DIVISION BETWEEN SPOUSES OF A SHARE IN THE AUTHORIZED CAPITAL OF A BUSINESS COMPANY: THEORETICAL ASPECTS AND PRACTICAL CHALLENGES

Abstract

The article is devoted to the study of the legal patrimonial regime of a share in the authorized capital of a business company as an object of spouses’ joint property. The author conducted the study of the development of this civil rights object, analyzed the change in approaches that have developed in judicial practice, and offered his own vision of the prospects for the further development of the legal patrimonial regime of this object. The author emphasizes that the adoption of the Law of Ukraine “On Limited and Additional Liability Companies”, the legislator changed its approach to the nature of these company types. In particular, the relationship between the company participants is no longer considered to be personal, there are no restrictions for the entry of new participants without the consent of the existing ones. By analogy with inheritance, the second spouse can join the company without the need to obtain separate consent from other participants. These company types have become more similar to joint-stock companies, in which, as a general rule, current shareholders cannot block the entry of new shareholders. As a result, any obstacles to the division of shares in the authorized capital between spouses have disappeared. Moreover, the division of the share in the authorized capital between the spouses is more balanced in terms of taking into account each spouses’ interests. This method of dividing the spouses’ joint property would guarantee a fair approach to the division of assets and would allow each spouse to properly exercise their right of ownership to the corresponding share in the authorized capital, including both the right to receive dividends and the right to manage the company. Considering that the legislator has departed from the principle of preserving personal ties between the company’s participants, this method of dividing the share in the authorized capital is permissible even if there are other participants.