Maymulakhin and Markiv v. Ukraine and New Version of the Civil Code in Ukraine: Back to Origins?

[Yaroslav Halieiev is a second-year PhD Candidate at the University of Tartu (Estonia)]

The Context: Maymulakhin and Markiv v. Ukraine 

In June 2023, the European Court of Human Rights (ECtHR or Court) issued a landmark decision in the case of Maymulakhin and Markiv v. Ukraine in which the Court addressed the lack of legal protection for same-sex couples under Ukrainian law. Rooting its reasoning in the case of Fedotova and Others v. Russia, and relying on the so-called doctrine of minimal protection (here), the ECtHR pointed out, that under Article 8 of the European Convention on Human Rights (Convention or ECHR), Ukraine had a positive obligation “to provide a legal framework allowing same-sex couples to be granted adequate recognition and protection of their relationship” [para. 65]. The decision had tremendous significance for the Ukrainian LGBTQIA+ community, as the ECtHR finally addressed the question of cohabitation of same-sex couples in Ukraine. The importance of Maymulakhin and Markiv v. Ukraine has been widely discussed and acknowledged (here and here). Therefore, this piece is centred around recent legislative developments in Ukraine, namely the new draft of the Civil Code of Ukraine, which seems to jeopardise the outcomes of this case. To situate the discussion, I briefly recall the case’s core arguments and proceed to the main analysis. 

The applicants in Maymulakhin and Markiv v. Ukraine argued that “they were suffering from discrimination as a same-sex couple.” Since they could not enter any form of legally recognised cohabitation (neither marriage nor civil partnership), unlike same-sex couples. On the other hand, the Government claimed that “the applicants could enjoy the same level of legal protection as any unmarried different-sex couple in Ukraine […] by entering into private contractual agreements” [para. 49]. Likewise, the Government argued that Ukraine was working on new legislative steps to introduce registered partnerships [para. 50]. Indeed, draft bill No. 9103 has remained on the Verkhovna Rada of Ukraine’s docket since March 2023. Hence, the essential seed of the Government’s position was “offering” contractual relations based on the civil law contract regulated by the Civil Code of Ukraine to handle property rights and “promise” to regulate the matter by a separate law. I will come back to this promise argument a bit later. Nonetheless, the Court was not impressed with such an “offer” and found Ukraine in breach of positive obligations under Article 8. 

The Development: The New Civil Code Draft 

On 24 April 2026, the Verkhovna Rada of Ukraine adopted the new draft of the Civil Code of Ukraine (draft) in the first reading. The second reading will follow. While the draft deserves a separate article, there is one important moment that is essential to this blog: Book 6 of the Draft – Family Law. 

Book 6 offers a “new” understanding of marriage and family. Art. 1472 says that “family is the natural and essential element of society”. It further stipulates that one of the main ways to form a family is marriage. So far, nothing quintessential or extraordinary. Art. 1473 defines marriage as “a family union between a woman and a man (YH – italics), which is registered in accordance with the procedure established by law”. Furthermore, Arts. 1478-1480 imply that the right to marriage applies only to individuals of different sexes. Almost an identical definition of marriage can be found in the Family Code of Ukraine (Art. 21).  Hence, if this draft is passed in its current form, it will replace the existing Civil Code of Ukraine (and the existing Family Code of Ukraine), and same-sex couples would not be granted the right to enter into marriage. 

Both definitions stem from Art. 51 of the Constitution of Ukraine, which provides that “marriage shall be based on free consent between a woman and a man”. Considering that under martial law, which is in force in Ukraine, the Constitution cannot be changed, it can serve as an explanation where Art. 1473’s definition of marriage came from. Yet, it cannot serve as a justification for non-compliance with the Convention. First, Ukraine, as a State Party to the Convention, may not rely on its national law, including the Constitution, to justify the breach of its international obligations. This principle is entrenched in Article 27 of the Vienna Convention on the Law of Treaties (see, for instance, in Grzęda v. Poland). Second, the Court in Maymulakhin and Markiv did not oblige Ukraine to legalise same-sex marriages. Rather, the obligation is to provide an adequate legal framework to protect the rights of same-sex couples. Thus, if the national legislature rejects the right to marriage for same-sex couples, an alternative legal mechanism shall be offered. 

Nonetheless, the hope remains. Art. 1474 stipulates the existence of a de facto family union. In the Maymulakhin and Markiv v. Ukraine case, the applicants were “a cohabiting same-sex couple living in a stable de facto partnership” [para. 40]. Art. 1474 defines a de facto family union as “the living together of two people of the opposite sex as one family without registering a marriage, unless they are in another marriage”. Here, I would like to come back to the “promise” argument the Ukrainian government made in the Maymulakhin and Markiv case [para. 50]. So, if draft bill No. 9103 on regulating registered partnerships exists but has had no legislative developments since 2023, why would the Draft not incorporate the idea of registered partnership into the notion of de facto family union? 

Art. 1 of the draft bill No. 9103 stipulates that “a registered partnership is a voluntary family union of two adults, of the same or different sexes, registered in accordance with the procedure specified by this Law, based on mutual respect, mutual understanding, mutual support, and mutual rights and obligations”. If compared to the definition of de facto family union, they are pretty much identical in their legal purpose – to regulate a consensual cohabitation of two adults. The difference is that, while the draft bill No. 9103 aims to remedy the issue raised in the case of Maymulakhin and Markiv v. Ukraine, the Draft of the Civil Code generally ignores it. 

Therefore, the Draft codifies the exclusion of same-sex couples, contrary to the obligation established by Article 8 of the Convention and the Court’s dictum in the Maymulakhin and Markiv v. Ukraine case. Such a situation would inevitably constitute an intentional, continuous breach of Ukraine’s international obligation under Article 46(1) of the ECHR (pacta sunt servanda). Furthermore, it would draw the attention of the Committee of Ministers tasked with supervising the execution of judgments under Article 46(2) of the ECHR. The only (un)reasonable explanation for such a situation is a genuine lack of political will. 

In addition to not complying with the Convention, the definition of de facto family union under the Draft of the Civil Code will also face scrutiny under European Union law, in particular, the Charter of Fundamental Rights of the European Union. In a recent case –  Jakub Cupriak-Trojan and Mateusz Trojan v Wojewoda Mazowiecki, before the Grand Chamber of the Court of Justice of the European Union (CJEU), the CJEU pointed out, that Articles 20 and 21(1) TFEU, read with Articles 7 and 21(1) of the Charter, prevent a Member State’s laws that refuse to recognize same-sex marriages legally performed in another Member State, where the couple has established family life or sought transcription of their marriage certificate in the civil register, if that transcription is the only recognition method allowed [para. 77]. If Ukraine further fails to observe not just the Convention, but also the EU acquis communautaire, it will have significant ramifications for Ukraine’s EU accession process and compliance with the Copenhagen criteria. 

Importantly, Ukraine has submitted under Article 15 of the ECHR. The notice from 25 February 2022 contained many derogated rights. The last known notice on derogation measures was sent on 5 April 2024. In April 2024, Ukraine partially withdrew its derogations. The notice stipulates that Ukraine maintains its derogations with regard to “Articles 8, 10, 11 of the Convention, Articles 1, 2, 3 of the Additional Protocol to the Convention, Article 2 of Protocol No. 4 to the Convention”. The question is whether derogations might shield Ukraine from the Court’s adjudication on the protection of same-sex couples. 

According to this Author, most likely not. Article 15 of the ECHR establishes three clear requirements for derogations: the presence of an emergency, proportionality and consistency with the State’s other obligations under international law (here). Nobody would question the existence of “war or other public emergency threatening the life of the nation”. However, the proportionality requirement would not be met. 

First, the ECtHR preserves its ability to adjudicate on the proportionality of the measure taken by a State to respond to an emergency under Article 15 (here [para. 207] and here [paras. 173-174]). Second, the nexus between the armed conflict and the refusal to recognise same-sex partnerships is too weak. It fails the proportionality requirement under Article 15 of the ECHR. Third, it does not make sense to argue that Ukraine is not under a positive obligation to protect same-sex couples when Ukraine took legislative steps in 2023 to regulate registered partnerships, and new legislative initiatives just backed off from the previous ones. Furthermore, the events in the case date back to 2014. Consequently, such a turn violates the Convention. The ECtHR articulated that “[a] State whose authorities failed to observe their own internal rules and procedures should not be allowed to profit from their wrongdoing and escape their obligations” (here [para. 74]). The inaction of the national legislature contradicts the Convention, but reverting to more adverse legislation, while a proper one is being prepared for adoption, clearly goes against good faith. 

Interestingly, in June 2025, a local court in Kyiv recognised the cohabitation (de facto marriage) of two men (the couple had been officially married in the US since). The case remains unique. Yet it should be perceived as an exception rather than a systematic, legislative solution required by the ECtHR. The legal status of same-sex couples shall not depend on the individual judge’s convictions, but on a proper normative framework. 

Lastly, the matter of safeguarding the rights of same-sex couples is even more perpetual due to the active armed conflict. Members of the LGBTQIA+ community serving in the Armed Forces of Ukraine (here, here, here and here) (UAF). The denial of family members’ status, which de-facto family or registered partnership has direct effects on same-sex couples: denial of access to information, social benefits and medical access. The situation is paradoxical – individuals are required to sacrifice the most important (life) but are deprived of the most essential (personal life). 

Quo Vadis? 

The primary question that remains is: where does the protection of same-sex couples go in Ukraine? This Author argues that recent legislative developments do not indicate any real progress toward addressing this matter. The value of the Maymulakhin and Markiv v. Ukraine case remains undisputed, yet far from being implemented. 

The current legislative trajectory, if maintained, will only deepen the severity of non-compliance with the positive obligations under Art.8 of the Convention. The Draft of Civil Code does not offer a durable normative solution for same-sex couples, even worse, it further deepens and cements the exclusion of same-sex couples. Paradoxically, the Draft jeopardises fundamental rights of the Ukrainian LGBTQIA+ community serving in the UAF, who need protection the most, to safeguard the most essential need – the right to private life.

Importantly, the inconsistent legislative behaviour, in this case, a normative regression, while a suitable legislative act is not being advanced (draft bill No. 9103), also supports the protracted nature of the breach of international obligations. Likewise, Ukraine will not be able to rely on derogations in this matter, as it would fail the proportionality requirement under Article 15 of the Convention. Lastly, the Draft does not comply with the EU acquis communautaire and will complicate Ukraine’s EU accession. The Draft appears to wipe out the progress made by Maymulakhin and Markiv v. Ukraine.