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.

Normative base

Issues related to the procedure for concluding a marriage contract, as well as certain aspects about children, are strictly regulated by the provisions of the legislation of the Russian Federation. In order to understand all the intricacies, one must understand the entire legal and regulatory system of the state.

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.

Challenging the contract

Is it possible to invalidate a contract after the death of a spouse?

Yes, but only if there are grounds specified in the law, and only in court.

The application can be submitted by a spouse or heirs (including in the event of death of the family).

The law identifies the following grounds:

• when signing the agreement, one of the spouses was unable to direct or understand their actions;
• one of the parties misled the other regarding the consequences of concluding the contract;
• the contract was concluded due to a combination of difficult life circumstances or through the use of criminal methods of influence;
• if the agreement was concluded by a person with limited legal capacity;
• one of the spouses was placed in an extremely disadvantageous position by signing the documents.

If the judge determines that the contract is invalid, everything that the couple acquired during the marriage that was subject to division is considered to be jointly owned.

You may also be interested in an article on how to conclude a marriage contract with a notary. Read a useful article about the features of changing and terminating a marriage contract here.

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.

Property security issues

In conclusion, here are a few tips to avoid problems:

1. Do not sign an agreement if it puts you in obviously unfavorable conditions. This will affect not only you, but also your heirs.
2. When concluding a contract, first of all pay attention to the definition of the real estate regime.
3. A fairly formalized regime of shared ownership is more preferable, since it will be possible to avoid a complex and costly procedure for dividing property. This is also true for the split mode.
4. If you want to protect the rights of your heirs, leave a will; a marriage contract cannot regulate inheritance relations.

Watch the video in which an experienced lawyer considers the situation of conflict between a will and a contract after the death of a spouse:

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.

Distribution under shared ownership regime

Both for everything in general and for specific property, a marriage contract can establish a regime for the implementation of shared ownership.

The shares may not necessarily be equal; often a family member with a high level of income uses this, so that after a divorce most of the property goes to him.

In cases where the regime for exercising shared ownership extended to the entire estate, the distribution procedure after the death of one of the spouses is simplified.

Since the shares have been determined, there is no need for a property division procedure; you can immediately proceed to the inheritance procedure. If only part of the estate was in shared ownership, the remaining joint property must be divided.

Let's return to the example above, changing only one condition. According to the agreement, the husband's share of the entire property is 2/3, and the wife's 1/3.

After the distribution of the husband’s share, the final share of the land plot will be: for the wife – 7/15; for each of the parents of the deceased – 2/15; for each of the father’s children – 2/15.

You may be interested in an article about the validity period of a marriage contract. Read an article about whether it is possible to challenge a contract after a divorce here.

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.

Distribution of joint property

Unless the prenuptial agreement specifies otherwise, property acquired by a husband and wife during marriage is considered community property. It is distributed in a general manner. If someone from the family dies, you must contact a notary in order to divide it.

Upon completion of the division, part of the deceased (according to the general rules ½) is subject to inheritance in accordance with the law, and the other becomes the personal property of the other spouse.

If the heirs have questions and objections regarding the division of property, the division will be carried out in court. The division of property acquired by a couple is a complex and important process.

Please note: in order to avoid negative consequences when dividing your fortune in court, it is recommended to use the services of a specialized lawyer.

Let's look at an example. During the marriage, the couple purchased a plot of land, which, according to the agreement, was under joint ownership.

There was grief in the family, and after the death of one of the members, a plot of land was subject to division.

After the allocation, the wife’s share was ½ of the land plot, and the husband’s was subject to inheritance according to a will or by law.

If there is no will, the inheritance is divided between the parents, spouse and children (first priority heirs).

If the husband has 2 children and both parents are alive, the final share of the land plot will be: for the wife - 6/10; for each of the husband’s parents – 1/10; for each of the father’s children – 1/10.