Marriage agreement with a condition for determining property

Information for the document

The procedure for concluding and content of a marriage contract, as well as the possibility of its termination or amendment, are regulated by Chapter 8 of the Family Code of the Russian Federation.

Features of document preparation

1. Completed sample marriage contract
2. Contents of the marriage contract
3. What cannot be the subject of a marriage contract
4. Conditions for changing and terminating the contract

Contents of the marriage contract

According to Art. 40 of the RF IC, a marriage contract means an agreement between the spouses, which regulates the property rights and obligations of the spouses, both in the marriage itself and in the event of its dissolution.

The conclusion of a contract can be made both before and after marriage. An agreement concluded before the spouses enter into marriage acquires legal force only after the official registration of the marriage - Part 1 of Art. 41 IC RF.

There are certain requirements for the form and content of the agreement:

• The marriage contract must be concluded in written form and is subject to notarization - Part 2 of Art. 41 IC RF.
• A marriage contract can change the regime of joint property of spouses, implying that everything acquired by them during marriage is their joint property - Art. 34 Civil Code of the Russian Federation.
• A marriage contract can determine the shared, separate or joint ownership regime of the spouses both for all property as a whole and for its individual types, as well as the personal property of each spouse.
• Relations regulated by a marriage contract may concern not only the existing property of the spouses, but also their future acquisitions.
• The contract defines the rights and obligations of each spouse in relation to the property: maintenance obligations, participation in income and family expenses, etc.
• It is advisable to reflect the property or its shares, which will be transferred to each of the spouses in the event of divorce.

The duration of the contract may be limited to certain periods established by the spouses by mutual agreement, or may occur depending on the consequences - clause 2 of Art. 42 IC RF.

The advantage of a marriage contract over current legislation is provided for in Art. 256 of the Civil Code of the Russian Federation, according to which all property acquired by spouses during marriage is their joint property, unless otherwise provided by the marriage contract.

Important! Upon divorce, if the spouses had a prenuptial agreement that defined the procedure and conditions for the transfer of property in the event of divorce, this agreement will take precedence over the legally established regime of joint property of the spouses.

What cannot be the subject of a marriage contract

The legislation provides for some restrictions that cannot be reflected in the marriage contract, and if they were nevertheless included in its content, they may be declared invalid.

• Restriction related to the legal capacity and capacity of a person.
• The rights of spouses to apply to the courts to protect their interests.
• Personal non-property relations.
• Rights and responsibilities of parents in relation to children.

Limitation of the rights to receive maintenance by a disabled spouse.

In addition to the above, the marriage contract cannot include clauses that place one of the spouses in an extremely unfavorable position, or conditions that contradict the basic principles of family law - clause 3 of Art. 42 IC RF.

Conditions for changing and terminating the contract

The conditions for changing and terminating the marriage contract are set out in Art. 43 of the RF IC, according to which:

• The marriage contract can be changed or terminated at any time by mutual agreement of the spouses.
• An agreement to amend or terminate it must be in writing and certified by a notary.
• The legislation does not provide for unilateral waiver of the obligations set out in the contract.
• If the spouses do not reach an agreement to change or terminate the contract, then it can be changed or terminated only by a court decision. When making a decision, the court is guided by the requirements imposed by law on contracts, and provided for by Art. 450 - 453 Civil Code of the Russian Federation.
• The contract terminates upon the divorce. The exception is the conditions provided for in the contract for the period after the divorce.

Recognition of an agreement as invalid can only be done through a court, on the grounds provided for in Art. 166 - 181 of the Civil Code of the Russian Federation for invalid transactions, as well as the consequences associated with this.

Negotiate and don't go broke

The state fee for registering an agreement with a notary is 500 rubles. But it’s rare that a notary will agree to certify the document you bring without any corrections. He may not like the wording, lack of supporting documents, etc. For their services in drawing up the “correct” document, notary offices charge from 3 to 10 thousand rubles, depending on the region and the scope of the contract.

To complete the contract, you may need the following documents:

• certificates for all types of property that are included in the contract.
• technical passports (car, apartment, dacha, etc.);
• if the property was inherited, then the corresponding certificate;
• extracts from registers for shares or securities. Check the full list in advance with the notary office that will draw up the paperwork.

A sample agreement can be downloaded from this link.

Marriage contract

____________ "__"_______ 20___
Citizen of the Russian Federation _________________________________

(last name, first name, patronymic) and citizen of the Russian Federation ___________________________________,

(last name, first name, patronymic) hereinafter referred to as “Spouses”, voluntarily, by mutual consent, entering into marriage in order to settle mutual property rights and obligations both in marriage and in the event of its dissolution, have entered into this marriage contract as follows:

Subject of the agreement

1.1. The spouses agree that for all property acquired jointly by the spouses during marriage, regardless of whose income it was acquired with, a joint ownership regime is established. For certain types of property specifically specified in this agreement or an addendum to it, a different regime may be established.

1.2. Property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions, is his property.

1.3. By the time of the conclusion of this agreement, Mr. _______________ owns the following property:

• apartment with a total area of ​​______ sq. meters, located at: ____________________________________________________________;
• car _________, engine no. _____, body no. ________, state number ___________, registered in ___________;
• pieces of furniture according to the list attached to the contract;
• gold and silver jewelry, as well as jewelry made of precious and semi-precious stones according to the list attached to the contract;
• car garage located at ________________ _____________________________________________________________________.

Gr. ____________________________________ at the time of conclusion

(last name, first name, patronymic) of this agreement belongs to the following property:

• _____________________________________________________________;
• _____________________________________________________________;
• _____________________________________________________________;
• _____________________________________________________________.

1.4. Common property acquired during marriage includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions received by them, benefits and other monetary payments that do not have a special purpose. Possession and use of common property is carried out by mutual agreement.

1.5. The right to common property also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income.

1.6. Items for personal use (clothing, shoes and others), with the exception of jewelry and other luxury items, although acquired during the marriage at the expense of the spouses’ common funds, are recognized as the property of the spouse who used them.

1.7. Income for special purposes (amounts of financial assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, etc.) is recognized as the property of the spouse to whom they are paid.

1.8. Spouses have the right to dispose of common property by mutual consent. The consent of a spouse to the other spouse completing a transaction with common property is assumed if the other spouse does not express objections to the transaction before it is completed. To carry out transactions with real estate (including apartments, residential and non-residential premises, land plots, etc.), vehicles and other property, transactions with which are subject to notarization or state registration, the prior written consent of the other spouse is required. If a transaction by agreement of the parties or by force of law is made in notarial form, the consent of the other spouse to carry out such a transaction must also be notarized. The prior written consent of the other spouse is required when alienating and acquiring property if the transaction amount exceeds ________ rubles, regardless of the type of property in respect of which the transaction is being made.

1.9. At any time during the marriage, the spouses, by mutual agreement, have the right to change the regime of joint ownership established by this agreement.

Rights and responsibilities of spouses

2.1. Each spouse is obliged to take proper care of joint property and property belonging to the other spouse, to take all necessary measures to prevent destruction or damage to property, as well as to eliminate the threat of destruction or damage, including making necessary expenses both at the expense of common funds , and at the expense of other income.

Each spouse is obliged to respect the rights and legitimate interests of the other spouse established by this marriage contract and the law, both during marriage and after its dissolution,

2.2. Spouses are required to refrain from entering into risky transactions. Risky transactions are understood as transactions, failure to fulfill obligations under which may lead to the loss of a significant part of the joint property or to a significant reduction in the income of the spouses.

2.3. Each spouse has the right to use the property of the other spouse that belonged to him before marriage, in accordance with the purpose of the property.

2.4. During the marriage, each spouse has the right to dispose of the property that belonged to him before marriage at his own discretion. However, the spouses recognize income from such transactions as common joint property.

2.5. Each spouse is obliged to notify his or her creditor(s) of the conclusion, amendment or termination of this marriage contract.

2.6. In the event of divorce, property that belonged to the spouses before marriage is not included in the amount of property subject to division.

2.7. Upon divorce, common property is subject to division in equal shares.

Responsibility of spouses

3.1 Each of the spouses is responsible for the obligations assumed to creditors within the limits of the property owned by him. If this property is insufficient, the creditor has the right to demand the allocation of the share of the debtor spouse, which would be due to the debtor spouse during the division of common property, in order to foreclose on it.

3.2. A spouse is not liable for transactions made by the other spouse without his consent.

3.3. The common property can be foreclosed on only for the common obligations of the spouses. If this property is insufficient, the spouses bear joint liability with their property for these obligations.

3.4. The liability of spouses for damage caused by their minor children is determined by Civil Law.

Entry into force, modification and termination of the contract

4.1. This agreement comes into force on the date of state registration of marriage.

4.2. This agreement is subject to notarization.

4.3. The contract is terminated at the moment of state registration of divorce.

4.4. Spouses have the right to make changes and additions to this agreement at any time. Unilateral refusal to fulfill this agreement is not permitted.

4.5. All controversial issues that may arise during the validity of this agreement, if the spouses fail to reach an agreement, shall be resolved in court.

Signatures of the parties:

Gr. ___________________________________________________________, passport: series _______________, No. ___________, issued by ______________ _____________________________________________________________________, address: _______________________________________________________________

_____________________

(signature)

Gr. ___________________________________________________________, passport: series _______________, No. ___________, issued by ______________ _____________________________________________________________________, address: _______________________________________________________________

_____________________

(signature)

Download the document “Marriage Agreement”

Grounds for termination of the contract

Regarding the issue of termination of the contract, this is possible in two cases:

• By mutual agreement of the parties;
• By court decision, if it was not possible to reach an understanding in pre-trial proceedings.

To make a decision on the dissolution of a marriage contract, the court is guided by the provisions contained in the Civil Code of the Russian Federation; such a decision is possible:

• If there are significant violations of the terms and conditions specified in the contract by one of the parties;
• If there is a significant change in circumstances, the occurrence of which could not be predicted at the time of concluding the contract, but could serve as grounds for refusing to sign such a document.
• The text of the document contains a list of circumstances the occurrence of which causes the termination of the agreement.

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Drawing up a marriage contract when purchasing an apartment - real estate contract in 2021

If, when purchasing real estate (in this case, an apartment), the parties decide to enter into a marriage contract at the same time, before making the purchase, they should, first of all, determine how exactly the acquired property will belong to the couple.

For example, if the parties agree that the apartment will be included in the common property and, in the event of a divorce, will be divided equally, it is not necessary to conclude a contract, because any property benefits acquired by the parties during the marriage will, by default, be divided equally in the event of a divorce .

However, if it is assumed that the apartment being purchased will be owned only by the husband or only by the wife, you cannot do without a prenuptial agreement for real estate in 2021!

Thus, when drawing up a contract, the parties can determine that:

• the purchased apartment will be the property of a specific spouse;
• the property will belong to the husband and wife in shares determined by them;
• the living space will become the property of the spouse to whom the right of ownership will subsequently be registered during state registration.

At the same time, when drawing up a marriage contract when purchasing an apartment with a mortgage, experienced lawyers from the Legal Aid website recommend that the parties determine the procedure and method of paying mortgage payments.

Comments on the document “Marriage Agreement”

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When and for what property to enter into a marriage contract?

So, the contract can be concluded by the parties as follows:

• before marriage;
• after the marriage, that is, during the marriage.

Simply put, this property agreement can be executed at any time when the couple decides that their family will need additional regulation of property relations in the future. The contents of the contract may indicate both the entire property and certain parts of it, for which the parties can assign a certain ownership regime.

Many Russians mistakenly believe that in 2021 a couple can establish regimes only for property that is already owned by one of the parties to the marriage contract. However, it is not. In the insurance contract, the legislator allows the inclusion in the content of such an agreement of property that is planned to be acquired in the future .

Also, quite often, visitors to the Legal Aid website ask us questions about ways to regulate such property that the parties to the transaction want to purchase, because few of us are 100% sure that after six months he will purchase a car of a certain brand or a house with the terms established in the contract characteristics. That is, a problem arises with identifying future property.

In this case, the parties can use one of 2 options:

1. draw up an additional agreement to the main marriage contract;
2. insert into the contents of the main document a clause stating that property acquired in the future (for example, an apartment) will be the property of the person in whose name it will be registered upon its acquisition.

Lawyers consider the first option to be the most optimal, when the couple knows exactly what they want to buy for the family. At the same time, we remind you that any addition to the main marriage contract will require notarization!

The second method is simpler; however, the agreement will need to determine the owner of the property before registering ownership of it.

In addition, the contents of the contract may establish which spouse will bear certain costs associated with:

• mortgage payments;
• payment of utility bills;
• purchasing products;
• payment for children's education, etc.

At the same time, the spouses can bear these expenses jointly or by determining a certain part of them and fixing its payment as the obligation of the husband or wife. For example, expenses for a joint family vacation will fall exclusively on the spouse.

Also, the contract may stipulate the right for one of the spouses to live in the living space, which is the property of the other spouse, which, after divorce, allows one to avoid legal proceedings regarding a claim for eviction of the former other half.

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Amendments to the contract

Without involving a court, changes to the contract can be made only if the parties reach an agreement , but this is possible at any time. The main condition for the changes to come into force is the correct execution of the document; similarly to the main document, it must be in writing and must be certified by a notary.

If it was not possible to reach a mutual agreement to amend the agreement, one of the spouses has the right to file a claim and demand that the terms of the contract be changed, added or deleted by a court decision in accordance with the grounds of the Civil Code of the Russian Federation. As a rule, changes are made if:

• There are conditions that guarantee a change in the terms of the contract in accordance with the terms of the agreement itself;
• Circumstances have changed, the reasons for the occurrence of new circumstances could not be overcome by the interested party, and fulfillment of the terms of the contract in the changed circumstances will entail damage to the interested party.

To draw up the text of the contract, it would be advisable to contact a legal service. It is recommended to specify in as much detail as possible all the terms of the contract , to indicate the circumstances that will be a prerequisite for making changes or terminating the contract.

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Dates for entry into force of the marriage contract and its termination

If a marriage contract is concluded during marriage (that is, if the parties to the contract have officially registered family relationships), its provisions come into effect immediately after the agreement is signed by the husband and wife, as well as after the document is certified by a notary.

If the agreement is concluded before the parties enter into an official marriage, then its terms come into force only after the marriage is registered. Moreover, if the engagement is dissolved and the marriage does not take place, the legal relationship from the previously concluded agreement will not be formed, and the agreement itself will be considered invalid.

In 2021, a marriage contract may be terminated in the following cases:

1. divorce;
2. the parties reaching mutual agreement to terminate the terms of the marriage contract (in this case, after termination of the agreement, the property of the husband and wife will change its regime);
3. upon the expiration date of the contract, if such a period was established by the parties when drawing it up.

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However, since for the most part the clauses of the agreement most often relate to issues of division of property, the list of these obligations will have legal force even after the divorce process.

Also, it is worth noting that in the Russian Federation, unilateral termination of a marriage contract is prohibited! Simply put, a party who believes that as a result of signing such a document, its rights were violated has the legal right to apply to the judicial authorities with a corresponding statement of claim.

Registration of a marriage contract after purchasing an apartment in 2021

As we already mentioned above, an apartment purchased by spouses during marriage will be part of the common or so-called jointly acquired property. However, in practice, there are situations when the role of the husband or wife in the purchase of real estate is reduced to zero, and in this case the spouse who has spent most of the money may think about drawing up a prenuptial agreement, which will act as a guarantor of ensuring his well-being in the event of a divorce.

In addition, sometimes spouses take out a mortgage on real estate, registering it only in the name of the husband or only in the name of the wife. Moreover, if the mortgage agreement is concluded before the couple enters into an official marriage, the apartment does not become part of the jointly acquired property and after the divorce it will remain at the disposal of the legal owner, that is, the one for whom the mortgage was issued. It will be almost impossible for the second spouse to prove in court the fact that he has the right to half the living space since he regularly took part in payments.

Lawyer's Note

We remind you that, according to the current legislation of the Russian Federation, in 2021 the legislator allows the registration of a marriage contract not only for certain property, but also for any property benefits that are acquired by spouses during marriage!

Current samples of a marriage contract can be found below.