How the incredible situation became lawful and correct because of the decision of Supreme Court of Ukraine

TRANSLATION FROM UKRAINIAN

2000.6.17

Unified Register of Court Decisions

Case Category No. 380/1576/15-ц: Not Specified.

Sent by Court: Not Specified. Registered: 10/04/2017. Published: 10/05/2017.

Trial number: Not Specified.

Decree by the Name of Ukraine

September 20, 2017,

City of Kyiv

The Board of Judges of the Judicial Chamber Specialized Court of Ukraine for Civil and Criminal Cases, including Judges Kuznetsova, Yevtushenko, and Kadetova, has determined as follows:

Having considered in previous court hearings the case on the claim of PERSON-4 to PERSON-5 of the Pyatigorsk Village Council of the Tetiyiv district of Kyiv regarding recognition of the marriage as unconcluded and annulment of the registered record on marriage, file for cassation appeal on behalf of PERSON-4 for the decision of the Tetiyiv district court on December 1, 2015, and the decision of the Board of Judges of the Judicial Chamber in civil cases of the Court of Appeal of Kyiv on January 21, 2016.

E S T A B L I S H E D:

In October 2015, PERSON-4 appealed to the court with a claim to PERSON-5 in the Pyatigorsk Village Council to recognize the marriage unconcluded and to annul the record of the marriage, referring to that in the year INFORMATION-1 her father PERSON-6 died, and after his death the inheritance from his will, made on December 17, 2003, was open. Having read the will, she saw that the signature was not made by her father. During both her statement to the Tetiiv Regional Department of the Main Directorate of the Ministry of Interior of Ukraine and the pre-trial investigation, the forgery of the signature in the will was established as fact.

The specified criminal proceedings included a judicial-handwriting examination of the registered record № 11 regarding the marriage between her father and the defendant dated November 20, 1999. This probe found that the signature in the registered record was not made by PERSON-6. Referring to the fact that the signature on the marriage certificate was not made by her father (i.e. the latter was not present at the registration of the marriage), PERSON-4 claims that the registration of said marriage violates her rights as the heiress of the first turn, asks the court to recognize such marriage as unconcluded, and asks the court to annul the registered record on the grounds provided by Articles 21, 34, and 48 of Family Code of Ukraine.

By the decision of the Tetiyiv district of Kyiv on December 1, 2015, and upheld by the ruling of the Board of Judges of the Judicial Chamber in Civil Cases of the Court of Appeal of Kyiv region of January 21, 2016, the satisfaction of this claim was denied.

In the cassation appeal, PERSON-4 asks to cancel the appealed decisions and adopt a new decision to satisfy the claim. In doing so, PERSON-4 misapplies multiple citations of substantive law and violations of procedural law. In accordance with Paragraph 6 of Chapter XII, “Final and Transitional Provisions” of the Law of Ukraine of June 2, 2016 No. 1402-VIII “On the Judiciary and Status of Judges”: The High Specialized Court of Ukraine considers civil and criminal cases and acts within the powers defined by the procedural law, before the Supreme Court begins its work and before the entry into force of relevant procedural legislation by the Supreme Court.

In this regard, the case is subject to consideration in the manner prescribed by the Civil Procedural Code of Ukraine of March 18, 2004.

The cassation appeal must be rejected in view of the following.

In accordance with Part 2, Article 324 of the Civil Procedural Code of Ukraine, the grounds for appeal are an incorrect application of substantive law, as well as a violation of procedural rights.

According to the requirements of Part 1, Article 335 of the Code of Civil Procedures of Ukraine: when considering a case in a cassation court, the court must verify within the limits of the cassation appeal the correctness of the application of substantive or procedural law, and cannot establish and/or consider circumstances which either were not established in the court decision, or rejected by it, to decide on the authenticity or unreliability of that or other evidence or determine the superiority of some evidence over others.

It was established from case materials that the decisions of courts are compliant with the rules of substantive and procedural law, and the grounds for their change or cancellation were not established.

The courts found that on November 20, 1999, the Pyatigorsk village council of the Tetiiv district of Kyiv registered a marriage between PERSON-6 and PERSON-7, according to a copy of the marriage certificate № 11 of November 20, 1999.

A copy of the register of applications from the Pyatigorsk Village Council shows that a record under № 12 was made on October 19, 1999, and that an application was accepted from PERSON-6 and PERSON-7 for marriage registration.

From a copy of the book of issue of certificates of the Pyatigorsk Village Council, it is evident that on November 20, 1999, the Council issued a marriage certificate series NUMBER-1 to PERSON-6.

Copies of expert opinions conducted in criminal proceedings, including No. 0975 dated October 23, 2014, No. 1071 dated January 19, 2015, No 2736/2737 / 15-32 dated May 19, 2015, conclude that there was a signature made on behalf of PERSON-6 in the column ‘citizen’ in line 11 ‘signatures of married persons (premarital surnames)’ in the record of the marriage certificate of PERSON-6 and PERSON-7, record No. 11 dated November 20, 1999. However, this signature was not performed by PERSON-6 but by another person imitating the signature of PERSON-6.

In INFORMATION-1 year, PERSON-6 died.

By the decision of the Tetiiv District Court of Kyiv on June 18, 2015, the claim of PERSON-4 to PERSON-5 declaring the marriage invalid was satisfied.

However, the Board of Judges of the Judicial Chamber for Civil Cases of the Kyiv Court of Appeal canceled the decision of the Tetiivsky District Court of Kyiv on September 14, 2015. The Chamber approved the decision to refuse the satisfaction of PERSON-4’s claim that the marriage was invalid, made in the Pyatigorsk Village Council of the Tetiyiv District of Kyiv.

The issue of invalidity of the marriage of PERSON-6 to PERSON-7 is regulated by Chapter 8 of Section II of the Code of Marriage and Family of Ukraine № 2006-VII, which came into force and effect on June 20, 1969 (hereinafter referred to as the Code of 1969). The Code of 1969 was in force at the time of the disputed legal relationship (the registration of the marriage was on November 20, 1999).

The norm of Art. 45 of the Code of 1969 stipulates that a marriage may be declared invalid in case of violation of the conditions established by Articles 15-17 of the Code of 1969, as well as in case of registration of marriage without the intention to start a family (fictitious marriage). The recognition of marriage as invalid is made in court proceedings.

Articles 15-17 of the Code of 1969 stipulate that necessary conditions for the conclusion of marriage are a) mutual consent of the persons who marry and b) their attainment of marital age. The marital age is set at 18 years for men and 17 years for women.

Marriage is not allowed in the following cases: between persons, at least one of whom is already in another marriage; between relatives in a direct ascending and descending line; between full and half-brothers and sisters; between adoptive parents and adopted children; between persons, at least one of whom has been declared incapable by a court due to mental illness or dementia.

Registration of marriage is carried out in registry offices in the presence of the marital party. If these persons cannot come to the authorities with registration of acts of civil status in connection with a serious illness, or other serious illness reasons, marriage registration can be done either at home, in the hospital, or elsewhere in the presence of persons entering into marriage (Article 177 of the Code of 1969).

Refusing to satisfy the claim, the court of first instance, with which the conclusion the court of Appeal has agreed, correctly established the nature of the legal relations of the parties to the case and applied substantive law governing them, reasonably proceeding from the fact that the legal relationship that arose between the parties regarding registration of the marriage concluded on November 20, 1999, were regulated by the Code of 1969. The norms of this code do not provide the grounds of absence of the groom and/or the bride during marriage registration for the recognition of the marriage to be deemed unconcluded or invalid.

The Board of Judges agrees with such conclusions of the courts, as they agree with the materials and circumstances of the case.

The cassation appeal of PERSON-4 argues that the forensic-handwriting examinations conducted during the criminal proceedings found that the signature on the marriage certificate was not made by her father. It held that the certificate of marriage between PERSON-6 and PERSON-7 was issued on October 6, 1999, and that the marriage was concluded on November 20, 1999, Thus, the conclusions of the courts are not refuted.

The materials of the demanded case do not indicate that, in considering this case, the court violated either substantive or procedural law, which is provided for in Art. Art. 338-341 of the Code of Civil Procedures of Ukraine as grounds for revocation of decisions.

Thus, the impugned decisions of the courts were adopted in compliance with the rules of substantive and procedural law, and there are no grounds for their abolition. In accordance with Part 3 of Art. 332 of the Code of Civil Procedures of Ukraine, the court of cassation at the preliminary consideration rejects the cassation appeal and leaves the decision unchanged. There are no grounds for revocation of the court decision.

Given the above and guided by Art. 332 of the Code of Civil Procedures of Ukraine, the Board of Judges of the Court Chamber in Civil Cases of the Supreme Specialized Court of Ukraine for Civil and Criminal Cases

Approved:

To dismiss the cassation appeal of PERSON-4. To leave unchanged the decision of the Tetiyiv District Court of Kyiv region from December 1, 2015, and the decision of the Board of Judges of the Judicial Chamber in Civil Cases of the Court of Appeal of Kyiv region from January 21, 2016. The decision is not subject to appeal.

Judges:

V.O. Kuznetsov

O. I. Yevtushenko

O.V. Kadetova