A prenuptial agreement is the most popular type of transaction in family law. This is primarily due to the fact that divorce proceedings have become more frequent in the modern world. In this regard, citizens began to desire official confirmation of their rights and responsibilities while married. So, a marriage contract implies an agreement that sets out the property rights and obligations of the spouses, or the persons entering into marriage, in order to protect themselves from legal disputes related to the possible dissolution of the marriage. Below we will look step by step how to draw up such a document and what aspects you should pay attention to.
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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.
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.
What kind of document is this?
Married couples own and manage property jointly, receiving exactly half of the property upon divorce. If the spouses express a desire to change the legal order of ownership, disposal and use of common property, they will enter into a marriage contract.
A contract between spouses is concluded before the formalization of the relationship or at any time during the marriage. The agreement begins to operate only after registration with the registry office. The contract secures the status of the property used by the spouses; the contract, from the moment it comes into force, has paramount importance over the requirements of the law.
most common reasons for concluding a contract
- One partner is engaged in private business, owns production areas and other non-residential premises, the disposal of which requires the mandatory consent of the other half;
- Protecting the interests of the husband or wife in the event of a possible foreclosure by creditors of the share of the other spouse;
- Getting rid of attacks on the values of those who do not participate in the acquisition due to low income or lack thereof;
- Saving part of the property from confiscation;
- Eliminating disputes over division during divorce.
According to Art. 43 of the Family Code of the Russian Federation, neither party has the right to refuse to fulfill the agreement; the text of the agreement may contain sanctions for evasion of execution.
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.
Responsibility of the parties
This section is intended to delimit responsibility for any issues. For example:
3. Both spouses are liable for obligations to the creditor within the limits of the shares of the property belonging to them. Moreover, if one of the spouses made a transaction in relation to common property without the consent of the second, then the latter, in turn, is not responsible for this.
Liability for harm caused to any family member may also be prescribed:
4. Each party is liable in accordance with the norms of Civil Law in case of harm to their minor children. The final provisions of the agreement provide information that each spouse is familiar with the contents of the agreement. The conditions for terminating or amending the contract are also specified.
There is a general rule that it is impossible to terminate a contract unilaterally. This fact is also stated in the final provisions. At the end of the contract, the spouses put their signatures, and the contract is considered concluded.
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.
Change and extension
Changing the contract, as well as its termination, is carried out peacefully and forcibly.
Spouses who have a valid marriage contract have the right to make changes to its text . The parties can change an existing document at any time, following a procedure similar to the conclusion process. The prepared adjustments will be called the “Agreement on Amendments to the Marriage Contract” and must be certified by a notary in triplicate.
A written document regarding changes that does not have the signature and seal of a notary is invalid. The marriage contract continues to be valid in its original form.
Changes are forced into the contract based on a court decision. The court is guided by the provisions of the Civil Code of the Russian Federation. For a change request to be satisfied, two aspects must be present :
- Receiving a refusal to propose amendments from the other party;
- A significant change in circumstances that the parties were not aware of at the time the agreement was concluded (for example, the birth of triplets affects the level of maintenance).
A prenuptial agreement is usually concluded for the period of marriage, but the law provides for the possibility of concluding a contract before a certain period. If the contract is not renewed after the expiration of the term, all property received by the married couple will be joint. The extension follows a procedure similar to changing the agreement.
