Prostybozhenko O. Harmonization of the legislation of Ukraine to the legislation of Member States of the European Union relating matrimonial regime of community property

In the dissertation the essence of the matrimonial property regimes' types that exist in the European states is investigated. There are six different matrimonial property regimes within Europe. They are: 1) limited community of property, 2) universal community of property, 3) community of accrued gains (other called participation in acquisitions), 4) deferred community of property, 5) separation of property, and 6) separation of property with distribution by the competent authority. Limited community of property is the most spread in Europe and entails three distinct masses of property, in particular, private or separate property of each spouse and community property of both spouses. Differences between the post-socialist and the West European approaches to a nature of studied regime are discovered. The features of the matrimonial property regime of Ukraine are revealed. Two groups of the features are distinguished. The first group comprises features which are caused by social and economic changes of post-Soviet epoch while the second - by law-making techniques of Ukraine. The presumption of community property of spouses is investigated. The expediency of distinguishing between the conditions for applying the presumption of community property of spouses and the conditions for emergence of joint ownership is substantiated. It is concluded that the only prerequisite for application of the presumption of community property is an acquisition of property by a spouse during a marriage. The prerequisites and application field of the Art. 62 of the Family Code of Ukraine on spouses' joint ownership appearance of the separate property of a spouse are determined. Approaches of the EU Member States to calculation of the mentioned compensation are studied. The essence of the legal construction of the contract in the interests of the family prescribed by Family Code of Ukraine and developed by judicial practice is clarified. Drawing on systemic and logical methods of interpretation of the Articles 61, 65, 73 of the Family Code of Ukraine, it is proposed to apply an integrated approach to understanding the study construction. The European approach to the legal construction of the agreement entered by a spouse without consent of the other spouse, but creating liabilities for both spouses, is investigated. In the European jurisdictions, unlike Ukraine, there are regulated cases when contract concluded by a spouse bound both spouses. The essence of the spousal community obligation is revealed. A concept of "joint obligation" of spouses is investigated. It is concluded about the necessity to introduce in national legislation a clear system of spousal obligations which will include: 1) separate obligations of each spouse; 2) joint and several (solidary) obligations of both spouses; 3) community obligations of spouses. The modes of division of the community property stipulated by the legislations of Ukraine and the EU Member States are determined. Ukrainian legislation does not prescribe civil division, i.e. sale of property by court order at public auction. There are three approaches in Europe. They are: 1) pre-time fulfillment of the obligation, 2) considering debts while division of community property, i.e. division of spousal net assets, 3) regulating the issues according to general civil law rules. It is concluded that the second approach is the most appropriate and preferable to transplant to national legislation and judiciary. Western European doctrine on internal and external relationships of spouses is discovered. Finally, the proposals on the improvement of the national legislation are formulated.