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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Marriage contract
Kurgan
May 23, 2023
We, Citizen Alekseev Stepan Borisovich, living at the address Kurgan, 17 microdistrict, no. 24, apt. 7, passport ХХХХ ХХХХХХ, issued by the Federal Migration Service of Russia for the Kurgan region in the city of Kurgan 00.00.0000 And Citizen Pozdeeva Larisa Dmitrievna, living at 18 microdistrict, 34, apt. 3, passport ХХХХ ХХХХХХ, issued by the Federal Migration Service of Russia for the Kurgan region in the city of Kurgan 00.00.0000 intending to get married (if already married, it is necessary to indicate where and by whom the marriage was registered and the number of the marriage certificate), hereinafter referred to as Spouses, entered into an agreement about the following:
Further, the contract contains information about the essential conditions. In our case, such conditions are the subject and content of the contract.
Types of contracts by duration
The husband and wife choose the duration of the transaction themselves.
The documents must clearly set out the terms that affect the duration of the prenuptial agreement.
Sometimes the contract is concluded for life (indefinitely). If it is drawn up for a period of time, then its duration depends on the occurrence of a certain event or a specific date.
In this case, the specified conditions and requirements may apply only for this period of time.
For example, the spouses indicated in the document that the jointly accumulated savings in the husband’s bank account become the property of the wife five years after the marriage is registered.
Important!
If the agreement included terms relating to life after the divorce, they remain valid after the divorce.
Thus, the agreement is extended until the ex-husband and wife fulfill these obligations.
Item
The subject is the property relations that arise between spouses from the moment of marriage registration. This is indicated in the clauses of this agreement:
1.1. Property acquired jointly by spouses during marriage is their common property. Property that is the personal property of each spouse is not community property. 1.2. The shares of jointly acquired property are distributed as follows: the share of each spouse is 50% (a different percentage may be specified). 1.3. Property acquired jointly during marriage, regardless of whose financial resources it was acquired with, is common (common property). 1.4. Property owned by each party before marriage, as well as property that spouses received as part of a gift or inheritance agreement, is individual property. At the time of the conclusion of this agreement, citizen Stepan Borisovich Alekseev owns: - an apartment with an area of 57 (Fifty-seven) square meters, located at the address: Kurgan region, Kurgan, 17 microdistrict, 24, 1st entrance, floor 18, apt. . 7. — Tayota Camry car, engine number ХХХХ, body number ХХХХ, state number ХХХХ, registered in ХХХХХХ. - furniture, jewelry, decorations that are attached to the list of this agreement. Citizen Larisa Dmitrievna Pozdeeva owns: - an apartment with an area of 58 (Fifty-eight) square meters, located at the address: Kurgan region, Kurgan, 18 microdistrict, 34, 3 entrance, floor 14, apt. 3. - furniture, jewelry, decorations that are attached to the list of this agreement. — Jointly acquired property includes: wages, pensions, benefits and other monetary payments. The right to dispose of these incomes belongs to both parties. — Each of the parties to this agreement has the right to dispose of common property. — To carry out any transaction in relation to common property, the consent of each of the parties is required. — This agreement involves changing its terms by mutual consent at any time during the spouses’ marriage.
Also, the prenuptial agreement may contain provisions relating not only to real estate. For example:
- cash deposits;
- loans;
- mortgage;
- securities;
- other items.
In this case, the agreement must indicate who and for what payment, be it a loan or mortgage, must pay the amount of money. In order to avoid controversial situations, before concluding a prenuptial agreement, the creditor must be notified that the spouses have introduced such a clause and now both of them are responsible for paying money. This applies to cases where spouses have entered into an agreement regarding real estate and a mortgage that is already registered in the name of one of them.
Alimony, common debts and adultery: what to include in a marriage contract – a lawyer answers
A marriage contract as a civilized way to avoid unnecessary conflicts between spouses is very useful from a legal point of view. This is a fairly universal agreement in which many aspects can be spelled out: the procedure for dividing joint property, material obligations towards each other, issues of maintaining and raising children upon divorce. Lawyer, mediator, managing partner of the law firm “Law and Family Mediation” Elena Zhdanovich explained when a prenuptial agreement can be a really good solution.
I heard that in a marriage contract you can specify a clause according to which the spouse, in the event of a divorce, will pay alimony for the child even after his 18th birthday, for example, until he graduates from university. Is it so?
Yes, this is possible. The main thing is that the terms of the marriage contract do not worsen the position of the child, guaranteed by current legislation. For example, it is impossible to establish the payment of alimony for up to 15 years or less. In our practice, there are common cases when a parent assumes obligations to support a child (pay alimony) for a period of up to 21 years.
Is it possible to stipulate in a marriage contract that in the event of adultery, part of the property during a divorce will go to the injured party? Do prenuptial agreements stipulate points regarding the habits, household duties and appearance of the spouses? I heard that it is popular in some countries.
Of course, all this can be specified. The question, as a rule, arises in a different way: how to prove adultery, who can reliably determine this. That is, this provision in practice is not indisputable and often causes many conflicts, calling into question the marriage contract itself and its implementation. Therefore, in my opinion, it is better to determine the procedure for dividing property that is the common joint property of the spouses, without being tied to conditions that have a subjective interpretation.
Can spouses stipulate in a marriage contract the obligation to mutually support each other after a divorce, including in the event of disability or job loss?
Yes they can. These are very important provisions of a prenuptial agreement. It is important to understand that the agreement has the force of an executive document, and in case of its violation, the state will monitor the implementation of its terms. This is an essential guarantee and protection of a spouse who finds himself in a difficult life situation after a divorce.
Does a marriage contract end if one of the spouses dies prematurely? Does this agreement resolve issues regarding acceptance of inheritance? Is it possible, for example, to stipulate that in the event of the death of the wife, the apartment will go to the children?
Inheritance issues are not included in the subject of the marriage contract. The transfer of ownership of property in the event of the death of a spouse can only be permitted within the framework of inheritance legislation, i.e. there will be inheritance by law or by will.
Even if a house or apartment belonged to one of the spouses before marriage, the court may recognize them as joint property. This is possible if, during the marriage, work was carried out here that significantly increased the cost of housing. Can the owner, thanks to a prenuptial agreement, protect himself from possible claims to the house/apartment by his spouse in the event of a divorce?
A prenuptial agreement can protect the spouse in such a situation. It can contain the following condition: the property that belonged to each of us before marriage, as well as any other property received by each of us after marriage as a gift or by inheritance, remains the property of the person to whom it belonged, was gifted or to whom passed by inheritance, even if investments made in this property during the marriage significantly increase its value (major repairs, reconstruction, etc.), regardless of what sources the investments were made and their amounts.
Let’s say that according to a marriage contract, one of the spouses should receive property (for example, an apartment) during a divorce, which significantly exceeds his/her allotted share. In order to somehow equalize the rights of the ex-husband and wife, a condition regarding monetary compensation is prescribed in the contract. Is it possible to transfer a material object in exchange for such compensation if there is not a sufficient amount of money?
In this case, we are talking about the procedure for transferring property to each of the spouses after the divorce, which can actually be determined in the marriage contract in accordance with Article 13 of the Code on Marriage and Family.
It is important to understand that the marriage contract determines the legal regime of the common joint property of the spouses, i.e. it can only indicate property that was acquired during marriage. If the material object belongs to the spouse as personal property, a transaction of a different kind must be drawn up. All options for compensation and their execution must be discussed with a lawyer, since in such a situation many legal nuances arise.
The parents plan to give the newlyweds part of the money to buy an apartment. How to formalize this assistance so that in the event of a divorce, when dividing property, this share is not considered jointly acquired, but is taken into account precisely as the daughter’s share?
In this situation, you can conclude a gift agreement or specify in the marriage contract that a large share in the apartment purchased by the newlyweds during the marriage will belong to the spouse, since it was her parents who provided great financial assistance in the purchase of housing.
Is it possible to stipulate in a marriage contract that in the event of a divorce, the property of one of the spouses will pass to the other? For example, will a car bought by a spouse before marriage go to his ex-wife?
No, the marriage contract only defines the regime of joint ownership of the spouses. A car purchased before marriage can be gifted to your spouse.
Should the conditions and procedure for the return of common debts and other joint obligations of the spouses be defined in the marriage contract?
Such conditions can be set out in a marriage contract. For example, you can indicate that each spouse is responsible independently for loans, credits and other debt obligations received in his name during the marriage, with his income and property.
Can ex-husband and wife who are planning to remarry enter into a prenuptial agreement?
According to Art. 13 of the Code on Marriage and Family, Persons entering into marriage and spouses have the right to conclude a marriage contract at any time and to the extent of rights and obligations determined by them. Therefore, in this case, they will enter into a marriage contract not as former spouses, but as persons entering into marriage.
Is it possible to conclude a marriage contract while living in a so-called civil marriage? If not, then how to officially regulate property relations, including those regarding things acquired jointly and housing under construction?
The basis for a marriage contract is a marriage concluded under the conditions provided for by current legislation.
To settle property relations of this kind (without registering a marriage relationship), it is necessary to conclude civil transactions that will give rise to legal consequences.
Does a marriage contract regarding real estate outside Belarus have legal force?
A marriage contract executed in Belarus will apply to real estate located only on the territory of our country. For example, an Italian citizen and a Belarusian citizen, married, decided to enter into a marriage contract. In such a situation, the notary must explain to them that, in accordance with the legislation of our country, the agreement will be valid in relation to property located on the territory of Belarus. If they want to draw up a marriage contract that would be valid in two countries, it should reflect that the law of Belarus will apply to property located on the territory of our republic, and the law of this country will apply to property located on the territory of Italy.
According to the marriage contract, the apartment should have become the property of the wife after the divorce. However, for some reason, the agreement was not registered with the organization for state registration of real estate, rights to it and transactions with it, accordingly, it is considered invalid. Is it possible to somehow improve the situation?
The Code on Marriage and Family establishes a requirement for mandatory registration of a marriage contract with the state registration authorities of real estate, rights to it and transactions with it, if it contains conditions that are or may become the basis for the emergence, transfer, termination of rights, restrictions (encumbrances) ) rights to real estate.
In accordance with the provisions of the Civil Code (Civil Code), if a transaction requiring state registration is completed in the proper form, but one of the parties avoids registering it, the court has the right, at the request of the other party, to make a decision to register the transaction. In this case, it is registered in accordance with the court decision. The rights and obligations of the parties to a transaction arise from the moment of its registration.
In what cases can a marriage contract be declared invalid in whole or in part by the court?
A marriage contract may be declared invalid in whole or in part by a court on the general grounds for recognizing transactions as invalid, provided for by the Civil Code. For example, such a reason may be the non-compliance of the marriage contract with current legislation. Or his conclusion with a citizen who was recognized by the court as incompetent, or with a citizen, although legally competent, but at the time of his imprisonment in such a state where he was not able to understand the meaning of his actions or manage them, or with a citizen whose legal capacity was limited by the court due to the abuse of alcoholic beverages, narcotic drugs, psychotropic substances, their analogues, without the consent of the guardian, etc. This list is, of course, not exhaustive - the Civil Code also provides for numerous other grounds for recognizing a transaction as invalid, and, therefore, for recognizing a marriage contract as such.
In addition, the basis for declaring a marriage contract invalid is failure to comply with clause 11 of the resolution of the Plenum of the Supreme Court “On the practice of application of legislation by courts when considering cases of divorce.” Based on its meaning, a marriage contract should not contain conditions that place one of the spouses in an extremely unfavorable position. According to established judicial practice, it is this basis that is most often used to invalidate a marriage contract.
According to BELTA
Rights and obligations of the parties
The text of the document may also indicate the rights and obligations of the parties to pay alimony. For example:
2. If the marriage is dissolved, the spouse undertakes to pay 20,000 rubles monthly for the maintenance of common children (the amount may vary). The agreement may also contain the procedure for incurring family expenses. For example: Payment of utilities; electricity; Internet, television; Products intended for everyday life are carried by spouses in equal shares (they can also be carried in unequal shares).
Why do you need a marriage contract?
Concluding a prenuptial agreement is not considered a sign of distrust in a partner. On the contrary, this is a reasonable step towards protecting your property rights and separating family and business relationships.
A prenuptial agreement is not obligatory and is concluded only with consent.
After signing, the document has full legal force and will become evidence in court, if necessary. This practice is not very common in Russia, but judges turn to the experience of their foreign colleagues.
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.
How to invalidate the condition of treason?
To be declared invalid, the terms of the marriage contract must either violate the prohibition of paragraph 3 of Art. 42, paragraph 2 of Art. 44 of the RF IC or there must be grounds for declaring it invalid on the general grounds for challenging transactions, for example, Art. 168, 177-179 Civil Code of the Russian Federation. In the Ruling of the Supreme Court of the Russian Federation dated January 20, 2015 N 5-КГ14-144, the plaintiff asked the court to invalidate clause 1.4 of the marriage contract, according to which in the event of divorce on the initiative of one spouse or as a result of his unworthy behavior (adultery, drunkenness, hooliganism etc.) property acquired during marriage and related to the common joint property of the spouses becomes the property of the other spouse. As grounds for recognizing the condition as invalid, the plaintiff pointed out both the nullity (Article 168 of the Civil Code of the Russian Federation) and the contestability of this transaction (clause 3 of Article 42, clause 2 of Article 44 of the RF IC). The Supreme Court of the Russian Federation indicated that the court, when considering such a requirement, establishes:
- circumstances related to the conclusion and signing of a marriage contract;
- what kind of property status each party acquires as a result of fulfilling the terms of the marriage contract;
- whether the terms of the marriage contract, which changed the statutory regime of joint property of spouses, place one spouse in an extremely unfavorable property position compared to the other.
