By Oksana Voynarovska
International marriages are not unusual in today’s world. Unfortunately, international marriages, like any other marriage, can end in divorce.
Right to divorce in Ukraine
Ukraine grants foreign nationals almost the same rights as Ukrainian citizens. This means that foreign nationals have equal rights with Ukrainian citizens to apply to a court for dissolution of their marriage in Ukraine.
Ukrainian legislation establishes a number of cases when a Ukrainian court is competent to dissolve marriage between foreign nationals in Ukraine. Thus, foreign nationals may apply for a divorce in Ukraine only if one of these conditions is fulfilled: (1) a couple has previously agreed that all disputes or even a divorce case between them should be decided by a Ukrainian court (a written notarized agreement between the spouses is required); (2) a defendant lives in Ukraine and has a registered place of residence in Ukraine (the defendant has a permanent or temporary residence permit in Ukraine); (3) their marriage has been registered in Ukraine.
Only if at least one of the above conditions is satisfied may the Ukrainian court hear the divorce case involving a foreign couple. However, according to the court practice of dissolution of international marriages in Ukraine, a foreign national who applies for a divorce in Ukraine should also prove the legal ground for his/her staying in Ukraine. This means that a foreign national must have a permanent or temporary residence permit in Ukraine.
On the other hand, if a Ukrainian couple lives abroad and wants to divorce, it should apply in advance to the Supreme Court of Ukraine for the appointment of the Ukrainian court to be authorized to decide upon divorce. Even if only one of the parties is a Ukrainian citizen and both of them live abroad, they could also apply to the Supreme Court of Ukraine for the appointment of the Ukrainian court. However, there are not many court decisions showing such a court appointment. The Supreme Court of Ukraine mainly appoints a Ukrainian court at the last place of residence of the couple or of one party in Ukraine.
Ukrainian legislation establishes that for the dissolution of an international marriage the law of the common citizenship of the couple is applied. If the couple does not have common citizenship, the applicable law may be agreed under a written notarized agreement between the couple, or otherwise the law of their last common place of residence should apply, provided that one of the spouses continues living in the same country.
This means that Ukrainian law may apply to the divorce of foreign nationals only if the application of Ukrainian law is agreed by the couple or if the couple used to live in Ukraine and one of them continues living in Ukraine after the break-up.
It is also worth mentioning that if a foreign couple applies to the Ukrainian court for divorce and the Ukrainian court is authorized to decide upon divorce, the Ukrainian court should apply (1) the law of the common citizenship of the foreign couple; or (2) the law agreed upon by the couple; or (3) the law of their last common place of residence, if the couple does not have common citizenship and has not agreed upon the applicable law.
According to Ukrainian legislation, the court cannot pass a decision in a divorce case, where there is a prior court decision issued in the same case. Even if there are divorce proceedings pending before one court, the other court should not open new divorce proceedings upon application of one of the spouses.
This rule applies also in a situation where there are two sets of divorce proceedings initiated by the spouses in two different countries. The divorce proceedings which are started first, whether within or outside Ukraine, have priority over any other divorce proceedings. If the Ukrainian court discovers that there are prior divorce proceedings in a foreign court, it will terminate the divorce proceedings in Ukraine. It is also a reasonable ground for reversal of the divorce decision passed by the Ukrainian court, if there is another divorce decision issued by a foreign court prior to any Ukrainian decision.