STAGES OF DIVISION OF COMM ON MARRIAGE PROPERTY: PROBLEMS OF THEORY AND PRACTICE

Abstract

In the scientific article, based on the analysis of doctrinal provisions and court practice, the stages of the division of joint property of spouses are highlighted. A detailed review of scientific studies was carried out, which highlight various aspects of property relations between spouses, including the division of their joint property. It is noted that the division of the property of the spouses can be voluntary or forced (by court order). In the case of a voluntary order, the parties themselves carry out an analysis of what they consider joint property, and must also take into account the provisions of the Family Code of Ukraine, which defines which things belong and which do not belong to the joint property of spouses, contains normative standards for the division of such property. It is substantiated that due to the principle of legal certainty, the legal norms of family legislation, which determine the order of division of joint property of spouses, should be clear, understandable, unambiguous, predictable and stable. The importance of the principle of equality in the division of common shared property is emphasized, which lays down the presumption of equality of shares, from which it is possible to depart either voluntarily (the spouses enter into a marriage contract or an agreement on the division of property), or in court if there are valid reasons. The analysis of the norms of the Family Code of Ukraine allowed us to identify four main regulatory standards for the division of joint property of spouses: guaranteeing the principle of equality, justice and freedom of contract regarding the division of property; taking into account the interests of the family, the best interests of the child and the good faith behavior of one of the spouses when dividing joint property; the division of the common property of the spouses must take place in kind, providing for the awarding of indivisible things to one of the spouses, and things for professional occupations to the spouse whose profession; non-extension of the statute of limitations for the division of the joint property of the spouses until the marriage has been dissolved and the three-year limitation period – after the dissolution of the marriage. Important positions of the Supreme Court in considering cases on the division of joint property of spouses, as well as persons living in de facto marital relations, have been revealed. It has been proven that the stages of the division of joint property of spouses differ depending on whether the division is voluntary or forced. We have identified two stages in the process of voluntary separation, and three mandatory and two optional stages in the process of forced (judicial) separation.