How to terminate a marriage contract: by agreement of the parties and unilaterally

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Many married couples resort to concluding a prenuptial agreement in order to insure their property interests in case the marriage suddenly breaks up. A marriage contract can be concluded by both young people before entering into an official marriage, and after its registration. In both cases, the agreement guarantees the spouses the preservation of their property in the shares determined by them. Spouses retain the right to amend and terminate the marriage contract if life circumstances change and they reach agreement on such an action.

The main purpose of a marriage contract is to establish a special regime for joint property of spouses. But what to do if one of the spouses does not agree with the termination of the contract or its modification when such a need arises?

Is it possible to terminate a marriage contract?

A marriage contract can be terminated by agreement of the parties. The agreement is drawn up in writing and certified by a notary. Unilateral refusal to fulfill obligations under the contract is not allowed (Clause 1 of Article 43 of the RF IC).

Termination of the contract at the request of one of the spouses occurs by a court decision on the grounds provided for by the Civil Code of the Russian Federation. Before filing a lawsuit, the spouse must try to resolve the dispute amicably. If agreement has not been reached, after 30 days the judicial procedure can begin.

The contract can be terminated from the moment of marriage registration or at any time during the married life.

In the event of divorce, the contract terminates automatically, with the exception of post-divorce provisions.

The conclusion of a marriage contract is neither an obligation nor a condition, but only a right that may not be exercised by the parties. The very concept of “agreement” presupposes the existence of an agreement on certain issues of a property nature. You cannot register a marriage for the duration of the marriage contract (divorce due to the end of the marriage contract). The prenuptial agreement should not contain elements of a will. In Art. 40 of the RF IC states that in a marriage contract, spouses can determine each other’s property rights and obligations in marriage and (or) in the event of its dissolution. A marriage contract can be concluded for a certain period.

But since real rights are, as a rule, perpetual, it is therefore impossible, for example, to provide in such a fixed-term agreement that the dacha will be owned by the spouse for three years, and then, at the end of the contract, will become the property of the husband. In this case, transfer only to the common property of the spouses is possible.

A marriage contract is an agreement between persons entering into marriage or an agreement between spouses that defines their property rights and obligations in marriage and (or) in the event of its dissolution (Article 40 of the RF IC). The content and terms of the marriage contract, the procedure for amending and terminating the marriage contract are regulated by Chapter 8 of the RF IC.

A prenuptial agreement can be concluded at any time. But if it was concluded before the marriage, then it comes into force only from the moment of marriage, and in this case such a marriage contract is a transaction concluded under a suspensive condition.

A prenuptial agreement can also be constructed as a conditional transaction. For example, the agreement stipulates the regime of joint property of spouses, but, however, if the income of one exceeds the income of the other by more than twice, then the regime of separate property is applied to the property exceeding the amount of income of the other spouse. One of the marriage contracts stipulated that if during the first seven years of marriage three children were born in the family, then all the husband’s property that he had before the marriage was registered, as well as acquired by the spouses before the birth of the third child, would be transferred to the wife’s ownership.

A prenuptial agreement can be either cancellable or suspensive, or cancellable and suspensive at the same time, for example, the regime of common ownership of a spouse’s apartment is maintained until the acquisition of a separate apartment for the spouse.

Only spouses have the right to a real marriage contract. Because of this, a marriage contract presupposes a special subject composition - spouses, and if citizens do not act in such a legal status, then there is no marriage contract. The subjects of a marriage contract are spouses, therefore, the ability to conclude it is associated with the ability to marry.

To enter into a marriage contract, the spouses must have legal capacity. Article 14 of the RF IC determines in which case a marriage cannot be concluded, and one of the clauses states that marriage “between persons of whom at least one person has been declared incompetent by a court due to a mental disorder” is not permitted.

If one of the spouses is incapacitated, the marriage can be concluded on his behalf by a guardian. Restriction of legal capacity in accordance with Art. 30 of the Civil Code of the Russian Federation also affects the ability to enter into marriage, since a person with limited legal capacity has the right to carry out only minor household transactions, and in this case the consent of the trustee is required.

Persons who are in a de facto, unregistered marriage cannot enter into a marriage contract, but they may well enter into an agreement on the regulation of property relations, and if the terms of this agreement do not contradict the law (according to the law, they cannot establish a regime of common joint property for themselves), then it will be completely legal and can be presented in case of a dispute in court - but not as a marriage contract, but as a civil law one.

The essential requirements for a marriage contract include the requirement of written form and notarization (Clause 2 of Article 41 of the RF IC). Such requirements for the form are associated with the special significance of this agreement for both spouses and third parties.

The contract is individual in nature, but we can highlight the main provisions of the marriage contract, which the parties should pay attention to.

Since property acquired by spouses before marriage is considered their property, inclusion of this property in the marriage contract in many cases is not required. However, if one of the parties believes that in the future it may encounter difficulties in proving that some property was acquired by it before marriage, then this property should be specified in the marriage contract. If the marriage contract concerns specific real estate, then it is subject to state registration on the basis of clause 2 of Art. 429 of the Civil Code of the Russian Federation or Art. 164 Civil Code and Art. 4 Federal Law of the Russian Federation “On state registration of rights to real estate and transactions with it.” But under the conditions of the validity of the marriage contract, there is no requirement for state registration of that part that concerns the rights of the spouses to the property they already own. This fact creates a contradiction between the marriage contract and the documents certifying the right to real estate.

When concluding a marriage contract, the following circumstances must be taken into account. First of all, accurate information is needed about the property owned by each of those entering into marriage or received by each of the spouses through gratuitous transactions. Information is required about the amount and sources of income of each spouse recently, the degree of their legalization, information about expected changes in property status and sources of income. The draft of the agreed agreement is sent to the notary for him to check this document for compliance with the law. The text of the contract itself has legal significance; the quality of the paper on which it is printed, i.e. on stamped paper or regular paper, it doesn’t matter.

The marriage contract can be changed or terminated at any time by agreement of the spouses. It is necessary to inform creditors about upcoming changes in property status - the conclusion, modification or termination of a marriage contract. An agreement to amend and terminate a marriage contract is also made in writing and certified by a notary. The contract cannot be terminated unilaterally. This procedure can only be carried out by a court at the request of one of the spouses. The validity of the marriage contract terminates from the moment of termination or dissolution of the marriage, with the exception of those obligations that are provided for in the marriage contract for the period after the termination of the marriage. A change in the legal regime of property can have an impact on the amount of the inheritance mass: if the spouses have provided for a separate regime of property, then after the death of one of the spouses, the other (surviving) spouse loses the right to the marital share in the property of the deceased spouse. The marriage contract determines the legal regime of the spouses' property.

An essential condition of a marriage contract is a change in at least one property right or at least one property obligation of the spouses, which fall under the legal regime of property. The prenuptial agreement must also establish at least one rule intended to apply in the future. The validity period of a marriage contract is not essential, and if it is not specified, it means that it is valid indefinitely, until the dissolution of the marriage or until the death of one of the spouses.

The law allows the establishment of a legal regime for the property of spouses both in relation to all property and in relation to its individual types, as well as in relation to the property of each of the spouses. It is most appropriate to establish a legal regime in relation to each specific property, i.e. regarding every thing. According to Part 1 of Art. 42 of the RF IC, spouses have the right to establish a regime of joint, shared and common property. If, according to the terms of the agreement, the spouses have common property, it is advisable to provide for the division of jointly acquired property in absolute shares, i.e. As a result of the division of property, the former spouses should have certain types of property in their entirety, and not some part. For example, during their life together, a spouse has acquired a controlling stake, which, in the absence of an agreement and in the event of a divorce, will be divided equally, which will undoubtedly reduce its value. Therefore, it is possible to provide for the indivisibility of such a package by providing other property to the other spouse.

If the spouses have established a regime of joint ownership in relation to all property of the spouses in general, then this means the community of that property that is recognized by law as separate; a common property regime can be established in relation to those things that, under the legal regime, do not come into common ownership (a kind of truncated version of a marriage contract); the regime of shared ownership is established in relation to the property of spouses, which is both jointly and separately owned (for the legal certainty of this option, a clear definition of the shares of each spouse is necessary); The regime of separate ownership in relation to all property presupposes absolute separation, and in principle no common property can arise.

A marriage contract can also be concluded in relation to future property, for example, ways of participating in each other’s income (capital in a bank, a mansion is the property of the husband, and interest on the deposit and payment for a rented mansion belongs to the wife, etc.). In this case, it is necessary to determine under what conditions and in what share one spouse participates in the income of the other. It is also necessary to provide for the procedure for each spouse to bear family expenses (since the shared regime involves proportional expenses - in accordance with the share, common - common expenses, separate must be determined independently). It is necessary to clearly define what kind of property will be transferred to each spouse in the event of divorce (in derogation from the legal property regime).

The marriage contract may define the rights and obligations of the spouses for mutual maintenance, which can be linked to the initiator (perpetrator) of the divorce, and the concept of “need” will not be considered in this case.

Particularly noteworthy is such a favorable opportunity of a marriage contract as the separation of children's property from the parents' property. Parents do not have the right to their property while their children are alive, and children do not have the right to their parents’ property while they are alive. But a marriage contract can provide for such a delimitation, which, of course, can ensure the future of the child more reliably than possible alimony.

A marriage contract may include provisions aimed at regulating relations between spouses after divorce, and this does not always concern the division of property or maintenance relations.

A marriage contract in itself does not automatically provide legal remedies for failure to fulfill obligations, therefore, in this case, civil law norms can be applied (Articles 393 - 395; 397 - 398 of the Civil Code of the Russian Federation). Therefore, it makes sense to include in the text of the contract clauses on the liability of the parties for failure to fulfill the contract. For example, provide for the time period during which, after a divorce, this or that property must be transferred to the spouse who has the right to it in accordance with the terms of the agreement, provide for a penalty (fine, penalty) for each day of delay in fulfilling the terms of the agreement.

Let us note cases that remain outside the scope of the marriage contract. Firstly, these are personal non-property relations between spouses; they are not subject to legal regulation at all (for example, do not abuse alcohol or obey the ban on their use, fully satisfy the needs of the spouse in sexual life, learn French, maintain marital fidelity, etc. ); secondly, the rights and obligations of spouses in relation to children remain outside the boundaries of the marriage contract. The fate of the children cannot be determined by the spouses in the marriage contract; in the event of a divorce, this is decided by the court, which will divide the property of the spouses according to the terms of the marriage contract, but the future fate of the children will be decided by the court on the basis of an agreement submitted by the spouses to ensure the property and personal non-property rights of the child (children) or based on from the Family Code. This is because the child is not a party to this agreement. Relations between parents and children can be regulated by an agreement, but it will be an independent agreement that does not coincide with a marriage agreement either in content or subject composition. If we are talking about the property rights of parents and children, then they can be included in the agreement. For example, a man, concluding a marriage contract with a woman who already has a child, undertakes to provide her with child support until he receives a professional education, but not older than 23 years. Or the spouses, having established a separate property regime, undertake to pay for the child’s education abroad in proportion to the income each of them receives.

The general rules of restriction of transactions also apply to a marriage contract; Thus, a marriage contract should not contain restrictions on the legal capacity and capacity of the spouses, their right to go to court to protect their rights, etc. Thus, the notary refused to certify the marriage contract on the grounds that one of the clauses of the contract provided for the right of the husband to make all transactions with common property without the consent of the wife. This paragraph violated the imperative norm of paragraph 3 of Art. 35 of the RF IC, obliging to obtain a notarized agreement of the spouse for transactions with real estate, as well as those requiring notarization and (or) registration; In addition, this condition limits the legal capacity of the spouse, depriving her of the opportunity to go to court to demand that a transaction made without her consent be declared invalid.

The spouse has the right to change or terminate the marriage contract at any time - both by mutual consent and by court decision (Article 43 of the RF IC). The court has the right to make such a decision if circumstances have changed significantly or if the marriage contract puts one of the spouses in an extremely unfavorable position (such a transaction is similar to the bonded transaction provided for in Article 179 of the Civil Code of the Russian Federation). Clause 3 of Art. 42 of the RF IC states that a marriage contract can be challenged in court if it contains conditions that put one of the spouses in an extremely unfavorable position. The characteristics of this offense are not defined either by law or by judicial practice. The Plenum of the Supreme Court of the Russian Federation in the Resolution of November 5, 1998 “On the application of legislation by courts when considering cases of divorce” did not define the criteria for this unfavorable provision and did not give its interpretation. As a definition, the Resolution provides the following example: if one of the spouses, as a result of the chosen contractual regime, is completely deprived of the right of ownership of property acquired by the spouses during the marriage, then such a condition of the marriage contract may be declared invalid by the court at the request of this spouse.

Civil law cannot be applied when defining a marriage contract as an enslaving transaction.

According to civil law, the recognition of contracts as enslaving must include all the elements of a enslaving transaction, namely: the confluence of difficult circumstances for the victim, the causal connection between the confluence of difficult circumstances for the victim and the conclusion of the transaction on extremely unfavorable terms for himself, as well as the awareness of the other party about the listed circumstances and use them to your advantage. Due to the ambiguity of the wording of Art. 179 of the Civil Code of the Russian Federation, it is not entirely clear whether it is necessary to prove that the unscrupulous party took advantage only of a confluence of difficult circumstances, or only of extremely unfavorable terms of the transaction, or both at the same time. When considering family disputes, the main difference between a bonded transaction in civil law and the same type of transaction in family law is taken into account: the participants in family legal relations represent a social community united on an emotional, sexual and everyday basis, and therefore the signing of such a marriage contract does not occur due to difficult circumstances and extremely unfavorable conditions, but due to confidence in feelings and decency, due to love and trust in the partner.

An agreement to amend (terminate) a marriage contract can be made at any time, in the same form as the marriage contract itself. All amendments to it must be notarized. When drawing up a marriage contract, in order to prevent possible future disputes, you should immediately indicate those violations that are considered significant and may be grounds for changing or terminating the contract.

One of the spouses can file a claim in court to change (dissolve) the marriage contract only after receiving the refusal of the other spouse about the proposal to change (dissolve) the marriage contract or if there is no response to this proposal, i.e. within the time specified:

a) in the sentence itself;

b) in the marriage contract (for example, serious illness, loss of work, drug addiction, alcoholism, gambling, collecting, disability, etc.);

c) within thirty days (at the request of the interested spouse, the marriage contract is terminated in accordance with Article 451 of the Civil Code of the Russian Federation. The general rules for unilateral termination of transactions provided for by the Civil Code of the Russian Federation (Article 452) apply here).

A significant change in circumstances is considered to be such that if the parties could have foreseen this, the contract would not have been concluded at all or would have been concluded on different terms (one of the spouses became disabled, an alcoholic or drug addict, lost his job, the income ratio of the spouses changed, etc. .).

Marriage agreements have their own specifics and, unlike civil agreements, may require changes much more often, especially since marriage agreements, as a rule, last much longer than civil agreements. A marriage contract is based on family ties and emotional feelings, but nevertheless, no exception is made for it - the conditions for terminating this contract are regulated by the norms of the Civil Code of the Russian Federation. If the marriage contract is changed or terminated in court, then it is considered changed or terminated from the moment the court verdict enters into legal force (Part 1 of Article 25 of the RF IC).

The validity of the marriage contract ends from the moment of termination of the marriage, with the exception of those cases when the marriage contract itself contains obligations aimed at the period after the dissolution of the marriage (Clause 3 of Article 43 of the RF IC). For example, during the marriage, the spouses concluded a prenuptial agreement, in which they indicated that the funds, which are their common property and deposited in the bank in the name of the husband, after the expiration of the bank deposit agreement, become the property of the wife. Thus, if their marriage was dissolved, and accordingly the marriage contract became invalid, and the bank deposit agreement continues to be valid, for example, for one year, then the legal fate of this money will not change and after a year the ex-wife will become its owner.

It should be noted that the conclusion, modification or termination of a marriage contract may have a negative impact on the rights of creditors of the spouses. Therefore, the law imposes an obligation on spouses to notify creditors of all proposed changes in the legal regulation of property relations. Creditors have the right to demand changes to the proposed terms of the marriage contract under Art. Art. 451 - 453 of the Civil Code of the Russian Federation (significant change in circumstances). The law does not regulate such a situation when spouses enter into an agreement on the division of jointly acquired property - essentially the same marriage contract, but not providing for notification of creditors, although such an agreement may significantly infringe on their interests. Of course, creditors deceived by such an agreement can challenge such a deal as a sham, but doing so will be much more difficult than defending their interests in the presence of a prenuptial agreement.

Termination of a marriage contract by a notary

A contract can be terminated by a notary only by agreement of the parties. Termination by agreement of the parties is a voluntary and agreed upon action by the parties. Written form and notarization of the document are required (clause 2 of article 41, clause 1 of article 43 of the RF IC).

Procedure:

• prepare documents;
• contact a notary office;
• pay the state fee;
• sign a contract termination document;
• registration of the decision made by a notary.

Required documents:

• passports;
• a valid contract;
• Marriage certificate;
• termination agreement.

Agreement to terminate the marriage contract

Cost of services

The state fee for certifying an agreement to terminate a notarized contract is 200 rubles (clause 12 of Article 333.24 of the Tax Code of the Russian Federation). If you receive additional legal or technical services from a notary, you will have to pay extra according to the established notary fee.

Termination of a marriage contract in court

Very often, conflictual relationships between spouses do not allow termination of the contract by mutual consent. Even then, try to calm down. Hear your partner’s opinion and offer your own solutions. If your attempts do not lead to the desired result, go to court. The procedure in this case is as follows:

1. Send your spouse a written proposal to terminate the prenuptial agreement by agreement. It is better to do this by registered mail with acknowledgment of receipt. Refusal or ignorance of the document will be grounds for going to court.
2. Prepare the necessary documents.
3. Submit the papers to the Magistrates' Court at the defendant's registered address.

The spouses will be notified of the date and time of the trial in the manner specified by them.

Mandatory documents

The legislation does not establish an exact list of documents, but the following are mandatory:

• a statement of claim in an amount equal to the number of participants;
• passports of the plaintiff and defendant (copy);
• power of attorney, if a representative acts;
• marriage contract;
• marriage certificate;
• refusal or evidence of attempts at pre-trial settlement;
• evidence of the circumstances that caused the termination of the contract;
• document confirming payment of the state duty.

Additional documents

The additional package of documents depends on the conditions and grounds for termination of the contract:

1. Incapacity:

• medical report;
• court decision appointing a guardian.

1. Mortgage division:

• loan agreement;
• certificate of the amount of debt.

1. Compulsion to sign:

• evidence supporting the action:
• call recordings;
• correspondence;
• witness statements.

1. Change in financial situation:

• certificate from place of work;
• income certificate.

You may be interested in how to correctly draw up a marriage contract when applying for a mortgage.

Grounds and conditions for termination of a marriage contract

Article 43 of the Family Code states that spouses can change the terms of the contract or terminate it at any time. The grounds for change or termination are provided for in Article 450 of the Civil Code.

These are:

• desire and consent of the parties;
• material violation of the terms of the agreement;
• other cases prescribed by law;
• a sign of the nullity or invalidity of a contract as a transaction.

Signs of invalidity will be:

1. Limitation of the legal capacity of spouses. For example, a ban on divorce or loss of the right to property after a divorce on one’s own initiative, or a ban on going to court.
2. Division of responsibilities of spouses in relation to minor children.
3. Limitation of the spouse's rights to receive maintenance.
4. Other violations of family or civil law that may lead to the invalidity of the transaction.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The desire of the spouses to change the contract may be caused by a change in the agreements between them regarding the ownership of property in the event of a divorce.

For example, initially the spouses could agree that the joint apartment would remain with the wife and the car with the husband. After a while, people could change their minds and reconsider their decision so that all the property goes to the spouse.

The grounds for judicial termination of the contract will be the following:

• conclusion of a marriage agreement by a person who was in a state of confusion or could not understand the actions being taken (for example, was in a state of intoxication, alcohol addiction, etc.);
• concluding an agreement under the influence of threats, mental or physical violence, blackmail or another form of coercion, which resulted in extremely unfavorable terms of the contract for the coerced party;
• concluding an agreement with a person with limited legal capacity.

In addition, there are cases when in the course of family life some other valuable property is acquired. It is advisable to supplement the terms of the contract by indicating in it additional objects that the spouses want to divide among themselves.

Important! A prenuptial agreement is concluded so that in the future, if you have to get a divorce, you do not have to go through lengthy litigation and divide property.

As for termination of a contract by consent of citizens, the reasons for this may be various circumstances. Most often, this is the sale of joint property that was the subject of a marriage agreement.

If the spouses have sold all their joint property, then the marriage contract loses its meaning. Of course, its legal effect does not cease. However, if there is no property, then there is nothing to divide according to the marriage contract. A reasonable solution is to terminate the contract by agreement of the parties, because this procedure is very simple.

Statement of claim

A well-drafted statement of claim and correctly collected evidence guarantee that the accepted documents will not be returned. The statement of claim is drawn up in the following form:

1. name of the court;
2. data of the plaintiff and defendant (or proxies);
3. introductory part;
4. number and date of conclusion of the contract;
5. the essence of the claim is stated;
6. The grounds for termination are indicated:
7. the conditions that were violated are listed;
8. attempts at pre-trial settlement are described;
9. list of attached documents;
10. date and signature.

Statement of claim for termination of the marriage contract

Once the documents are submitted, the trial begins. Usually the case is resolved in 1-2 months. Sometimes, during the consideration of a case, additional materials or the appointment of an expert examination may be necessary, and litigation drags on for up to a year.

Amount of state fee when filing a claim

When filing a claim for termination of a marriage contract, you must pay a state fee in the amount of 300 rubles (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation).

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.

Consequences of termination of a marriage contract

Legal consequences will occur only after the court decision enters into legal force.

Upon termination of the contract, the obligations of the parties cease, with the exception of those whose fulfillment is provided for after the divorce (clause 2 of Article 453 of the Code of Civil Procedure of the Russian Federation).

If the contract is dissolved during marriage, the legal regime of the spouses' property will continue to apply. In the event of a divorce, property acquired after the termination of the contract will be considered joint property and divided in half.

According to paragraph 4 of Art. 453 of the Civil Code of the Russian Federation, the parties do not have the right to demand the return of what was received under the contract.

In the event of a significant violation of the provisions of the contract, damages can be compensated in court.

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