Recognition fake marriage in Ukraine and application of the consequences of its fictitiousness cannot be called an extremely common phenomenon in legal practice. The media, the press services of government agencies and ordinary citizens regularly use this term to refer to various, in their opinion, violations and abuses in marital relations, which is often not a fictitious marriage in the understanding of the legislator. When in fact marriage falls under the signs of fictitious and what legal consequences may occur, we will consider in this article.
Who needs fictitious marriages in Ukraine and why
“The reasons for registering a fictitious marriage can be different, as a rule, they are explained and conditioned by the desire to obtain certain rights, the basis of which alone or as part of other legal facts is marriage, such as inheritance, housing, etc.” (Supreme Court ruling of 17 April 2019 in the case № 752/2337/16-ц). Thus, the conclusion of fictitious marriages in order to obtain the right to benefits, pensions and other payments, travel abroad as a family member of a person, ensuring the right to inherit, the ability to “register” in the apartment or house of the other spouse – is typical for most citizens of Ukraine. Usually in such marriages the criterion of fictitiousness occurs only on the part of one of the spouses, the other marries with the intention of starting a family.
Is it illegal to fake a marriage for immigration?
However, such a “tool” as a fictitious marriage with citizens of Ukraine is also popular with foreigners. They pursue the goal of obtaining a temporary / permanent residence permit in Ukraine, acquiring Ukrainian citizenship in a simplified manner, using Ukraine as a transit country through which a visa-free regime can enter the European Union.
At present, fictitious marriages of foreigners with citizens of Ukraine have become “popular” in order to comply with the formal requirements for participation in assisted reproductive technology programs and adoption of a child citizen of Ukraine, where participation in a registered marriage is a mandatory condition. This is mostly used by single potential parents or same-sex couples whose marriage is not recognized in Ukraine. In the above cases, usually both spouses agree in advance and realize the purpose of such a marriage, often a citizen of Ukraine for their “services” to grant marital status to a foreigner receives a certain reward.
Real vs fictitious marriage
The Family Code defines marriage as a family union of a woman and a man, registered in the body of state registration of acts of civil status (Part 1 of Article 21 of the Family Code of Ukraine). Under the sign of “family” are unions of women and men who live together, connected by common life, and have mutual rights and responsibilities. Community of residence in exceptional cases may be absent, in particular, in the case of education, work, treatment, the need to care for parents, children and other valid reasons (Part 2 of Article 3 of the Family Code of Ukraine).
Thus, the obligatory features of marriage are: 1) recognition of such a union by the state, which is carried out through state registration; 2) the emergence of marital rights and obligations as a result of marriage; 3) voluntary marriage, ie the presence of mutual free consent of a woman and a man to marry; 4) reaching the age of marriage by a man and a woman entering into marriage; 5) heterosexuality of spouses (same-sex marriages are not recognized in Ukraine).
The fictitiousness of a marriage arises if the intention to start a family and acquire the rights and responsibilities of a spouse “falls out” of the list of obligatory features of marriage (Part 2 of Article 40 of the Family Code of Ukraine). That is, both spouses (by mutual consent and knowledge) or one of the spouses (while the other spouse aims to start a family) intends to register the marriage, but without the intention to create a full-fledged family within the meaning of family law.
“Intention to start a family” is an evaluative concept and in each specific case the court determines its presence or absence on the basis of an assessment of the circumstances of the case and the submitted evidence. Peculiar markers of a fictitious marriage can be individually or in combination, in particular: 1) the presence of a selfish purpose (registration of marriage for something) or property benefits from such a marriage; 2) separate residence of the spouses; 3) lack of jointly acquired property; 4) lack of care for each other and mutual material support; 5) non-recognition of marital relations in front of other people; 6) unwillingness to give birth to joint children or their absence; 7) actual family relations with third parties; 8) demonstration to third parties of the absence of actual marital relations and emphasis on the fictitiousness of marriage registration.
Proving the fake marriage in Ukraine
“The peculiarity of proving in cases of marriage annulment due to fictitiousness is that “the intention to start a family is determined by things of a non-legal nature – the desire to live together, run a joint household, take care of the welfare and morale of the family, etc. on the things of non-legal nature that accompany the relationship of persons after the registration of marriage, it is possible to determine the intention of persons to marry” (Supreme Court decision of April 17, 2019 in case № 752/2337/16-ц).
For example, in case № 760/15645/15-ц, which resulted in a marriage being annulled (Supreme Court ruling of 24 June 2019), the court found that the couple had not lived together since the marriage and until the day of her husband’s death, were not connected by common life, did not have mutual rights and responsibilities inherent in the spouses, and therefore did not intend to start a family. The wife did not take part in the treatment of her husband and was not present at his funeral because she was not aware of his death at all. The wife married for the reason that she needed housing and registration of residence in order to take possession of housing. Evidence of the absence of a real marital relationship was: 1) acts drawn up by the residents of the house where the second spouse lived and the district inspector stating that the wife did not live in the husband’s apartment; 2) receipts for payment of housing and communal services and payment documents for payment for treatment and burial of the husband by his relatives, not his wife; 3) testimony of witnesses.
The ruling of the Supreme Court of August 25, 2020 in case № 553/1268/15-ц is also of interest. Thus, the court declared the marriage invalid on the basis of an audio recording of a conversation between the relatives of the deceased husband and his wife, which recorded the latter’s cynical statements about the selfish grounds for marriage. In addition, the case established that the man suffered from a chronic mental disorder in the form of vascular dementia and his mental state at the time of filing the marriage registration and at the time of marriage registration was not aware of the significance of their actions and could not control them, which was confirmed. conclusion of forensic psychiatric examination.
Proving the reality of marriage in Ukraine
There are cases when plaintiffs, abusing their right to defense, file a lawsuit to invalidate the marriage on the basis of fictitiousness to avoid the consequences of divorce, such as the division of joint property of the spouses.
For example, the plaintiff filed a lawsuit to invalidate the marriage, arguing that the defendant “marrying him, pursued the purpose of obtaining registration in Ivano-Frankivsk, selling his home, obtaining an appropriate share of funds to purchase his own apartment, holding a religious and a civil marriage registration and marriage ceremony to improve one’s reputation in society, repay debts, save money and improve one’s health. ” The court concluded that the claims were unfounded and far-fetched because: 1) the claim was filed four years after the divorce; 2) the reality of the marriage was confirmed: by copies of love letters with the intention of marriage; the fact of entering into a church marriage; joint travel photos; a copy of the medical card from the local human reproduction center regarding the intentions to get pregnant during the marriage; receipt of return of things, household appliances as proof of joint economy (the decision of the Supreme Court of March 4, 2019 in the case № 522/11172/16-ц).
Many cases of annulment of marriages due to fictitiousness are initiated by the relatives of the testator in order to remove from the inheritance of the spouse who survived the testator.
For example, a cousin challenged the validity of his deceased relative’s marriage on the grounds that his wife worked abroad, abused alcohol, and led an immoral life. The court rejected the lawsuit, considering that the wife and husband had known each other long before the marriage, the latter was the initiator of the marriage, which was also held solemnly with celebration. As the wife worked abroad, she did not live with her husband permanently, but during her stay in Ukraine they lived as one family, ran a joint household, arranged a house, she provided him with funds for treatment and assistance to his mother, which was confirmed by receipts. . The marriage lasted more than 10 years, during which the husband had the opportunity to challenge the validity of the marriage, but did not do so (Supreme Court decision of July 1, 2021 in case № 295/472/18).
In general, in cases of marriage annulment due to fictitiousness, the court often justifies its decisions by the presence or absence of the following circumstances: (Supreme Court rulings of 27 January 2020 in case № 189/1003/18, of 24 June 2019 in case № 760/15645/15-ц, of 17 April 2019 in case № 752/2337/16-ц); 2) participation and organization in the burial of the deceased from the spouse (Supreme Court decision of May 20, 2019 in case № 760/16498/15-ц); 3) the duration of the marriage and the moment of application or non-application of one of the spouses with a request to declare the marriage fictitious (Supreme Court rulings of 27 April 2020 in case № 569/23252/18 and of 1 July 2021 in case № 295/472/18, dated March 4, 2019 in the case № 522/11172/16-ц); 4) common residence (periodic, permanent) and the reasons for such residence, providing material support to each other (Supreme Court decision of July 1, 2021 in case № 295/472/18).
Fake marriage in Ukraine and the consequences
A fictitious marriage can be declared invalid by a court or later turn into a full-fledged marriage, the so-called rehabilitation of marriage.
In case the court declares a fictitious marriage invalid, the legal consequences of an invalid marriage are applied to such a marriage (Article 45 of the Family Code of Ukraine): the spouse is considered to have not existed; the jointly acquired property is subject to the regime of partial ownership (the size of the share is equal to the size of participation in the acquisition of such property); if one of the spouses received alimony from the other – they are subject to return (but not more than for the last three years); the right to live in the house / apartment of the other spouse is lost (such a person may be evicted); the “maiden” surname returns; the marriage contract and other documents based on the conclusion or issuance of which the marriage was annulled shall be annulled.
The law provides for the possibility of negative legal consequences of invalidity of marriage only for one party (Part 6 of Article 45 of the Criminal Code of Ukraine) and, conversely, the preservation of marital rights of a conscientious party who did not intend to enter into a sham marriage. Thus, if a person did not know and could not know about the obstacles to the registration of marriage, he has the right: to divide the property acquired in an invalid marriage as a joint joint property of the spouses; for living in the dwelling in which she settled in connection with an invalid marriage; for alimony; to the surname she chose when registering the marriage (Article 46 of the Family Code of Ukraine). If both parties registered the marriage without the intention of starting a family, the negative consequences will apply to the wife and husband at the same time.
However, an invalid marriage does not affect the rights and responsibilities of parents and children born in such a marriage. Parents, regardless of their marital status, are obliged to maintain, educate and care for the child.
If the court refuses to satisfy the requirement to recognize the marriage as fictitious, such a marriage is considered legal and valid, it is covered by all the consequences of a normal marriage. Thus, the queues of inheritance are preserved, the right to maintenance of the other spouse in statutory cases is preserved, and the property is presumed acquired in joint joint ownership.
If at the time of the court the circumstances that testified to the person’s unwillingness to start a family disappeared, the marriage cannot be declared invalid (Part 3 of Article 40 of the Criminal Code of Ukraine). In this regard, the Supreme Court noted that the lack of intention to start a family at the time of marriage can be fully compensated by its occurrence after the registration of marriage, when under all objective circumstances it can be argued that the person had an intention to start a family, for example, when after the registration of a marriage that had signs of fictitiousness, the persons began to live together, run a joint household, the wife became pregnant or the couple had children, the father takes care of the wife and children, the couple invites their parents and friends, have sex, rest together and visit their relatives and friends, etc. (decision of April 17, 2019 in the case № 752/2337/16-ц).
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Thus, the institution of fictitious marriage was introduced by the legislator primarily to protect the interests of a bona fide spouse (or his relatives in the event of his death) and civil law punishment of dishonesty, i.e. the consequences for him of the invalidity of the marriage. This protection mechanism is most often used in inheritance cases, when the testator’s relatives try to redistribute the inheritance by removing the deceased’s spouse from the inheritance.
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