Many people know that a prenuptial agreement allows you to distribute between spouses property that they jointly own and even property that will be acquired in the future. However, as with any agreement, it is possible that one of the spouses will “change his mind” and declare a desire to reconsider previously reached agreements. TaxCoach specialists offer to understand in what cases it is possible to change a marriage contract or invalidate it on the initiative of only one spouse.
In our country, it is not very popular to conclude marriage contracts between spouses or newlyweds . From the series “Don’t you trust me (read: don’t you love)?”
The vast majority of such agreements are concluded by businessmen and/or businesswomen in cases where there is something to share. Or when businessmen “got burned” (had a negative experience) in a previous marriage, and all the property of the spouses without a marriage contract was divided in half. Clause 1 of Art. 39 of the Family Code of the Russian Federation. A marriage contract usually records agreements on the division in favor of each of the spouses of property already acquired during marriage and/or that will be acquired in the future, since property acquired before marriage already belongs to each of them.
For example, you can stipulate that property is divided in other proportions - 70/30, 90/10.
You can separate individual objects: an apartment, a car and a trailer for it are the property of the husband, and a plot of land, a cottage and a yacht are the property of the wife. Or in another way: all movable and immovable property acquired by the parties during the marriage, after the conclusion of the marriage contract, both during the marriage and in the event of its dissolution, is the property of the spouse in whose name it will be officially acquired or registered and subsequently not subject to division. It is equally important to establish the rules for the division of non-property rights, such as shares in a business. After all, its value is constantly changing depending on both the internal economic factors of the company’s activities and external economic factors, over which the company has little influence.
Separately, we note that the marriage contract is subject to mandatory notarization. Clause 2 of Art. 41 of the Family Code of the Russian Federation As we understand, the notary is obliged to check the sanity of the spouses and what they understand what they are signing. The marriage contract has been signed, the spouses have agreed on how to distribute the property among themselves: both in the future and in the event of divorce.
Can a marriage contract be changed or terminated, declared invalid in part or in full? Let us omit cases when the marriage contract is changed by agreement of the parties. There shouldn't be any difficulties here.
The terms of the agreement put the spouse in an extremely unfavorable position
What conditions might these be, and when does the court side with the spouse complaining of disadvantage?
Both the wife and the husband can find themselves in this situation. Both the one who has a larger share and the one who has a smaller share in the jointly acquired property under the marriage contract.
From the explanations of the Supreme Court of the Russian Federation, paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 15, it follows that an extremely unfavorable situation is a situation when, for example, one of the spouses is completely deprived of the right of ownership of property acquired by the spouses during the marriage.
Void or void agreement
Current Russian legislation provides for 2 types of invalid agreements – voidable and void contracts. The second type is considered invalid from the date of its conclusion, no matter whether it was recognized as such in court or not. Nowadays, one of the parties to a marriage agreement often applies to the court with a request to declare the agreement invalid in order to officially recognize this fact.
After a contract is declared invalid in court, its parties return to a similar legal state that existed before the document was concluded. This means that the obligations under the contract are removed from the spouses, so they may not fulfill them. If the husband or wife managed to perform a number of actions within the framework of an invalid agreement, their result is canceled.
The only housing
If, for example, the spouses agreed in the marriage contract that the property is divided according to the principle “to whomever it is registered at the time of the divorce, the property belongs,” and by the time of the divorce, after 16 years of marriage, the ex-wife had only 1/5 of the apartment and three minors left supported children.
At the same time, the husband has the remaining 4/5 and two foreign cars, the court will take the wife’s side. Appeal ruling of the Investigative Committee for civil cases of the Moscow City Court dated October 24, 2021 in case No. 33-43968/2018 In this case, the court indicated that the terms of the marriage contract put the wife in an extremely unfavorable position, since as a result of the division of property, she is left with less than 1/5 of the property acquired jointly during the marriage. Despite the fact that during the marriage, the spouse freely used all family property, including an apartment and cars, and the spouses jointly bore the costs of acquiring and maintaining all acquired property. But such a situation can happen to a husband. In this case, the court will also side with the spouse, who finds himself in an extremely unfavorable position. In another case, the spouse (husband) did not have any share at all in the apartment acquired during marriage and being the only property acquired during marriage. Resolution of the Presidium of the Supreme Court of the Republic of Sakha (Yakutia) dated December 21, 2021 in case No. 4G-1114/2018
In other words, when concluding a marriage contract there should not be a significant disproportionality of shares in the common property acquired during marriage. Resolution of the Presidium of the Moscow City Court of April 17, 2021 in case No. 44g-0085/2018
Will I enter into a prenuptial agreement in the future?
For now, I don’t even want to officially register my next marriage. For what? If people want to be together, they will be.
It seems to me that a prenuptial agreement is not needed in partnerships when the spouses have approximately the same income. And it doesn’t have to be concluded when both have nothing - for example, the family lives in a rented apartment.
But it is worth drawing up when one of the parties has significantly more values than the other. It is needed for safety. Both sides must understand and accept this. Then this is normal and will not cause any damage to the marriage.
Read on topic: Financial protection: do it before the wedding
Alimony for spouse
When concluding prenuptial agreements, obligatory monthly payments (alimony) by the husband for the maintenance of his wife can be established or, conversely, both during the marriage and after its dissolution.
At the same time, the situation with the husband’s income and his business opportunities may also change. For example, a husband, an entrepreneur, entered into a prenuptial agreement in 2008 with an obligation to pay his wife 2,000 USD. monthly, both during the marriage and after its dissolution (the marriage was dissolved in 2009). But in November 2013, things went badly for the entrepreneur and he stopped paying alimony. This ended in mutual lawsuits: the ex-wife demanded to collect alimony debts, and the husband tried to invalidate the marriage contract regarding this alimony as putting him in an unfavorable position due to his lack of a constant source of income. The court sided with the ex-wife, the appeal ruling of the Investigative Committee for civil cases of the Moscow City Court dated October 6, 2021 in case No. 33-40293/2017, collected alimony debts and refused to the entrepreneur.
In a similar situation, when the husband was obliged to support his wife during the marriage and after its dissolution, the court sided with the entrepreneur. The ex-husband was able to prove that his income after the divorce decreased significantly and he had new alimony obligations (for the maintenance of children in another marriage). The court declared the part of the marriage contract for the payment of alimony to the ex-wife invalid, because the husband, when fulfilling it, finds himself in an extremely unfavorable position, and in fact his children are left without a livelihood. Appeal ruling of the Vyborg City Court of the Leningrad Region dated October 3, 2021, civil case No. 2 -68 /17-20
How divorce under a prenuptial agreement took place in practice
We lived together for 8.5 years. During this time, we had two children. The reason for the divorce was different expectations from each other. She wanted me to solve all the issues for her, and I expected a partnership in which we would decide everything together. She thought I was a bad husband and filed for divorce. We didn’t have any property disputes, but we got divorced not through the registry office (this is possible when there are no children), but through the magistrate’s court.
From the documents we needed:
- our passports;
- statement of claim for divorce;
- marriage registration certificate;
- marriage contract;
- children's birth certificates;
- receipt of payment of state duty (600 ₽).
The divorce process took two months, during which two meetings took place. The ex-wife still has a car and an apartment. I didn’t get anything because I sold my motorcycle during my marriage.
I also went into a serious minus in terms of expenses. I had to take out a loan for an apartment, the mortgage payment was 40,000 rubles per month, and I started paying 33.3% of my salary as alimony. So, despite the fact that we had a prenuptial agreement and there were no property disputes, the divorce undermined my financial condition.
Commercial real estate and shares in companies
A separate category of cases are cases when entrepreneurs, trying to protect significant assets from creditors, enter into prenuptial agreements, under which a significant part of expensive property is assigned in favor of the spouse.
Do not forget that unfavorable scenarios for the development of events are also possible:
The spouse files for divorce, takes over commercial real estate and other property that was distributed to her under the marriage contract, and all further attempts by the former spouse to invalidate such a marriage contract are in vain. Appeal ruling of the Investigative Committee for civil cases of the St. Petersburg City Court dated February 27, 2021 in case No. 33-5472/2019.
Thus, in one case, the husband (plaintiff) indicated that the marriage contract he signed put him in an extremely unfavorable position, since under its terms he lost all the property acquired during the marriage. The court asked him to prove that he had nothing left. No such information was provided, and therefore the court refused to invalidate the marriage contract.
As part of the bankruptcy procedure for a spouse-entrepreneur, such agreements are recognized as invalid, but not according to the Family Code of the Russian Federation, but as made to the detriment of the interests of the spouse’s creditors. Therefore, the contract must be based on a reasonable justification for why the spouses agreed in this way.
Rubric “Question/Answer”
Can a bank challenge a marriage contract between spouses? And how does this happen in practice?
Expert opinion
Semyon Frolov
Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.
Yes maybe. For example, on the basis that the borrower spouse entered into a marriage contract, but did not notify the bank - a violation of paragraph 1 of Art. 46 RF IC. But at the same time, the design of the database does not entail any violations. Let's say, if the borrower notified the bank about the conclusion of the agreement. Typically, creditors file lawsuits to invalidate prenuptial agreements, in whole or in part . It is up to the creditor to prove the fact of concealment of property, transfer of ownership rights and the sham of the conclusion of the transaction agreement. As practice shows, such disputes are rare. But they meet.
I filed for divorce. Can a husband challenge a prenuptial agreement that states that the house will remain with me in the event of a divorce?
Expert opinion
Dmitry Nosikov
Lawyer. Specialization: family and housing law.
If the prenuptial agreement was entered into voluntarily, neither spouse was at a disadvantage— challenge is virtually impossible . The distribution of joint and personal property is entirely at your discretion. There is nothing wrong with the fact that during a divorce, the house remains with the wife. Especially if children remain with her. It’s another matter if the husband finds himself in a deliberately unfavorable situation, for example, he has nowhere to live and will remain on the street.
Hello! I want to enter into a prenuptial agreement with my husband while I am married (it will indicate that the apartment is my property). Will his daughter from his first marriage be able to challenge the marriage contract and inherit in the event of his death?
Expert opinion
Semyon Frolov
Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.
No, he can't. However, if there is an unfair division of property, if the father is disadvantaged, misled or incompetent, a challenge is possible. But in general there is no need to be afraid. When opening an inheritance, you need to give the notary a copy of the marriage contract. If the document clearly states that you and the deceased agreed to leave the apartment to you, the property will not be included in the estate . Such an apartment will be considered your personal property. The heirs, including the daughter of the deceased from his first marriage, will not claim it - by virtue of clause 1 of Art. 42 of the RF IC, as well as Art. 36 IC RF.
Challenging a prenuptial agreement is not easy. If only because it is initially concluded by agreement of the parties and is verified by a notary. However, in some cases, a marriage contract can be considered invalid or void. Of course, this requires strong arguments. Where to get them and what they will be like is a headache for those interested in challenging them. The main problem is to find evidence and be able to convince the court of this. The hardest thing is for the heirs. Especially if they did not live together with their spouses. Lawyers on our site are ready to provide free consultation on issues of challenging marriage contracts. Will experts tell you what to build a defense on, where to find evidence, which articles to refer to and what deadlines to pay attention to? For consultation, call or send questions using the form on the website.
We recommend a video about declaring a marriage contract invalid or void:
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Author of the article
Irina Garmash
Family law consultant.
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Is it possible to cancel a marriage contract at the request of 3rd parties?
The laws of the Russian Federation regulate who can make a claim to have a contract between spouses declared annulled as part of a legal challenge. The parties to the agreement, as well as other persons prescribed by law, have the right to do this. For example, a creditor of the husband or wife, the trustee of a party whose rights are significantly affected by the document, can challenge a marriage contract.
A contested transaction is declared invalid in court if it violates the interests and human rights that are protected by current legislation. The document may lead to adverse consequences for the person who has the right to defend himself in court. In addition, another person can also go to court if this is provided for by Russian legislation.
Statute of limitations
When considering controversial situations related to the recognition of the invalidity of a marriage contract, it is important to monitor the statute of limitations for filing a claim. In some situations, family law establishes terms for the protection of violated rights. Such exceptions include disputes:
- on the division of property of spouses after divorce;
- on invalidation of a real estate transaction made without the notarial consent of the spouse;
- on the recognition of marriage as invalid in the manner provided for in Art. 27 RF IC.
For controversial situations regarding a marriage contract, family law does not directly provide for special provisions and a statute of limitations. This means that the statute of limitations does not apply to this type of civil legal relationship. However, the court may apply statute of limitations rules to such claims.
Grounds for challenge
The contract between spouses is canceled:
- as insignificant, which could not have been concluded in the first place;
- as voidable when its invalidity requires judicial confirmation.
Various grounds are used to cancel a contract as voidable or void. In the first case, the following is possible:
- the spouse had limited legal capacity;
- did not control his actions (was drunk, under the influence of drugs or medication);
- was misled, that is, did not understand the true consequences, the subject of the agreement or the nature. At the same time, being mistaken about the motives of the transaction is not a sufficient reason;
- was forced to reach an agreement due to a difficult life situation, violence or threats;
- found himself in an extremely disadvantageous position, for example, deprived of all jointly acquired property during a divorce. At the same time, the disproportion of shares in the distribution of common property is not always an indicator of “disadvantage” (Definition of the Supreme Court of the Russian Federation No. 18-KG16-10 of May 24, 2016).
Agreements between spouses are void if:
- restrict one of them in civil and constitutional rights and legal capacity;
- affect the non-property relations of the couple, for example, makes some condition dependent on the fidelity of the husband or wife;
- change the rights and responsibilities of parents in relation to children;
- deny support to a disabled husband or wife who is in need;
- not notarized;
- concluded by a spouse recognized as completely incompetent for mental health reasons;
- feigned or imaginary, that is, they either cover up another transaction, or are signed without the intention of creating legal consequences. Couples often do this to protect family assets from debt collection.
As a rule, documents with such conditions are “rejected” by the notary at the certification stage. But if, nevertheless, the document is signed and certified, its conditions are canceled.
The specificity of family agreements is such that they can be concluded by minors 14–18 years of age without the consent of parents or guardians. In relation to other civil transactions, this is considered sufficient grounds for challenge. But agreements between husband and wife begin to take effect after the wedding, when minors acquire full civil capacity.
Question: is it possible to cancel an agreement that leaves a shared apartment to the wife, but only if there are children after the divorce?
Answer: the condition is made dependent on the presence or absence of a child in the family - this is not prohibited by law. It is impossible to declare the agreement invalid on this basis alone.
