- Settlement of children in court in Ukraine
- What is a court settlement in Ukraine?
- Pros and cons of amicable agreement in Ukraine
- The procedure for drawing up an agreement in Ukraine
- How to conclude an amicable agreement in court in Ukraine
- What to do if the settlement agreement is not fulfilled in Ukraine
Settlement of children in court in Ukraine
According to family law, divorce of a married couple with common minor children is carried out exclusively in court. However, the parents themselves, as the main legal representatives of the child, are given the priority right to resolve educational issues for their children both in advance – when signing an agreement on children, and at any stage of the legal process – by concluding an amicable agreement on children.
This circumstance is due to the protection of the legal rights and interests of children who previously lived in a complete family, and after the divorce of their parents, respectively, in an incomplete family. As a result, the rights and interests of children should not be harmed or limited in family care (by parents who live separately), and this issue should be resolved by the court or by the father and mother themselves directly to the termination of the marriage or at any stage of the proceedings.
The main issues that the court decides in relation to children:
- determination of the child’s place of residence (that is, with whom the child remains to live after the divorce – with the father or mother)
- determining the order of communication between parents living separately with their child (that is, the time and periods of meetings)
- solving the issue of material support by the parents of the child who left the family (alimony, additional costs for the child).
What is a court settlement in Ukraine?
When a marriage is dissolved in court, there are often cases when parents have a dispute over a child, but the parents, for its settlement, submit to the court a prearranged amicable agreement on children in accordance with the Family Code of Ukraine. In this case, the court does not accept responsibility for educational issues and makes a decision on the parents’ divorce on the basis of an agreement.
However, a situation often arises when a dispute regarding the maintenance and upbringing of a child is an open question, and the parents did not prepare an amicable agreement on the children before the start of the trial. In such circumstances, the law provides for a peaceful solution to the problem between the parents. by concluding an amicable agreement, and, importantly, at any stage of the trial (Civil Procedure Code of Ukraine).
An amicable agreement on minor children upon divorce is a legal document in which a married couple (father and mother) regulate the most important aspects of raising and / or maintaining a common child, which has a legal force of a court decision and is binding on the parties, despite the peaceful nature of its conclusion …
If the plaintiff in the statement of claim for divorce indicates that there are no disputes over the child between him and the defendant, and both will confirm this fact in the trial, the court decides only on divorce, reflecting in the court decision the absence of a dispute on aspects of raising the child. However, if such disputes arise in the future, one of the parents will have to resolve them in additional court proceedings, going to court with a separate claim.
Also useful information on the website “Divorce Online” of the family lawyer Alexei Nikolayevich Scriabin may be for you: documents for divorce with children, how do children share in divorce? how to pick up a child from an ex-wife? division of property in case of divorce from children, division of an apartment in case of divorce from a child, communication with a child after a divorce, restriction of communication between father and child, the wife prohibits seeing the child – what to do? agreement on children in case of divorce.
Pros and cons of amicable agreement in Ukraine
The disadvantage of concluding an amicable agreement on children is the consequences regulated by the norms of the Civil Procedure Code of Ukraine – the impossibility of re-applying to the court by the same parties about the same subject. But, in case of divorce, the court warns the spouses about the consequences of concluding an amicable agreement.
EXAMPLE
The husband and wife of Prokopenko went to court with a claim for divorce. Prokopenko has a common young son, Sergei. During the trial, the court learned that the father is against leaving the child with his mother, since the reason for the divorce was his wife’s betrayal and he does not want his son to be subsequently raised by another man, with whom his wife is allegedly going to build a family after the divorce. During the trial, the parties entered into an amicable agreement, in which they agreed that for one week of each month, in agreement with the mother, the child will live at the parent’s place of residence, in order to unite and closely communicate with the father. A year after the settlement agreement was made, the child’s father filed a statement of claim with the district court for the permanent determination of his son’s place of residence with him. Referring to the Civil Procedure Code of Ukraine and the existence of an amicable agreement on the monthly weekly residence of the child with the father, the court refused to accept the statement of claim on a similar issue.
It is worth noting that an amicable agreement concluded in court differs from a court decision in that it is the achievement of a compromise between the parties and a way to independently resolve the conflict.
The court, in turn, in this situation becomes a kind of “outside observer”, does not make decisions, but only monitors the observance of the legitimate interests of the parties to the settlement agreement, the child and takes on the function of certifying it.
Moreover, the conclusion of an amicable agreement is an indicator of the good practice of the judge himself as an official, he knows how to bring the parties to the dispute to agreement.
The procedure for drawing up an agreement in Ukraine
The legislation does not regulate the procedure for drawing up an amicable agreement. This document is a kind of compromise between parents, and therefore the form of its preparation is almost arbitrary. However, like any official document, an agreement must have the following mandatory features:
- The name of the court to which it is submitted.
- Full name, address, passport details of all parties to the participants (in this case – father, mother and child / children).
- The conditions of the compromise reached between the parents are clearly defined, which do not allow ambiguous interpretation of the document in order to avoid further collisions during its execution:
- if it is a question of determining the place of residence of a minor child, it is necessary to indicate the father or mother with whom the child remains and the exact address of his residence;
- if the agreement establishes the procedure for communicating with the child of a separately living parent or mother – days, places, dates, the sequence of meetings are described literally by the hour, meetings are noted on memorable family dates, during the period of illness of the child, during weekends and vacations, the ability to communicate online or by phone , etc .;
- when the alimony issue is resolved by an amicable agreement, the method of collecting funds, the procedure for bringing them to the recipient, the amount and frequency of payments must be determined.
- After describing the most important conditions, the parties set out in writing a request to the court to certify this document and terminate the civil proceedings.
- The text of the settlement agreement ends with the signatures of the parties.
The settlement agreement is drawn up in three copies: one for each of the parties, the third copy is attached to the court case.
As a rule, breaking up a marriage, the child’s parents do not argue over all aspects of upbringing at once – there can be one controversial issue (for example, the procedure for communicating with the child), maximum – two (for example, determining the child’s place of residence and collecting alimony). When drawing up a settlement agreement, all disputable issues about children are reflected in one document.
Summing up the above, it should be borne in mind that even if the Agreement has all the conditions, before its notarial approval, you should consult with a family lawyer or lawyer.
How to conclude an amicable agreement in court in Ukraine
As noted above, the parties have the right to express their desire to conclude an amicable agreement at any stage of the trial: both before the actual commencement of proceedings on the case (that is, at the very first court session), and before the court makes a decision. Moreover, the court is independently obliged to take all exhaustive measures to reconcile the parties in matters of raising a child and to offer a peaceful solution to the dispute.
Parents can declare their readiness to reconcile in the upbringing of a common child to the court orally, stating this at the trial. In this case, the court may postpone the session in order to give the parties the opportunity to independently think over and prepare the document. However, in some cases, an amicable agreement can be drawn up immediately during the trial, it will be attested in the minutes of the court session.
When drawing up an agreement, the parties to the agreement must comply with the exact and detailed expression of the terms of the agreement, avoid ambiguous interpretation of the document, as well as strict compliance with the interests of the child and not allow a clear violation of the rights of the father and mother.
What to do if the settlement agreement is not fulfilled in Ukraine
The essence of the conclusion of this document is the achievement of voluntary compromises by parents, getting divorced, with the goal of pre-trial settlement of the issue. However, it is not advisable to conclude such an agreement with the aim of further non-compliance with the terms of the agreement – in this case, it is better to initiate or not terminate the proceedings in advance. In practice, there are many cases of non-compliance with settlement agreements, which does not relieve the parties of any responsibility.
Since the settlement agreement is equal in its legal nature to the court decision (but it is not!), It is also subject to compulsory execution, which should not be forgotten by the parties.
There are 2 ways to solve the problem of non-fulfillment of the concluded agreement:
- An appeal to the court, which approved the agreement, with an application for the issuance of a writ of execution:
- such a statement will not be subject to a court fee;
- the application must contain information about a previously signed agreement, its terms and date of conclusion, information about the failure of one of the parties to fulfill its obligations;
- at the end of the document there is a request for the issuance of a writ of execution for the implementation of compulsory execution.
- Appealing against a court ruling, which approved the conclusion of the peace document: the method is limited in time, since the period for its implementation is no more than 15 days from the date of the court decision.
In this case, the applicant must prove to the court that the agreement is not voluntarily fulfilled by the other party, and therefore it is advisable to resume the proceedings and make a court decision.
It is better not to bring the matter to the involvement of state regulatory authorities in family disputes. After all, it is one thing when civil servants control the issue of non-payment of alimony, and quite another thing when there is a control and determination of compliance with the procedure for communicating with a child: it is unlikely that the baby will normally perceive a situation in which, for example, a civil servant will accompany him for a walk with his father or a representative of the guardianship and guardianship authorities (although there are such cases as well). Therefore, if the parties have already made a compromise to each other, you should not violate it, thereby attracting the bailiffs to the personal life.
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