Spousal consent for buying or selling real estate

When entering into real estate transactions, one of the most common questions is whether a spouse’s consent is required. A mistake in this situation can be costly: the notary may refuse to certify the contract, and in the worst-case scenario, the transaction may be challenged in court after the property title has been registered.

In Ukraine, property relations between spouses are governed by the Family Code. As a general rule, property acquired during marriage is the joint property of the spouses, regardless of whose name it is registered under or who actually paid for it (Art. 60 of the Family Code). This implies that the consent of the other spouse is required when disposing of such property. It is important to note that the joint property regime applies only to officially registered marriages. It does not apply to partners in a common-law marriage.

In this article, we’ll explore in which cases a husband’s (or wife’s) consent to the purchase or sale of real estate is required, when it is not necessary, and what to do if the other spouse refuses to give it.

When a spouse's consent is required

Under Article 65 of the Family Code of Ukraine, spouses manage their jointly owned property by mutual consent. If one spouse enters into an agreement concerning joint property that requires notarization and/or state registration, the other spouse’s consent must be provided in writing and notarized.

In practice, notarized consent is required for:

• selling an apartment, house, land plot, or other real estate acquired during marriage with joint funds;

• gifting jointly owned real estate;

• entering into a real estate exchange agreement;

• mortgaging jointly owned property.

What matters is not only whose name the property is registered in, but also when and with what funds it was acquired. As a general rule, if a property was acquired during marriage with joint funds, it is considered the spouses’ joint property, even if only one spouse is listed as the owner in the documents.

When one spouse purchases real estate using joint funds, the rights of the other spouse must also be taken into account. When notarizing such a transaction, the written notarized consent of the husband or wife to the purchase and the use of joint funds may be required. If the property is purchased with one spouse’s personal funds, the need for such consent depends on the circumstances of the transaction and proof of the source of the funds.

Is consent required after a divorce?

A common misconception is that, after a divorce, each former spouse automatically becomes the sole owner of the property registered in their name. This is not the case.

If real estate was acquired during the marriage and the property has not been divided, it remains the joint property of the former spouses even after divorce. This means that, as before, the former husband’s consent may be required to sell such property, or the property must first be divided. The statute of limitations for a claim regarding the division of jointly acquired property is three years from the date one of the spouses became aware of the violation of their rights (Art. 72 of the Family Code of Ukraine).

When consent is not required

The consent of the husband or wife is not required if the real estate is the personal property of one of them. These are cases where:

• property acquired before the marriage was registered;

• property received by inheritance;

• real estate received as a gift;

• the property was purchased with personal funds, as documented;

• The spouses have entered into a prenuptial agreement that establishes a different property regime.

For example, if a person inherits an apartment from their parents, they have the right to dispose of it at their own discretion and sell it without obtaining their spouse’s consent.

In such situations, the notary may request documents confirming that the property is indeed personal property and not part of the couple’s jointly acquired property. The owner may provide a gift agreement, a certificate of inheritance, or documents proving the source of their personal funds.

How to obtain a notarized consent form

The procedure for obtaining consent is straightforward and is usually completed in a single visit to a notary.

The spouse who gives consent must provide:

• passport;

• taxpayer identification number (TIN);

• a marriage certificate or information regarding the state registration of the marriage;

• information about the property and the nature of the proposed transaction.

The notary drafts the consent form, certifies the signature, and issues the document. You may contact any notary—it is not necessary to do so at the location of the property or the place of registration. If one of the spouses is abroad, the consent form is executed by a local notary and subsequently apostilled.

Regarding the term of validity—if it is not specified in the text of the consent, the document is technically valid indefinitely. However, in practice, notaries assess the validity of the consent based on the specific circumstances of the transaction—the more time that has passed, the higher the risk of issues arising. To avoid any difficulties, it is best to obtain the consent immediately before entering into the transaction.

The cost of notarization consists of the state notary fee and the fee for the notary’s legal services. The state fee is fixed and modest; the bulk of the total amount is the fee for the notary’s services, which varies depending on the notary and the region. On average, the cost of formalizing the consent ranges from approximately 500 to 1,500 UAH. You can confirm the exact cost directly with the notary you plan to consult.

What to do if your spouse doesn't give consent

The lack of consent does not always mean there is no way out, but it does significantly complicate the situation. Notaries generally refuse to certify a contract when joint ownership is involved.

Possible solutions:

• Negotiations — an attempt to reach an agreement voluntarily.

• Property division agreement — have it notarized and specify who owns what.

• Determination of shares by the court—if the parties cannot reach an agreement, the court determines the shares of each spouse.

• Prove that the property is personal property—if there are grounds to believe that an item is personal property, this can be confirmed through documentation or in court.

Attempting to enter into an agreement without the necessary consent poses a serious risk. The other party has the right to challenge it in court. A special statute of limitations applies to such claims—one year (Art. 258 of the Civil Code of Ukraine)—which begins to run from the moment the person learned or should have learned of the conclusion of the contract (Art. 261 of the Civil Code of Ukraine). In doing so, the court assesses both the fact of the lack of consent and the good faith of the parties to the transaction, as well as the specific circumstances of the case.

To minimize risks, it is recommended to determine the property’s legal status in advance, prepare supporting documents, and consult with a notary before finalizing the transaction. The “Mayak” real estate agency employs not only lawyers but also a notary, making it much easier to conclude a transaction correctly and safely.