The concept of joint property of spouses
Before understanding the types of regime for joint property of spouses, it is necessary to understand what joint property of spouses is.
In accordance with Part 1 of Art. 34 of the RF IC, property acquired by them during marriage is recognized as joint property of spouses.
What kind of property acquired during marriage does the legislator recognize as joint (part 2 of article 34 of the RF IC)?
- any income (from labor, intellectual and entrepreneurial activities)
- pensions, benefits and other payments that do not have a specific purpose (for example, maternity capital is a targeted payment and is not subject to division);
- movable and immovable things;
- securities, shares, shares in the capital of credit institutions and other commercial organizations;
- other property acquired during marriage, regardless of which spouse it was acquired in the name of and/or which spouse contributed funds.
Legal regime of marital property
This regime applies not only to the division of property after the termination of marriage, but also during marriage. This regime determines the procedure for ownership, use and disposal of joint property, which property is considered joint property and which is not, in accordance with the law.
When dividing, the spouses’ shares in the entire amount of property are recognized as equal
, and all jointly acquired property is simply divided in half (Part 1 of Article 39 of the RF IC).
The law allows you to deviate from equality of shares in marital property under the following circumstances (Part 2 of Article 39 of the RF IC):
- if the interests of minor children require it;
- if one of the spouses did not have income for unjustified reasons;
- if one of the spouses spent common property contrary to the interests of the family.
The allocation of shares and division of property under the legal regime is carried out by the court
(Article 38 of the RF IC).
Additional nuances
Spouses may include conditions in the marriage agreement, the occurrence of which will result in certain property consequences. For example, you can indicate that if a child is born in a marriage, then the woman’s share in the ownership of property will be increased.
A former able-bodied spouse does not have the right to claim alimony payments for himself, with the exception of the following cases: the spouse is carrying a child or is on leave to care for an infant under 3 years of age, the former spouse is caring for a child with a disability under 18 years of age or a person disabled since childhood of group 1.
Spouses have the right to make adjustments to the text of the agreement or completely cancel the document at any time necessary for themselves. An agreement on adjustments or cancellation of a document is drawn up in standard written form and certified by an employee of a notary agency. From this moment on, the financial obligations of the parties are changed or canceled, unless other conditions and circumstances were specified in the agreement.
Current domestic legislation does not allow unilateral refusal to fulfill the terms of the marriage agreement. A husband or wife does not have the right to “change his mind” about certain obligations that were specified in the contract.
Contractual regime of spouses' property
As the name implies, this regime applies if there is an agreement between the spouses. That is, the procedure for regulating the regime of joint ownership, property rights and obligations in marriage, and upon its dissolution, are determined by the marriage contract.
Marriage contract
must be in writing and notarized. It can be concluded before the marriage is registered and at any time during the marriage. A marriage contract can be concluded both in relation to existing property and in relation to future property (Article 41 of the RF IC).
This document may establish
(Article 42 of the RF IC):
- regime of joint, shared or separate property of spouses;
- regime of all property of spouses and/or only part of it and/or certain types of property;
- property regime of each spouse;
- order of mutual content;
- ways to share in each other's income;
- the procedure for bearing expenses by each spouse;
At the same time, the rights and obligations established by the marriage contract may be limited by time limits, or made dependent on the occurrence and/or non-occurrence of certain conditions.
After divorce, spouses can enter into an agreement on the division of property
, if they have not previously entered into a marriage contract. Such an agreement will be essentially similar to a prenuptial agreement in almost all respects, except for the ability to resolve property issues for the future.
When is a marriage contract concluded?
The law provides freedom in choosing the time to conclude a marriage contract. You can enclose it:
- Before marriage;
- After registration of marriage at any time.
You can draw up an agreement even if you are just planning to become a family. So to speak, discuss “on the shore” all possible difficulties. If you change your mind about getting married, it will not have any consequences. If you get married, the contract begins to be valid from the day the marriage is registered.
You can also agree on the treatment of your property 10 or 20 years after the wedding, that is, at any time after marriage.
Division of marital property using an example of a specific situation
Now let’s move from theory to practice and look at a specific example of how the division of spouses’ property occurs.
Suppose spouses who have a private house and land divorced and then decided to divide the property. If a marriage contract was concluded between the spouses, then the division of property occurs in accordance with the terms of this contract.
If a marriage contract has not been concluded, then two options are possible:
- conclude an agreement on the division of property and set out conditions that suit both parties;
- go to court if you cannot agree on the division of property.
There is another option - sell your existing property and split the money in half
. This is the easiest and fastest way to put an end to the issue of dividing jointly acquired property, if there is little of it.
Lawyer's answers to popular questions
Which is better: a separation agreement or a prenuptial agreement?
Legally, these are completely different documents. The agreement is drawn up after the divorce, while the contract is concluded before. By law, an agreement applies for partition.
I want to divide common property through the court. How much to pay in state fees?
The amount of the state duty is established by Art. 333.19 of the Tax Code of the Russian Federation and depends on the value of the dividend:
- Up to 20 thousand rubles. – 4%, minimum 400;
- From 20 to 100 thousand rubles. – 3%+800 rub.;
- From 100 to 200 thousand rubles. – 2%+3 200;
- From 200 thousand rubles. up to 1 million – 1%+5,200;
- Over 1 million – 0.5%+13,200.
The maximum amount does not exceed 60,000 rubles.
Who will own the money donated for the wedding?
Here everything depends on the will of the donors. To donate money, it is not necessary to formalize the deed of gift in writing. If the funds were transferred to both, then they belong to them in equal shares.
What to do if a house was built with common money, but it was not completed at the time of division? How to divide everything?
You can demand compensation for half of the money spent, or vice versa - keep the house for yourself, but pay the money to the other party.
I want to draw up a contract with my wife and indicate that all the property will go to me if a divorce occurs due to her infidelity?
No. A prenuptial agreement regulates property, not personal relationships, which include adultery. In addition, such a situation will put the wife at a disadvantage, and the notary will most likely refuse to certify the document.
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.”
In what form is a marriage contract drawn up?
As with any civil contract, the form is of great importance. A mandatory requirement is a notarized form of the marriage contract.
If you simply agreed orally or printed the agreement on paper, then it will not have legal force.
The contract must be concluded with a notary. This can be any notary in any city in Russia. You must appear before him when you have clearly defined the contents of the agreement (more on this later).
Please note that the conclusion will require financial expenses:
- state duty for certifying the contract - 500 rubles;
- The fee for drawing up an agreement is several thousand rubles, depending on the notary.
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.
How to conclude a prenuptial agreement for a mortgage
When purchasing an apartment from developers or on the secondary market, spouses often use a mortgage. In this case, a marriage contract is also useful.
For example, two spouses may make different amounts of mortgage payments. Most often, the man earns more, so the bulk of the debt will be on him. At the same time, the apartment purchased with a mortgage becomes common property. This means that in case of divorce it will be divided equally.
The contract can indicate that after a divorce, the entire apartment will go to one of the spouses. For example, a husband gives such a generous gift to his wife in honor of confirmation of his serious intentions.
The opposite situation may also occur, when the husband and wife agreed that after a divorce, 80% of the share in the apartment goes to the husband, and the wife only 20%.
What conditions cannot be included in a marriage contract?
Not everything can be enshrined in a contract. It is impossible to stipulate in the contract conditions that are contrary to the law, including:
- It is impossible to regulate non-property rights and obligations.
Cooking dinner every evening, the obligations of spouses under a marriage contract to take out the trash in the morning, the prohibition of infidelity - all these and many other things cannot be terms of the contract.
- You cannot prohibit going to court to protect your rights.
Every person has the right to protection. Any terms and conditions that impair this right will be void.
- The legal capacity or capacity of a spouse cannot be limited.
You cannot prohibit your spouse from entering into transactions or waive such a right yourself. Only a court can limit legal capacity and only in certain circumstances.
