Draw up a prenuptial agreement so that your partner does not take your property and business during a divorce.

What is a marriage contract

From the point of view of the Family Code, a marriage contract is an agreement between persons entering into marriage or spouses, which determines their property rights and obligations during marriage and after its dissolution. That is, this is an agreement between you and your other half, in which only you decide what belongs to whom during and after marriage. Moreover, you can agree on the ownership of property that does not yet exist. For example, about an apartment you are going to buy in the future.

Important. By law, former spouses must divide property equally. A prenuptial agreement allows you to deviate from this rule and divide property in a different ratio.

Pros and cons of drawing up a contract

Before drawing up an agreement, spouses determine the benefits for themselves. In different situations, the pros and cons of a marriage contract are different for each party.

Among the advantages are the following:

• In the event of a divorce, both spouses will remain with their property, which is written about in the document. If the husband acquired real estate during marriage, the wife will not have any rights to this.
• In case of debt on loans, the person who issued the loan will be responsible. The property of a spouse cannot be confiscated for the debts of the other.
• The ability to avoid lengthy court proceedings during divorce.

Despite the many advantages, there are also disadvantages:

• During a divorce, neither the husband nor the wife will be able to rely on the property and finances of the other party. Even if there are common children who will remain with one of the spouses, the court will not be able to make a decision up or down. The decision will be based only on the provisions described in the paper.
• Only property and financial issues are regulated. Other questions cannot be specified.

Each case has its pros and cons. Before drawing up a document, it is necessary to think through and agree on all aspects in detail.

Why does an entrepreneur need a marriage contract?

An entrepreneur, when concluding a marriage contract, first of all seeks to separate family relationships and business. Therefore, the main task of a business owner when concluding a marriage contract is to choose the best ownership regime for the assets of his company so that his other half cannot interfere with his business activities.

Vladimir Yarovenko, lawyer of legal

It is important for an entrepreneur to indicate in the marriage contract that current business assets and future acquisitions, such as real estate, vehicles, equipment, shares in the authorized capital of an organization or shares, belong to the person to whom they are already registered or will be registered, and income from business activities belong to the entrepreneur himself. The average individual most often does not need to mention this. This is the fundamental difference between a marriage agreement for an entrepreneur and a marriage agreement for a person without his own business.

A prenuptial agreement helps an entrepreneur solve three main problems: to separate company property from family property, gain the right to dispose of company property without the consent of the other half, and protect your family from creditors.

Separates company property from joint property

By law, property acquired by spouses during marriage is their joint property. For example, if during the marriage the individual entrepreneur purchased equipment for baking buns, it will be considered joint property. And it doesn’t matter which spouse bought this equipment and for what purposes.

In this case, a prenuptial agreement will help establish ownership of the equipment. At the request of the entrepreneur, it can belong only to him, and the partner will not be able to appropriate the property after a divorce.

Allows you to dispose of company property without the consent of a partner

The second problem that married entrepreneurs often face is the need to obtain the notarized consent of the other spouse for some common transactions and operations with company property. For example, when selling a share in the authorized capital of a company, selling real estate, or concluding a long-term lease agreement for an office or warehouse.

A prenuptial agreement, which states that this company property belongs to the entrepreneur, will immediately resolve all questions and allow the transaction to be completed faster. Therefore, when concluding a marriage contract, it is important to individualize the property in question as much as possible. For example, if there is a land plot on the company’s balance sheet, it is necessary to indicate its cadastral number, address, and area.

Example. An individual entrepreneur from Porkhov entered into a marriage contract, in which he determined the fate of various types of property: bank deposits, jewelry, land, household appliances, cars. But the entrepreneur forgot to mention in the contract several trailers that he used to transport goods. After the divorce, the wife filed a claim to have the marriage contract declared invalid. The court refused her request, but recognized the trailers as the common joint property of the spouses - and ordered them to be divided equally between the spouses.

Helps protect the entrepreneur's family from creditors

A prenuptial agreement also allows the business owner to protect the family from claims by creditors in the event of bankruptcy. This is especially true for individual entrepreneurs, since according to the law, creditors have the right to demand repayment of the entrepreneur’s debts from the share in the common property of the spouses. But it is important not to overdo it when transferring property to a spouse, because the court may declare such transactions invalid at the request of creditors. In a marriage contract, certain proportions must be observed when distributing property - the document must take into account the interests of both spouses

Important. A prenuptial agreement can work not only in favor of the spouse who owns the business, but also in favor of other family members. The document helps protect the rights of a spouse who is not involved in the business if the company has fallen into debt and is unable to meet its obligations.

Forgive me, my love

The proposal to draw up a marriage contract in Russia is almost like an insult. It just so happens that we are accustomed to believing in beautiful fairy tales, including those about “living happily ever after and dying on the same day.” So we know about prenuptial agreements mainly from American films and magazines about social life. Moreover, reading how the wife of an oligarch received a country villa and half of the business after a divorce, we invariably sigh and console ourselves: they are all about money, but there is no real love.

Meanwhile, family psychologists remind that divorces are not about the fact that “love has passed,” but about the lack of their own home, lack of money, problems with alcohol and other very prosaic problems. Their words are confirmed by depressing statistics from Rosstat. The notorious “incompatibility of characters” was not even included in the top ten real causes of divorce. Divorcing couples talked about the unaffordable mortgage, annoying relatives with whom they have to live, the constant separations they have to endure to earn money in other cities, and the unfair distribution of income within the family, where the husband works and the wife stays at home with the children.

In terms of the number of divorces, Russia ranks 4th in the world, behind Belgium, Belarus and the Maldives.

A prenuptial agreement, of course, is not a panacea for divorce, but at least it can make this process more civilized. In addition, it helps to avoid the situation in which 26% of Russian families find themselves, when a couple actually ends their marital relationship, but formally maintains the marriage due to difficulties in dividing joint property.

Who needs to sign a prenuptial agreement?

Typically, a prenuptial agreement is necessary for individual entrepreneurs, LLC participants, and those who plan to scale their business.

IP. Such an entrepreneur does not have the concept of “personal property” and “company property.” Everything that belongs to an individual entrepreneur can be used to conduct business - these are his assets. If, while married, an individual entrepreneur once again purchased dough for his bakery, his significant other has the same right of ownership to this dough as the owner of the business.

LLC participant. By law, the other spouse can claim a share in the authorized capital of the company if it was acquired after marriage. It is important to separate the nominal value of the share and the market value. Nominal is the standard 10 thousand rubles, which are usually prescribed in the charter. And the market value is the real value, calculated on the basis of the company’s income and assets. Usually this is tens and hundreds of thousands of rubles. If a marriage contract is not concluded, the second spouse has the right to receive half of the share in the authorized capital. In this case, the spouse claims precisely the market value of the share, and not the nominal value.

Example. After the divorce, the wife wanted to appropriate part of the share in her ex-husband’s LLC. The Nizhny Novgorod court satisfied the wife’s request and ordered the entrepreneur to pay her the market value of the share in the amount of 73,350 rubles.

Important. In addition to the prenuptial agreement, there are other ways to limit the rights of the second spouse to a share in the company.

Vladimir Yarovenko, lawyer of legal

LLC members often use corporate instruments to prevent the owners' spouses from managing the business. For example, the charter stipulates a ban on the alienation of shares in the authorized capital to third parties without the written consent of the remaining participants in the company. Thus, other participants do not allow their partner’s spouse to take advantage of the corporate rights that the share gives him. For example, the ability to vote at a general meeting of participants against concluding a major transaction.

An entrepreneur who plans to expand. If you are planning to scale your business in the near future, for example, to attract money from investors, then a prenuptial agreement must be concluded in order to minimize the risks of both parties in terms of the potential division of property and determine the rights to future business income.

What are property relations between spouses?

Your property with your spouse is your property relationship. It is important to remember that spouses can have both common and personal property, which by law is not subject to division after a divorce.

more about the definition and division of marital property in the article dedicated to this at the link.

What to consider in a marriage contract

The marriage contract must establish a regime of joint, shared or separate ownership of all property of the spouses, its individual types, or the property of each spouse, both acquired before marriage and during marriage. In this case, a marriage contract can be concluded in relation to existing property, for example an apartment purchased five years ago, and in relation to future property, for example a dacha, which the spouses are just planning to acquire.

In a marriage contract, spouses have the right to determine the following:

• their rights and obligations regarding the mutual maintenance of property, for example, payment of interest on a mortgage;
• ways to share in each other's income. For example, a wife is entitled to 30% of her husband’s income, which he receives from running a business;
• the procedure for each spouse to bear family expenses. For example, a husband who runs a business fully pays for the education of their common child;
• Property that is transferred to each spouse upon divorce.

When drawing up a marriage contract, it is important to remember what conditions cannot be included in it. Their list is determined by the Family Code. A marriage contract cannot:

• limit the legal capacity or capacity of spouses. For example, it cannot be stated that only the wife can make any transactions with the joint property of the spouses - this will limit the husband’s legal capacity. Or that the husband has the right to oblige his wife to leave work and take care of the household for the fact that he provides her with maintenance;
• limit the rights of spouses to go to court to protect their rights;
• regulate personal non-property relations between spouses. For example, a wife cannot oblige her husband to maintain marital fidelity. But he can be deprived of his property if the fact of treason is proven;
• regulate the rights and obligations of spouses in relation to children;
• limit the right of a disabled, needy spouse to receive maintenance;
• place one of the spouses in an extremely unfavorable position or contain conditions that are contrary to the Family Code. For example, it is impossible to indicate in a marriage contract that everything acquired during the marriage in the event of a divorce will belong to only one spouse, and the other will be left with nothing.

Important. There is no need to indicate a validity period in the marriage contract. By law, the document expires upon the termination of the marriage.

Hand, heart and contract

To prevent the proposal to draw up a marriage contract from sounding offensive, you need to prepare for it. Psychologists advise, even at the stage of forming a relationship, to follow several rules that will help in the future to avoid conflicts based on money:

• Choose a partner with similar views. Ideally, you should be from the same social environment and have the same attitude towards the institution of family as a whole.
• Discuss your relationship model. Do not hesitate to ask your partner what role: sponsor, partner or sponsored he is comfortable with. Consider whether this model is right for you and don't expect it to change over time.
• When preparing for your wedding, start the conversation first about less controversial legal issues: about taking out insurance or forming a joint pension, and only then move on to the topic of the prenuptial agreement.
• In advance, ask the employees of the registry office or the agency (an outside authoritative person) organizing the wedding to raise the topic of the marriage contract in the presence of your other half and describe in detail all the advantages of this document.

conclusions

1. In the absence of a marriage contract, controversial issues during the division of property will have to be resolved in court.
2. The agreement must be notarized and must regulate only financial relations.
3. Children cannot be “divided” through a prenuptial agreement.
4. If the court finds the contract invalid, all property will be divided in half.
5. There is no need to be shy about offering your other half a prenuptial agreement; this is a common practice all over the world that helps maintain peace even after separation.

How to conclude a marriage contract

To conclude a marriage contract, you need to prepare the necessary documents and contact a notary or lawyer.

Documentation. Typically, the following documents are needed to conclude a marriage contract:

• documents proving the identity of each spouse, for example a passport of a citizen of the Russian Federation;
• marriage certificate;
• documents confirming ownership of property: purchase and sale agreement for office space, equipment and other assets of the company, constituent documents of the company, extract from the register of securities owners, and so on.

However, the list of documents in each individual case is different, since it largely depends on the property, the rights to which will be regulated in the contract.

Vladimir Yarovenko, lawyer of legal

For example, if you want to regulate rights to a land plot, you will need an extract from the Unified State Register of Real Estate. If you plan to include a car in the contract, you need to prepare a vehicle passport. And if the marriage contract defines the rights of the spouses to a share in the authorized capital of a legal entity, at least an extract from the Unified State Register of Legal Entities will be needed.

Deadlines. Usually, a marriage contract can be concluded directly on the day of contacting a notary or lawyer, having previously made an appointment with him by telephone. In more complex cases it will take several days.

A marriage contract concluded before marriage comes into force on the date of state registration of marriage. A prenuptial agreement concluded during marriage is valid from the moment of signing.

Price. The cost of preparing a prenuptial agreement depends on who you contact. If this is a notary, then the prices are set by the notary chamber of the corresponding subject of the Russian Federation. You can find out the cost on the website of the notary chamber in your region. For example, in Moscow the fee for preparing a marriage contract is 10 thousand rubles, and in St. Petersburg - from 6.5 to 10.4 thousand rubles, depending on the complexity.

Lawyers' fees are approximately the same as notaries'.

In addition, you must pay a state fee. It is the same throughout the country and amounts to 500 rubles.

Here is a template for the simplest marriage contract that you can download and adapt to your needs.

Is it possible to terminate unilaterally?

If a controversial situation arises, the document may be terminated by the parties. If you and your spouse cannot agree on a change or termination, you can terminate the contract unilaterally.

To do this, you must file a claim in court in compliance with all procedural norms. At the same time, you need to collect evidence that will be the basis for termination.

The main situations that encourage you to terminate the contract:

• Failure to comply with the points of the document;
• Significant change in the financial well-being of the family;
• Other circumstances that were of great importance at the time of compilation, but have lost relevance over time.

Before unilaterally terminating an agreement, you must consult a lawyer to analyze the agreement and correctly draft a statement of claim to the court.

Error three. Details in the contract text

Any marriage contract must be notarized. A common notary mistake is the omission of the formula in the text of the marriage agreement: “the marriage agreement was read aloud by the notary, read by the parties personally, the basic provisions about the rights and obligations of the parties, the consequences of concluding a marriage agreement were explained to them, these provisions are clear to them, the content of the agreement corresponds to the actual intentions of the parties , they do not have circumstances forcing them to enter into an agreement either on extremely unfavorable terms for themselves, or due to a combination of difficult circumstances.”

If this formula is absent in the marriage contract, then it will be declared invalid as contrary to the rules for performing notarial acts.

In one case, the founder of a manufacturing company and his married wife purchased apartments in Moscow and the Moscow region, several cars, and other valuables. According to the terms of the marriage contract, the property belonged to the spouse in whose name it was acquired. The least valuable assets were purchased in the wife's name. The wife challenged the contract in court due to a notary's error and received 1/2 of the total jointly acquired property.