Many couples, starting their life together, prefer not to register their relationship with the registry office. Such relationships are called “civil marriage”. The second name for the union is cohabitation. Given the popularity of this type of relationship and the fact that the couple entering into it does not have official status, the government was forced to amend the Family Code. This is due to the fact that after people who were in a civil marriage, they have problems regarding the division of property, determining with whom the child will live, as well as the assignment of alimony. For example, a parent may refuse to pay child support because he was not considered a spouse in the official sense of the word.
The essence of the concept of “civil marriage”
A survey of young people under the age of 25 conducted several years ago showed that about 50% of respondents do not seek to enter into an official marriage. Given this trend, amendments had to be made to the family code to protect the rights of citizens in such relationships. For example, how to undress your ex-spouse by dividing an apartment that was purchased in a civil marriage. The topic of children, alimony and other important issues was also raised.
The amendments introduced by the deputies had one goal - to equate civil marriage to official relations. According to the law, a civil marriage is a marriage that is registered with government agencies .
But the concept in question has come to us from ancient times and has changed a little. Today this is what we call cohabitation. This is an actual marriage, but not officially registered. It adds the definition of “civilian” to the concepts of “husband” and “wife”.
Is it possible to divide property: law
Civil marriage or cohabitation is not protected by law to the same extent as official marital relations. Civil spouses do not bear any property or other obligations to each other, and all property will be considered the premarital property of the person to whom it officially belongs. But this does not mean that a civil marriage does not provide for the division of property at all and does not regulate it in any way. Simply, regulation takes place under the auspices of the Civil Code, not the Family Code.
Therefore, if one of the common-law spouses wants to protect themselves when purchasing common property, drawing up a marriage contract will not help, since this document will not have legal force. In addition, there are different formats of ownership; the division of property can also take place according to different algorithms. The right algorithm must be chosen depending on the circumstances.
Applicable regulations
The main normative act regulating the property relations of de facto spouses is the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), namely the rules on property and unjust enrichment. Forget about applying the Family Code of the Russian Federation. As much as we would like, the Family Code of the Russian Federation (hereinafter referred to as the RF IC) is not applicable in this situation, which is confirmed by numerous judicial practices (Ulyanovsk Regional Court: appeal ruling dated 04/09/2013 No. 33-1209/2013; Sverdlovsk Regional Court: appeal ruling dated 11.01 .2018 No. 33-209/2018 and so on).
It is also necessary to take into account the clarifications of the Supreme Court of the Russian Federation (USSR) in the form:
- Resolution of the Plenum No. 73 of 02/21/1973 “On some issues that arose in the practice of applying the Code on Marriage and Family of the RSFSR by courts” (hereinafter referred to as Resolution No. 73). This document is applied to the extent that it does not contradict current legislation.
- Resolution of the Plenum of the USSR Supreme Court No. 4 of July 31, 1981 “On judicial practice in resolving disputes related to the ownership of a residential building” (hereinafter referred to as Resolution No. 4).
Changes for 2021
Starting in 2021, the State Duma began to say that actual marriage relationships will be equal to official ones. Citizens must live together for at least 5 years, but if there is a common child, then this period is reduced to two years.
If the conditions under consideration are met, then citizens already bear legal responsibility to each other identical to that which occurs in an official marriage. This means that it is up to the Family Code to resolve conflicts regarding the division of property, the assignment of alimony, and the determination of who the child will live with. But this project was not approved, which continues to complicate the division of property of couples who were not officially married.
What is recognized as joint property
Property that was acquired during cohabitation can be called:
- various real estate (apartments, houses, etc.);
- land (allotments);
- movable property;
- jewelry and precious metals;
- tools (agricultural machinery, musical instruments, etc.);
- material resources received at the time of cohabitation (bonuses, lottery winnings, pensions).
But there is also personal property, which includes:
- items purchased by a person before he entered into a relationship or after that relationship ended;
- things and an apartment purchased with a person’s personal savings or loan funds (provided that the loan is issued in the name of this person);
- personal items (intellectual property with designated copyrights, gifts and inheritance).
Jewelry is not included in this list.
Rights of a cohabitant to an apartment.
If the apartment was purchased before the start of the relationship, then it remains in the personal use of its official owner.
However, long-term cohabitation involves the acquisition of movable or immovable property.
In the case where the marriage was officially registered in the registry office, no special disputes arise, since according to family law, everything acquired during the marriage is considered common property.
Cohabitants have much less rights to an apartment purchased during the period of cohabitation.
If the property was registered in the name of one of them, then the second will need to prove his relationship to it and his contribution to the overall purchase.
You can confirm your rights to property with a bank account statement, a check, a will, etc.
Civil marriage: cohabitant’s rights to an apartment and property.
The principle of division of property in actual marriage
When a couple who is not officially married, but is in fact in a relationship, makes a purchase, the acquired property will not be considered joint. It doesn’t matter what exactly you buy: an apartment, a car, furniture, household items, jewelry, etc.
Community property has an individual owner, who can strip his ex-lover to his underwear if he can prove that his common-law spouse’s belongings were purchased with his money. It is important that the property is registered in the name of one of the members of the couple.
If the purchase was acquired jointly and one cannot claim sole ownership, the division will occur in accordance with the investment made by each spouse. But in order to claim your part, you need to prove the right contribution. Such evidence may be the fact of cohabitation and evidence of funds contributed to the purchase.
The share of each cohabitant is proportional to his contribution to the purchase. Issued invoices, checks, receipts, and agreements may be provided as evidence of such a contribution. Also, the share can be calculated depending on the mutual agreement between common-law spouses. But it is important that the agreement is officially documented. If so, the division will be carried out according to the rules of the Civil Code. Moreover, it does not matter when to perform the section - after a breakup or while the relationship continues.
Every person has a desire to literally undress their ex-lover, taking everything away from him. But according to the law, this cannot be done. Especially if the relationship was not officially registered. A huge problem arises if, during cohabitation, the purchase (for example, an apartment) was not registered as common property. Then the couple can agree among themselves how they will divide the apartment or any other major purchase.
Therefore, if you are not interested in formal marriage, you will need to take care of documentary evidence that each common-law spouse is the rightful owner of an apartment or other valuable property. In some cases, it will even be rational to divide everything so that the right tube of toothpaste is the right of the spouse, and the left is the right of the spouse. You should also be careful with documents such as checks, receipts and statements.
Special cases
Having children
If a couple living in an unregistered marriage has a common minor child, then its presence does not affect the procedure for dividing property between them. A parent living with a child after separation from the other parent cannot receive the increased share provided for by the Family Code, since civil marriage is not regulated by family law.
However, this fact does not mean that a child born in a civil marriage does not have the right to alimony payments or cannot be the heir of his parents. These rights of a minor are closely related to the establishment of paternity or maternity.
Possible options for legal regulation of the situation are indicated in the table.
| Has the fact of motherhood or paternity been established? | Legal consequences |
| Yes |
|
| No | A parent who is not indicated on the child’s birth certificate has the right to evade parental responsibilities for raising and transferring child support payments in favor of the child. In this case, the second partner needs to apply to the court with a claim to establish maternity or paternity and collect alimony payments. |
After death
A cohabitant does not have the right to legally inherit the property of a common-law partner, since he is not the official spouse of the deceased. At the same time, inheritance of property by will is allowed if the deceased cohabitant indicates the other partner as his heir.
Jointly owned
If the partners in a civil marriage have in their hands a document from the registration authorities that confirms the division of the disputed item into shares, or a written agreement on the determination of shares, then the following methods of dividing property are possible:
- One cohabitant demands to allocate a share, and the second cohabitant wants to keep the property intact. The person who wishes to divide the disputed asset has an advantage under the law. The other party intending to keep the item is obliged to transfer monetary or other compensation.
- One partner wants to receive his share in kind, for example, to exchange a house for 2 apartments, and the second partner intends to pay compensation to the first. In this case, the resolution of the dispute depends on the party wishing to allocate the share. The law does not allow forced payment of compensation without the consent of the party intending to divide the property. However, if the cohabitant’s share in the disputed asset is small, then his consent to the transfer of compensation is not required.
Unregistered property
This chapter will discuss the rules regarding the division of disputed assets that are not registered with government agencies, such as real estate or a car. Such property includes, for example:
- Furniture.
- Appliances.
- Jewelry.
- Luxuries.
Upon separation, they will go to the cohabitant who proves that he purchased them with personal funds. Evidence may include:
- Purchase and sale agreements.
- Bank statements.
- Receipts or store receipts.
- Invoices for the disputed property with the signature of the cohabitant.
If the evidence presented by the parties to the lawsuit confirms that the property was acquired jointly, then the court establishes the shares of each partner in the disputed asset depending on the amount of funds invested in the purchase. Next, there are two possible section options:
- Transfer of an item into the ownership of one of the cohabitants, who is obliged to transfer compensation to the other partner.
- Sale of an asset and division of proceeds in proportion to the size of the shares.
If there are children
A child in a civil marriage is the norm today. A man in a civil marriage has the right not only to pay alimony. In addition to alimony, he can also receive alimony payments if the child lives with him:
- register a child in your last name without confirming paternity in a civil marriage;
- unlimited communication with the child (even if the couple is no longer together and the father pays child support);
- live in the same house with the child;
- refuse or allow the child to be taken out of the country;
- refuse to change your surname;
- enter into inheritance and protect your interests;
- obtain information about the child from school, kindergarten and other educational authorities.
If the father does not live with the child, he must provide for him financially with the help of alimony. Alimony is awarded by a civil marriage to any parent whose paternity is confirmed. The amount of alimony that a common-law spouse pays depends on the court decision.
Peaceful division of property
There are several options for how to divide property in a civil marriage without being in an official relationship. One of them is to resolve the issue peacefully. This can be done if the cohabitants did not quarrel when they parted, and agree to share everything they acquired together during the relationship.
The division can be made verbally or officially by concluding a settlement agreement. An agreement is still a more reliable way to divide property, since it precisely describes who is entitled to what share of the common property. And after certification by a notary, the document receives legal force.
Going to court
Sample claim
Since cohabitants are not in official family relationships, they do not have the right to file a claim in court for the division of property acquired in a civil marriage, according to the rules of the Family Code.
Persons living in a civil marriage apply to the court with the following claims:
| Name of the claim | Cases and sample |
| Claim for recognition of ownership of part of the property | The interested party submits it if the cohabitants did not enter into an agreement on shared ownership of the purchased items. A sample document can be downloaded here. |
| Claim for allocation of shares from common shared property | It is sent to court when the civil law partners have documents in their hands certifying the division of the disputed property into shares. A sample claim can be downloaded from here. |
The statement of claim consists of 3 parts:
- Top part. It contains the name of the judicial authority, personal data of the plaintiff and defendant with their contact information.
- In the descriptive and motivational part, the interested person must indicate facts confirming the cohabitation of cohabitants, describe the disputed assets that the plaintiff bought or invested his own money in their acquisition, provide evidence of his point of view and support them with references to legislative acts.
- The operative part contains a list of demands against the defendant, a list of documents attached to the application, and the signature of the plaintiff and the date of filing the claim.
Proof
In order for the case to be decided in his favor, the interested party must prove the following:
- The fact of cohabitation with the defendant.
- Facts of general purchases of tangible assets.
- Shared housekeeping.
- Sharing common physical assets.
Possible evidence includes:
Testimony from witnesses, such as neighbors, friends or parents. With their help, you can convince the judge that the partners in a civil marriage lived together and jointly used the purchased property.- A rental agreement for a house or apartment, according to which both cohabitants acted on the side of the tenants.
- Joint photographs and videos certifying the existence of a relationship between common-law partners.
- Joint photos and videos on social networks.
- Agreements signed by cohabitants on the ownership of an asset on the basis of shared ownership. This evidence must be presented in court if the official owner of the disputed item, for example, a car or a house, is one of the partners.
- Extracts from the history of transactions on a bank account or bank card, the date of expenses for which coincides with the date of major purchases of cohabitants.
- Testimony of witnesses who, at the time of acquisition of the disputed asset, were next to their civil partners and saw that each of them invested their own money in the purchase of material value.
- Receipts for payment of utilities, contracts with contractors for home repairs, receipts from stores for the purchase of clothing, household goods or food. This evidence confirms that the partners ran the household together.
Procedure
First you need to determine which judicial body to file a claim with. The solution to this issue depends on the value of the claim, i.e. the value of the disputed property. If the value of the claims is below 50 thousand rubles, then the case is transferred to the magistrate’s court, otherwise it falls under the jurisdiction of the district court.
After this, the interested party determines the place of the trial in accordance with the rules of jurisdiction.
| Where is the case heard? | A comment |
| At the place of residence of the defendant | This rule is in effect by default. An exception is the consideration of a dispute regarding a real estate object, which is dealt with at the location of the real estate. |
| At the place of residence of the plaintiff | The norm applies in 2 cases:
|
| At a place determined by agreement of the parties | The defendant and plaintiff can independently agree on the location of the future trial. |
After writing a statement of claim and collecting evidence, you should calculate the amount of state duty paid for the provision of judicial services. It is calculated according to the norms of the Tax Code, which can be found here.
Next, you need to transfer the statement of claim with the attached documents, evidence and a check from the bank confirming payment of the state fee to the assistant or secretary of the judge. The judge will familiarize himself with the materials and decide to set a date for the court hearing or to leave the application without progress until the plaintiff eliminates the mistakes he made when writing the statement of claim.
From the moment the date for the hearing of the case is set until the start of the court hearing, the stage of preparing the claim for consideration takes place. During this stage, the parties may:
- Submit requests to seize disputed assets or to obtain evidence that they are not able to obtain on their own.
- Direct objections to the other party's demands.
During the trial the following happens:
- The judge announces the beginning of the trial and checks the attendance of the parties and other participants in the trial.
- The judge explains to the participants their procedural duties and rights, as well as the rules for challenging judges.
- Before the start of the proceedings, the judge must invite the parties to resolve the dispute by concluding a settlement agreement.
- If the parties refuse an amicable settlement, the judge begins proceedings on the merits.
- First, the parties submit to the court explanations in which they explain their position and the reasons that prompted them to seek judicial protection.
- Next, the court examines the evidence presented by both parties and assesses its reliability and applicability.
- After this, the stage of judicial debate begins, during which the parties make speeches. In it, the parties justify their claims to property on the basis of available evidence, try to refute the arguments of the other side of the process and ask the court to satisfy their demands.
- The judge makes the final decision.
Actions after trial
The winning party must wait one month or such other period specified in the court decision for the decision to become legally binding. After this, this party has the right to demand compulsory satisfaction of claims.
To recover awarded property from the losing party, you must:
Contact the court that made the decision for a writ of execution.- Submit the writ of execution to the bailiff service located at the place of registration of the losing party.
The losing party, if it does not want to comply with the decision of the judicial authority, should prepare and submit an appeal within one month from the date of the final court decision. The appeal is sent to the court that made the original decision on the dispute.
Judicial procedure for resolving the issue
If the issue cannot be resolved amicably, there is only one way out - to go to court and resolve the problem in court. You will need to draw up and send a claim requesting recognition of the right to common shared property with a determination of the share in the specified amount. You can also submit a claim for the allocation of a share if it is not possible to determine it yourself.
Legal proceedings to divide property are based on several important principles:
- the fact that people lived together cannot become a basis for sharing the benefits that they enjoyed at the time of their common life;
- even if people ran a joint household, this does not entail any complex legal consequences;
- the common benefits of citizens living together, as well as their jointly acquired property, are controlled by the rules applied to common property;
- The division of property and other common property is regulated by Art. 245 of the Civil Code of the Russian Federation, according to which the division of values occurs into equal parts in the absence of an absent agreement.
Statement of claim
The filed claim is the basis for starting proceedings regarding the division of common property in a civil marriage or if the spouse does not pay alimony. The claim is drawn up in two versions, which can act as an alternative to each other:
Claim demanding recognition of a share in property
Submitted if the property is registered in the name of only one cohabitant, but the second spouse has evidence of his contribution to the property in question.
Statement indicating unjust enrichment
Used if one cohabitant transferred money to the second.
The second case is quite common, but more difficult to handle, so it is better to consider it with an example. For example, a civilian family collected money and eventually bought a house, which was registered in the man’s name. When the civil marriage broke up, the apartment was sold, and the husband kept the money for himself. The spouse files a claim not for compensation of half of the apartment, but for the amount of money received for its sale.
The claim must be filed taking into account the following information:
- plaintiff’s data (information from passport and contact details);
- document's name;
- description of the grounds for the appeal;
- what property is in dispute;
- Attached documents;
- the applicant's request;
- date and signature.
The main thing is that the information is presented correctly and to the point, regardless of whether alimony is being collected or property is being divided. But when collecting alimony, you need to supplement the list of documents with evidence that the ex-spouse ignores the need to pay alimony debts.
Loans and debts (guarantee)
Loan obligations are considered personal unless both cohabitants are co-borrowers.
Division of debt under a loan agreement, in which both partners act as co-borrowers, is allowed only with the consent of the banking organization if it is confident in the solvency of both co-borrowers. Otherwise, the following options for dividing the debt are possible:
- Sale of property purchased with borrowed money, full repayment of debt to a banking institution and division of the proceeds by agreement of cohabitants or by court decision.
- Transfer of the debt to one of the partners, who, in the opinion of the bank, is creditworthy, with payment to the other partner of monetary compensation for the personal funds spent to pay off the debt.
Division of credit debt when cohabitants separate does not occur if one of them is a guarantor. The guarantor is not considered a party to the loan agreement. It simply ensures the fulfillment of obligations to the credit institution in the event that the debtor is unable to pay the personal debt.
Proof
But the court will not assign a share of ownership for lack of evidence. And as proof of who is right, the following set of documents and testimony can be used:
- cohabitation (people lived together for a relatively long time and built their own family);
- maintaining a common life (having a common budget, where expenses and income were carried out jointly);
- the purchase of property was carried out with the money of both (payment documentation from the bank where the joint loan was taken out, documents from the bank indicating the income and expenses of each member of the couple will help to prove);
- the property was used jointly (photos or videos can be provided as evidence, testimony of witnesses: relatives, friends can also be used);
- common-law spouses made the purchase together, and there is an indication of each person’s share in the transaction.
It is important that the court accepts the couple’s evidence as sufficient. Judicial practice has many precedents that show how to fairly undress a former common-law spouse by dividing property if it was purchased during a common-law marriage.
You can get legal assistance on property division issues on our website.
