Credit in Marriage: When One Spouse’s Debt Becomes an Obligation for Both

In disputes related to the performance of credit obligations within marital relationships, one recurring mistake—seen both in the arguments of parties and in creditors’ positions—is the attempt to mechanically extend the presumption of joint marital property to the sphere of obligations. However, current legislation does not support such a universal approach, and court practice consistently distinguishes between these two areas.

Indeed, under Article 60 of the Family Code of Ukraine, property acquired during marriage is considered the joint common property of the spouses. However, this rule applies to assets, not to liabilities. By contrast, an obligation—under Article 509 of the Civil Code of Ukraine—is a legal relationship between a debtor and a creditor, where the duty arises only for the parties to that relationship. Furthermore, Article 626 of the Civil Code defines a contract as an agreement that creates rights and obligations specifically for its parties.

Accordingly, the mere fact of being married does not create legal grounds for automatically imposing a debt on the other spouse if that spouse was not a party to the contract. From the same logic follows another important practical conclusion: the absence of the other spouse’s consent to the conclusion of a credit agreement is not, in itself, a sufficient ground for declaring such an agreement invalid.

This position has been clearly established by the Supreme Court, particularly in its decision of 26 September 2018 (case No. 713/285/2012), where it stated that entering into a loan agreement does not constitute disposal of jointly owned property, since the borrower does not acquire ownership of the funds until they are actually received. Therefore, such transactions do not require the mandatory consent of the other spouse.

At the same time, this does not mean that a loan always remains a purely personal obligation. The key provision in this context is Part 4 of Article 65 of the Family Code of Ukraine, which provides that a contract concluded by one spouse in the interests of the family creates obligations for the other spouse as well, provided that the property obtained under the contract was used to meet family needs.

Thus, the decisive factor is not the conclusion of the contract itself, nor even the existence of the marriage, but the actual use of the funds. In such cases, courts look beyond the wording of the contract and assess the real economic substance of the relationship: what the borrowed funds were used for and whether they objectively served family needs—such as housing, medical care, education, child support, or other essential expenses.

It is at this stage that the boundary between a personal and a potentially joint obligation is established.

The next issue—the nature of liability—long remained controversial, as general civil law provisions do not presume solidarity. Under Article 540 of the Civil Code of Ukraine, where there are multiple debtors, each is liable for their respective share unless otherwise provided by law or contract, while Article 541 expressly states that joint and several liability arises only in cases established by law or agreement.

Legal certainty on this matter was provided by the Grand Chamber of the Supreme Court in its decision of 30 June 2020 (case No. 638/18231/15-ц), which held that obligations arising from transactions concluded by one spouse in the interests of the family may be joint and several in nature. This approach is based on the premise that, where the family-related use of funds is proven, both spouses effectively receive a shared economic benefit.

At the same time, it is important to emphasize that such joint and several liability is not presumed. It arises only where the court establishes the relevant facts based on the evidence.

Particular attention should be paid to situations where, after a debt has arisen, the spouses attempt to divide or reassign property. While such actions may formally comply with the law, Article 3 of the Civil Code of Ukraine requires that civil relations be based on principles of good faith, reasonableness, and fairness, and Part 3 of Article 13 explicitly prohibits abuse of rights.

In this context, the Supreme Court, in its decisions of 6 March 2019 (case No. 317/3272/16-ц) and 11 November 2019 (case No. 337/474/14-ц), emphasized that the division of jointly owned property cannot be used as a tool to evade obligations to creditors. Where such actions are aimed solely at avoiding liability, they are not entitled to legal protection.

At the same time, even where joint and several liability exists, this does not finally resolve the internal distribution of the debt burden between the spouses. Under Article 544 of the Civil Code of Ukraine, a debtor who has performed a joint and several obligation in full has a right of recourse against the other debtor(s) in equal shares, unless otherwise provided by law or agreement.

Thus, the modern legal framework governing credit obligations of spouses does not allow for simplified conclusions. A credit agreement concluded by one spouse does not automatically create a debt for the other, but where a family interest is proven, it may transform into a joint—indeed, joint and several—obligation.

Ultimately, in each case, the decisive factor is not the formal marital status of the parties, but the answer to a practical question: was the loan part of the family’s economic life, or did it remain a purely personal decision of one spouse.