An increase in the share of the property of one of the spouses in the event of its division

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Division of property (equitable distribution)
Division of property (equitable distribution)
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Under general rules, both a wife and a husband have equal rights to the use, possession, and disposition of their shared property. This principle, embedded in the legislation of numerous countries, acknowledges the equal rights of both spouses on an equal basis.

However, there are particular circumstances and situations where the law may deviate from this principle, setting special conditions for the division of property. Let's explore situations where one spouse's share might be increased.

We'll present examples from real cases and their legal rationale to give a broad understanding. But, if you're looking to understand the applicability in your specific case, our experts are here to help.

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When Can One Spouse's Share in Joint Property Be Increased?

Under the current laws of Ukraine, a court can alter the principle of equal shares between spouses if significant circumstances exist. For example, if one spouse failed to contribute materially to the family, shirked responsibilities in raising and caring for children, or secretly squandered or damaged the joint property, thereby harming the family's interests.

The law specifies three primary bases:

  1. Neglect by one spouse in meeting the family's material needs.
  2. Evasion by a spouse from participating in child-rearing.
  3. Concealment, destruction, or damage of joint property contrary to the family's interests.

Significant circumstances include not only the cases listed above but also situations where one spouse had no valid reason for lacking independent income (due to education, household duties, childcare, illness, etc.).

A court's decision must rationalize the breach of the principle of equal shares. The party requesting an increase in their share of the joint property must prove the violation of this principle.

If the court determines that one spouse disposed of property without the other's consent, the value of this property will be considered in the division of assets.

After the factual dissolution of their joint life, spouses might live separately while still legally married. In such cases, the court may deem property acquired during the period of living apart as the personal property of each spouse.

Case in Point: A man filed a case for the division of joint property with his wife. It was discovered during the case that while the husband was abroad, the wife had removed all the property from their shared apartment, including all fixtures and fittings. By dismantling these items, she damaged the integrity of the joint property.

The court, recognizing the wife's actions as unlawful and detrimental to the value of their shared property – the apartment – required repairs following the inflicted damage. As a result, the court deviated from the principle of equal shares, awarding the husband two-thirds of the apartment.

Therefore, in assessing the increase or decrease of a share in joint marital property, the court considers each spouse's contribution to family life and financial support, their domestic involvement, participation in child care, the presence of children with severe chronic illnesses requiring substantial additional efforts and resources for adequate care, treatment, and development over an extended period, and other unique circumstances of each case.

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Is Living with a Child a Ground for Increasing a Parent’s Share in Property?

From our experience, often one spouse believes that if their shared child lives with them, it should affect the division of joint property, favoring an increase in their share. However, under the current legal framework, simply having a child live with one of the spouses does not automatically justify an increase in that spouse’s share of the joint property.

The foundation of family relationships is the principle of equality between husband and wife. This holds even if one spouse didn’t have objective reasons (like managing the household, education, childcare, illness, etc.) to earn an income or contribute financially. To deviate from this principle of equality, significant and demonstrable reasons are required.

This legal stance is also upheld by the Supreme Court of Ukraine. The court may deviate from equal division, considering specific case circumstances, interests of minor or incapacitated adult children, and whether the alimony received suffices for their proper maintenance and development.

Case in Point: A couple sought legal assistance for the division of their joint property. The wife argued for a larger share, reasoning that their two common children lived with her.

However, the court upheld the principle of equal shares in their joint property, as the mere fact of children living with the mother did not constitute grounds for deviation. Additionally, the case documents included a court decision on the amount of child support payable by the father.

Therefore, to alter a spouse's share in joint property, the mere fact of a child living with one parent is insufficient. What matters is the evidence of circumstances that might directly impact the redistribution of shares. It's important to note that the burden of proof rests with the party seeking an increase in their share of the joint property.

If you need to establish a clear and winning legal position, gather necessary evidence, and find legal grounds to change your share in the joint property, our experts are ready to provide professional assistance.

Our law firm has significant experience in regulating family legal relations and guarantees a competent approach to each case and full confidentiality of all information provided to us.

To increase or, conversely, avoid increasing one spouse's share, we offer the following action plan:

  • Situation analysis;
  • Legal positioning;
  • Assistance in evidence collection;
  • Court representation;
  • Support in implementing the court's decision.

Our goal is to protect your interests. That's why we will do everything possible to ensure you achieve the best results in the property distribution dispute and keep your property intact.

Learn more about the division of spouses' property here.

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Publication date: 01/11/2023

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