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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 in civil cases of Supreme Specializes Court of Ukraine for Civil and Criminal Cases in composition of Judges Kuznetsova, Yevtushenko, and Kadetova

having considered in previous court hearing the case on the claim of PERSON-4 to PERSON-5 of the Pyatigorsk village council of the Tetiyiv district of Kyiv region, about recognition of the marriage as unconcluded and annulment of the registered record on marriage, for cassation appeal of PERSON-4 on the decision of the Tetiyiv district court of Kyiv region of 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 of 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 of the Tetiyiv district of Kyiv region, to recognize the marriage unconcluded and to annul the record of the marriage, referring that in the year INFORMATION-1 her father PERSON-6 has died, and after his death the inheritance for will, made on December 17, 2003 on PERSON-5 was open. Having read the will, she saw that the signature was not made by her father. Addressing the Tetiiv Regional Department of the Main Directorate of the Ministry of Interior of Ukraine in the Kyiv region with the statement of commission of a criminal offense, and during the pre-trial investigation the fact of forgery of the signature in the will was established.

In the specified criminal proceedings, also was provided judicial-handwriting examination regarding the registered record № 11 about the marriage of her father with Defendant dated November 20, 1999, found that the signature in the registered record was not made by PERSON-6. Referring to the fact that the signature in the marriage certificate was not made by her father, i.e. the latter was not present at the registration of the marriage, as well as the registration of said marriage violates her rights as the heiress of the first turn, in connection with which she asked the court to recognize such marriage as unconcluded, and to annul the registered record on the grounds provided by articles 21, 34, 48 of Family Code of Ukraine.

By the decision of the Tetiyiv district of Kyiv region of December 1, 2015, 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 the claim was denied.

In the cassation appeal PERSON-4 asks to cancel the appealed decisions and adopt a new decision to satisfy the claim, citing misapplication by the courts of substantive law and violation 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”, High Specialized Court of Ukraine for consideration of civil and criminal cases 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 governing the procedure for considering cases 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 of Article 324 of Civil Procedural Code of Ukraine, the grounds for appeal is incorrect application by a court of substantive law, or a violation of procedural rights.

According to the requirements of Part 1, Article 335 of Code of Civil Procedures of Ukraine when considering a case in a cassation court, that court verifies within the limits of the cassation appeal the correctness of application by the court of first or appeal instance of substantive or procedural law and cannot establish or (and) consider to be proven the 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, and the superiority of some evidence over others.

It was established and it is obvious from case materials that decisions of courts are accepted from compliance with the rules of substantive and procedural law, and the grounds for their change or cancellation was not established.

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

From a copy of the register of applications for registration of marriages of Pyatigorsk village council it can be seen that a record under № 12 was made on October 19, 1999 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 obvious that on November 20, 1999, issued a marriage certificate series NUMBER-1 to PERSON-6.

According to copies of expert opinions, condicted in criminal proceedings, No. 0975 dated October 23, 2014, No. 1071 dated January 19, 2015 year, No 2736/2737 / 15-32 dated May 19, 2015, signature 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, performed not by PERSON-6, but by another person imitating the signature of PERSON-6.

INFORMATION-1 year PERSON-6 has died.

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

By the decision of the Board of Judges of the Judicial Chamber for Civil Cases of the Kyiv Court of Appeal Region from September 14, 2015, which entered into force, the decision of the Tetiivsky District Court of Kyiv Region from June 18, 2015, has canceled that decision and approved a new decision, which refused to satisfy the claim of PERSON-4 to PERSON-5 on declaring the marriage invalid, made in the Pyatigorsk village council of the Tetiyiv District of Kyiv Region.

The issue of invalidity of 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 came into force and effect on June 20, 1969 (hereinafter referred to as The Code of 1969), which was in force at the time of the disputed legal relationship (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). Recognition of marriage invalid is made in court proceedings.

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

Marriage is not allowed: 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, as well as 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 people who marry. If these persons cannot come to the authorities registration of acts of civil status in connection with a serious illness or other serious illness reasons, marriage registration can be done at home, in the hospital or elsewhere 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 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 which do not provide the grounds of absence of the groom and (or) the bride during marriage registration for the recognition of the marriage as unconcluded or invalid.

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

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

The materials of the demanded case do not indicate that in considering this case the courts violated either substantive or procedural law, which are provided for in Art. Art. 338-341 of 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, there are no grounds for their abolition. In accordance with Part 3 of Art. 332 of 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 Code of Civil Procedures of Ukraine, the Board of Judges of court Chamber in Civil Cases of the Supreme Specialized Court of Ukraine for Civil and Criminal Cases

A P P R O V E D:

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 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

Appellate prectice
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