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25 July 2017, 17:50

Family law: challenges and development trends of the area

Tatiana Ivanovych
Tatiana Ivanovych Counsel, Attorney, Head of Private Clients, Labour & Employment at Spenser & Kauffmann

Specialization of law firms, severe competition, turnover downfall, nothing but dumping….Ongoing economic and political crisis in Ukraine caused revival of interest in the legal services market to advise individuals on family and inherited relations issues. For this reason, popularity of this area of law is moderately increasing annually (10-15% per annum) through active boosting of the demand among lawyers. Law firms that have invested in this area of law prior to commencement of crisis benefited de-facto from such increase.

Conflict constituent

First and foremost, we will try to find out what composes the family law practice market in Ukraine. Traditionally these are relations and disputes, arising between spouses, including de facto, parents and children, other family members on family and inheritance law issues. Some large players of the market advise premium-clients, who are engaged in protection, accumulation and transfer of assets to future generation on international structuring and management of private wealth.  

However, major budget revenue generating cases are still various family disputes, including property division, divorce, custody of children and alimony disputes as well as inheritance disputes, arising mainly between creditor of estate-leaver and his heirs, including future heirs.

It is complex litigation support in family disputes that satisfies the very first need of the client – protection of business and personal wealth in conflicts between spouses and personal non-property interests mainly concerning children in common.

As for conclusion of pre-nuptial and post-nuptial agreements, which form significant part of family law market in Great Britain and aimed to minimize risks of conflict situation and prevent disputes, in our country are still in low demand. Nowadays, these agreements are used mainly in intermarriage and when it is insisted by a foreign spouse.

In focus of changes

Analyzing requests of clients along with Ukrainian (jurisdiction) disputes resolution case law, we can name several trends, appropriate for the area of family law in the recent year. First of all, increase of cases involving temporary and permanent displacement of minor and under-age children (usually for studying abroad). Sometimes, such cases turn into complicated and long-term negotiations and reach trial stage.

Moderate increase is demonstrated by alternative disputes resolution – mediation and negotiations between representatives of the parties to the conflict. Thus, out-of-court disputes resolution of family conflicts can be called as a second significant tendency. With adoption of the Act of Ukraine “On Mediation” (now is being prepared to the second reading) specialists expect market growth. So, we can mention Great Britain again, where institution of mediation is actively promoted by the government (as of 2014 public register of “family mediators” was launched and all the parties, before initiating any kind of process, should first get familiar and evaluate a peaceful way to settle a conflict). From the other hand, due to the low price threshold for consideration of such cases in Ukraine, almost each negotiation process already includes a number of initiated disputes from both parties, becoming additional arguments in negotiations.

One more tendency is increase in use of surrogate maternity. The reason is that Ukrainian legislation protects the rights of those couples, who use assisted reproductive treatment (ART) attaching the right for paternity when using surrogate maternity. Also, cases of international kidnapping of children and application of international mechanisms for their return should be mentioned.

Ukraine will help

The number of couples in the world who for various reasons cannot become parents is increasing. Ukraine is not an exception, as almost every fifth couple faces with the problem of conceiving. Assisted reproductive technologies (ART), namely surrogate maternity can help them.  In many European countries (German, Austria, Switzerland, Suisse, France, Italy, Spain, Portugal, Norway and others) and in some of US states surrogate maternity is prohibited on a legislative level.  In Australia, Great Britain, Denmark, Canada, Netherlands this type of ART can be implemented free of charge. Thus, Ukraine is one of the countries with the legislation which attaches unconditional right to paternity in the process of application of surrogate maternity and allows applying these technologies including on a commercial basis.

Thus, the right of ART use in Ukraine is enshrined in Civil and Family Codes, Fundamental Principles of Legislation for healthcare and is regulated by the Procedure for application of assisted reproductive technologies, approved by the Order of Ministry of Healthcare of 09.09.2013 №787. Thus, in case of transfer of embryo conceived by spouses (man and woman) to the body of another woman as a result of use of assisted reproductive technologies, spouses will be parents of a baby. If the ART application procedure was followed, disputing a maternity is not permitted.

But foreigners, who use ART sometimes face with a problem that their motherland does not recognize children born by a surrogate mother in Ukraine. However, there are specific ways to “legalize” such children.  In some cases, decision of the Ukrainian court to recognize paternity of a child as spouses will be sufficient, whose genetic material (human embryo conceived by spouses) was transferred to the body of another woman. In other cases, it will be necessary to conduct the procedure of adoption or delivery of a baby by surrogate mother in the country of residency of genetic parents.

(In)equality of parents

In line with the current judicial practice, in disputes as regards determination of the places of children's residence the courts take side of mothers, being guided by Article 6 of Convention on the Rights of the Child (Resolution No. 1386 (ХIV) of the General Assembly of the UNO dated 20.11.1959), according to which an underage child, unless there are exceptional circumstances, should not be separated from his/her mother.

The application of this Article is, however, a disputable matter, since, on the one hand, the Convention, being a guideline document, is not an international treaty in the construction of the Vienna Convention on the Law of Treaties of 1969. On the other hand, Ukraine has adopted the principles of formal equality and non-discrimination of maternity and paternity, declared in art. 51 of the Constitution of Ukraine. As such, in fact, when applying the Convention, the courts ignore the constitutional right of a father as regards determination of place of residence of his child with him.

In its turn, numerous resolutions (in particular, in such cases as Mamchur vs Ukraine, Saviny vs Ukraine, Hunt vs Ukraine, Kurochkin vs Ukraine) of the UCHR emphasize the necessity to apply the principle of the best protection and meeting of the child's interests.

Alongside with that, the Supreme Court of Ukraine (whose conclusions must be taken into account by other courts when applying the legal rules), being guided predominantly by Article 6 of the Convention, without paying proper attention to the review of the issue of the best protection and meeting of the child's interests, passed a notorious resolution dated 14.12.2016 in case No. 6-2445цс16, which actually violated the constitutional principle of maternity and paternity.

This issue may be resolved soon by way of submission of the constitutional complaint. The past year reform has implemented such institute, although to realize such right Ukraine still needs to wait until respective amendments are made in the Law of Ukraine "On the Constitutional Court of Ukraine".

Transfer or kidnapping?

The number of transborder family disputes has been increasingly growing during the past years. Accordingly, the number of instances of illegal takings of children out of countries of permanent residence by one of the parents has also grown. An efficient instrument of returning such illegally transferred children is the mechanism stipulated by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. This document provides the opportunity to submit two types of applications: application on return of the child and application on enforcement of the right of access to the child.

The legal relations in the context of guarantees of return of children in Ukraine are governed by the Convention and the Procedure for enforcement on Ukraine's territory of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction approved by Resolution of the Cabinet of Ministers of Ukraine No. 952 of 10.07.2006 . The cases relating to the return of children in Ukraine are heard applying the general procedure for action proceedings according to the Code of Civil Procedure of Ukraine.

In this context, the Supreme Court emphasizes (see, for example, resolution on case No. 6-117цс13 dated 25.12.2013, resolution on case No. 6 -72цс14 dated 02.07.2014) that when passing its resolution, the court should take into consideration the best interests of the child, in particular, one needs to establish whether the transfer or the retention was illegal, to clarify whether the child received care in the place of his/her permanent residence through the moment of transfer, and whether there is the risk that the return of the child might put the child under the threat of injury or emotional distress or otherwise create an intolerable environment for the child.

It is not enough to obtain a positive court resolution on a case, however. Such resolution needs to be enforced, and Ukraine, as it is known, has problems in this domain. And the domain of enforcement of the Convention is no exception.

According to the information published by the Ministry of Justice of Ukraine, in the period from December 2015 to December 2016, 8 illegally transferred children were returned to Ukraine, including 5 children from the US, 2 children from German Federal Republic and 1 child from the Russian Federation. At the same time, in 2016, 2 children were returned from Ukraine to their permanent countries of residence (Canada and Italy).

***

Generally, the market of the family law in Ukraine continues to evolve in comparison with such traditional and budget revenue generating practices as judicial, corporate and tax practices. Notwithstanding, this is its evolution that creates a huge potential of this domain and development opportunities that can hardly be overestimated.

Specific features of relations between the legal counsel and the client within family law related projects

1. Feasibility of the services delivery goes hand in hand with the existence of personal and trust-based relations between the lawyer and the client.

2. The supreme degree of confidentiality. The lawyer should not count on the opportunity to receive favourable publicity in case of successful realization of a major project.

3. Given the emotional component and existence of conflict, the clients' claims are often irrational, especially on the initial stages of the project.

4. The clients have an extremely negative perception the hourly rates charged by the lawyer.

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