Procedural issues of establishing the fact of co-residence by one family without marriage registration

Abstract

The establishment of the fact of cohabitation by one family without marriage registration occurs exclusively in court. The purpose of establishing this legal fact is the realization of certain material rights: division of property acquired during cohabitation by one family without marriage registration as joint property; inheritance of property; assignment and receipt of various types of financial expenses, etc. When going to court in cases of establishing the fact of living together as one family without registering a marriage, various problematic issues may arise. They are related to determining the appropriate jurisdiction (establishing the fact of living together as one family without registering a marriage with a deceased serviceman), the type of proceedings (separate or claim-based), and the correct application of substantive law in the presence of hereditary legal relations. To understand the essence of evidentiary activity, it is important to identify modern judicial approaches to assessing evidence of the fact of living together as one family without registering a marriage. When applying to the court, the applicant is faced with the issue of providing appropriate, admissible and sufficient evidence of the fact of living together as one family without registering a marriage. The purpose of the article is to identify the main procedural issues that may arise in the judicial consideration of cases on establishing the fact of cohabitation by one family without registration of marriage, and to identify approaches to their resolution based on an analysis of judicial practice.
As a result of the analysis of case law materials on cases of establishing the fact of living together as one family without registering a marriage with a deceased serviceman, a new approach to the issue of determining the appropriate jurisdiction was identified. It is based on the criterion of the possibility of establishing the facts out of court and exclusively in court. Legal facts that are to be established in court are decided by courts of civil jurisdiction according to the rules of the Code of Civil Procedure of Ukraine. Decisions regarding facts of legal significance made out of court may be appealed to courts of administrative jurisdiction.
As judicial practice has shown, applications requesting the establishment of the fact of living as one family without marriage registration occur both within the framework of claim and separate proceedings. When applying in separate proceedings, courts quite often see the presence of a dispute over the right. Judicial approaches determine that the criterion for the existence of a dispute over rights is the very possibility of the emergence, change or termination of rights and obligations of third parties as a result of establishing the fact of living together as one family without registering a marriage, even in the absence of objections from such persons. The analysis pays some attention to the issue of distinguishing the legal nature of cases establishing the fact of living together as one family without registering a marriage from cases establishing the fact of living together with the testator as one family for at least five years prior to the opening of the inheritance. Judicial practice indicates the need to delimit the scope of Article 74 of the Civil Code of Ukraine “The right to property of a woman and a man living in the same family, but not married to each other or in any other marriage” and Article 1264 of the Civil Code of Ukraine, since the specified norms regulate different legal relations (family and inheritance). The peculiarities of judicial proof in cases of establishing the fact of living together as one family without marriage registration are the proof of the following facts: living together as one family; common life; mutual rights and obligations.