Spouses’ Debts and the Division of Their Joint Property: What the Case Law Say

The issue of spouses’ debts in Ukrainian law is far more complex than it may appear at first glance. In public perception, there is often a simplified assumption: if a debt arose during marriage, it is automatically considered “joint.” However, neither legislation nor court practice supports such a straightforward approach.

In reality, the question of spouses’ liability for debt obligations is determined through a combination of civil and family law provisions, as well as through the legal positions developed by the Supreme Court. For this reason, in property division disputes debts often become a tool for manipulation and sometimes a decisive factor influencing how assets are distributed.

What Constitutes a Debt Obligation of Spouses

Neither the Family Code of Ukraine nor the Civil Code of Ukraine contains a direct definition of the term “debt obligation.” Instead, Article 509 of the Civil Code of Ukraine defines an obligation as a legal relationship in which one party (the debtor) must perform a certain action of a property nature, while the other party (the creditor) has the right to demand its performance.

At the same time, Article 190 of the Civil Code defines property as a set of things, property rights, and obligations.

In legal practice, debt obligations are often equated with monetary obligations. However, monetary obligations represent only one category of broader property obligations. A debt may arise not only from loans or credits, but also from damages, contractual obligations, or unjust enrichment.

Grounds for the Emergence of Property Obligations of Spouses

According to Article 11 and Part 2 of Article 509 of the Civil Code of Ukraine, obligations may arise from various legal facts. For spouses, this means that debts can originate from a wide range of circumstances, including:

• contracts and transactions;

• creation of intellectual property objects;

• causing damage;

• unjust enrichment;

• acts of public authorities;

• court decisions;

• other legal facts.

Thus, spouses’ debts are not limited to loans or credit agreements but include any property obligations arising in legal relationships.

Personal and Joint-and-Several Obligations

Family law does not operate with the concept of a “joint debt of spouses.” In practice, two models of liability exist.

The first is personal (separate) obligations. According to Part 1 of Article 73 of the Family Code of Ukraine, each spouse is liable for their own obligations with their personal property and with the share in joint property that may be allocated to them.

The second model is joint-and-several liability, governed by Articles 541–544 of the Civil Code of Ukraine. In such cases, the creditor has the right to demand performance from both debtors together or from either of them separately.

This construction is most commonly applied in disputes involving spouses’ debts.

When One Spouse’s Debt Becomes a Problem for Both

The key provisions of the Family Code that shape the legal regime of spouses’ debts are Part 3 of Article 61, Part 4 of Article 65, and Part 2 of Article 73 of the Family Code of Ukraine.

These provisions establish several fundamental principles.

First, property obtained under a contract concluded in the interests of the family is considered joint property of the spouses.

Second, a contract concluded by one spouse in the interests of the family may create obligations for the other spouse.

Third, in certain cases enforcement may be directed at the spouses’ joint property.

Position of the Supreme Court

The Supreme Court has developed several key legal conclusions regarding spouses’ debts.

In the decision of June 19, 2013 (case No. 6-55цс13), the court stated that obligations for the second spouse arise only if two conditions are met:

1. the contract was concluded in the interests of the family;
2. the property obtained under the contract was actually used for family needs.

In subsequent decisions — April 27, 2016 (case No. 6-486цс16) and September 14, 2016 (case No. 6-539цс16) — the court concluded that a credit agreement may give rise not only to ownership of acquired property but also to a joint-and-several debt obligation.

A more systemic approach was formulated by the Supreme Court in its decision of June 30, 2020 (case No. 638/18231/15-ц).

The court proceeded from the following principles:

• there is a presumption of common family interests of the spouses;

• the decisive factor is the purpose of the contract — whether it was concluded in the interests of the family;

• obligations arising in the interests of the family are joint and several;

• spouses are liable for them with all their property.

What Happens After the Debt Is Repaid

A particularly important practical issue arises when only one spouse repays the debt.

In such a case, the mechanism of recourse (regress) claim provided for by Article 544 of the Civil Code of Ukraine applies. A person who has performed a joint-and-several obligation has the right to demand compensation for the corresponding share from the other debtor.

However, the right of recourse arises only after the obligation has been fully performed. Partial repayment does not create such a right.

This position was confirmed by the Supreme Court in its decision of February 28, 2018 (case No. 727/4089/15-ц), where the court noted that the limitation period for recourse claims begins from the moment the obligation is fully performed.

Another issue is debt forgiveness. Judicial practice indicates that if one of the joint-and-several debtors is released from the debt, a compensatory obligation may arise between the spouses. This approach was confirmed in case No. 753/21593/18 (decision of November 4, 2020).

Are Debts Taken into Account in Property Division

Previously, judicial practice sometimes used the concept of a so-called “net asset,” where debts were taken into account when dividing property.

However, the modern practice of the Supreme Court has effectively abandoned this concept. Debts do not reduce the spouses’ shares in joint property through simple arithmetic calculations. Instead, debt issues are resolved through mechanisms of liability and enforcement.

Judicial Practice Regarding Abuse of Debts

In property division disputes, situations often arise where one spouse attempts to artificially create a debt, for example through a promissory note or a fictitious loan.

Courts have developed a clear approach to such situations.

The mere existence of a promissory note or a loan agreement does not prove that the debt arose in the interests of the family.

It must be established:

1. whether the other spouse knew about the debt;
2. whether they consented to it;
3. whether the funds obtained were actually used for family needs.

This approach has been confirmed in several Supreme Court decisions, including cases No. 638/5286/17 (May 22, 2019), No. 595/1198/19 (April 15, 2021), and No. 947/31704/19 (November 8, 2023).