1. General Context
Draft Civil Code of Ukraine No. 15150 provides for a systemic update of private (civil) law, in particular the integration of family relations into the structure of civil legislation and the reconsideration of approaches to the regulation of marriage, parenthood, parentage of a child, adoption, and personal non-property rights.
At the same time, an analysis of the provisions of the draft indicates the existence of systemic risks of non-compliance with international human rights standards. This concerns not only the protection of the rights of women and survivors of violence, but also:
ensuring the rights of the child and the principle of the best interests of the child
guarantees of non-discrimination and gender equality
the right to respect for private and family life
A number of provisions of the draft:
reproduce an approach of formal equality without taking into account de facto inequality and vulnerabilitydo not properly integrate a violence-sensitive approach
contain evaluative and potentially discriminatory categories
restrict access of certain groups to family rights
This creates risks of violating Ukraine’s international obligations, in particular under:
the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
the United Nations Convention on the Rights of the Child
the Convention on the Rights of Persons with Disabilities
the Istanbul Convention
the European Convention on Human Rights and the case law of the European Court of Human Rights
Taken together, this indicates the need to revise the draft with due regard to a comprehensive human rights-based approach that combines gender equality, child-centeredness, and non-discrimination.
2. Insufficient Protection of the Rights of the Child in the Regulation of Parentage and Family Ties
The provisions of Chapter 99 of Draft Civil Code of Ukraine No. 15150 (Articles 1522–1534) concerning the parentage of a child are based primarily on formal legal constructions for establishing, recognizing, and challenging paternity and maternity, but they do not sufficiently integrate the principle of the best interests of the child as the determining criterion.
The regulation is largely focused on the procedural rights of adult participants (parents, potential parents, heirs), while the child effectively appears as the object of a legal dispute rather than as an independent rights holder whose interests should receive priority protection. This is reinforced by complex procedures for challenging and establishing parentage, which may create a state of legal uncertainty for the child.
Taken together, this approach shifts the balance toward the formal equality of the adult parties, without due consideration of the child’s vulnerability and the child’s right to the stability of family ties, and requires revision with due regard to the UN Convention on the Rights of the Child, in particular Articles 3, 7, and 8.
3. A Child-Centered Approach in the Regulation of Parental Responsibility: Systemic Gaps and Risks to the Realization of the Rights of the Child
Despite the formal declaration of a child-centered approach, the regulation of parental responsibility in the draft contains a number of systemic gaps that limit the real prioritization of the rights of the child. The enshrinement of the principle of respect for the dignity of the child and the prohibition of actions contrary to the child’s interests (Article 1547), as well as the principle of equality of parents (Article 1536) and the general consideration of the best interests of the child (Article 1552), remain largely declarative and are not supported by sufficiently clear procedural guarantees for their practical application, which creates risks of formal rather than substantive compliance with the requirements of Article 3 of the UN Convention on the Rights of the Child.
A significant problematic aspect is the dominance of a parent-centered model in the regulation of upbringing, education, and medical decisions (Articles 1544 and 1550), where key decisions are effectively concentrated in the sphere of agreements or conflict between parents, while the child’s autonomous position does not have a sufficiently strong procedural status. This limits the effective realization of the child’s right to be heard, guaranteed by Article 12 of the UN Convention on the Rights of the Child, and reduces the child’s level of participation in decisions that directly concern them.
An additional risk is the provision of Article 1538, which provides for the possibility of leaving a child in a maternity hospital or another healthcare institution in the event of “significant defects in physical and/or mental development.” The use of evaluative and medically stigmatizing wording creates a risk of inconsistent application of the law and potentially discriminatory interpretation with respect to children with disabilities. In the absence of clear criteria and procedural safeguards, this may lead to the substitution of an individual assessment of the best interests of the child with general assumptions about the child’s quality of life or care needs, which is contrary to Article 3 of the United Nations Convention on the
Rights of the Child and Article 23 of the Convention on the Rights of Persons with Disabilities, which prohibits discrimination and guarantees the right of children with disabilities to family-based care and support.
Taken together, these provisions indicate not the absence of child-centered logic as such, but its incomplete implementation, where the principles of the rights of the child are not supported by sufficiently clear implementation mechanisms, creating a risk of their formal application without real assurance of the priority of the child’s interests.
4. The Complexity and Length of Adoption Procedures
Despite the enshrinement of the priority of adoption as a family-based form of placement for a child (Article 1655), the provisions of Section XVII establish a complex and multi-level procedure that may lead to delays. In particular, the envisaged stages of registration of children and candidates (Articles 1662–1663), mandatory waiting periods, and the judicial adoption procedure (Articles 1670–1671), taken together, create a risk that the child may remain outside a family environment for a prolonged period, which contradicts the principle of promptly ensuring the child’s best interests.
In addition, the requirements concerning the periods during which a child must remain registered before being eligible for adoption by foreign nationals (Article 1690), as well as the broad list of restrictions applicable to prospective adoptive parents (Article 1660), may narrow the practical accessibility of adoption. Such excessive procedural complexity calls into question the effective realization of the child’s right to family-based care within the meaning of Articles 3 and 20 of the UN Convention on the Rights of the Child.
5. Systemic Restriction of Family Rights on the Grounds of Sexual Orientation
Draft Civil Code of Ukraine No. 15150 creates a comprehensive restriction of family rights for LGBTI+ people, excluding them both from the institution of marriage and from the possibility of realizing the right to parenthood through adoption. In particular, the provisions of Articles 1480 and 1482 establish marriage exclusively as a union of “a woman and a man,” while Part 2 of Article 1660 directly prohibits adoption by persons of the same sex, which together creates the systemic exclusion of same-sex couples from the legal framework of family relations.
This approach contradicts the principle of equality enshrined in Article 24 of the Constitution of Ukraine, as well as international standards, in particular Article 14 in conjunction with Article 8 of the European Convention on Human Rights, which require non-discrimination and equal access to family life. The case law of the European Court of Human Rights also emphasizes the obligation of states to ensure the legal recognition and protection of family relations without discrimination on the grounds of sexual orientation, making the proposed regulation inconsistent with modern human rights standards.
6. Evaluative Categories as an Instrument of Discrimination
Article 6 of Draft Civil Code of Ukraine No. 15150, which introduces “dobrozvychainist” (a morality-based standard of “good morals” or “proper conduct”) as a set of moral norms and public perceptions of proper behavior, in conjunction with Article 317, which allows “dobrozvychainist” to be taken into account as a ground for restricting the realization of the right to individuality and as an exception to the prohibition of discrimination, creates a systemic risk of legal uncertainty and subjective application of the law. In practice, this opens the possibility of assessing a person’s behavior, appearance, or way of life not according to clear legal criteria, but through vague moral standards, which may lead to indirect discrimination, particularly against women and other vulnerable groups, as well as to shifting responsibility onto the affected person instead of protecting their rights.
This approach contradicts the principle of legal certainty enshrined in the case law of the European Court of Human Rights, CEDAW standards on the prevention of direct and indirect forms of discrimination, as well as the requirements of the Istanbul Convention regarding the provision of effective protection for survivors of violence without their re-victimization through moral assessments of behavior.
7. Conciliation as a Risk Factor for Survivors of Violence
Article 1513 of Draft Civil Code of Ukraine No. 15150, which provides for the possibility for a court to apply measures for the conciliation of spouses and to set time limits for such conciliation, creates risks in cases that may concern domestic violence or gender-based violence, since it effectively establishes conciliation as a standard stage of court proceedings, while an exception to it depends on proving the fact of violence within criminal or administrative proceedings.
This construction is problematic in view of Article 48 of the Istanbul Convention, which directly obliges states to prohibit mandatory or forced alternative dispute resolution processes, including conciliation, in cases concerning all forms of violence against women, given the inequality of the parties and the risk of re-victimization. In combination with the practical difficulties of proving facts of domestic violence, this creates a situation in which survivors may be effectively drawn into conciliation procedures even where there are signs of violence, which contradicts the international standard of ensuring the unconditional priority of the safety and protection of survivors over any forms of “restoration of relationships.”
8. Risks of Interference with the Right to a Name and Personal Identity
Article 1516 of Draft Civil Code of Ukraine No. 15150, which regulates the right to choose a surname after divorce, in conjunction with the provision on the possibility of “requiring the restoration of a premarital surname” where the behavior of one of the spouses is assessed as “unworthy,” creates a risk of interference with a person’s right to a name and elements of their personal identity. Although the basic rule provides for the voluntary choice of surname, an additional mechanism based on evaluative categories (“immoral act,” “betrayal,” etc.) may effectively turn the issue of a name into an instrument of post-marital pressure and moral assessment of behavior.
This approach raises doubts regarding its compliance with the standards of Article 8 of the European Convention on Human Rights, which guarantees the right to respect for private life, including a person’s identity, and requires that any interference be clear, foreseeable, and proportionate.
9. Risks of Procedural Delays in Divorce and Access to Protection in Situations of Vulnerability
The provisions of Chapter 98 of Draft Civil Code of Ukraine No. 15150 concerning divorce (in particular Articles 1511–1513) provide for mandatory procedural time limits, notarization of agreements between spouses, and the possibility for a court to set a period for conciliation of up to six months, which may in practice lead to delays in the process of terminating a marriage. In combination with the absence of specific guarantees for the priority consideration of cases in situations of vulnerability, such mechanisms may create barriers to prompt divorce, in particular in cases where a woman is pregnant or in a situation of dependency on her partner. This increases the risk of keeping a person in unwanted or unsafe family relations and limits their actual ability to freely terminate marital relations.
This approach requires assessment for compliance with the standards of the Istanbul Convention regarding the provision of real access to protection and safety for survivors, as well as the principle of a person’s effective right to make independent decisions concerning their body, safety, and private life, without excessive procedural or factual restrictions.
10. The Right to Maintenance (Alimony) Between Spouses and “Behavioral” Criteria
Articles 1639–1642 of Draft Civil Code of Ukraine No. 15150, which define the conditions for the emergence, restriction, and termination of the right to maintenance between spouses, introduce a model in which access to economic support partly depends on evaluative and behavioral criteria, in particular “deliberately creating a state of need for material support.” In the context of family relations that may be marked by domestic violence or economic control, such wording creates a risk of indirect adverse impact on survivors, since leaving abusive relationships is often accompanied by temporary financial vulnerability and limited access to resources. Under such circumstances, there is a risk that the actual consequences of violence may be interpreted as a ground for restricting the right to maintenance, which reinforces economic dependency and complicates the recovery process for survivors.
This approach may lead to indirect discrimination, since formally neutral criteria have a different impact on women as a group that is more often in a situation of economic vulnerability after violence, and requires assessment for compliance with CEDAW standards on ensuring de facto equality and preventing discriminatory consequences in family-law relations.
11. Legal Consequences of Engagement
Article 1488 of Draft Civil Code of Ukraine No. 15150, which regulates the legal consequences of engagement, provides for the possibility of reimbursement of expenses, compensation for non-pecuniary damage, and termination of a gift agreement in the event that one of the parties refuses to enter into marriage, and also establishes exceptions to reimbursement in cases where the refusal is connected with “unlawful or immoral behavior” or the concealment of certain circumstances. Such legal regulation effectively creates financial and moral pressure on people who decide to refuse marriage, which may limit a person’s freedom in choosing family life and keep them in unwanted or unsafe relationships. Women who are in situations of dependency or violence may be particularly vulnerable in this context, since the risk of financial consequences and the assessment of their behavior as “immoral” may serve as a deterrent to leaving a relationship.
This approach raises doubts regarding its compliance with the principle of freedom to marry, enshrined in international human rights standards and the case law of the European Court of Human Rights, which requires ensuring voluntariness and the absence of any coercion in decisions concerning entering into or terminating a marriage.
12. Absence of Proper Consideration of Violence in Civil-Law Regulation
Draft Civil Code of Ukraine No. 15150 as a whole does not contain the systemic integration of an approach aimed at preventing and taking into account violence in family and private legal relations; in particular, there are no specific provisions on domestic violence, economic dependency, or psychological pressure as factors affecting the realization of civil rights. Such “neutrality” of civil-law regulation effectively ignores the real-life circumstances in which survivors find themselves and provides for the uniform application of provisions without taking into account structural inequality in relationships. As a result, this may lead to formal but ineffective access to legal protection mechanisms, since there are no safeguards that would take into account the risks of re-victimization or dependency on the perpetrator.
This approach contradicts the standards of the Istanbul Convention, in particular Articles 18 and 30, which require the provision of comprehensive and effective protection for survivors of violence, as well as proper compensation and recovery mechanisms that take into account the real conditions of their vulnerability.
13. The Concept of Formal Equality as the Basic Approach of the Draft
A systemic approach of formal equality can be traced in Draft Civil Code of Ukraine No. 15150, where the rights of participants in family-law relations are declared as equal for all, without due consideration of de facto asymmetry in relations, in particular in cases of domestic violence, conflict, or dependency of one of the parties. This is manifested, in particular, in Article 1545 concerning the right of parents and the child to unhindered communication, where restriction of this right is possible mainly on the basis of a formal court decision or grounds defined by law, as well as in Article 1553, which establishes mandatory conciliation measures for parents through mediation or social services, based on the presumption of equality and cooperation between the parties even in potentially dangerous or conflict situations. Taken together, these provisions form a model in which legal equality is not accompanied by proper guarantees of de facto equality and safety, while the possibility of restricting contact or avoiding conciliation procedures effectively depends on the prior formal establishment of violence, which is difficult in practice.
This approach does not fully comply with international standards, in particular the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which in Articles 2, 5, and 16 provides for the obligation of states to ensure not only formal equality of rights, but also their effective realization in practice, as well as the Council of Europe Istanbul Convention, in particular Articles 31 and 48, which establish the priority of the safety of survivors and the prohibition of mandatory conciliation procedures in cases related to violence.
Overall Conclusion
Draft Civil Code of Ukraine No. 15150, in its current version, does not ensure a proper balance between formal equality and the de facto realization of human rights in the sphere of family and private legal relations.
Despite the scale and systemic nature of the proposed changes, the draft demonstrates the dominance of a formally neutral approach that:
does not take into account the vulnerability of survivors of violence
does not sufficiently ensure the priority of the best interests of the child
does not guarantee substantive gender equality
allows legal uncertainty through evaluative categories
creates risks of discrimination, in particular on the grounds of sex, disability, or sexual orientation
Certain provisions may lead to:
re-victimization of survivors
restrictions on access to effective legal protection
delays in procedures that directly affect the rights of the child
the exclusion of certain groups from the full family-law framework
Taken together, this indicates the need for substantial revision of the draft with due regard to international human rights standards and a transition from formal to substantive (de facto) equality.
Recommendations
1. Transition from formal to de facto equality
Review the concept for regulating family-law relations with due regard to structural inequality, in particular in the context of gender, violence, and economic dependency.
2. Integration of a child-centered approach
Ensure the real, rather than declarative, implementation of the principle of the best interests of the child, including:
procedural safeguards for the child’s participation
priority of the stability of the family environment
reduction of the duration of procedures that affect the child
3. Introduction of a violence-sensitive approach
Integrate mechanisms for taking into account domestic violence, economic dependency, and psychological pressure into civil-law provisions without mandatory prior proof in administrative and/or criminal proceedings.
4. Priority of safety over conciliation
Exclude or limit the use of conciliation as a standard procedure in cases that may concern violence, establishing the priority of the safety of survivors.
5. Ensuring non-discrimination and equal access to family rights
Review provisions that restrict access to marriage, parenthood, and adoption in order to ensure equal legal recognition of family relations without discrimination.
6. Elimination of evaluative and morally vague categories
Minimize or clearly define concepts such as “dobrozvychainist,” “unworthy behavior,” and similar categories in order to prevent arbitrary application and discrimination.
7. Guarantees of economic security for survivors
Ensure that the right to maintenance does not depend on evaluative behavioral criteria that may disproportionately affect people leaving situations of violence.
8. Improvement of procedures concerning children
Simplify and expedite adoption procedures and procedures for establishing the parentage of a child with due regard to the principle of promptness and stability for the child.
9. Consideration of the rights of persons with disabilities
Avoid wording that may lead to the stigmatization or discrimination of children with disabilities and ensure compliance with the Convention on the Rights of Persons with Disabilities.
10. Inclusive revision of the draft
Ensure the participation of human rights organizations, gender experts, specialists in children’s rights, and specialists in combating violence in the process of preparing the draft for the second reading.
