Community property of spouses: controversial judicial practice

Keywords: presumption, community property, spouses, personal private property, agreement

Abstract

At a time when there is a dispute about the existence of irrefutable presumptions, it is absent regarding refutable presumptions.
The presumption of community property of spouses is rebuttable. It is considered that the property is common until otherwise about all
or a part of it is proved. Specific affiliation and legal nature of the discussed presumption itself presupposes the existence of grounds for
refutation and change of the legal status of property. These grounds are exceptions for joint property of spouses. That is, the property of
a wife or husband that is not joint is private. Personal private property of a wife and husband is established on the basis of the Artic le 57
of the Family Code of Ukraine. Property is considered joint if its separation (personal private property) is not directly established by law
or if it is not recognized by the spouses or a court as personal private property. That is, the latest takes place in three cases: a) established
by a direct prescription of law; b) recognized by spouses as such in a contractual manner (a number of contracts, the least contested of
which – marriage agreement); c) recognized by a court as such during judicial procedure. The latter case is currently controversial.

Since it is well known that a rule of law or a part of it is a universally binding rule (norm) aimed at regulating public relations
by granting their participants rights, establishing obligations and legal liability, the Article 60 of the Family Code of Ukraine is equal
to the Article 57 of this Code of Ukraine. From the above mentioned, the presumption in law in comparison with the general rule of
law is only a flexible tool for regulating legal relations.
A number of its characteristic features do not include a sign of higher legal force over other rules of law. That is, presumptions
in law do not have a higher legal force than other rules of law as well as the presumption of community property.
However, courts make contradictory decisions regarding the recognition of property acquired in marriage as joint or private pro -
perty of one of spouses.
The burden of proving the circumstances necessary for the emergence of the right of community property of spouses on the property
belonging to the other spouse rests with the spouse who claims such demands.
Thus, the use of the presumption of community property of spouses in judicial practice and in the settlement of property family
relations requires an unambiguous scientific approach, and even more effectively – a judicial interpretation and better regulation. It is
also appropriate to develop an effective model of the agreement on the division of property of spouses or another undisputed alternative
to the marriage agreement for the contractual settlement of property rights and obligations of spouses.

References

1. Yurydychna entsyklopediya: u 6 t. [red. Kol.: Y.S. Shemshuchenko (holovnyy redaktor) ta in.]. - Kyiv: Vydavnytstvo Ukrayinska entsyklopediya imeni M. P. Bazhana, 1998-2004. - T. 5: P-S. - 2003. - S. 71.
2. Yavor O. A. Pravove znachennya prezumptsiy u simeynomu pravi / O.A. Yavor. // Zakarpatski yurydychni chytannya / rozdil tsyvilne pravo ta protses, simeyne pravo ta hospodarske pravo. - T1. -S.- 283 285, 282.
3. Skakun O. F. Teoriya derzhavy i prava: pidruchnyk. - Kharkiv: Konsum. - 2001. - Rezhym dostupu: http://politics.ellib.org.ua/pages-1690.html
4. Pro pryynyattya rishennya u tsyvilniy spravi: rishennya Plenumu Verkhovnoho Sudu Ukrayiny № 14 vid 18.12.2009. - Rezhym dostupu: https://zakon.rada.gov.ua/laws/show/v0014700-09
5. O.V. Moskalyuk. Osoblyvosti zastosuvannya pryntsypiv prava u podolanni suttevyh koliziy.//Bulletin of the Ministry of Justice of Ukraine. - 2012. - № 2. - S. 37-42. - Rezhym dostupu: http://nbuv.gov.ua/UJRN/bmju_2012_2_6
Koval V.M. General and special rules of economic law / V.M. Koval // Scientific notes of Tavriyskii National University. V.I. Vernadsky: Series "Legal Sciences". Volume 24 (61). №1. - 2011. - P.8
Published
2020-11-10
How to Cite
Melnychenko, O. (2020). Community property of spouses: controversial judicial practice. Law Review of Kyiv University of Law, 1(3), 166-170. Retrieved from https://chasprava.com.ua/index.php/journal/article/view/493
Section
The issues of civil law, commercial law, labour law and social security law of U