Legal services About the Firm About the team
Family Member
Author article
Vladymyr Marinich

The concept of “family member” is frequently applied in legal sphere to determine proprietary rights in family relationships. 

Due to the fact that the process of separation of a joint family property is complex and diverse, it is of vital importance to designate those who may be considered as “family members”. In such a way you define who may lay a claim to joint ownership.

Nowadays the concept of “family member” is not definitely set by the legislation of Ukraine.

Many scholars and practitioners of law consider that such an omission in the legislation is deliberate and not accidental. It is connected with the fact that a formal definition of the concept of "family member" and therefore the concept of "family", may lead to contradictions with real and diverse life situations.

In consideration of the foregoing, we will try to reveal the legal definition of the concepts of "family" and "family member" in different aspects of life.

In accordance with the provisions of the Article 3 of the Family Code of Ukraine, the family is constituted by the persons jointly living, connected by general life, having mutual rights and obligations. Thuswise, the law distinguishes three main conditions for the definition of "family" and its "members".

Nota bene, you should not mix up the concepts of "family" and "marriage", which are not the same ones.

The concept of “family” is a broader one.

In accordance with the provisions of the item 3 of the Article 3 of the Family Code of Ukraine, the lonely person has the rights of the family member and such social status is a particular case of the concept of "family".

The monosexual students, living together in a dorm room, having collaborative housekeeping and mutual rights and duties, may be considered as the "family" due to the fact that sexual relations and family ties are not covered at all or described in general terms by the legislation of Ukraine.

Whereas, in accordance with the provisions of the part 1 of the Article 21 of the Family Code of Ukraine the “marriage” is a family union between a woman and a man that is duly registered by the state. For this reason, the “marriage” may be only considered as a specific case of the concept of "family".

 

Unfortunately, the governing conditions of "family" and its "members", which are provided by the Article 3 of the Family Code of Ukraine, are described in general terms and have no exceptions, apart from some cases defined by the legislation.

Consequently, each of the above mentioned conditions shall be understood in a proper way.

The first condition is a joint living. It is an important condition that has its own peculiarities, which are established by the item 2 of the Article 3 of the Family Code of Ukraine.

For example, spouses are considered to be the “family” even when the wife and the husband in connection with study, work, and medical treatment, the need of care of their parents or children and on other reasonable excuses do not live jointly. The child belongs to the "family" of the parents, even when living separately.

The next condition is a general life, which implies joint housekeeping, leisure, communication. The housekeeping may be considered as collaborative under the condition of its maintenance by common or joint incomes, or incomes which may be equated to a common under the individuals’ agreement.

Due to the fact that the first two conditions may be applied even to the mere acquaintances, the most significant legal criterion for the determining the concept of “family” is the existence of personal and property mutual rights and duties between its "members".

Whereas, the rights and duties may be property and non-property. 

Proper allowance must be made for the fact that people, who have no relation to one “family”, may have mutual property rights and duties (for example, when running a joint business).

Consequently, we may not consider the existence of property rights and obligations as the main factor in determining the people as “family members”.

Therefore, we consider it necessary to distinguish the presence of mutual non-property rights and duties between "family members" as the main characteristic criterion of "family" and its "members".

Unfortunately, the concept ща “mutual non-property rights and duties” is determined only for spouses whose marriage is registered by the state (the provisions of the Chapter 9 of the Family Code of Ukraine) and for parents and their children (the provisions of the Chapter 13 of the Family Code of Ukraine). It may be concluded that such a definition is provided only for the cases that are registered by the state.

Whereas, the “mutual non-property rights and duties” of other “family members” are not determined by the legislation of Ukraine.

Consequently, the provisions of the Family Code of Ukraine describe only general criteria of "family" and "members", which are inexhaustive and unambiguous, and, as it is noted above, there are some exceptions, which are established by other laws.

Notice also that the status of spouses, parents or children means that they have only de jure "mutual non-property rights and duties". The mentioned fact does not mean the availability and performance of such rights and duties de facto, that also affects the definition of the concept of "family".

The abovementioned factor causes considerable difficulties in the resolution of family disputes at court that is clearly illustrated by judicial practice.

In accordance with the opinion of the Constitutional Court of Ukraine, which is set out in the decision dated June 03, 1999, it is impossible to determine the only true concept of "family member", which may be applied in the legislation of Ukraine. Such a situation is connected with the fact that each branch of law interprets this concept in its own way, according to the need to allocate one or the other family attributes to regulate all sorts of relationships.

As can be seen from the above there is no clearly defined and reasonably unified regulatory interpretation of the concepts of "family" and "family member" in the legislation of Ukraine.

Therefore, the Item 6 of the decision of the Constitutional Court of Ukraine dated June 03, 1999 gives the interpretation of the possibility of applying of the concept of "family member" on the basis of objective differences of its content depending on the applicable branch of legislation.

Thus, in accordance with the provisions of the Article 64 of the Housing Code of Ukraine the "family members" of the apartment owner’s family may be the spouse, children, parents and other individuals, who live together with the owner and run a joint household.

In addition, in accordance with the provisions of the Article 1 of the Law of Ukraine “On the Principles of Preventing and Counteracting the Corruption”, the “family members” are  individuals, who are married, their children, individuals under trusteeship and guardianship, and other individuals living together, connected by general life, having mutual rights and duties, including individuals jointly living without marriage.

In accordance with the provisions of the Article 1 of the Law of Ukraine “On Prevention of Domestic Violence”, the “family members” are:

  • the individuals, who are married as well as individuals who live together without marriage and their children;
  • the individuals under trusteeship and guardianship;
  • the individuals, who are relatives of direct or indirect line of kinship providing their joint residence.

The Plenum of the Supreme Court of Ukraine in the item 4 of the Regulation dated May 15, 2006 No 3 «On the application of certain provisions of the Family Code of Ukraine by the courts while judicial consideration of cases on paternity, maternity and recovery of maintenance» allocates such concepts as " relatives", "family members" and "other individuals". The concept of "relatives” covers the following individuals: grandmother, grandfather, great grandmamma, great grandfather, brothers and sisters of the whole blood.

In turn, the "family members" may also include stepmother and stepfather, who live as a family with minor or juvenile stepson, stepdaughter. The individual, in whose family the child is being brought up, for example, aunt, uncle, cousin, brother, as well as neighbors or other third persons may be considered as "other individuals".

Under the provisions of the item 1 of the Article 3 of the Criminal Procedural Code of Ukraine a husband, wife, father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, blood brother, full sister, grandfather, grandmother, great grandfather, great grandmother, grandson, granddaughter, great-grandson, great-granddaughter, adopter or adoptee, guardian or tutor, a person under guardianship or trusteeship, as well as individuals jointly living, connected by general life and having mutual rights and duties, including individuals who live together without marriage, may be considered as "close relatives" and "family members".

In addition, under the provisions of the item 1 of the resolution part of the decision of the Constitutional Court of Ukraine dated June 03, 1999 as a "family member" of the military servant, personnel of the State Fire Service, policeman's family may be considered an individual, who is in legal relations with one who has the right for advantageous rates for the use of housing and communal services. The nature of the mentioned legal relations is defined by blood (kinship) ties or marriage relationships; permanent residence with the military, member of the police force, personnel of the State Fire Service; joint living with the mentioned categories. Such features (requirements) are applied differentially when defining the notion of “family members" who are entitled to the specified benefits.

In view of the foregoing, we may affirm that it is impossible to deduce an unambiguous definition of the concepts of "family" and "family member", which may be applied in all cases.

In any case, you should take into account the existing peculiarities of family relationships for each area of the Ukrainian law.

 

Managing Partner of the Law Firm "FOX" Vladimir Marinich