- Civil marriage and division of property
- How to divide property acquired in a civil marriage
- What claim to file for division of property acquired in a civil marriage?
- How to properly register property in a civil marriage
Divorce and division of jointly acquired property. There is no way back, all bridges are burned.
Unfortunately, tens and hundreds of thousands of married couples come to this decision every year.
The divorce statistics in our country are disappointing, the number of divorces is rising every year, and in some regions their number is simply shocking.
Spouses who have not acquired any children or property in their marriage can calmly formalize the breakup of the relationship at the registry office.
But most divorcing couples still gain both in marriage, as a result of which family disputes often arise between spouses, both property and non-property, for example, about children (here you can learn in detail about determining the order of communication with a child).
Property disputes between spouses include disputes about the distribution of jointly acquired property between them.
The law classifies as joint property of spouses both any movable and immovable property, as well as the income of each spouse, their common values, and even income from the use of the result of intellectual activity (not to be confused with copyrights; authorship itself is the personal right of the spouse), that is, everything , except for personal items and property received as a gift, by inheritance, or through privatization by one of the spouses.
You can learn more about personal and joint property of spouses by reading our article joint property of spouses.
But, as you know, only the property that the spouses acquired during the marriage is subject to division between spouses, i.e. after the official wedding at the registry office.
Got a property dispute? Contact our lawyers and get an assessment of your chances in court. Tel.+7 Telephone consultation
Civil marriage and division of property
The main question arises - how property is divided if a man and woman acquired it together, through the investment of each person’s personal funds during a civil marriage. And in general, is it possible to divide property acquired in a civil marriage?
Indeed, many couples cohabit for years without registering their relationship in the registry office, and during the period of this very “civil marriage” people also acquire apartments, cars and other property, in the acquisition of which the money of both partners is invested.
Very often, property (both movable and immovable) is registered in the name of one of the cohabitants by agreement between them. Although, with a rational and reasonable approach, property must be distributed among such partners in shares proportionate to the investment of each, that is, fairly.
What is a “civil marriage” according to the family code?
It is noteworthy that the term “civil marriage” is in common use among many people, while most people mechanically equate such relationships with official marriage, mistakenly believing that if there was an actual marriage relationship, during which people acquired children and property, ran a common household, pooled their budgets, then these relationships can be regarded as a kind of marriage union with the application of family law norms to it.
However, as already noted, this is a very common but erroneous opinion .
Let's immediately clarify: The current family legislation of Russia does not contain such concepts and terms as civil marriage, de facto marriage, de facto marital relations, de facto cohabitation, etc., which, however, does not exclude the possibility of using such terminology in judicial acts, as well as in other sources, in particular, we are talking about the term actual marital relations. Popularly referred to as a civil marriage, this is nothing more than a relationship between a man and a woman living together that is not formalized officially (in the registry office), that is, cohabitation. This form of relationship does not give rise to conjugal rights and obligations for cohabitants in relation to family law.
Family legislation of the Russian Federation recognizes only marriages concluded in the civil registration authorities (Part 2 of Article 1 of the Family Code of the Russian Federation), from which the logical content of Part 2 of Art. 10 of the Family Code of the Russian Federation states that the immediate rights and obligations of spouses arise only from the moment of state registration of marriage.
Consequently, the establishment of actual marital relations without their state registration is impossible, as is the emergence of the rights and obligations of spouses among cohabitants who have not registered their marriage in the prescribed manner.
Any attempts by cohabitants to prove in court the existence of an actual marital relationship are meaningless, since the mere establishment of the fact of cohabitation of unmarried persons will not indicate that the cohabitants have acquired (formed) common property.
In other words, the fact of cohabitation in this case will not have legal and legal significance for resolving a property dispute that has arisen between cohabitants.
Conclusion: It is impossible to equate cohabitation without marriage registration with a marriage concluded in accordance with the procedure established by law. Of course, under such circumstances there can be no question of applying the norms of family law to the legal relations of cohabitants.
So what do we have?
Is property acquired in a civil marriage divided?
Property acquired by the so-called “common-law spouses” during the period of their actual cohabitation without registering the marriage in the registry office is not subject to division between them in accordance with the norms of the Family Code of the Russian Federation.
Whichever of the common-law “spouses” has the registered ownership of the relevant property or part of the property is the owner. As we have already said, the regime of common property of spouses does not apply to persons living in a civil marriage.
But this does not mean that you cannot protect your property rights.
Consultation with a lawyer on the division of property. Tel.+7 (812) 989-47-47 Telephone consultation
Can an apartment be subject to division?
Residential property purchased during the existence of a civil marriage can be divided in only two cases in 2021. The first assumes that the spouses have drawn up an agreement on the division of shares. Then the court will focus on him.
The second provides that one of the parties will be able to provide documentary evidence of the fact that her personal savings were used for the purchase. This could be a receipt for receiving money or a check for transferring funds from an account.
The presence of children does not affect the division of the apartment. It is also worth considering the fact that maternity capital is prohibited from investing in the purchase of real estate if the parents are not officially married.
How to divide property acquired in a civil marriage
We have already found out that the legislation of the Russian Federation does not contain such a concept as division of property acquired in a civil marriage .
Any property legal relations of actual cohabitants, as well as property disputes between them, including in the event of the breakdown of such relationships, are regulated and subject to resolution exclusively within the framework of the norms of the Civil Code of the Russian Federation , but in no case under family law.
The legal regulation of the legal relations of former spouses who continued de facto cohabitation after the official dissolution of the marriage will be similar, that is, when the former spouses continue to live together and run a common household. Relations between ex-spouses are also not regulated by the norms of the Family Code of the Russian Federation, and the property acquired by them during such a period will also not be considered their joint property. Any property disputes between spouses after the dissolution of their marriage in the registry office will be subject to resolution in accordance with the general norms of civil legislation of the Russian Federation.
Persons living together without registering a marriage will not inherit from each other.
Questions from our readers
How can a common-law wife inherit?
Inheritance during a civil marriage depends on the grounds. If it is stated in the will, then it is necessary to visit the notary at the place of the citizen’s last residence and write an application to open an inheritance case.
When the de facto spouse has the right to a mandatory share as a dependent, she must go to court to prove this fact. In both cases, documents are submitted within 6 months after the death of the testator.
What claim to file for division of property acquired in a civil marriage?
Protection of the violated right in the case under consideration will be carried out by filing a claim in court for recognition of the right of ownership of a share in the right of ownership of property on the legal basis of the corresponding norm of the Civil Code of the Russian Federation, and not a claim for the division of joint property of the spouses in accordance with Chapter 7 of the Family Code of the Russian Federation.
The subject of proof will be important in such a case.
Courts, as a rule, proceed from the fact that the plaintiff must prove the existence of a number of circumstances that will be significant for resolving the dispute.
Based on the established practice of the courts, the following legally significant circumstances are subject to in addition to cohabitation, running a common household and joint use of property
- The existence of an agreement between the parties to create common ownership of the acquired movable and/or immovable property.
- The plaintiff’s investment of his personal funds in the acquisition of the disputed property.
Only if these circumstances are proven will the court have grounds to classify the relevant property as the common shared property of the cohabitants.
As for proving the deposit of personal funds, the availability of written evidence (receipts, agreements, receipts, checks, etc.) is fundamentally important here. Although the range of evidence in such a case is not limited by law, and it can be both written evidence and witness testimony, however, witness testimony alone in the complete absence of other written sources of evidence will not be enough, since the transfer of funds by witness testimony alone . This directly follows from the content of Part 1 of Article 162 of the Civil Code of the Russian Federation: “Failure to comply with the simple written form of a transaction deprives the parties of the right in the event of a dispute to refer to witness testimony to confirm the transaction and its terms, but does not deprive them of the right to provide written and other evidence.”
Thus, if the acquisition of property and the contribution of personal funds of both parties to the purchase was not accompanied by the execution of appropriate documents (for example, written receipts for the transfer of funds, receipts, checks and other documents confirming payment for the property), it will be problematic to prove this fact.
However, despite the fact that this task is not an easy one, you should not give up. Judicial practice in such cases is very extraordinary, each case is individual in nature, each has its own nuances. The outcome of the case is directly related to the correct definition of the subject and grounds of the claim and a well-chosen evidence base.
Also, the protection of the violated right of the plaintiff in the cases under consideration can be carried out by filing a claim to recover from the defendant the amount of unjust enrichment. Of course, such a claim can be satisfied by the court if the necessary evidence of unjust enrichment is presented.
Property disputes are subject to a general three-year statute of limitations.
You can also familiarize yourself with the procedure for filing a claim in court and the jurisdiction of civil cases.
If a property dispute arises regarding property acquired in a civil marriage, contacting a professional lawyer will certainly increase your chances in court. Lawyers and legal counsel have extensive experience in handling property disputes of various types, including between common-law “spouses.”
Consultation with a lawyer in civil cases. Tel.+7 (812) 989-47-47 Telephone consultation
How to obtain inheritance rights?
All legitimate claimants who have the right to receive property or monetary property are distributed in the following sequence:
- The first priority of legal heirs is the children of the deceased, the legal spouse, and the parents of the testator.
- The second line of heirs are the sisters and brothers of the deceased, grandfather and grandmother on both lines.
- The third line of applicants are the siblings and half-brothers of the mother and father of the deceased.
- The fourth line is the mothers and fathers of grandparents.
- The fifth line is the brothers and sisters of grandparents.
- Children of brothers and sisters of all grandparents, as well as children whose parents are grandchildren, cousins.
- Non-natural parents - stepfather or stepmother, as well as non-natural children. Incapacitated dependents of the deceased.
Thus, after the death of one of the spouses, a common-law wife or husband can be included in the heirs of the eighth line if they were dependent on the deceased due to lack of ability to work or being a minor.
The unofficial wife, who is mentioned in the will, by rights belongs to the line in which the heirs were found. The absence of the actual wife in the list of heirs determined by law does not deprive the right of inheritance of her child born from the testator or conceived during his lifetime. He is included in the first place of successors by law and until he reaches 18 years of age is the legal holder of a mandatory share of the inheritance. If the child is underage, his legal representative in accepting and disposing of property rights is the mother.
But for this it is necessary to prove the fact of marriage. Even if the court recognizes the actual residence of one family, there is no possibility of being considered one of the heirs of the first priority.
If there is no will, the deceased's property will be distributed in full equally among the priority heirs.
Subsequent queues that follow the priority ones will be denied the right to inherit even a small part of the property.
