Contractual regime and marriage contract
The presence of a marriage contract between spouses establishes a contractual property regime between them. A marriage contract (agreement) is a document regulating property and financial relations between spouses. According to it, spouses can deviate from the legal regime of property and provide for the existence of individual property.
A detailed description of the features of a marriage contract is contained in Chapter 8 of the RF IC:
- The contract has a mandatory notarial form. Without certification, it is considered invalid.
- A contract is a document concluded by mutual consent of the spouses. If it is drawn up under psychological or physiological pressure or in relation to an incapacitated person, there will be grounds for declaring the contract invalid in accordance with the provisions of Art. 167-181 Civil Code of the Russian Federation.
- The agreement regulates only financial and property legal relations between spouses.
If during the marriage of the spouses a legal property regime was in effect, and before the divorce they decided to divide the property peacefully, they can draw up both a prenuptial agreement and an agreement on the division of common property.
Effective and expiration dates
According to Art. 41 of the RF IC, the contract can be drawn up before or after the registration of marriage. In the first case, it comes into force after making the appropriate entries about the marriage in the registry office, in the latter - from the moment it is signed by a notary, unless other conditions are provided for by the document.
The contract is revoked from the moment the marriage ends. This moment is recognized as the date the court decision enters into legal force or the entry of divorce records in the registry office (Article 25 of the RF IC).
An exception is provided by cases when certain property issues can be regulated after a divorce (Article 43 of the RF IC).
The parties have the right to terminate the contract at any time by drawing up an additional agreement with a notary. Unilateral refusal to fulfill obligations is not allowed without a corresponding court decision.
Invalidation of the contract
The contract is declared invalid by a court decision under the circumstances specified in Art. 44 of the RF IC and the norms of the RF Civil Code:
| Base | Description |
| The terms of the contract put one of the parties at an extreme disadvantage | Deprivation of a spouse of all property, significant disproportion of shares during division |
| Participation of an incapacitated citizen in a transaction | If the legally capable party knew about the spouse’s incapacity on the day the contract was executed, he is obliged to compensate for possible damage caused by the transaction. If the procedure is carried out for the benefit of the incapacitated person, at the initiative of the guardian the contract is recognized as valid (Article 171 of the Civil Code of the Russian Federation) |
| Execution of a contract by a person with limited legal capacity | The contract is declared invalid at the request of the trustee |
| Signing a contract by a competent citizen who is not aware of the consequences of his actions | It is not allowed for a citizen to conduct a transaction while intoxicated. If, after signing an agreement, a party is found to be incapacitated, it may be challenged if there is evidence indicating mental impairment on the date of execution. |
| Drawing up an agreement under physical or mental influence | The transaction is declared invalid upon the claim of the injured party (Article 179 of the Civil Code of the Russian Federation). You will need evidence and witness statements, CCTV footage, audio recordings |
| Entering into a contract under the influence of delusion | Misconception means the admission of clerical errors and typos, incorrect interpretation of the subject of the transaction and circumstances (Article 178 of the Civil Code of the Russian Federation) |
The contract may be declared invalid by the court in full or in individual clauses, depending on the claims.
If it loses force in full, the division of common property is carried out under the terms of the legal property regime, taking into account the principle of equality of shares.
The essence of the concept
The essence of this document is that thanks to it, future or existing spouses can independently determine their marital property relations, as well as actions in the event of divorce. They specify the rules and undertake to obey them.
The main goal that spouses strive for is the desire to rid themselves of material losses during divorce and negative aspects that arise during the division of valuable things. Why do we need a contractual regime for marital property?
Contents of the marriage contract
The content of the contract is determined by Art. 42 IC RF.
It may include provisions:
- on the establishment of a regime of shared, joint or common ownership of all property, certain types or personal values of each of the parties;
- about the peculiarities of the use and division of existing property and those planned for acquisition;
- on the rights and obligations of the parties regarding mutual content;
- about the peculiarities of participation in the income and expenses of spouses;
- on determining shares in case of divorce and division.
All obligations under a contract may be limited to specific dates or the occurrence of certain circumstances.
Form of property division under agreement
At the moment, the most common methods of division under a contract are the following:
| Allocation of shares in real estate | The shares may be equal or with an insignificant deviation from equality. Significant imbalances are not allowed: they put the spouse at a disadvantage. For example, you can allocate 45% to one side and 55% to the other. |
| Allocation of a larger share to the spouse remaining with the child | In a contractual regime this is allowed, but in a legal regime it is problematic to achieve an increase in shares |
| Separate property | Relevant if the contract contains conditions according to which property acquired during marriage is registered in the name of one spouse and remains with him upon divorce |
| Leaving one property after a divorce in exchange for other assets of equal value | According to the agreement, real estate can remain with one spouse, and the second one can take ownership of other property at a similar price |
What cannot be contained in a contract?
The following conditions cannot be included in the contract:
- worsening the property and financial situation of the spouse (bondage conditions);
- restriction of capacity and legal capacity;
- regulation of personal non-property relations between the parties and children;
- restriction of the right to collect alimony by an able-bodied needy spouse.
The contract does not include any conditions that contradict the fundamentals of the Insurance Code and the Civil Code of the Russian Federation.
Marriage agreement regarding children
How to draw up a prenuptial agreement for a mortgaged apartment?
Division of property in court
If the spouses were unable to reach an agreement and a dispute arose, then in this case the division will be carried out by the court
.
One of the spouses (former spouses) files a statement of claim with the court, in which he indicates his desired option for dividing the joint property. And here again you can find a compromise and conclude a settlement agreement.
Let's assume that the spouses have reached an agreement and entered into a settlement agreement. In this case, if its terms comply with the law, then the court approves this agreement and terminates the proceedings. The terms of the agreement are contained in the court ruling, which, of course, is also a judicial act, so it must be executed. This means that if one of the spouses decides not to comply with the terms of the agreement, the other can go to court
for the issuance of a writ of execution and to the bailiff service for the enforcement of the terms of the settlement agreement enshrined in the judicial act.
What financial costs await the parties with this option?
The spouse who filed the claim paid the state fee for the judicial review
. Its size depends on the amount of the claim (Article 333.19 of the Tax Code of the Russian Federation). Usually, when filing a claim, they are guided by the cadastral value of the property, and the amount of the state duty is calculated from this amount. The maximum possible amount of state duty is 60,000 rubles. The parties may also incur legal costs. When concluding a settlement agreement, the parties usually do not reimburse each other for legal costs, but this point can also be discussed and divided in half.
If a writ of execution was received and enforcement proceedings were initiated, and the debtor in the enforcement proceedings did not fulfill the terms of the agreement within the period specified by the bailiff (usually 5 days), an enforcement fee in the amount of 7% of the amount of the claim will be collected from him.
However, our spouses could not agree and continue the trial
. In this case, to make a decision it will be necessary to evaluate the property, and the court will appoint an appropriate examination.
The parties may try to persuade the court to deviate from equality of shares, although this is how property is to be divided in accordance with the law. This is quite difficult to do, although the law allows deviations from equality of shares, but the courts, for the most part, refuse such requirements.
What legal costs will the parties bear under this option?
- payment of state duty by the plaintiff;
- if the defendant files a counterclaim (its own version of the division of property), then it will also pay the state fee, but in a smaller amount (Article 333.20 of the Tax Code of the Russian Federation);
- payment for legal services (drawing up documents and representation in court);
- payment of state fees for registration actions when registering the division of property in Rosreestr.
So, the trial ended, each spouse received 1/2 shares in the ownership of the house and land.
That is, the division took place only on paper
. In real life, strangers are forced to “share” real estate. If the house is large enough and the layout allows it, then you can determine the procedure for using both the house and the land (in case of a dispute, go back to court). It’s not hard to imagine what life would be like side by side with your former “other half.”
Change and termination of the contract
Making adjustments or terminating the contract is permitted by mutual consent of the spouses or in court.
If the parties want to make a change, it is enough to come to a notary and draw up an additional agreement to the contract, indicating in it the points to be changed or canceled.
If there are disagreements, the contract is terminated or amended through the court on the grounds provided for in Art. 43 RF IC. To do this, the plaintiff must prepare documents and submit them to the judicial authority at the place of registration of the defendant. The proceedings will take 1-2 months, another 1 month is allocated for the decision to enter into legal force.
When the decision becomes valid, it is necessary to submit it to a notary. On this basis, the specialist will make the necessary changes.
The agreement automatically ceases to be valid at the moment of termination of the marriage. Except for the conditions provided for in case of divorce.
Choosing an option for dividing property
The above example of possible options for dividing property clearly shows that the most profitable option is any compromise.
Of course, it is good if people were able to agree upon marriage and draw up a marriage contract. Of course, this is not a panacea. A marriage contract can also be challenged if one of the spouses considers that the conditions in the changed situation are no longer beneficial for him.
Litigation is long, expensive and not always satisfying
. Even ex-spouses can come to an agreement and do without an arbiter in the person of the judiciary, but decide everything on their own and come to exactly the result that suits both parties.
Responsibility of spouses for obligations
The content of the agreement may provide for the individual responsibility of the citizen for loans, while under the legal regime the second spouse is also responsible for them. If the conditions of Art. 46 of the RF IC, a party is liable for debts regardless of the clauses of the contract.
If the terms of the agreement violate the rights of the creditor, he may demand its modification or termination, as well as in connection with a significant change in circumstances.
It is important to take into account the provisions of Art. 45 RF IC:
- The spouse is personally liable for debts acquired before the marriage was registered. During marriage they are recognized as common.
- If the property is not enough to repay the debt, the lender has the right to demand the allocation of his share in the property, which could be transferred to him in the event of division.
By contract, debts can be divided into general and personal. Personal means payment of alimony, wages to employees, loans issued before marriage registration, compensation for harm to health.
The following obligations are recognized as general:
- acting as co-borrowers when applying for loans;
- rent arrears;
- loans issued in the interests of the family, when the money is spent on its needs;
- compensation for harm caused by common minor children.
Debt collection is carried out taking into account the provisions of the contract, provided that the creditor was aware of the contents of the document.
Who is entitled to alimony?
Alimony can be recovered from a spouse who has the necessary funds for the following persons:
- disabled spouse;
- wives during pregnancy and for three years after the birth of the child;
- a spouse who cares for a common child who has been disabled in group I since childhood.
In some cases, justified by law, one of the spouses claims to receive alimony from the other after the end of the marriage (for example, during the pregnancy of the ex-wife and three years after the birth of the child).
Alimony is paid in a specific amount of money, which must be transferred to the former spouse on a monthly basis.
We examined the contractual regime of marital property.
