IMPROVEMENT OF THE PROCEDURE FOR THE CONCLUSION OF MARRIAGE AGREEMENTS: SPECIFIC ISSUES OF UPDATING THE LEGISLATION OF UKRAINE

Abstract

The article reveals the debatable issues of concluding a marriage contract and suggests ways to resolve them. It is substantiated that only notaries, consular offices or diplomatic missions of Ukraine may certify marriage contracts, according to the fixed in the provisions of Art. 37 of the Law of Ukraine «On Notaries» exhaustive list of powers of authorized officials of local governments. Therefore, notarization of a marriage contract may not be performed by local government officials. The possibility of rehabilitation of the marriage contract in case of non-compliance with the requirements of the law on notarization of the contract is proved. Rehabilitation of a marriage contract with a defect in form is possible if the parties have agreed on all the essential terms of the contract, confirmed by written evidence, and there is a partial fulfillment of its terms, but one of the spouses evades it’s notarization. In this case, the court may declare such an agreement valid. It is established that marriage contracts do not recognize agreements on changes of the legal regime of property of persons living in the same family, but not married to each other or in any other marriage. It is concluded that such agreements on changing the legal regime of property can be transformed into a marriage contract in case of registration of marriage by such persons and notarization of such an agreement on changing the legal regime of property of the actual spouse. It is proposed to supplement Art. 74 of the Family Code of Ukraine by stipulates that in case of marriage of persons who are in a de facto marital relationship, the contract on change of the legal regime of property of the de facto spouse will be considered a marriage contract, subject to its notarization, unless otherwise specified. The expediency of detailed regulation in item 2 of ch. 5 Regulations on the procedure for performing notarial acts by notaries of Ukraine of the procedure of notarial proceedings for the certification of a marriage contract as a multi-stage phenomenon – from the certification to its termination. This will allow the couple to provide themselves in the future with guarantees for the realization of their property rights and performance of duties for the entire period of married life, which, of course, will avoid litigation in this category of cases.