Foreclosure on jointly acquired property of spouses.

PRO 71.68

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Sobianina Olena

Lawyer

Ukraine / Odessa region

Legal analysis of the situation

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Publication date: 23.05.2024

lawyer, 23 years of experience in enforcement.

Foreclosure on jointly acquired property of spouses.
 

In connection with the changes to the current legislation on mobilization, many citizens have a question, "Is it possible to arrest and foreclose on jointly acquired property of the spouses in case of imposition of fines for evasion of mobilization?" The answer to this question is unequivocal "No, it is not possible". In general, the current legislation gives the executor the right to levy on jointly acquired property of the spouses, and now we will understand in which cases it is possible and applicable.

Foreclosure on the jointly acquired property of the spouses is one of the measures of enforcement of decisions. As a rule, such an event is initiated in cases of recovery of a significant amount of debt.

Categories under which foreclosure on the joint property of the spouses is possible:

- debt recovery from an individual in favor of a legal entity or an individual for property damage;
- debt recovery in favor of banking institutions;
- according to executive documents on the collection of alimony, in case of arrears of alimony;
- other property documents for which the debtor has a significant amount of debt.

According to executive documents on administrative fines, such an enforcement measure is usually not applied.

The main conditions under which it is possible to apply such an enforcement measure:

- the debtor has no money, movable or immovable property;

- reasoned court decision on allocation of jointly acquired property of the spouses.

According to the provisions of Article 73 of the Family Code of Ukraine, for the obligations of one of the spouses, enforcement may be imposed only on his personal property and on the share in the right of joint property of the spouses, which is allocated to him in kind.

Enforcement may be imposed on the property that is jointly owned by the spouses, if the court has established that the contract was concluded by one of the spouses in the interests of the family and what was received under the contract was used for its needs.

When compensating for damage caused by the criminal offense of one of the spouses, the penalty may be imposed on the property acquired during the marriage, if the court decision establishes that this property was purchased with the funds obtained as a result of the commission of a criminal offense.

A creditor of a co-owner of property that is jointly jointly owned, in the event that he does not have enough other property that can be foreclosed upon, may file a claim for the allocation of a share of the joint property in kind for foreclosure. If the in-kind allocation of a share of common property results in a change in its purpose or other co-owners object to it, the dispute is resolved by a court.

In accordance with the norms of the Law of Ukraine "On Enforcement Proceedings", if the debtor does not have property, and there are sufficient grounds, the executor applies to the court to allocate the debtor's share of the spouse's jointly acquired property.

From court practice, it can be seen that it is quite difficult to achieve satisfaction of such a submission and judges are reluctant to satisfy such submissions.

After obtaining a court decision on the allocation of fully acquired property, the executor imposes an arrest on such property and promulgates its description. In the absence of an agreement between the parties regarding the value of the property, the executor appoints an appraiser to carry out the appropriate property appraisal.

Realization of jointly acquired property takes place according to the general rules of realization of the debtor's property.