Divorce with a foreigner in Ukraine

Divorce with a foreigner in Ukraine

It is possible to dissolve a registered marriage with a foreigner. This action can be performed in a few ways. Ukrainian legislation provides the grounds for the dissolution of marriage. Paragraph 2 of article 104 of the Family Code of Ukraine states that a marriage is terminated because of its dissolution.

Possible ways of dissolution of marriage:

–        Dissolution of marriage by the public civil status act registration authority upon application of spouses without children

–        Dissolution of the Marriage upon joint application of spouses having children

Everything seems to be easy at first sight, but if one of the spouses is a foreigner, or both of them are foreigners, several issues arise, and the first of them is what state`s laws may be used in a particular case?

If one of the spouses or both of them are foreigners, the norms of private international law shall be applied. Consequently, we will not be restricted to the Family Code of Ukraine, but also shall consider international treaties and conventions on legal aid and legal relations in civil, family, and criminal cases concluded (ratified) by Ukraine with other states if such exist, and, of course, the Law of Ukraine on International Private Law.

Procedure for dissolution of marriage with a foreigner

Firstly, it is necessary to pay attention to where exactly (on the territory of what state) a marriage was registered. this is necessary to make it easier to choose the law of the state applicable in this case.

Quite often there are cases when a husband or a wife has intentions to dissolve a marriage, but another spouse stays abroad, therefore, does not reside in Ukraine, and his actual place of residence/stay abroad is unknown, or a connection with him/her is lost. A question arises: what to do and if such marriage can be dissolved? In this case, dissolution of the marriage shall only be enforced through court. Therefore, one party, as a claimant, may file a claim about a dissolution of marriage against a defendant, which will be directed to court according to the general rules of cognizance on the choice of the claimant.

It is worth knowing, that article 63 of the Law of Ukraine on International Private Law states that the termination of a marriage and its legal consequences are determined by law in force for legal consequences of marriage. However, legal consequences are ruled:

–        By joint personal law of spouses;

As a general rule in international law, the law of a state a citizen belongs to, is considered to be a personal law. For example, if both spouses are Ukrainians, Ukrainian legislation is applied.

–        By the law of a state, in which spouses had last joint place of residence, under a condition that one of spouses still has a place of residence in this state

If the joint personal law of spouses cannot be determined, meaning both spouses are citizens of different countries, a rule of last joint place of residence can be applied. The interesting thing is that such spouses can reside on the territory of another (third) state, therefore, stay on the legal grounds (hold a residence permit), and, at will, dissolve their marriage in this particular state by foreign law.

–        By law according to which both spouses have the closest connection in another way.

Applies in case both spouses do not have a last joint place of residence.

!NB! Do not forget that other rules may be stipulated by international treaties between states, therefore, it needs to be kept in mind. International treaty prevails over the Law of Ukraine “On international private law”.

The dissolution of a marriage is always a complicated process, both psychologically and legally. And if a foreign element takes place, the case undertakesa whole new level of difficulty. Therefore, we advise you to consult with professionals in order to avoid all possible risks and negative consequences.

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