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Which country's court can dissolve a marriage between citizens of Ukraine and another country? Which state's legislation applies in such disputes? How to dissolve a marriage registered in the temporarily occupied territories (TOT)? The answers to these and other questions were shared by Olha Stupak, Spokesperson Judge of the Grand Chamber of the Supreme Court, during the online event “Divorce: Cross-Jurisdictional Disputes”.
When discussing the jurisdiction of disputes over divorce registered in the territory temporarily occupied by the Russian Federation, Olha Stupak noted that it is necessary to distinguish between a marriage registered by the occupation ‘authorities’ and a marriage registered by the legitimate Ukrainian authorities in a certain territory before its occupation. For Ukraine, there is no ‘marriage’ registered by the ‘authorities’ of the occupiers, so in order to dissolve it, it is first necessary to go through the procedure of establishing the fact of marriage registration in the TOT in a separate proceeding.
The participants also discussed whether it is necessary or expedient to indicate in the divorce application that the spouses had previously attempted to divorce out of court. The speaker noted that the law does not require disputes to be settled out of court before going to trial. If the court requires it, however, this would be excessive formalism. Therefore, if the court dismisses the statement of claim for this reason, it is advisable to provide the court with an explanation. If the court returns the statement of claim due to failure to eliminate deficiencies, this decision can be appealed to the court of appeal.
In her presentation on “Divorce with a Foreign Element”, Olha Stupak divided the issue into two parts: the jurisdiction of relevant disputes and the determination of which country's law to apply in resolving them.
In the first part, the judge addressed the issue of whether disputes on divorce involving a foreign element (such as when one of the spouses is a foreign national, the marriage was registered abroad, or both parties are Ukrainian citizens residing outside Ukraine) fall within the jurisdiction of the national courts.
The speaker noted that the national court has jurisdiction over all divorce disputes unless the spouses agree otherwise. The only question that may arise is the territorial jurisdiction of such a dispute in Ukraine. In the case of divorce between a citizen of Ukraine and a foreigner or stateless person, one of whom resides in Ukraine, the issue of jurisdiction is determined in accordance with the general rules established by Articles 27 and 28 of the Civil Procedure Code of Ukraine.
Pursuant to Article 27 of the Code, claims against an individual shall be filed in court at the place of his or her registered residence or stay, unless otherwise provided by law. Pursuant to Article 28 of the Civil Procedure Code of Ukraine, divorce claims may also be filed at the plaintiff's registered place of residence or stay if the plaintiff has minor or underage children or if the plaintiff is unable to travel to the defendant's place of residence for health reasons or other valid reasons. By agreement of the spouses, the case may be considered at the registered place of residence or stay of either of them.
In addition, Article 29 of the Civil Procedure Code of Ukraine provides that the jurisdiction over cases involving Ukrainian citizens, where both parties reside outside the country, as well as cases concerning the dissolution of marriage between a Ukrainian citizen and a foreign national or a stateless person residing outside Ukraine, shall be determined by a judge of the Supreme Court, designated in accordance with the procedure set forth in Article 33 of this Code, acting individually.
Regarding the law of which country should be applied in divorce disputes with a foreign element, Olha Stupak noted that national courts apply only the procedural law of Ukraine. At the same time, they may apply the substantive law of a foreign country. When determining which country's substantive law should be applied by a national court in a divorce dispute with a foreign element, the courts should be guided by the rules of Articles 60 and 63 of the Law of Ukraine No. 2709-IV ‘On Private International Law’ dated 23 June 2005.
According to Art. 60 of this Law, the legal consequences of marriage are determined by the common personal law of the spouses, and in its absence - by the law of the state in which the spouses had their last joint residence, provided that at least one of the spouses still has a place of residence in that state, and in the absence of such a law - by the law with which both spouses have the closest connection in another way. Spouses who do not have a common personal law may choose the law that will apply to the legal effects of the marriage if the spouses do not have a common domicile or if the personal law of neither spouse coincides with the law of the state of their common domicile.
Olha Stupak noted that an analysis of the provisions of Article 60 of Law No. 2709-IV leads to the conclusion that the Ukrainian legislator has established four conflict-of-law connecting factors for determining which law shall apply to spouses when resolving the issue of dissolution of marriage:
The judge cited the case law of the Supreme Court in resolving disputes of the category. She drew attention to the resolution of the Civil Cassation Court of the Supreme Court of 24 July 2020 in case No. 357/12676/18. A US citizen filed a lawsuit for divorce from a Ukrainian citizen in a Ukrainian court. The defendant wanted the case to be heard in the United States, where the couple had also lived for some time. The Civil Cassation Court of the Supreme Court concluded that since the defendant was residing in Ukraine at the time of filing the divorce claim and the plaintiff, when applying to the Ukrainian court, recognised its jurisdiction to resolve the divorce dispute, the court of first instance reasonably opened the proceedings at the defendant's place of residence and considered the case on the merits, which meets the requirements of clause 2 of part 1 of Article 76 of the Law of Ukraine ‘On Private International Law’.
Olha Stupak also drew attention to the conclusion in this case that, when examining the issue of applying the conflict-of-law connecting factor lex domicilii, the Supreme Court took into account that, at the time the claim was filed, the de facto marital relationship between the spouses had ended, and their last common place of residence was in the United States, where the plaintiff continues to reside. In such circumstances, the national legislation of Ukraine refers to the application of US law in resolving a divorce dispute. At the same time, US law provides for a conflict-of-laws binding on the law of the court (lex fori) in divorce proceedings, which provides for the application of the law of the state whose court decides on divorce cases, provided that at least one of the spouses is permanently resident in that state.
In the resolution of the Civil Cassation Court of the Supreme Court of 16 September 2020 in case No. 642/3886/18, it was concluded that the court should have clarified the content of foreign law. Thus, the court of appeal did not properly assess the permanent residence permit, which is a document that certifies the identity of a foreigner and confirms only the right to permanent residence in Ukraine, but cannot confirm the fact of permanent residence in Ukraine, and did not assess this evidence in conjunction with other evidence. Since the court is obliged to apply foreign law, it establishes foreign law ex officio (in connection with its position).
The resolution also states that the mechanisms of legal information exchange provided for in bilateral and multilateral legal assistance treaties are effective for the correct determination of the content of foreign law. Olha Stupak pointed out that sometimes, when SC judges need to clarify certain ambiguous rules of foreign law, they turn to the Hague Conference on Private International Law, which also includes two SC judges at the Civil Cassation Court.
In its resolution dated 25 September 2024 in case No. 202/14267/23, the Civil Cassation Court of the Supreme Court stated that a divorce action filed with a national court could not be considered by this court, as the same dispute between the same parties was already being considered by a Lithuanian court. The resolution of the Civil Cassation Court of the Supreme Court of 30 January 2023 in case No. 761/6102/22 states that the conclusion of the court of first instance, with which the court of appeal agreed, to dismiss the claim is lawful and justified, since the same dispute is being considered by a Polish court.
Olha Stupak drew attention to the fact that under Ukrainian law, proceedings are deemed to commence with the opening of the case. However, in the vast majority of European countries, the beginning of the proceedings is considered to be the filing of a petition (application). In view of this, in its resolution of 6 October 2020 in case No. 523/4522/18, the Civil Cassation Court of the Supreme Court rejected the applicant's reference to the fact that the defendant had filed only a petition with the French court, and not a statement of claim for divorce, which cannot be a ground for leaving the claim in this case without consideration.
Presentation by Olha Stupak – https://court.gov.ua/storage/portal/supreme/prezentacii_2025/Prezent_rozirv_sliubu_inoz_element.pdf.
The event was organised by the Ukrainian Bar Association Committee on Civil, Family and Inheritance Law.
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