De facto family union in the draft Civil Code of Ukraine

Abstract

Abstract

The article is devoted to the study of the category of «de facto family union» proposed in the Draft Civil Code of Ukraine. It is argued that the emergence of this category is connected with the recodification of civil legislation, the unification of private law terminology, and an attempt to systematize the legal consequences of de facto family cohabitation. It is established that the current family legislation of Ukraine recognizes only certain legal consequences of the cohabitation of a woman and a man as one family without state registration of marriage, in particular in the sphere of joint common ownership and the right to maintenance, but does not create a comprehensive legal status for such persons. The article analyzes doctrinal approaches to de facto marital relations, quasi-marital legal relations, and de facto family cohabitation. It is shown that this issue covers terminological certainty, the legal nature of the relevant relations, the range of persons involved, and their property and non-property consequences. Particular attention is paid to the relationship between a de facto family union, marriage, and registered civil partnership. It is demonstrated that marriage, within the current constitutional model, is associated with the union of a woman and a man; the de facto family union in the Draft Civil Code of Ukraine is also oriented toward different-sex partners, whereas registered civil partnership may serve as a separate legal institution for persons regardless of sex. It is concluded that the different-sex model of a de facto family union does not solve the problem of legal recognition of stable same-sex partnerships, which is particularly important in view of the case law of the ECtHR in Maymulakhin and Markiv v. Ukraine and national judicial practice. The expediency of distinguishing between marriage, de facto family union, and registered civil partnership is substantiated. It is proposed to consider a de facto family union not as an analogue of marriage or civil partnership, but as an auxiliary protective legal mechanism for cases where actual family life has already produced legally significant consequences. The need to revise Article 1474 of the Draft Civil Code of Ukraine with regard to legal consequences, criteria for establishment, and partners’ rights is substantiated.