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How to Arrange Guardianship and Care for People with Disabilities

Often, citizens confuse the concepts of arranging permanent care and establishing guardianship for a disabled person. The difference lies primarily in the process of arrangement.

How to arrange guardianship for a disabled person?
Where to apply for permanent care?
What is the difference, and what is the procedure for arrangement?
Let us explain further.

What types of disabilities exist in Ukraine?

Currently, in Ukraine, the types of disabilities that determine the degree of persistent dysfunction of the body caused by a severe illness or injury are as follows:

  • Group 1 – citizens who have the most severe health condition and, therefore, are physically unable to perform self-care and basic household functions, thus requiring permanent care.
  • Group 2 – citizens who have persistent or chronic disorders in the body resulting from illness or injury. A person in this group may be able to perform self-care, work under special conditions, and not require external care.
  • Group 3 – citizens who have moderate functional impairments, which may include congenital defects (e.g., missing one lung). Such a person can work under light conditions but needs social protection.

It should be noted that due to the introduction of martial law in Ukraine, the procedure for determining disability has been changed. During the period of martial law in Ukraine and for six months after its termination or cancellation:

  1. If a person applying for disability determination cannot attend an examination by the medical-social expert commission, the commission can make a decision on disability determination remotely based on the referral from the medical advisory commission.
  2. The Crimean republican, regional, central city commissions in Kyiv and Sevastopol, city, inter-district, and district medical-social expert commissions perform their functions ensuring the principle of extraterritoriality and conduct medical-social examinations based on the referral from the medical advisory commission regardless of the place of registration, residence, or stay of the person applying for disability determination (Resolution of the Cabinet of Ministers of Ukraine dated March 8, 2022, No. 225 “Certain issues of the procedure for conducting medical-social examinations during martial law in Ukraine”).

The Civil Code of Ukraine establishes that in our country, guardianship over disabled individuals is established by the court.

In what cases is it necessary to establish guardianship over a disabled person?

Guardianship is established by the court over a physical person who is recognized as incapacitated. A person can be recognized as incapacitated by the court if, due to chronic, persistent mental disorder, they are unable to realize the significance of their actions and/or control them. In such cases, a close relative of the person may file a court application to recognize the person as incapacitated, establish guardianship, and appoint them as the guardian.

The court appoints a forensic psychiatric examination to confirm or refute the presence of a mental disorder that led to the inability to realize their actions or control them. The expert examines the person over whom guardianship is to be established to determine whether they indeed have a mental disorder causing their inability to realize the significance of their actions and/or control them.

Guardians are primarily appointed from among persons who have family or kinship ties with the ward, taking into account their personal relationships and the ability of the person to perform the duties of a guardian. One or more guardians may be appointed.
To have the court appoint a guardian for an incapacitated person, it is mandatory to obtain a submission from the guardianship authority regarding the possibility of appointing a relative as a guardian.

After receiving the expert’s conclusion, the future guardian submits an application to the guardianship authority to obtain the corresponding submission. The future guardian must participate in the guardianship council meeting when considering the application. Based on the results of the guardianship council meeting, the guardianship authority sends a submission to the court regarding the possibility or impossibility of appointing the person as a guardian.

After the court has received the expert’s conclusion and the submission from the guardianship authority, the court holds a hearing and makes a decision. The person is considered incapacitated from the moment the court decision becomes legally effective. The duration of the court decision on recognizing a person as incapacitated and establishing guardianship is determined by the court but cannot exceed two years.

In the case of a positive court decision, its copy is submitted to the guardianship authority, where the guardian is issued a guardian’s certificate.

Note! There is no court fee for filing an application to recognize a person as incapacitated and appointing a guardian; it is covered by the state.

How is permanent care for a disabled person arranged?

For people with Group I disability, such care is assigned by the medical-social expert commissions obligatorily due to the extremely high degree of health loss, necessitating such care.

In all other cases, the need for permanent external care is determined by attending physicians and medical advisory commissions, which issue the corresponding conclusions on the necessity of such care.

Accordingly, external care is assigned in such cases:

  • For people with functional impairments due to incurable diseases, preventing them from moving and self-caring independently.
  • For elderly citizens with cognitive impairments who require constant care.
  • For people with Group I or II disability caused by a mental disorder.

To become a caregiver for a disabled person, one must contact the family doctor of the person with the disability and request a certificate confirming the disability and the need for permanent care.

To arrange permanent care for a person requiring it, one must apply to the social protection department or the administrative services center (CNAP) at the person’s place of residence or stay, providing the following documents:

  • An application stating the desire to provide permanent care for the person requiring it.
  • Copies of the passports of the caregiver and the person needing care.
  • A medical certificate of the caregiver.
  • A residence registration certificate.
  • Documents proving ownership or right to use the property.
  • A medical commission certificate confirming the need for permanent external care by another person.

If care is provided for a capable person who, due to their health condition, needs external care, their consent to receive care is required.

In the case of an elderly person/pensioner with cognitive impairments, they must also write a statement requesting the appointment of a caregiver.

Individuals providing social care services are compensated according to current Ukrainian legislation.

For a more detailed legal consultation on the issue of guardianship arrangements, you can contact the specialists of the “First Legal” Law Firm by filling out the application form on our website at https://firstlegal.com.ua/services/sudova-praktika/dlya-fizichnih-osib/ or simply by calling us at: +38 (044) 35-35-164, +38 (067) 306-89-89, +38 (063) 45-85-448, +38 (099) 367-89-89. Our experienced lawyer in Kyiv will assist you with this process.

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Guardianship and Constant Care During Martial Law in Ukraine

In wartime conditions, Ukrainian citizens make every effort to ensure the protection of the state and bring our victory closer. However, there are close people who need our help the most.

The current legislation provides for two most common grounds for obtaining a deferment from mobilization, which require additional documentation – these are the registration of guardianship over a person recognized as legally incapable and constant care.

Many confuse guardianship with constant care.

That is why the idea arose to prepare this article with the relevant explanations.

What is the difference and what is the procedure for registration? We will explain further.

A conscript may be appointed as a guardian of a legally incapable person or a caregiver of a relative who needs constant care. According to Article 23 of the Law of Ukraine “On Mobilization Preparation and Mobilization,” these are two separate grounds for obtaining a deferment from conscription during mobilization, for a special period.

It is important to distinguish between the concepts of guardianship and custody:
Guardianship is established over minor persons (under 14 years old, who are orphans or deprived of parental care) and persons who are recognized as legally incapable.

Custody is established over minors (from 14 to 18 years old, who are orphans or deprived of parental care) and persons whose civil capacity is limited.

Thus, a guardian is appointed if a person is recognized as completely legally incapable. A custodian is appointed when a person’s capacity is limited. Guardianship is an undeniable ground for deferment from conscription during mobilization and provides the right to cross the border accompanied by the ward. Guardianship, unlike constant care, is established exclusively by a court in a separate proceeding.

What is the procedure for appointing a guardian?

An individual can be recognized by a court as legally incapable if, due to a chronic, persistent mental disorder, they are unable to understand the significance of their actions and/or control them. If these grounds are present, a close relative of such a person can file a petition in court to recognize the person as legally incapable, establish guardianship, and appoint them as a guardian.

The court appoints a forensic psychiatric examination to confirm or refute the presence of a mental disorder that has led to the inability to understand their actions or control them. The expert examines the person over whom guardianship will be established to determine whether they really have a mental disorder that makes them unable to understand the significance of their actions and/or control them.

Guardians are mainly appointed from individuals who are in family or kinship relations with the ward, considering the personal relationships between them and the person’s ability to fulfill the duties of a guardian. One or several guardians may be appointed.

To have a guardian appointed for a legally incapable person by the court, it is mandatory to obtain a submission from the guardianship and custodianship authority about the possibility of appointing a relative as a guardian. After receiving the expert’s conclusion by the court, the future guardian submits a petition to the guardianship and custodianship authority for the relevant submission.

When considering the petition, the future guardian must participate in the meeting of the guardianship council. Based on the results of the guardianship council meeting, the guardianship and custodianship authority must send a submission to the court about the possibility or impossibility of appointing the person as a guardian. After the court receives the expert’s conclusion and the submission from the guardianship and custodianship authority, the court makes a decision based on the results of the court hearing. The person is considered legally incapable from the moment the court decision comes into force. In the case of a positive court decision, a copy of the decision is submitted to the guardianship and custodianship authority, where the guardian is issued a guardian’s certificate.

Important! The court fee for filing a petition to recognize a physical person as legally incapable and appointing a guardian is not paid; it is borne by the state.

A copy of the court decision on the appointment of a guardian with a note on its entry into force and the guardian’s certificate are the two documents that confirm the conscript’s right to deferment from conscription during mobilization on the grounds of guardianship over an adult person.

What is the procedure for arranging constant care for obtaining a deferment?

Paragraph 61 of the “Procedure for the Conscription of Citizens for Military Service during Mobilization, for a Special Period” No. 560 of May 16, 2024, provides for granting a deferment from conscription during mobilization and its arrangement for conscripts who provide care (constant care):

  • for a sick wife (husband), child, and/or their own father or mother (father or mother of the wife (husband), if they themselves require constant care according to the conclusion of the medical-social expert commission or the medical-consultative commission of the health care institution, have died (killed), are recognized as missing or absent, declared dead, and the father or mother of the wife has no other able-bodied family members who are obliged and able to provide care for them), who, according to the conclusion of the medical-social expert commission or the medical-consultative commission of the health care institution, require constant care;
  • for their own parents with disabilities of group I or II or one of the parents of the wife (husband) from among persons with disabilities of group I or II, provided there are no other persons who are not conscripts and are obliged to support them according to the law (except in cases where such persons are themselves disabled, require constant care, are under arrest (except for house arrest), are serving a sentence in the form of restriction or deprivation of liberty). In the absence of non-conscripts to provide care for a person with disabilities of group I or II, only one person from among the conscripts may provide care at the choice of the person with disabilities;
  • for persons with disabilities of group I or II, being a family member of the second or third degree of kinship for such a person (no more than one and provided there are no family members of the first and/or second degree of kinship or if the family members of the first and/or second degree of kinship themselves require constant care according to the conclusion of the medical-social expert commission or the medical-consultative commission of the health care institution). In the absence of family members of the first and second degree of kinship, this norm applies to family members of the third degree of kinship of the person with disabilities of group I or II.

To do this, it is necessary to contact the family doctor to obtain a medical certificate (or in the LCC, MSEC). Medical certificates issued specifically for social security authorities are in the prescribed form. To arrange care, the certificate must contain the key phrase: “the person requires constant care.”

The procedure for establishing constant care is simpler than guardianship because there is no need to judicially recognize a person as legally incapable.

To arrange constant care for a person who needs it, you need to contact the center for administrative services (CNAP) at the place of residence/stay of the person in need of care, the structural unit for social protection of the population, and obtain documents for receiving compensation (allowance, supplement) for care or arrange an act on establishing the fact of providing care (constant care).

The preparation of acts establishing the facts of providing care (constant care) is ensured by the Social Protection Department.

If all necessary documents are available for obtaining a deferment from conscription, it is necessary to write an application for a deferment and submit it to the district TCC and SP, where the person is registered for military service. This application, along with attachments, is submitted personally by the conscript.

Note that the issue of granting a deferment is initiated exclusively by the conscript, who must notify the TCC and SP about the change in family circumstances and the emergence of the right to a deferment.

The TCC and SP review this application along with the documents, and as a result, the person will be notified about the deferment. If necessary, a note about the deferment and its duration may be made in the military registration document.

For a detailed legal consultation in Kyiv, you can contact the lawyers of the law firm “First Legal” by filling out the form on our website or calling us at: +38 (044) 35-35-164, +38 (067) 306-89-89, +38 (063) 45-85-448, +38 (099) 367-89-89.

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Division of Property on Divorce in Ukraine

Recently, cases of divorce have increased, in connection with which arise questions about the division of property in divorce.

Under martial law, when the spouses divorced and one of the spouses lives abroad, and the property remained in Ukraine arise questions about how to divide the property?

In such cases, the question arises whether it is possible to divide the property, if the former spouses or one of the spouses is abroad? What documents are necessary for filing a statement of claim to the court on the division of property? Does the presence of minor children affect the size of the share in the division of property? So, let’s try to understand this situation.

Please note that the consideration of court cases of this category is carried out at the location of the property (or its part) with the participation of the parties, or their legal representatives.

  1. The order of division of property at divorce in Ukraine

1.1 Out-of-court settlement of the dispute on the division of property at divorce.
At divorce, the spouses may divide the common property, which was acquired during the marriage by concluding an agreement on the division of property with the definition in the contract, which property goes to the former wife, and which to the husband. In case it is a question of division (allocation of a share) of immovable property (house, apartment, land plot), such an agreement is subject to mandatory notarization.


1.2 The judicial procedure for division of property of spouses at divorce.
Either spouse has the right to apply to the court for division of common property and/or common joint property within three years after divorce. At the same time, it should be noted that for the division of the common property of the spouses do not have to divorce, because the right to divide property does not depend on the marriage.

  1. Features of the division of property at divorce in Ukraine

Many people have a not quite correct idea that all property that was acquired in marriage is divided equally in divorce.

So, indeed, as a general rule, in accordance with the norm of Article 60 of the Family Code of Ukraine (hereinafter – the Family Code of Ukraine), the property acquired by the spouses during the marriage, belongs to the wife and husband on the right of common joint ownership, regardless of the fact that one of them did not have for a valid reason (training, housekeeping, childcare, illness, etc.) independent earnings (income).

Also, the Family Code notes that each thing acquired during the marriage, except for things of individual use, is an object of the right of common joint ownership of the spouses. However, there are exceptions to the general rule, which will be discussed below.

2.1 What are the objects of the right of common joint ownership?
Article 61 of the Family Code of Ukraine gives an answer to this question, namely: the object of the right of common joint ownership of spouses may be any property, except for excluded from civil turnover. Also the object of the right of common joint ownership is a salary, pension, scholarship, other income received by one of the spouses. If one of the spouses concluded an agreement in the interests of the family, the money, other property, including fees, winnings, which were received under this agreement, are the object of the right of common joint ownership of the spouses.

If one of the spouses by his/her labor and (or) means took part in the maintenance of the property belonging to the other spouse, in the management of this property or care for it, then the income (litter, dividends) received from this property, in the event of a dispute by court decision may be recognized as an object of the right of common joint ownership of the spouses.

In addition, things for professional activities (musical instruments, office equipment, medical equipment, etc.) acquired during the marriage for one of the spouses are the object of the right of common joint ownership of the spouses.

2.2 What property is not common joint property and is not subject to division?
The property of one of the spouses acquired by a person before marriage, acquired during the marriage on the basis of a gift agreement or by way of inheritance, acquired during the marriage, but with funds belonging to one of the spouses personally, things of individual use, including jewelry, even if they were acquired at the expense of the common funds of the spouses, funds received as compensation for the loss (damage) of a thing belonging to a person, as well as compensation for moral harm caused to him/her, insurances, etc., do not belong to the common joint property of one of the spouses.

Also to the personal private property of one of the spouses are bonuses, rewards, which he/she received for personal services, funds received as compensation for the loss (damage) of the thing that belonged to her/him, as well as compensation for the moral damage caused to her/him; income (dividends), if they are the result of a litter from the personal private property of one of the spouses.

That is, the above-mentioned property and (or) funds that belong to the personal private property of one of the spouses and are not the common joint property of the spouses are not subject to division, but belong separately to each of the spouses by law.

2.3 Does the court always divide property equally?
When resolving a dispute about the division of property that is the object of the right of common joint ownership of the spouses, the court, according to the second part of Article 70 of the Family Code of Ukraine in certain cases may depart from the principle of equality of shares of the spouses in circumstances of significant importance, in particular if one of them did not take care of the material support of the family, evaded participation in the maintenance of the child (children), concealed, destroyed or damaged the common property, spent it to the detriment of the interests of the family.

Under article 70, paragraph 3, of the Family Code of Ukraine, the share of a wife’s or husband’s property may be increased by court order if the wife or husband has children living with her or him, or an adult son or daughter who is incapable of working, provided that the amount of alimony they receive is insufficient to ensure their physical or spiritual development or treatment.

Applying the norm of Article 60 of the Family Code of Ukraine and recognizing the right of common joint ownership of the spouses to property, the courts must establish not only the fact of acquisition of property during the marriage, but also the fact that the source of its acquisition were common joint funds or joint labor of the spouses. That is, the status of common joint ownership is determined by the following criteria: the time of acquisition of the property; the means for which such property was acquired (the source of acquisition).

In case of acquisition of property, although during the marriage, but for the personal funds of one of the spouses, this property cannot be considered the object of common joint property of the spouses, and is the personal private property of the spouse for whose personal funds it was acquired.

The common joint property of the spouses, subject to division (Articles 60, 69 of the Family Code of Ukraine, part three of Article 368 of the Civil Code of Ukraine) in accordance with parts two, three of Article 325 of the Civil Code of Ukraine may be any types of property, except for those that by law can not belong to them (excluded from civil turnover), regardless of the fact in the name of which of the spouses they were acquired or contributed in cash, unless otherwise established by the marriage contract or the law.

  1. Necessary documents for the division of property at divorce in Ukraine

When dividing property from you, as the initiator of the division is required to provide the court:

  • Supporting documents for the property, which was acquired during the marriage, or documents that this property, although acquired during the marriage, but for the personal funds of one of the spouses or was given to him (her) as a gift;
  • a copy of the marriage certificate;
  • a copy of the marriage dissolution certificate or an effective court decision on the dissolution of the marriage (if the marriage has been dissolved),
  • a copy of your passport and RNOCPP,
  • a copy of your child/children’s birth certificate (if you have minor children). Copies of documents (passport and RNUCCPN code) of the other spouse (if any) may also be provided.

For more detailed consultation and specifics on property division during divorce, you can seek legal advice from the lawyers and attorneys of the “First Legal” Law Firm Ukraine by filling out the application form on our website at the following link: https://firstlegal.com.ua/en/services/litigation-support-of-legal-entities-and-individuals/for-individuals/ or simply by calling us at: +38 (044) 35-35-164, +38 (067) 306-89-89, +38 (063) 45-85-448, +38 (099) 367-89-89.

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Can Banks Collect Debts During “MARTIAL LAW”?

Since February 24, 2022, the regime of “MARTIAL LAW” has been introduced in Ukraine in accordance with the Law of Ukraine “On the Legal Regime of Martial Law”.

Despite the introduction of MARTIAL LAW in Ukraine, banks are collecting debts from borrowers under credit agreements through judicial procedures.

The debt includes the principal amount of the loan, interest on the use of the loan, fines, penalties, and service fees for the loan, as well as other payments.

It should be noted that according to paragraph 18 of the section “Final and Transitional Provisions” of the Civil Code of Ukraine, during the period of martial law, a state of emergency in Ukraine, and within thirty days after its termination or cancellation, in case of the borrower’s delay in fulfilling the monetary obligation under the agreement, according to which the borrower was provided with a loan by the bank or other lender, the borrower is exempt from the liability defined by Article 625 of the Civil Code of Ukraine, as well as from the obligation to pay penalties (fines, penalties) for such delay to the lender. Penalties (fines, penalties) and other payments provided for by the relevant agreements accrued from February 24, 2022, for the delay in performance (non-performance, partial performance) under such agreements, must be written off by the lender.

Considering the judicial practice in dealing with this category of cases, “other payments” subject to write-off by the bank include the service fees for the loan.

Also, according to paragraph 19 of the section “Final and Transitional Provisions” of the Civil Code of Ukraine, during the period of martial law in Ukraine, introduced by the Decree of the President of Ukraine “On the Introduction of Martial Law in Ukraine” dated February 24, 2022, No. 64/2022, approved by the Law of Ukraine “On Approval of the Decree of the President of Ukraine ‘On the Introduction of Martial Law in Ukraine’” dated February 24, 2022, No. 2102-IX, the statute of limitations determined by this Code is suspended for the duration of such state.

Thus, banks can at any time apply to the court for debt collection by filing a petition to the court to renew the statute of limitations.

Therefore, as judicial practice shows, despite MARTIAL LAW, banks have the right to collect from the debtor (borrower, creditor) only the amount of the debt and interest for using the loan for the entire term of the agreement up to the date of filing the lawsuit.

For more detailed consultation and/or protection of your interests during debt collection by the bank under the credit agreement, you can contact the lawyers of the Law Firm “First Legal” by filling out the application form on our website or simply by calling us at: +38 (044) 35-35-164, +38 (067) 306-89-89, +38 (063) 45-85-448, +38 (099) 367-89-89.

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Easter Greetings from The First Legal!

Dear clients and partners,

In these joyful days of Easter, when nature comes alive and fills our hearts with joy and hope, we, the team at “The First Legal”, wish you a happy celebration of Christ’s Resurrection! We wish each of you robust health, prosperity, and success in all your endeavors. May this holiday bring you peace and tranquility, and may your homes always be havens of harmony and happiness.

With respect and best wishes,
Your “The First Legal” Team

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In which countries is an apostille not required?

  1. Concept of an Apostille

An apostille is a simplified document legalization procedure. It is used for countries that have signed the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (the Hague Convention) dated October 5, 1961. For Ukraine, the Hague Convention came into force on December 22, 2003, thus Ukrainians can legalize their documents in other states thanks to this convention.

The current list of state participants in the Hague Convention regarding the certification of documents by an apostille can be found on the website of the Hague Conference on Private International Law at hcch.net/en/instruments/conventions/status-table/print/?cid=41

The apostille stamp itself confirms the authenticity of the signatures and seals (stamps) on the document. A document that has undergone the formal procedure of affixing an apostille is considered valid and must be accepted by the state authorities of the country to which you are traveling or where you are submitting the documents.

2.Cases where document certification by an apostille is not required

Please note that the text of the Hague Convention itself (Part 2 Article 3) specifies that adherence to the mentioned formal procedure of affixing an apostille cannot be required if the laws, rules, or practices in force in the state where the document is presented, or an agreement between two or more contracting states, abolish or simplify this formal procedure or exempt the document itself from legalization. In other words, if there is a bilateral treaty on legal assistance (cooperation) between Ukraine and other contracting states, then the affixing of an apostille is not required.

For example, according to the bilateral treaty between Ukraine and the Republic of Latvia on legal assistance and legal relations in civil, family, labor, and criminal matters dated May 23, 1995, documents that have been drafted or officially certified by an official (notary, official translator, expert, etc.) within the competence and in the established form and certified by a seal, are accepted in the territory of the other Contracting Party without any other certification. That is, official documents that have been drafted in the territory of Ukraine or Latvia can be freely used/accepted in the territory of the contracting states provided they have a certified translation into the language of the contracting state, without the requirements for an apostille or consular legalization.

Particular attention should be given to the Convention on Legal Assistance and Legal Relations in Civil, Family, and Criminal Matters of 1993 and its Protocol of January 22, 1993, executed on behalf of Ukraine in Minsk on January 22, 1993, and ratified by the Law of Ukraine dated November 10, 1994, No. 240/94-VR, and the Protocol to it, executed on behalf of Ukraine in Moscow on March 28, 1997, and ratified by the Law of Ukraine dated March 3, 1998, No. 140/98-VR (hereinafter – the Minsk Convention and the Protocol). The participants of this Convention were: Ukraine, Russia, Belarus, Armenia, Tajikistan, Kazakhstan, Turkmenistan, Kyrgyzstan, Uzbekistan, Moldova.

The Minsk Convention provided for the submission of documents with their translation into the language of the country to which they are submitted without an apostille, only their notarial certification.

In relations with Azerbaijan, Armenia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, and Uzbekistan, the Minsk Convention continues to operate until the date of Ukraine’s withdrawal from it, i.e., until May 18, 2024, inclusive. From May 19, 2024, the Convention will be considered terminated for Ukraine in relations with all its participants. An exception to this rule is documents issued in Georgia, Moldova, Uzbekistan, where separate bilateral treaties have been signed between these countries and Ukraine, allowing the use of documents with a notarial translation without an apostille.

3.List of countries for which an apostille is not required

Also, affixing an apostille is not required with other countries besides the aforementioned, with which Ukraine has signed bilateral and/or multilateral treaties on cooperation, which allow the use of documents with a translation, certified by a notary without an apostille.

The list of such countries is provided below:

Azerbaijan, Armenia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, Uzbekistan, Lithuania, Estonia, Latvia, Czech Republic, Hungary, Poland, Mongolia, Macedonia, Vietnam, and China.

Note:

Despite the existence of bilateral Agreements concluded between Ukraine and the Republic of Belarus that provide for the use of documents without an apostille, an analysis of these Agreements regarding their termination is currently being conducted, as the operation of the Minsk Convention in relations with the Russian Federation and the Republic ofBelarus has been suspended as of December 27, 2022. This means that documents issued in the territory of Russia and Belarus, when presented in the territory of Ukraine, will require the certification of an apostille according to the Hague Convention, which abolishes the requirement for legalization of foreign official documents, 1961, which is valid in relations between Ukraine and Russia and Belarus.

Official documents issued in Ukraine, for use in Russia and Belarus, are subject to certification by an apostille by the bodies defined by the Resolution of the Cabinet of Ministers of Ukraine dated January 18, 2003, No. 61 (taking into account changes made by the resolution of the Cabinet of Ministers dated June 24, 2023, No. 629).

4.List of documents that are not subject to apostille at all

It is worth noting that according to the Order of the Ministry of Justice of Ukraine dated March 17, 2023, No. 125/209/293/139/999/5 “On Approval of the Rules for Affixing an Apostille on Official Documents Intended for Use in Other States”, a clear list of documents that are NOT subject to apostille is defined, namely:

  • documents issued by foreign diplomatic institutions of Ukraine;
  • administrative documents directly related to commercial or custom operations;
  • originals of passport documents, military IDs, labor books, identity cards, and documents certifying its special status;
  • regulatory legal acts of Ukraine and clarifications regarding their application;
  • permits for carrying weapons;
  • certificate of vehicle registration (technical passport);
  • documents that are of the nature of correspondence.

To avoid misunderstandings in other countries when legalizing your documents, it is recommended to address this issue in advance by consulting with lawyers from the Legal Company “First Legal”, who will quickly and efficiently help resolve all issues related to the legalization of documents.

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How To Order A Certificate Of No Criminal Record In Ukraine. Obtaining A Certificate Of No Criminal Record Online

A Certificate of No Criminal Record or an Extract from the Information-Analytical System “Accounting for Information on Bringing a Person to Criminal Responsibility and the Presence of a Criminal Record” is an official document, in paper or electronic form, issued by competent authorities. It confirms the absence or presence of a criminal record in individuals. The issuance and processing of the certificate of no criminal record in Ukraine are regulated by the Order of the Ministry of Internal Affairs of Ukraine No. 207 dated March 30, 2022.

Currently, the certificate of no criminal record is a very important document for many aspects of public, professional, and personal life of any individual. The main key aspects associated with obtaining a certificate of no criminal record are:

  • Confirmation of an individual’s status: this certificate confirms that the person has no criminal record or provides information about the presence of criminal records, their nature, and status (extinguished, active criminal record);
  • Employment: In most cases, when hiring, in areas where employees have access to confidential information, finances, or work with vulnerable population groups;
  • Visa and immigration procedures: This certificate is necessary for applying for a visa, immigration, or obtaining citizenship both in Ukraine and in other countries;
  • Licensing and Certification: For some licenses and permits, submission of a certificate of no criminal record for employees is a necessity (for example, obtaining a license for security activities).

Procedure for obtaining a certificate of no criminal record.

Currently, the Certificate of No Criminal Record or an Extract from the Information-Analytical System can be obtained in both electronic and paper form.

Information from the IAS is provided to the Applicant in the form of an Extract, complying with the legislation on citizens’ appeals and protection of personal data, based on a request for an Extract on bringing to criminal responsibility, absence (presence) of a criminal record, or restrictions provided by the criminal procedural legislation of Ukraine.

Getting a certificate of no criminal record online:

A request in electronic form can be submitted and a certificate in the form of an extract can be obtained through the Ministry of Internal Affairs website, by logging into the Personal Account using a qualified electronic signature or through the “Diia” portal. This extract is generated automatically and immediately.

Submitting a request in paper form (this option is suitable if an individual applies for licenses, tender documentation, further legalization of the certificate):

A request for obtaining the Certificate (Extract) in paper form is submitted personally by the Applicant or by an authorized person in the prescribed manner, acting on the basis of a power of attorney or order, to the EIS MIA service, territorial service center, or a separate registration point of a qualified provider of electronic trust services of the accredited key certification center of the MIA, the employees of which, by the decision of the head of the legal entity ensuring the functioning of such a VPR ACCS MIA, are users of the remote access workplace to the IAS, regardless of the address of the declared/registered place of residence (stay) of the Applicant.

Do not forget to affix an apostille to the certificate of no criminal record.

To legalize such a certificate so that it is valid outside the territory of Ukraine, it is necessary to put an apostille on this certificate.

Obtaining a certificate of no criminal record in paper form online

If you need to obtain a certificate of no criminal record and affix an apostille to it, but you cannot personally apply to the MIA, you can contact the specialists of the “First Legal” Company.

To obtain a certificate (extract) of no criminal record, you need to submit:

  • A completed application-appeal;
  • A copy of the passport of the Applicant or the person regarding whom the Extract will be obtained;
  • The identification number of the Applicant or the person regarding whom the Extract will be obtained;
  • A power of attorney or order (in case of submission of the request by an authorized person).

If you do not have the time or energy to obtain a certificate of no criminal record, you can contact the “First Legal” Company. The company’s specialists will help you obtain this document with further legalization (apostille and consular legalization) so that this Certificate has legal force in any country in the world.

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How to get a divorce online in Ukraine?

In the conditions of martial law, it’s important to acknowledge the fact that, unfortunately, the number of divorces in Ukraine has increased, primarily due to the separation of married couples and families, caused by the relocation of women and children outside Ukraine. In such cases, the question arises: is it possible to get a divorce if one or both spouses are abroad? Can it be done in Ukraine, including online without appearing in court? Let’s try to understand this.

It’s worth noting that under martial law, especially when both spouses or one of them are outside Ukraine, the most popular method is an online divorce. This allows those wishing to dissolve their marriage to do so without returning to Ukraine, attending court sessions, and to receive the court’s decision on the divorce by mail.

The general procedure for divorce in Ukraine

Generally, there are two ways to dissolve a marriage in Ukraine:

  1. An extrajudicial procedure for the dissolution of marriage, which takes place at the civil status acts registration offices of the State Registration Departments of the Ministry of Justice of Ukraine (hereinafter – DRACS) and exclusively in cases where there are no children or they are adults. In this case, the couple must personally fill out and submit a joint application for divorce. If one of the spouses, for a valid reason, cannot personally submit the application to DRACS, the other spouse can submit such a notarized or equivalent application on their behalf. Unfortunately, this application cannot be submitted online.
  2. A judicial procedure for the dissolution of marriage in Ukraine, where the divorce can take place either by a joint application of the spouses or by the application of one spouse, by submitting a complaint to the court. In this case, the presence or absence of children and their age do not matter. Additionally, this application can be submitted online, without being physically present in Ukraine. Therefore, this method of divorce, especially during the war, has become the most relevant and popular.

Specifics of Online Divorcen Ukraine

In the case of opting for a judicial divorce procedure, one of the spouses can file a divorce application through the E-court system’s subsystem/module. To do this, it’s enough to register in the “E-court”. Registration in the electronic cabinet of the “E-court” for an individual is quite simple and requires only the presence of a key with a qualified electronic signature (QES), which can be issued by one of the accredited centers of Qualified Providers of Electronic Trust Services (such as JSC “PrivatBank”, JSC “PRAVEX BANK”, etc.).

However, it’s simpler to turn to a lawyer, who, after signing a legal aid contract with you (including using a digital electronic signature), can professionally, quickly, and efficiently prepare the lawsuit, collect all necessary documents, pay the court fee, submit all documents to the court, and receive the court’s decision on the divorce without your participation and presence. All these actions can be independently carried out online by your lawyer through the E-court system’s subsystem/module.

Required Documents for Filing for Online Divorce

For an online divorce, as the initiator, you need a minimum of documents, namely: a copy of the marriage certificate, a copy of your passport and identification code, a copy of the birth certificate of the child/children (in case of minor children). Copies of the other spouse’s documents may also be provided (if available).

For more detailed consultation and specifics of online divorce, you can contact the specialists of the Legal Company “First Legal” by filling out the application form on our website, contact us through email or messengers, or simply call us at: +38 (044) 35-35-164, +38 (067) 306-89-89, +38 (063) 45-85-448, +38 (099) 367-89-89.

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How to Draft a Real Estate Lease Contract

Property rental is an integral part of the life of almost every Ukrainian, as nearly everyone has rented accommodation or leased it at least once in their lives. In this overview, we will briefly examine the specifics of drafting a real estate lease contract.

First and foremost, it’s worth noting that a lease agreement for an apartment is drawn up in a simple written form without the requirement for notarization. The exception is a lease agreement with an option to purchase, which requires notarization.

The parties to the lease agreement can be both individuals and legal entities. More often than not, it involves the rental of property between individuals. Let’s take a closer look at this particular scenario.

To draft a lease agreement and provide maximum protection against future risks, it is advisable to consult with a lawyer or attorney from the outset.

In practice, not everyone avails the services of a professional lawyer for renting out or leasing their property. If you engage a real estate agent for finding or renting out a property, they typically have a standard contract template that simplifies the process.

However, individuals often post ads on public internet platforms for renting out or searching for accommodation and create a lease agreement using templates from the internet or other sources.

To minimize risks when drafting a lease agreement for accommodation, it is important to consider a set of conditions that should be stipulated in the agreement.

For a lease agreement to be considered concluded, it must necessarily define essential conditions: the subject matter, price, and the term of the agreement.

According to the general rule for entering into any contract, the parties must determine its essential conditions, including the subject matter of the contract and other necessary conditions for that particular type of contract.

Based on the current legislation of Ukraine, we have identified the following essential conditions of a lease agreement for accommodation:

  1. Subject matter of the contract – information about the property, i.e., the characteristics of the apartment you plan to rent or lease, including its precise address, area, and the technical plan of the apartment.
    To achieve this, it is strongly recommended to obtain from the apartment owner (or their authorized representative) copies of the property title documents for the apartment, confirming the ownership or the right to use and dispose of it!
    Also, it is advisable to obtain a copy of the technical passport for the apartment, which includes the plan of the specified apartment.
    In practice, apartment owners (or their authorized representatives) often refuse potential tenants to provide copies of such documents, and the original ownership documents may only be provided for inspection, as an exception. Therefore, for prospective tenants, it is strongly recommended to use the services of the Ministry of Justice of Ukraine, where you can order up-to-date information from the State Register of Property Rights (SRPR) for real estate regarding ownership of the apartment you are interested in at any time. To do this, you need to know the exact address of the apartment (search by address) or the taxpayer identification number/name of the apartment owner. The cost of such information is approximately 30 hryvnias. However, with the SRPR, you will not be able to see current information if the apartment was acquired before 2013 and has not been registered in the SRPR since then. Therefore, if there is no information about the apartment you are interested in in the SRPR, it is strongly recommended for potential tenants to obtain at least a copy of a document confirming ownership of the apartment (purchase and sale agreement, certificate of ownership, certificate of inheritance, etc.) from the owner (or their authorized representative).
  2. Lease Term – Specify the start and end date of the lease term or the term of the lease agreement. As a general rule, in practice, the document confirming the fact of transferring the apartment for rent and its acceptance by the tenant is an acceptance-transfer certificate, which is signed by the parties at the time of handing over the keys to the apartment, and the lease term begins from this moment.
    Please note that when signing the acceptance-transfer certificate for the apartment, it is necessary to specify (list) all property located in the apartment at the time of its transfer, its quantity, as well as qualitative characteristics (model, brand, if it concerns household or other equipment), and also the condition of such property. If the property has obvious defects (e.g., scratches or other defects), it is necessary to indicate this in the certificate, which will protect you as a tenant from possible claims from the landlord in the future.
  3. Rent – The amount of rent (what it consists of), the term, and the method of payment (bank transfer, cash, etc.), as well as the conditions for its revision.
    It is worth noting that in practice, rent is often paid in cash rather than by bank transfer. In the case of paying the rent in cash, we recommend signing any written document between the tenant and the landlord confirming the amount of rent paid and the period for which such payment is made. This can be a bilateral acceptance-transfer of funds or a separate addendum to the apartment lease agreement, which will contain a kind of payment schedule indicating the amount, payment period, and the signatures of the parties.
    !!! Please note that only the parties to the lease agreement or their authorized representatives can be parties to the document confirming the receipt of rent, and to confirm this, the corresponding power of attorney (notarized) must be presented, specifying the authority to receive/transfer funds, depending on who acts on the basis of the power of attorney (landlord or tenant).
  4. Security Deposits – Here, parties typically determine the amount of the deposit (usually equivalent to one month’s rent) to cover potential losses or other property claims by the landlord against the tenant in the future.
    !!! In the case of payment of a security deposit, it is recommended to sign a bilateral document (see comments on clause 3).
  5. Rules of Use of the Apartment – Here, it should be determined whether other residents have the right to live with the tenant. If such right is defined by the terms of the agreement, these residents should be identified, and their details (full name, passport information, taxpayer identification number, registration address, etc.) should be included in the agreement. It is also recommended to obtain copies of identity documents for such residents.
  6. Rights and Obligations of the Parties – A list of the rights and obligations of the landlord and the tenant is defined.
  7. Termination Conditions (Early Termination) of the Lease Agreement and the Procedure for Refunding Paid Sums as a Security Deposit – Cases where either party has the right to early termination (termination) of the agreement are determined. These cases usually involve violations of obligations by either party as defined in the lease agreement or advance notice to the other party about such early termination, in the absence of violations of the agreement’s terms. In case the tenant pays a security deposit, conditions for the return of the paid funds should be specified.
  8. Responsibilities of the Parties – This is an important instrument that safeguards each party from possible abuses or breaches of obligations by the other party. In case of delayed payment of rent and/or utility bills, this may include a penalty, calculated for each day of payment delay, and compensation for damages in case of harm to the landlord’s property.
  9. Details and Signatures of the Parties. It is important to specify all details of the tenant and the landlord, including full name, passport information, registration address, taxpayer identification number, phone number, email address (if applicable). !!! It is strongly recommended that when signing the apartment lease agreement, the parties exchanging copies of their passports and taxpayer identification numbers.

To ensure the protection of your rights and property, we recommend reaching out to our law firm First Legal Kyiv where our lawyers have extensive experience in contractual work and will consider all your preferences while maximizing the protection of your rights. We will help to draft a contract of any complexity!

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How to apply for child support?

The general steps for applying for child support in Ukraine involve standard procedures that may vary depending on whether the applicant intends to claim a fixed monetary amount independent of the payer’s income or a specific percentage of the payer’s income. The required documents for preparing a claim also depend on the chosen method of seeking child support.

If one parent, responsible for supporting a minor child, intends to receive child support from the other spouse, this process can be resolved either voluntarily through mutual agreement or through legal proceedings without the consent of the other party.

If there is agreement between both parents regarding child support, including the amount, payment schedule, or additional expenses related to the child’s well-being, they can directly approach a notary to sign and notarize such an agreement. However, the legal provision allowing for the termination of the right to child support remains unchanged, subject to approval by the guardianship and trusteeship authority, especially if the supporting spouse does not reside with the child but has transferred ownership rights to certain real estate to the child.

In the case of the most common method, resorting to legal proceedings for child support, there are two ways: simplified (orderly) and general (lawsuit) proceedings.

If you intend to apply for child support:

  • In the following income scale (earnings) of the child support payer: 1/4 for one child, 1/3 for two children, 1/2 for three or more children, but not exceeding ten times the subsistence minimum per child of the corresponding age for each child. If this requirement is unrelated to establishing or contesting paternity (maternity) and does not involve the need to involve other interested parties, or
  • In a fixed monetary amount equal to 50 percent of the subsistence minimum for a child of the corresponding age (this amount changes annually and is established by the Supreme Rada of Ukraine in accordance with the Law of Ukraine on the State Budget of Ukraine for the respective year).

You can seek assistance from a lawyer or attorney to prepare a request for a court order (simplified child support recovery process), which significantly expedites the case review process, and child support is awarded from the date of filing such a request for a court order.

If you intend to make claims for child support in amounts different from those specified above, you should engage a lawyer or attorney to prepare the appropriate lawsuit, as well as help gather all the necessary evidence justifying the amount of the claimed demands. In this case, child support is awarded by court decision from the date of filing the lawsuit.

How to apply for child support during wartime?

The procedure for preparing documents to claim child support during a state of war remains unchanged, meaning the process described above is still applicable and relevant at the present time.

During wartime in Ukraine, due to many families (parents of children) being forced to leave the country, the issue of remote child support recovery becomes more critical. This matter can be addressed by seeking the assistance of a lawyer, who, by entering into an appropriate legal assistance agreement with you, can represent your interests remotely without the need for your presence in court, manual signing of documents, etc.

Is it possible to apply for child support online?

Considering the ongoing reforms in the judicial system and the digitization of court work, lawyers can submit an application for child support online on behalf of their clients through the subsystem/module of E-SITS “Electronic Court.”

It is important to note that any individual can independently submit an application for child support or any other application to the court through the subsystem/module of E-SITS “Electronic Court.” To do this, the person needs to register in the system. Registering in the electronic cabinet “Electronic Court” for an individual is relatively straightforward and requires the possession of a key with a qualified electronic signature (KES), which can be issued by one of the accredited centers of Qualified Providers of Electronic Trust Services.

How much does it cost to apply for child support in Ukraine?

For the court to consider an application for child support, there is no need to pay a court fee, as plaintiffs in this category of cases are exempt from paying court fees. However, the services of a lawyer who prepares an application for a court order or a lawsuit need to be paid according to the terms of the legal assistance agreement, unless it involves pro bono legal assistance.

If you have questions related to child support recovery, you can contact the lawyers of the legal company “First Legal” for legal consultation. Our specialists will be happy to help you resolve the issues that concern you!

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How to terminate the rental agreement unilaterally?

According to the lease agreement, the lessor (lessor) transfers or undertakes to transfer the property to the lessee (lessee) for possession and use for a certain period of time. Lease agreements are prevalent both in economic legal relations among legal entities and in civil ones, where the subjects are also natural persons. This is due to the fact that the object of lease agreements can be any property that is not excluded from civil turnover: from small household items to complete property complexes. At the same time, it is not uncommon for the counterparty under the lease agreement to stop fulfilling its obligations properly: for example, the tenant pays the usage fee late, or the lessor does not provide the premises with utilities, the mandatory availability of which is provided for in the lease agreement. The impossibility of reaching a resolution of the dispute through negotiations leads to the fact that the managed party is looking for a way to resolve the situation through termination of the contract, including one-sided. However, as it turns out, it is not always possible to implement it outside the court order or in a short time. We will talk about this below.

Why is it impossible to terminate the contract unilaterally out of court in a short period of time?

The current legislation (Articles 651 of the Civil Code of Ukraine and 188 of the Economic Code of Ukraine) stipulates the rule: “Termination of contracts is carried out by agreement of the parties, unilateral termination of contracts is not allowed unless otherwise provided by law or contract.”Thus, according to the general rule, in order to terminate the contract, it is necessary to reach a mutual agreement between the parties and properly formalize such agreement (conclude an additional agreement) or, if it is not possible to reach an agreement, apply to the court with a claim for termination of the contract. Exceptions to this rule are established by contract or law.

Regarding the termination of the employment (lease) contract, the norms of the Civil Code of Ukraine and the Economic Code of Ukraine come into conflict. Thus, Article 782 of the Civil Code of Ukraine provides that the lessor has the right to refuse the rental agreement and demand the return of the thing if the lessee does not pay for the use of the thing for three consecutive months. Instead, Article 291 of the Economic Code of Ukraine categorically states: that unilateral refusal of the lease agreement is not allowed. Taking into account the fact that in relation to business contracts, the specified norm of business legislation is special, a lease agreement by the parties in which there are business entities cannot be terminated unilaterally – only by mutual consent of the parties or by a court decision.

Given the inconsistency of economic and civil legislation regarding the possibility of unilateral termination of the lease agreement, the resolution of such disputes is also ambiguous. After all, in practice, the lion’s share of lease agreements contain provisions on the possibility of their unilateral termination by one or both parties in the presence of violations of the terms of the agreement and without such. At the same time, the courts take a different position: some clearly uphold the prescriptions of Art.291 of the Commercial Code of Ukraine, while others (including the Supreme Court in case 922/3293/18) prioritized the dispositive nature of civil legislation and the right of the parties to change the contract and supplement it at their own discretion with convenient and effective regulations.

Additional grounds for terminating the lease agreement by both the lessee and the lessor

At the same time, the Civil Code of Ukraine defines additional grounds for terminating the lease agreement by both the lessee and the lessor. The lessor has the right to demand termination of the contract in the following cases:

  • the tenant owns and/or uses the thing contrary to the contract or purpose of the thing;
  • the lessee, without the lessor’s permission, transferred the thing into possession and/or use to another person;
  • the hirer creates a threat of damage to the thing by his negligent behavior;
  • the lessee has not started to carry out capital repairs of the thing if the obligation to carry out capital repairs was assigned to the lessee.
  • In turn, the lessee has the right to demand the termination of the lease agreement if:
  • the lessor handed over the thing, the quality of which does not correspond to the terms of the contract and the purpose of the thing;
  • the lessor does not fulfill his obligation to carry out capital repairs of the thing.

It should also be remembered that for certain types of lease agreements (depending on the lease object), special grounds for termination are established by law. For example, the tenant of housing has the right, with the consent of other persons who live with him permanently, at any time to withdraw from the lease agreement by notifying the landlord of this in writing three months in advance, or if the housing has become unfit for permanent residence in it. There are also additional grounds for terminating the lease agreement by a court decision at the initiative of the lessor:

  • non-payment by the lessee of housing rent for six months, if the contract does not establish a longer term, and in the case of short-term rent – more than twice;
  • destruction or damage to housing by the tenant or other persons for whose actions he is responsible;
  • if it is necessary to use housing for the lessor and his family members.

In economic legal relations, the party that initiates the termination of the contract must do so in accordance with the provisions of Article 188 of the Economic Code of Ukraine: send proposals about this to the other party under the contract. The party to the contract, which received a proposal to terminate the agreement, within twenty days of receiving the proposal, notifies the other party about the results of its consideration. In the absence of a consensus of the parties, the interested party has the right to refer the dispute to the court for resolution. The parties can also clarify or change this procedure in the contract.

Summarizing

Summarizing: the right to unilaterally terminate the lease depends on several conditions at the same time:

  • provisions of legislation regarding the possibility of terminating or rejecting a contract of a certain type;
  • the existence of facts of violations by one of the parties of the essential conditions of the lease agreement;
  • additional provisions of a specific contract regarding the possibility of early termination at the request of one of the parties.
Posted on Categories NewsLeave a comment on Legal and accounting services in Portugal

Legal and accounting services in Portugal

Portugal is one of the most promising countries in the European Union for creating and scaling your own business. However, when running your own business, questions always arise about real estate transactions, legal services, accounting and tax accounting, reporting, personnel issues.

The First Legal Portugal company provides legal and accounting services, turnkey business subscription service, any consultation questions on the territory of Portugal.

One of the main directions of the First Legal Portugal company is the comprehensive turnkey business service. First Legal Portugal specialists provide legal advice, legal support for transactions of any complexity, accounting and HR support for any business in Portugal.

Legal services in Portugal by First Legal Portugal include:

✓ Consultations of lawyers, attorneys and other specialists of the company;

✓ Preparation of written consultations, conclusions, contracts, agreements and other normative documents;

✓ Legal analysis of legal documents and regulatory acts;

✓ Development of contracts, agreements, declarations, letters, internal company documents;

✓ Registration and liquidation of business in Portugal;

✓ Support of inspections by state bodies;

✓ Carrying out any registration actions, making changes to information and founding documents of the company;

✓ Representation of interests in court;

✓ Buying and selling real estate;

✓ Legalization of documents (apostille and consular legalization);

✓ Copyright protection in Portugal;

✓ Services on immigration issues in Portugal;

✓ Probate and inheritance registration;

✓ Solving of other legal issues.

The main areas of law in which we advise are:

✓ family law;

✓ land right;

✓ immigration law;

✓ inheritance lawht;

✓ contract law;

✓ civil law;

✓ tax law;

✓ labor law;

✓ international law;

✓ other areas of law.

Accounting services in Portugal provided by First Legal Portugal include:

✓ consulting on choosing a taxation system at the stage of business creation;

✓ accounting;

✓ tax accounting;

✓ submission of tax returns;

✓ control of current payments;

✓ VAT refund process;

✓ salary payments for employees;

✓ other individual services, depending on the client’s activity specifics.

By contacting First Legal Portugal, you receive turnkey legal and accounting services, an individual approach, a 100% guarantee of results, and a well-prepared consultation.

First Legal Portugal also provides additional services for individuals and legal entities, namely:

✓ Registration of a private entrepreneur;

✓ Company registration;

✓ Business accounting support;

Golden Visa in Portugal;

✓ Obtaining a residence permit for non-residents;

✓ Support in obtaining any type of visa;

✓ Obtaining a tax number;

✓ Opening bank accounts;

✓ Legalization of documents.

✓ Legalization of documents.