their labor and funds.

3. If a person received alimony from someone with whom they were in an invalid marriage, the amount of alimony paid is considered received without sufficient legal basis and is subject to return according to the Civil Code of Ukraine, but not for more than the last three years.

4. A person who moved into another person’s residential premises due to registration of an invalid marriage does not acquire the right to reside there and may be evicted.

5. A person who changed their surname due to registration of an invalid marriage is considered to bear that surname without sufficient legal basis.

6. The legal consequences established in paragraphs two to five of this article apply to a person who knew about the obstacles to marriage registration and concealed them from the other party and/or from the civil status registration authority (Article 45 of the Code).

If a person did not know and could not have known about the obstacles to marriage registration, they have the right:

- to divide property acquired during the invalid marriage as joint marital property;

- to reside in the residential premises where they settled due to the invalid marriage;

- to alimony according to Articles 75, 84, 86, and 88 of this Code;

- to the surname chosen at the time of marriage registration (Article 46 of the Code).

According to Article 1224 of the Civil Code of Ukraine, persons whose marriage is invalid or declared invalid by court decision do not have the right to inherit from each other by law. If the marriage is declared invalid after the death of one spouse, the surviving spouse who did not know and could not have known about the obstacles to marriage registration may be recognized by the court as having the right to inherit the share of the deceased spouse in the property acquired during the marriage.

It is noted that a sham marriage can serve as a method of committing criminal offenses. For example, if the marriage was concluded for the purpose of fraud (Article 190 of the Criminal Code of Ukraine (CCU)), evasion from military conscription during mobilization (Article 336 CCU).

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