The Supreme Court explained the subtleties of dividing the property of former spouses in the presence of a marriage contract

1. WHAT IS A MARRIAGE CONTRACT, WHAT DOES IT GOVERN?

The Family Code of the Russian Federation reveals the essence of this agreement as follows: a marriage contract is an agreement by which spouses determine their property rights and obligations, not only in marriage, but also in case of divorce. Here it is worth paying attention to the word property. We know from American films that in the USA a marriage contract allows you to regulate any relationship between husband and wife, up to the fulfillment of marital duty. In the Russian legal order, they can only resolve issues related to property, period. All other provisions are void, that is, without force.

In this regard, you can often see the question - is it possible to deprive a spouse of property for adultery?

The answer to this question is negative. Firstly, the law does not oblige a wife or husband to be faithful to their spouse, nor does it define the concept of infidelity. Secondly, as mentioned above, a marriage contract regulates only property relations. They cannot resolve issues of fidelity and responsibility for its absence.

Case study: 13 years after the wedding, in 2001, the couple turned to a notary to conclude a marriage contract. In it they provided that the husband would lose everything acquired during the marriage if the marriage broke up due to his infidelity, hooliganism or drunkenness. If the husband abandoned the family, then he also could not lay claim to the property. After almost 20 years, the couple divorced. Relying on the contract, the wife tried to leave her ex-husband without property. However, all authorities, including the Supreme Court of the Russian Federation, sided with him. Thus, the Supreme Court determined that a marriage contract cannot contain conditions that would run counter to the basic principles of family law.

It is also impossible to include liability for infidelity or any other immoral behavior in the contract. Spouses have the right to establish the obligation of one spouse to transfer or pay something to the other spouse. But this cannot be linked to human behavior, since the contract regulates only property relations.

It should also be noted that such a rule would be contrary to the Constitution, which guarantees that private life, as well as personal and family secrets, are inviolable. The Constitution does not make exceptions for marriage. Liability for treason, as well as establishing the fact itself in court, would violate these provisions. Spouses have the right to lead a disgraceful, but legal way of life. And responsibility in any form, even for such an immoral act as treason, would be illegal, since it violates the constitutional rights of a citizen.

However, the law allows for the establishment of a penalty or other sanction for the actions of the spouse. But these actions must be related to property relations.

Let's look at an example: Sergey and Anastasia entered into an agreement, in which they provided for a penalty for refusing to transfer an apartment after a divorce, which is registered in the husband's name. If the husband, after dividing the property, delays transferring the right to the apartment, he will have to pay the penalty provided for in the contract for each day of delay.

Important! A penalty or fine can be demanded only when the action or inaction is related to the property of the spouse. That is, it is impossible to demand a penalty for refusal to transfer common property.

The Family Code of the Russian Federation gives a lot of scope for spouses. Thus, they have the right to deviate from the equality of shares, which is established by default by law. Spouses have the right to determine each other's shares in property, make it joint, and determine who owns what. Moreover, this is possible both with property as a whole, and with its certain types, as well as with individual objects. For example, it can be established that ¾ of the total property belongs to the wife, that the apartment will go to the husband, and the dacha to the wife, and so on.

Also, spouses can, using a prenuptial agreement, agree on who will bear what expenses during the marriage, as well as the maintenance of the ex-spouse after its dissolution. Here you should pay attention to the fact that it is impossible to deprive a disabled spouse, including a former spouse, of his legal maintenance.

It is also important that the law allows you to determine who and what will belong to the potentially acquired property. What does it mean? For example, the contract can indicate that real estate that was acquired during marriage or even during a certain period will belong to the wife. This is acceptable.

1.1 IS IT POSSIBLE TO INCLUDE PRE-MARITAL PROPERTY IN THE AGREEMENT?

The law does not prohibit doing this. Moreover, the courts refuse to satisfy the claims of spouses who challenge the marriage contract for this reason. The main reason for this is the freedom of contract that extends to family law. And since the law does not prohibit including such a condition, the parties are free to do so. In the article “On the division of property in the presence of children,” we examined a case in which the ex-spouse wanted to challenge the division agreement due to the fact that it included a condition on the division of his apartment received before marriage. The court refused and declared the agreement valid. The same applies to marriage contracts.

1.2 IS IT POSSIBLE TO PROVIDE FOR TRANSACTIONS IN THE AGREEMENT?

Yes, but with reservations. Transactions can be concluded with the property that is the property of each spouse. For example, the husband will receive his wife's premarital house, and she will receive compensation.

Let's look at another situation: a husband and wife have established that everything purchased or received during marriage belongs to the person to whom it is registered. But after a year, the wife is obliged to give her husband the car that belongs to her. The husband, in turn, will pay her compensation for this. What difficulties might arise? If you have not changed the ownership regime, then everything acquired is joint. This means you won’t be able to conclude transactions with this property between yourselves so easily.

Example: Andrei and Ekaterina established that three years after they get married, the husband will give his wife an apartment, and in return she will give him a car. Moreover, both were acquired in marriage. Such a condition will be void, since both cars and real estate are common property, that is, they belong to both Ekaterina and Andrey at the same time.

However, if you provide for transactions in the marriage contract, then another problem arises. Do I need to pay tax on them? Let us turn to Article 208 of the Tax Code, which tells us that transactions between family members are not taxed. An exception is contracts that can be classified as civil or labor. As a general rule, the marriage contract has nothing to do with them. But if it contains conditions that are recognized as compensatory, then they can be taxed. And an agreement that assumes that the spouse, having entered into a marriage, will transfer ownership of any property to the other, for which he will receive compensation in return, can be recognized as compensated.

Important! In this case, tax will be imposed only on such income that was received due to the fact that the compensation is greatly disproportionate to what the property is actually worth. The tax office will have to prove this.

Nevertheless, we consider the occurrence of such a situation to be unlikely. This is due to several reasons.

Firstly, initially such a transaction will be a normal settlement of relations between spouses. The tax authorities will have to try very hard to interpret the marriage contract in this way, even taking into account the sympathy of the courts for the Federal Tax Service.

Secondly, this case is, in principle, a rarity in practice, since tax authorities are focused on finding arrears from businesses and do not monitor marriage contracts and small transactions between citizens. The risk becomes significant only if the agreement is concluded before the divorce or if the spouses divide extremely expensive property, for example, luxury real estate, several apartments, shares in a medium and large business.

1.3 Is it possible to include provisions regarding children in a marriage contract?

Questions about who the children will stay with in the event of a divorce, who should spend time with them and how much time are the subject of other agreements. Fortunately, children are not property and therefore no provisions regarding them can be included in a marriage contract in Russia.

Is it necessary?

Family law establishes two regimes for the property of married persons:

1. jointly acquired property;
2. property distributed between spouses by marriage contract.

The latter refers to a notarized agreement (Article 40 of the RF IC), which regulates:

• matrimonial property regime;
• disposal of the common part of the property and the separate property of each spouse;
• rights and obligations of spouses regarding mutual maintenance;
• conditions for bearing family expenses.

Help: If there is no marriage contract, then everything acquired during family relationships, including real estate, is considered jointly acquired property (Article 34 of the RF IC).

There is no exhaustive list of exactly when a prenuptial agreement is needed when buying an apartment, but the following situations can serve as an example:

• the apartment is purchased with a mortgage, but one of the spouses is against it or has a bad credit history;
• one of the spouses, before marriage, bought an apartment under a shared participation agreement, but the completion of construction occurred after the registration of the relationship, as a result of which the apartment will be recognized as joint property;
• spouses have separate good income, allowing them to purchase real estate as their sole property, etc.

REQUIREMENTS FOR A MARRIAGE CONTRACT

The marriage contract must be concluded in writing and notarized. This is extremely important; without a notary, the contract will not have any force. For this service you will have to pay a state fee, the amount of which is five hundred rubles. It is paid by spouses in equal shares.

A common question is whether state registration of a contract is required? After all, he often establishes a new owner of the property. The list of transactions requiring registration is established by the Civil Code of the Russian Federation. The State Registration Law, in turn, indicates that registration is required in cases provided for by law. The Civil Code does not require registration of a marriage contract; accordingly, it is not required. Only rights require registration, and a marriage contract is only a transaction that transfers them. If the contract states that the apartment is transferred from husband to wife, then only the right to this apartment will need to be registered, and not the marriage contract itself.

A common situation is when spouses purchase real estate together; it is registered in the name of one of them, but under the terms of the marriage contract it becomes the property of the other. Then, when a divorce occurs and the ex-husband and wife divide the property, the second spouse is the owner according to the agreement, but in the Unified State Register the owner is the first. To answer this question, you need to refer to Law No. 122-FZ by submitting a marriage contract to the Russian Register.

This problem arose due to shortcomings in the state registration system, which gives rise to conflicts in the law. For example, the Supreme Court of the Russian Federation, in its ruling dated November 8, 2011 No. 83-B11-5, determined that the right to real estate arose at the moment when the marriage contract was concluded. When the Rosregistry registers property rights, it does not check the marital status of the applicant, whether the property is his personal property or belongs to him as common property. This is also due to the presumption that a spouse acts with the knowledge of the other, established in the Family Code. This also gives rise to situations when government agencies issue extracts that contain information about the ownership of such real estate, where they have only a share or do not have the right to it at all.

It is necessary to note several significant events for a marriage contract: conclusion and dissolution of marriage, its termination, expiration of the contract, its dissolution. The moment when all obligations under the contract are fulfilled.

Ideally, the consequences of all these events should be spelled out in the contract, as well as the duration of the contract. There is no need to indicate the moment when the contract comes into force; it is always the same. The marriage contract comes into force from the moment of state registration of the marriage.

3.1 WHAT CANNOT BE INDICATED IN A MARRIAGE CONTRACT?

The Family Code prohibits the inclusion in a marriage contract of conditions that would limit the rights or legal capacity of spouses, prohibit them from exercising their right to go to court, or defending their rights. As has been repeatedly noted, it is impossible to include in a contract such conditions that would regulate relations other than property ones.

It is worth mentioning separately that the law allows you to challenge an agreement if it puts one of the spouses in an extremely unfavorable position or goes against the basics of family law. In practice, this means that if, according to the agreement, everything belongs to the wife, and the husband receives nothing, the latter will have grounds for such an agreement to be declared invalid. The same applies to agreements under which only one of the spouses assumes all debts, unless most of the property is transferred with them.

Case studies:

1. In the marriage contract, the spouses indicated that the property belongs to the person in whose name it is registered. After the divorce, it turned out that everything acquired during the marriage was registered in the name of the ex-husband. But in the marriage contract there was a clause that the husband undertakes to buy his wife real estate, the characteristics of which were provided for in the contract. The Moscow City Court ruled that this agreement infringed on the interests of the wife and declared it invalid.

2. The husband and wife took out a mortgage. To pay it off, the husband sold his apartment, which was purchased before marriage. A few years later, shortly before the divorce, the spouses entered into a marriage contract, according to which the property would go to the wife, and the husband would not receive any compensation for it. The Moscow City Court sided with the husband, considering this condition unfair.

However, one should not assume that simply transferring most of the property to one of the spouses makes it possible to challenge the marriage contract. In general, courts are reluctant to grant such claims.

Case study: Before marriage, none of the spouses had housing. After the wedding, they took out a mortgage, which was paid off. According to the marriage contract, the mortgaged apartment belongs to the wife. After the divorce, the husband tried to challenge the contract, citing the fact that he was losing his only home, and this infringed on the spouse and put him in an extremely unfavorable position. The court rejected the claim.

Features of the termination procedure

With mutual consent of the parties

In order for the contract to terminate, the spouses must draw up and notarize the termination agreement. A sample of this agreement can be found here.

In addition to the termination agreement in three copies, marriage partners are required to prepare before a personal visit to the notary:

1. Passports of both parties to the contract.
2. Originals of the marriage contract in the amount of 2 copies, one for each spouse.
3. Marriage certificate.
4. Cash. The exact price of the service should be obtained from a notary.

Termination of the contract is permitted by law only when both spouses personally come to the notary and confirm their will as stated in the agreement. After certification of the termination agreement, the marriage contract is recognized as having lost legal force.

Unilaterally

At the sole request of the party to the transaction submitted to the court, the marriage contract is terminated if:

• 
  A party to the contract has violated its terms, and the violation must be considered significant. This means causing such damage to the injured party that, as a result, it is deprived of the benefits and rights that it could have counted on at the time the contract was concluded.

• It is declared invalid due to the use of violence, deception or threats against one of the parties; presence of violations of civil and family legislation; material misconception of one of the parties; shamness of the contract; the pretense of the contract; identification by the court of extremely unfavorable conditions for one party to the contract.
• A change in circumstances that is significant for the parties to the contract. This means that if the parties to the prenuptial agreement could have foreseen the occurrence of such circumstances, they would not have entered into the contract or would have entered into it on different terms.

Before taking a dispute to court, you should try to resolve differences without involving government agencies. This needs to be done with 2 goals in mind:

1. If it is possible to reach an agreement with the other party to the contract without intermediaries, then this fact will save money and time.
2. If it is not possible to reach an agreement with the other party to the contract, then the future plaintiff will have evidence in his hands that directly confirms that he tried to solve the problem without involving the court.

What do we have to do? A proposal to terminate the contract should be prepared and sent via mail by letter with a registered notice attached (it can be tracked) and an inventory. The proposal must indicate a deadline that is given to the recipient to think about it, for example, 30 days.

If there is no response or the other party refuses the offer, the notification and inventory returned by mail will serve as evidence in court that:

1. There really was a letter.
2. The letter did contain a proposal to terminate the contract.
3. The defendant actually received it.

The claim is resolved in a court located at the place of residence of the defendant or at a place determined by agreement of the parties on jurisdiction. Cases are heard by district or magistrate courts. Jurisdiction of cases depends on the claims made by the plaintiff.

Sample statements for various categories of claims are presented in the list below:

1. The application, which states the request for termination of the marital agreement based on a change in circumstances or violation of the provisions of the agreement by the defendant, is located here.
2. The application requesting that the court invalidate the prenuptial agreement can be found here.

Additional documents that must be attached to the claim are:

1. 
   Marriage certificate.

2. Original marriage contract.
3. Evidence of the arguments presented by the plaintiff in the application (written documents, for example, certificates from medical organizations, certificates from government agencies, contracts, correspondence; witness statements; examination results).
4. Receipt for payment of state duty.

The fee for non-property claims, for example, for recognizing the invalidity of a contract, is 300 rubles. The duty for property claims is calculated according to the formula described in clause 1) part 1 of article 333.19 of the Tax Code of Russia. The fee can be transferred in the following ways:

• Cash at any bank.
• Cash via ATMs.
• In Internet banking.
• On the State website).
• On electronic money services, for example, Yandex.Money.

After the fee has been paid and the documents have been prepared, the papers must be submitted to the court. This is done using one of the methods described below:

1. Sending by registered mail with an inventory through the post office.
2. The plaintiff personally delivers the documents to the court office.
3. Claim documents are sent electronically through the State Automated System “Justice”.
4. The plaintiff's representative transfers the documents to the court office.

If the documents are accepted and the judge begins proceedings in the case, you should arrive on time at each meeting and defend your point of view at it. If for any reason you are unable to attend the meeting, you must:

• Submit a written request to the judge asking him to consider the dispute without the presence of the plaintiff.
• Send a representative to the trial in your place.

If the case ends with a decision that is favorable for the plaintiff, then from the date of its entry into force the marriage contract is recognized as having ceased to be valid and dissolved.

After the divorce process is completed

The same 2 methods described above apply:

1. The spouses come to a common point of view on the situation that has arisen in their lives and decide to terminate the marriage agreement. Then they or hired lawyers draw up a termination agreement. This agreement must be certified by a notary. Only after this is it given legal force, and the agreement terminates.
2. If the husband and wife do not come to a common point of view regarding the future fate of the marriage contract, their disagreements are resolved in court according to the algorithm described in the chapter “Unilaterally”.

MARRIAGE CONTRACT AND INHERITANCE

The uncertainty of the legislation gives rise to many questions on this topic. Thus, based on the norms of the Family Code, the contract establishes rights and obligations in marriage and in the event of its dissolution. However, if one spouse dies, the marriage ends, not dissolves. What will happen to the marriage contract in this case is unclear to many.

This became the reason for going to court, since the heirs of the deceased spouse believed that the termination of the marriage also entails the termination of the separate property regime that was established in the contract. This means they can claim what belongs to the living spouse under the marriage contract. However, they are wrong. Above, we already pointed to the definition of the Supreme Court of the Russian Federation, which explained that the right of ownership arises at the moment when a husband and wife enter into a marriage contract. It doesn't stop with the death of one of them.

However, one question remains unresolved. What about the conditions that occur when a marriage ends? Do they apply in the event of the death of a spouse?

The law does not make it possible to provide in a marriage contract for the transfer of rights after the death of a spouse, at least because the death of a spouse ends the marriage, and therefore the contract. The terms of the right to use deserve special attention. It all depends on whether they remain valid after termination or not. If the marriage contract stipulates, for example, that the ex-husband can live in the apartment for five years after termination, then even in the event of the death of the second spouse, he will retain the right of residence.

Important! It is necessary to indicate the termination, not the dissolution of the marriage. Otherwise, after the death of your spouse, you will not retain the right of use, because the marriage no longer exists, but the dissolution has not occurred, which means it is impossible to count five years from the date of divorce.

Arbitrage practice

In the practice of Russian courts, there is a case in which one party, according to the marriage contract, was supposed to purchase an apartment in favor of the other party after the divorce. However, according to the ex-husband, his wife did not fulfill her obligation. In October 2021, this case was heard in the Maykop City Court of the Republic of Adygea.

So, the ex-husband demanded in court to force the ex-wife to fulfill the obligation she accepted under the marriage contract and to transfer to him an apartment that complies with the terms of the agreement. The apartment must be one-room, not on the top floor and not lower than the 2nd floor.

In turn, the ex-wife stated that the plaintiff has no grounds to demand the apartment, because she fulfilled her obligation. The defendant presented the court with a purchase and sale agreement, under the terms of which the ex-husband received sole ownership of a 1-room apartment that met the conditions set out in the marriage contract.

Taking this fact into account, the court decided that the defendant had fulfilled her obligations. Therefore, there is no reason why the court should take the plaintiff’s side. In this regard, the ex-husband's claim was rejected.

MARITAL CONTRACT AND OBLIGATIONS OF SPOUSES

The obligations of the spouses within the framework of the marriage contract are regulated by both the Civil Code and the Family Code. Article 256 of the Civil Code establishes that a spouse is liable for obligations only with his property and his share in the common property. The Family Code has a special rule regarding liability in this regard. It establishes that if there is insufficient personal property, the creditor may demand to allocate the share that the spouse would receive in the event of a divorce, and then foreclose on it.

It is also possible to foreclose on the common property of the spouses if the obligations are common. But only if it is proven in court that the property received from the creditor, including money, went to the needs of the family. In conditions when this property is not enough, the recovery will be directed to the personal property of each of them.

Let's look at an example: Elena took out a million rubles on credit; her husband Vladimir was neither a guarantor nor a co-borrower. She couldn't pay off the loan. As a general rule, she would answer to the bank herself. But in court it was established that the money was spent on renovations in a shared apartment. Because of this, the bank managed to foreclose on the car that belonged to Vladimir and Elena.

Important! The Family Code requires informing the spouse about the fact of concluding a marriage contract. Otherwise, you will have to answer for your obligations as if there was no marriage contract. The legislator provided for this obligation in order to protect the interests of the creditor from the debtor concealing his property.

Note that the bailiff cannot, on his own initiative, foreclose on the property due to the fact that the creditor was not notified of the fact of its conclusion. To do this, the creditor will have to go to court with a request to invalidate the contract in whole or in part. Moreover, the creditor will have to prove the absence of notification.

Features when taking out a mortgage

Since the marriage agreement regulates the entire property component of family relations, mortgage obligations may also form part of the conditions. By including collateral conditions you can :

1. regulate the amount of loan payments, distributing it into shares between spouses;
2. determine the procedure for repaying the mortgage after divorce;
3. appoint only one spouse as the payer (who, according to the terms of the agreement, will receive the apartment in the event of a divorce).

Contract: before or after?

Important! The prenuptial agreement is drawn up before the mortgage. The most acceptable option is to include mortgage terms at the stage of negotiations with the bank. The credit institution will help you choose the appropriate option for wording the conditions.

Depending on the chosen mode of the apartment (joint, shared or sole ownership of one of the spouses) the conditions will be selected. The spouse may act as a co-borrower or not have anything to do with the mortgage and the real estate purchased with it.

If the loan is not repaid

The provisions of family law do not establish restrictions on the moment of concluding a marriage contract. Banks are reluctant to agree to change mortgage terms, so if one of the spouses is a co-borrower, then regardless of the terms of the marriage contract, the credit institution will forward claims to him.

Notaries advise including the following provisions in the text of the agreement::

1. after the mortgage is removed, the apartment becomes the property of one of the spouses;
2. she remains with him even after the divorce.

How is it compiled?

Before contacting a notary, you must make sure that both spouses:

• agree to drawing up an agreement;
• are legally capable.

The preparation of a marriage contract itself is divided into several stages:

1. determining the content of the agreement (by decision of both spouses);
2. collection of documents;
3. drafting the text of the contract;
4. contacting a notary (the previous stage can be combined with this).

What should not be included in the terms and conditions?

Attention! Family law rules limit the marriage contract to regulating exclusively property relations.

An agreement containing terms of a non-property nature, distributing rights and obligations in relation to children, placing one of the parties in an unfavorable position, prohibiting one of the parties from going to court, limiting legal capacity and capacity, and contrary to the basic legislation, is declared invalid and can be terminated in court. .

Documentation

Need to prepare:

1. passports of spouses;
2. marriage registration certificate;
3. title document for the apartment (purchase and sale agreement, equity participation, etc.);
4. certificate of ownership (issued before July 2016);
5. USRN certificate confirming the ownership of the spouses or one of them;
6. title documents for other property included in the agreement;
7. other information at the discretion of the notary.

If the spouses have already drawn up a contract on their own, it must also be included in the list of documents.

Price

First of all, for the certification of the transaction itself, it is necessary to pay a state fee in the amount of 500 rubles (clause 6, part 1, article 333.24 of the Tax Code of the Russian Federation). Other expenses consist of the following components:

• contacting a lawyer for help with drawing up a contract;
• or to the notary himself (consultation from 2 thousand rubles, drawing up an agreement - 5-10 thousand rubles);
• clarification of technical issues by a notary (from 5-10 thousand rubles);
• state fees for obtaining certain information (USRN certificate in paper form – 750 rubles).

The cost of a lawyer or notary's services is determined individually . In general, the entire procedure will cost 10-15 thousand rubles, in some cases the amount can reach 50 thousand.

When is the best time to draw up an agreement?

Article 41 of the Family Code allows you to draw up a contract at any time - before or after marriage. If the couple signed the contract before the wedding, it will come into force only on the day of registration at the registry office.

Attention! After the dissolution of the union, a marriage contract cannot be concluded - only an agreement on the division of jointly acquired property.

Thus, a couple can draw up a prenuptial agreement for the purchased apartment at any time:

• in advance before the wedding, specifying in the text that it applies to any real estate purchased during marriage;
• immediately before the purchase, indicating both simply “real estate” and a specific apartment;
• draw up a special marriage contract for prenuptial agreements, mortgages or maternity capital;
• draw up a contract after the purchase - immediately or after many years, as it sees fit. In this case, the resulting shares of the spouses will need to be registered in the Unified State Register of Real Estate by making changes to the record of the purchased apartment.

The legal validity of a marriage contract does not depend on the moment of its preparation. However, if the contract is drawn up for the purposes of a residential loan, a housing loan or for government support, it is better to conclude it before purchasing an apartment.