Women and Justice: Keywords

Legislation

Сімейний кодекс України № 2947-III 2002, стаття 74: право власності на майно під час проживання в цивільному шлюбі (Family Code, art. 74: title to property in civil marriage) (2002)

Divorce and dissolution of marriage, Property and inheritance rights

Article 74 of the Family Code of Ukraine establishes rules governing property division in “civil marriages,” meaning that a woman and a man live together as a family but are not legally married to each other or to anyone else. Any property acquired by a couple in a civil marriage while living together is their joint property that will be shared or divided equally after the marriage ends, unless otherwise defined in a written agreement. Thus, in theory, the legal status of the property acquired by persons in a civil marriage is the same as the legal status of the property of the spouses. However, it is not always clear how to prove the existence of a valid civil marriage, which often leaves women without property rights protection when such relationships end. For example, a civil husband or wife claiming property rights based on civil marriage must establish when the civil marriage began in order to determine the property acquired during its existence, but the legislation does not clearly define the terms “cohabitation” or “living as a family.” Most often, cohabitation is proven by testimony of witnesses and documents (for example, documents confirming expenses for joint property).

Стаття 74 Сімейного кодексу України встановлює правила поділу майна у "цивільному шлюбі", тобто, коли жінка та чоловік проживають однією сім’єю, але їх шлюб офіційно незареєстрований між собою чи з кимось іншим. Будь-яке майно, придбане подружжям у цивільному шлюбі під час спільного проживання, є їхньою спільною власністю, яка буде поділена порівну після припинення шлюбу, якщо інше не визначено письмовим договором. Таким чином, в теорії правовий статус майна, набутого особами у цивільному шлюбі, збігається з правовим статусом майна подружжя. Однак, не завжди зрозуміло, як довести наявність дійсного цивільного шлюбу, що часто залишає майнові права жінок незахищеними після припинення таких відносин. Наприклад, цивільний чоловік або дружина, який/яка претендує на майнові права на підставі цивільного шлюбу, має встановити час виникнення цивільного шлюбу, але законодавством чітко не визначено поняття "спільне проживання" чи "проживання однією сім’єю". Найчастіше спільне проживання підтверджується показаннями свідків і документами (наприклад, документами, що підтверджують витрати на спільне майно).

Domestic Case Law

Resolución Nº 00355 - 2016, Expediente: 12-110068-0671-TP Tribunal de Apelación de Sentencia Penal: III Circuito Judicial de Alajuela en San Ramón (2016)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

The Court established a unified standard of the legal meaning of a “factual union” (unión de hecho). This term is used in the Law of Criminalization of Violence against Women (Ley de Penalización de Violencia contra la Mujer) and in the Family Code (Código de Familia). However, the definition is composed of different elements under each of these legislations. For example, in the Family Code’s definition, the requirement for the marital union to have lasted for a three-year term is considered unnecessary in order to protect the life, free will, physical integrity, and the woman’s dignity in a marriage or factual union. In the unified standard, the Court established that the necessary elements of a factual union are the following: (1) stability (which excludes periodic relationships); (2) publicity (which excludes furtive relationships); (3) cohabitation (which excludes superficial relationships); and (4) singularity (which excludes multiplicity). The Court recognized these elements and acknowledged that they were also recognized by the Convention of Belém do Pará, establishing that it is also considered domestic violence when the aggressor lives with the victim (cohabitation).

El Tribunal estableció una definición legal unificada del significado de una “unión de hecho.” Dicho término se utiliza en la Ley de Penalización de la Violencia contra la Mujer y en el Código de la Familia. Sin embargo, la definición se compone de diferentes elementos en cada una de estas legislaciones. Por ejemplo, en la definición del Código de la Familia, el requisito de que la unión matrimonial haya durado un período de tres años se considera innecesario para proteger la vida, el libre albedrío, la integridad física y la dignidad de la mujer en un matrimonio o en una unión de hecho. En la norma unificada, la Corte estableció que los elementos necesarios de una unión de hecho son los siguientes: (1) estabilidad (lo cual excluye las relaciones periódicas); (2) publicidad (lo cual excluye relaciones furtivas); (3) la cohabitación (lo cual excluye las relaciones superficiales); y (4) la singularidad (lo cual excluye la multiplicidad). La Corte reconoció estos elementos y reconoció que también fueron reconocidos por la Convención de Belém do Pará, estableciendo que también se considera violencia doméstica cuando el agresor vive con la víctima (convivencia).

Supaul v. Lalchand Supreme Court of Belize (2018)

Divorce and dissolution of marriage, Property and inheritance rights

The issues in the preliminary hearing for this case were (i) whether the parties were involved in a common law union and what the material dates of that union were and (ii) whether an agreement entered into between the parties barred the applicant from bringing her claim for maintenance and division of property. The applicant alleged that the parties lived together as man and wife for eight years. The respondent claimed the first two years involved a sexual relationship only and that they did not live as man and wife for the last four years of their relationship because the relationship was unstable. He also contended that the parties had “more of a business relationship.” Under Belize law, a “common law union” is a “relationship that is established when a man and woman who are not legally married to each other and to any other person cohabit together continuously as husband and wife for a period of at least five years.” The court analyzed the evidence of the relationship and found the respondent’s evidence to be “lacking in credibility.” The court found there to have been a common law union for eight years.

Flowers v. Jeffords Supreme Court of Belize (2018)

Property and inheritance rights

The claimant alleged that her common law husband passed away without a will. His son, the defendant, attempted to evict her from the home she shared with the deceased prior to his death. The claimant responded by bringing this administrative action to remove the son as the deceased’s personal representative and to be recognized as one of the lawful beneficiaries of the estate. The son and the deceased’s other children from previous relationships alleged that the claimant was merely their father’s caretaker, but could provide no evidence she was ever paid and could not explain why she lived with their father prior to him falling ill. Under Belize law, a common law union is defined as “an unmarried man and an unmarried woman, who share a mutual commitment publicly to live their life together as a couple and in fact do so for a continuous period of five years or more.” The typical signs of such a union are that the parties “share the same household; the relationship is stable; there is financial support or the pooling of financial resources; there is a sexual relationship; there is public acknowledgement of the relationship and there may be children.” The court analyzed all evidence presented on the nature of the claimant’s relationship with the deceased and held that the claimant was “the female party to a common-law union with [the deceased] up until the time of his death” and so she was a lawful beneficiary of the estate.

AP 2900/90 Tereza Usar Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2012)

International law, Property and inheritance rights

In 2007, Tereza Usar petitioned the Municipal Court in Mostar to recognize a common law marriage so that she could exercise her right to a family pension. Usar had lived in a common-law marriage with Ivan Usar from July 1992 until September 1993 when he, a member of the Croatian Defence Council, was killed during the Bosnian War. In the suit, Usar named as defendants the minor child she had with Ivan Usar and his legal heirs, his children from a previous marriage. The Municipal Court dismissed Usar’s claim, finding her petition constituted a request to establish facts and not to enforce a right or legal relation because common-law marriage is not regulated by law, but is a factual situation of a union of a man and a woman. The Cantonal Court in Mostar and the Supreme Court of the Federation of Bosnia and Herzegovina (“FBiH”) upheld the lower court’s dismissal. In 2012, the Constitutional Court of BiH quashed the judgment of the Cantonal Court in Mostar, finding the Cantonal Court violated Usar’s right to a fair trial under Article II(3)(e) of the Constitution of BiH and Article 6(1) of the European Convention on Human Rights. The appellate court found the lower court had arbitrarily applied the law in determining that common-law marriage is a factual and not a legal relation. The Cantonal Court’s decision directly conflicted with Articles 213, 230-234, 263, and 380 of the Family Law of the FBiH, which prescribe the manner for the maintenance of common-law partners and children from common-law marriages, their property relations, and the procedure for obtaining protection against domestic violence. That is, according to the Constitutional Court of BiH, the legislature of the FBiH did not make any distinction between marriage and common-law marriage with respect to legal relations. Thus, “a life in common-law marriage implies certain rights and obligations, and hence, the existence of a legal relation between the persons who live or who had lived in a common-law marriage.”

Decision available in English here.

Joan v. Hodgson High Court for Zambia (2011)

Divorce and dissolution of marriage, Property and inheritance rights

The defendant alleged that he was induced to make and execute an agreement to pay the plaintiff various amounts following the breakdown of their 10-year relationship, including: payment of US $50,000 (with US $30,000 to be paid initially followed by the remainder; this was subsequently amended to US $60,000), payment of the plaintiff’s rental and medical expenses for 12 months, the purchase of furniture and a computer, and the provision of financial support to the plaintiff’s daughter who was studying. The defendant freely paid the plaintiff US $30,000 but did not honor the rest of the proposed agreement. The defendant claimed that the agreement had been entered into by duress on the part of the plaintiff or alternatively, should be set aside for lack of consideration, and therefore counterclaimed the US$30,000 paid under that agreement. In reply, the plaintiff claimed that: (i) there was a common law marriage between the parties for the defendant held himself out as the plaintiff’s husband and father to her children and for all intents and purposes they lived as husband and wife; and, (ii) the defendant entered into the agreement willingly. The Supreme Court concluded that, in the present case, there was no celebration of marriage and, therefore, the parties could not be presumed to have been married under common law. Further, the Supreme Court noted that there was evidence in support of the position that the agreement was the result of blackmail on the part of the plaintiff who held various sensitive documents of the defendant and threatened to report the defendant to the Zambia Revenue Authority if he did not agree to enter into the agreement. The Supreme Court noted that the evidence established that the agreement had been entered into under duress and therefore was capable of being set aside on this basis. However, a party who enters into a contract under duress has the option of ratifying the contract or seeking to avoid it once the duress has come to an end. The Supreme Court noted that while the defendant paid the US $30,000 with full knowledge of all the circumstances (including suspecting that the plaintiff no longer had any sensitive documents in her possession), the defendant could not have legally ratified the contract, as it was invalid for lack of consideration (in particular, any consideration would be past consideration because the relationship had ended and the plaintiff was supposed to move out of the defendant’s house anyway as she had no legal right to continue staying there). Accordingly, the Supreme Court ordered the plaintiff to refund US$30,000 without interest to the defendant on the basis that the plaintiff should not be unjustly enriched by the threat (with costs to be borne by the plaintiff, to be agreed upon or taxed in default of agreement).