The leading expert of Pepeliaev Group’s Family and Inheritance Law Practice Group Olga Puchkova moderated the webinar ‘Cross-border aspects of how marital property is divided - from the Russian, Ukrainian and Belorussian perspectives’
The leading expert of Pepeliaev Group’s Family and Inheritance Law Practice Group Olga Puchkova moderated the webinar ‘Cross-border aspects of how marital property is divided - from the Russian, Ukrainian and Belorussian perspectives’. The event took place on 23 May at the editor's office of the Zakon.ru portal.
Olga Puchkova pointed out that the webinar was very interesting and useful since the family law practice with cross-border aspects more often gives rise to the issues of cross-border application of the laws of Russia, Ukraine and Belarus. ‘This is clear: historically the peoples of these three states developed together. We have a similar mentality and I believe the citizens of Russia, Ukraine and Belarus are more often related to each other than citizens of other states. These facts have affected the development of family law’ , commented Olga Puchkova.
The participants of the webinar also included Katerina Lysechko, senior associate and coordinator of the family law practice of the Kiev office of the law firm Eterna Law; Tatiana Stankevich, attorney-at-law of Stepanovsky, Papakul and Partners Attorneys-at-Law (Belarus) and Galina Pavlova, partner, head of the family and inheritance law group of Pavlova and Partners Attorneys-at-Law (Russia).
The speakers spoke about which law is applicable when spouses' division of their property is complicated by a foreign aspect, and they provided practical examples and gave some practical advice: how to optimise the legal consequences of property distribution, how to take into account the potential claims of tax authorities of different countries, and how to prepare and enter into marriage contracts.
Despite the family law and court practice of Russia, Ukraine and Belarus being very similar, the speakers managed to surprise the participants of the webinar. Thus, Galina Pavlova (Russia) spoke about the development of the approach of ‘the piercing of the corporate veil’ applied when disputes on the division of property are resolved: actually what is meant here is that the courts are obliged to carry out an in-depth analysis of the corporate structure of a legal entity (when the item being divided up is a business) in order to identify the ultimate beneficial owner. Of course, as the participants of the webinar noted, this will require either skilful experts to be engaged or the judges themselves to be trained. In any case, the idea has been expressed and the direction has been determined, which is the main thing.
Katerina Lysechko (Ukraine) spoke about a curious institution of Ukrainian procedural law: the Supreme Court is empowered to allow a case which under the general rule is subject to a different jurisdiction to be considered by a court of Ukraine at the request of a citizen of Ukraine.
The progressive European approach used by the Belorussian courts was a welcome surprise. According to Tatiana Stankevich, in Belarus when the spouses’ marital property is divided, children’s actual interests are always taken into account: the courts analyse facts and divide the property so that a parent with whom the children are to stay after the divorce has all appropriate conditions to raise them decently. The courts are justified in thinking that part of the other parent’s property must be spent in the same way. Russian family law also contains a provision that children’s interests must be taken into account when their parents’ marital property is divided. However this provision works in very specific cases which are extremely rare.
There are also common reasons why specialists in family law from Russia, Ukraine and Belarus feel disappointed: in all of these counties, judges just do not want to look into complicated issues of private international law and conflict of law principles. Despite the fact that higher courts have already clarified how the law should be applied in such cases, judges tend to choose the easier option of terminating the proceedings in the case or simply refuse to accept the claim under a contrived pretext.
The experts share the following opinion: such court judgements must be challenged in higher courts. Thus, the courts will no longer be stuck in the past.
The webinar also featured a discussion dedicated to the use of ratifying certain international treaties in the area of family and civil law that are applied in a wide range of jurisdictions. If the CIS countries entered into such treaties, this would make the resolution of family disputes with cross-border aspects significantly easier.
The participants of the webinar are deeply grateful to the portal Zakon.ru for the idea and for the interesting event it organised. This is a useful experience of working together, understanding the general tasks of the legal community to improve the work of the courts and to strengthen the legal bonds among the states as well as getting to know colleagues from other states with whom cooperation can be built in the future. The speakers expressed their hope that cooperation will continue and outlined interesting new topics for the next meetings.