On the Nature of Prenuptial Agreements in Modern Ukraine

The prenuptial agreement is a legal institution with a long history. It was known as far back as the time of Roman law and was used quite frequently in the 18th and 19th centuries to protect the rights of wealthy women to family property.

It is worth noting that a prenuptial agreement, as understood today, did not exist, but there was a principle regarding the division of marital property. Under this principle, a husband had the right to dispose of his own property at his sole discretion, but his responsibilities also included providing for and supporting the family.

As for our country, under the old Family Code (during the Soviet era), spousal property relations were governed solely by law. Any agreements or prenuptial agreements were invalid, as they contradicted the legislation in force.

The main reason for this was that the spouses’ property consisted mainly of household items (furniture, clothing, etc.), so there was essentially nothing to divide. Moreover, it was believed that in Soviet families, spiritual values should take precedence over material ones.

In Ukraine, the restoration of the institution of the prenuptial agreement was initially enshrined in the Marriage and Family Code of the Ukrainian SSR and the Resolution of the Cabinet of Ministers of Ukraine dated June 16, 1993, “On the Procedure for Concluding a Prenuptial Agreement,” and was later set forth in greater detail in the Family Code of February 10, 2002; however, as of today, the institution of the prenuptial agreement in Ukraine is not yet fully developed and requires the resolution of certain issues.

However, given the development of private property relations, the situation has changed somewhat.

Nevertheless, current legislation does not define the concept of a marriage contract, which leads to certain difficulties in its legal interpretation. It is clear that the concept of a contract can be defined by its essential characteristics, which distinguish it from other legal transactions, including, but not limited to: specific parties involved, the regulation of solely the spouses’ property relations, the intent to alter the relationship between the spouses, and the requirement for notarization.

Thus, it is necessary to improve the legislation regarding the definition of the official concept of a marriage contract, namely, that it is a legal transaction between individuals who have filed an application for marriage registration, which defines the property rights and obligations of the spouses during the marriage, in particular, the procedure for the division, use, and disposal of property, as well as expenses and income.

In addition, the Family Code of Ukraine stipulates that a marriage contract governs exclusively the property relations of the spouses; however, the legislature must allow spouses to establish procedures for the exercise of certain non-property rights, since, pursuant to Article 270 of the Civil Code of Ukraine and in accordance with the Constitution of Ukraine, an individual has the right to life, the right to health care, the right to an environment safe for life and health, the right to liberty and personal inviolability, the right to the inviolability of personal and family life, the right to respect for dignity and honor, the right to the confidentiality of correspondence, telephone conversations, telegraphic and other correspondence, the right to the inviolability of the home, the right to freely choose one’s place of residence and to freedom of movement, and the right to freedom of literary, artistic, scientific, and technical creativity.

Husband and wife must also have the right to stipulate in a prenuptial agreement the fulfillment of obligations regarding non-property rights or, for example, to define liability under current law for the violation of a personal non-property right.

I would also like to point out that current legislation does not provide for the possibility of entering into a marriage contract through a legal representative or by power of attorney. For example, in European countries, entering into such a contract through a representative is common practice. First, in some cases, representation expedites the conclusion of such an agreement, since one of the spouses may be working abroad for an extended period—a situation that is quite common in Ukraine—or may be on long-term business trips; and second, it resolves the issue of entering into a prenuptial agreement through a legal representative of a person lacking legal capacity, whose lack of legal capacity was established while the person was in a marital relationship.

In my opinion, Article 98 of the Family Code of Ukraine, which addresses the spouses’ agreement on the use of a residence owned by one of the spouses, is problematic and fails to regulate issues that may arise when applying this article.

Therefore, in their agreement, the spouses have the right to stipulate the vacating of the residential premises in the event of divorce; however, in such a case, the rights of minors may be violated if a situation arises in which one spouse, together with a child, needs to find new housing.

First and foremost, I would like to draw attention to Article 93 of the Family Code of Ukraine, according to which property requiring state registration cannot be transferred to the ownership of one of the spouses.

Current legislation provides that any person has the right to freely dispose of their property; therefore, a provision that restricts this right is unlawful and infringes upon the constitutional rights of an individual.

The institution of the prenuptial agreement in Ukraine is not perfect; it requires greater specificity, clearer legal regulation, and the resolution of existing contradictions.

To summarize, I would like to note that the institution of the prenuptial agreement has been adopted from European countries and the most developed nations of the world. Since Ukraine has embarked on a European path of development, it must draw on the experience of developed countries—which have already followed this path over the past several decades—to develop the institution of the prenuptial agreement.