Conclusion of a marriage contract. Is certification required by a notary?

A marriage contract is an agreement between the persons entering into marriage or an agreement between the spouses that defines the property rights and obligations of the spouses during the marriage and (or) in the event of its dissolution.

The institution of a marriage contract has not yet become widespread in the Russian Federation, obviously, because people in our country believe that a marriage contract indicates a deliberate mistrust between future spouses. In addition, persons entering into marriage sincerely believe that the union will be concluded for life. However, the statistics of divorce proceedings in Russia are disappointing: our country occupies a leading position in the number of divorces. Unfortunately, divorces in most cases are accompanied by scandals, quarrels between once loving spouses over the division of property, child support, etc.

Drawing up a marriage contract

According to Russian laws, during a divorce, property is divided into two equal parts, and this point may not suit the spouses. In this case, they take an alternative route - they enter into a marriage contract, which spells out in detail all the nuances of a possible division. This document has priority over the Family Code of the Russian Federation: the court will first consider the terms of the marriage contract and only then the relevant legislation. Therefore, an agreement is usually drawn up when there are several options for dividing property according to the law, but the spouses prefer only one of them or even put forward their own conditions.

What is regulated - article, law, code

The main regulatory document regulating the contractual regime of property of spouses is the Family Code of the Russian Federation. In Art. 40 provides a detailed definition of what can be called a marriage contract, under what conditions and by whom it is concluded and when it comes into force. According to the RF IC, a marriage contract is concluded between spouses and its subject is only property aspects. The possibility of drawing up a marriage contract has been prescribed in the Civil Code of the Russian Federation since 1994, and since 1996, an extensive chapter has appeared in the RF IC, regulating all aspects of the transaction. From now on, anyone can apply for it.

In fact, in Russia, a marriage contract is rarely concluded. According to statistics, only 5% of families prefer this option, the rest adhere to the traditional approach to the division of property. The document allows you to avoid some legal difficulties, so it is often concluded only fictitiously, just in case.

Is a prenuptial agreement a deal or not?

The execution of a marriage contract is a bilateral transaction. After the contract comes into force, certain legal consequences occur. The onset of its action depends on a number of conditions:

• if the document is drawn up during marriage, then it becomes valid from the moment of its conclusion;
• if the contract is drawn up by the bride and groom, its validity begins from the moment of marriage;
• If the marriage is cancelled, the contract will not come into force.

According to Russian legislation, a marriage contract cannot be concluded by people who are in cohabitation and do not plan to formalize the relationship.

Based on the document, spouses can divide property without divorce, but only if such a possibility is specified in the contract. Also, a marriage contract can be valid even after a divorce, but only if it stipulates the material rights and obligations of the parties, for example, regarding the payment of alimony. If there are no such conditions in the document, it ceases to be valid after the official registration of the divorce.

Marriage agreement after the death of one of the spouses

The death of one of the spouses is also the basis for the termination of the marriage contract. In this case, the remaining spouse receives the material assets mentioned in the contract, and the remaining property is divided among the heirs in the manner prescribed by law.

Conditions for registration

So, a marriage contract in Russia can be drawn up during marriage or before it. To do this, so that each party to the agreement complies with civil law standards. At the time of concluding a marriage contract, the spouses must be legally capable and of marriageable age; coercion through threats, violence or misrepresentation is unacceptable. In addition, the parties must not be related.

Before concluding a marriage contract, you need to carefully study all the nuances. If something is unclear, seek advice from a lawyer.

Necessary documents for a marriage contract:

• general passports;
• if the marriage is officially registered - a certificate of its conclusion;
• if there are children, their birth certificates.

If the spouses already have any property and they want to stipulate in the agreement the procedure for its division, it is necessary to provide documents confirming ownership.

Form of marriage contract

First of all, you need to decide on the subject of the marriage contract and draw up a text. The easiest option is to download a ready-made template file, but it will have to be adapted to the necessary conditions and sometimes almost completely rewritten. You can also seek help from a lawyer or notary. In the latter case, you can save a little time - the document must be notarized. The document cannot indicate the order of personal relationships that do not relate to material assets, as well as issues related to third parties, for example, relatives.

A marriage contract is drawn up in accordance with the norms. The preamble of the document states:

• the name of the “Marriage Agreement” and the city in which it is concluded;
• date of conclusion (date of notarization);
• data of the parties

After the preamble comes the main part, which consists of several sections and indicates the procedure for dividing the property of the spouses. The mode of ownership of the property may be indicated here - joint or separate. In this case, unequal shares in joint property may be indicated. Here, lawyers recommend indicating information about each property - location, cadastral number (if we are talking about real estate), car details, if we are talking about it. when purchasing property on credit, this is also stated in the marriage contract.

In addition to information about property, the marriage contract can indicate:

Obligations to support one of the spouses in the event of loss of ability to work or difficult life situations

The income of each party and the method of their distribution

For example, you can indicate that a spouse’s income from business activities belongs only to him and is not divided in the event of a divorce. Another option is to consider income from the main activity as general, and funds from part-time work as personal property.

Principles of cost distribution

This may indicate the order of expenses in all areas, from the acquisition of real estate to the payment of utility bills. The marriage contract specifies which spouse bears the costs in a particular case and on what basis they are distributed (usually they are proportional to the level of income).

Principles of debt settlement

In modern conditions, debts and loans are a sore point, so spouses can regulate it with the help of a prenuptial agreement. So, if a separate regime for property and income is specified, then the obligation to pay debts and loans can be assigned to the one who took them out.

Mortgage obligations

Often a young family does not have common savings, so participation in the down payment may vary. If one spouse has spent most of the money on the mortgage, problems will arise in the event of a divorce. They can be avoided if you indicate in the marriage contract the size of the share in the purchased apartment, in proportion to the invested funds.

The main part also indicates the procedure for dividing property in the event of divorce

The share division may be indicated here, or an indication of which property belongs to whom. For example, a husband keeps a car and does not intend to share it with his wife; this must be stated in the marriage contract. It should be taken into account that the division will include all property acquired during the marriage, therefore you need to approach the conclusion of the agreement from a competent position and not forget anything.

The document ends with a final part

It indicates the responsibility of the parties for violation of the terms of the contract, the procedure for making additions and changes, the validity period of individual clauses of the document and the date the contract comes into force. Also, the spouses indicate their details and sign here.

Points and contents of the marriage contract

The above lists conditions that can be included in a marriage contract at the request of the parties. However, there are a number of points that are unacceptable: they may contradict the current legislation of the Russian Federation and lead to the recognition of the document as invalid.

The following cannot be included in a marriage contract:

• Conditions that violate the rights and freedoms of citizens. For example, it cannot be stated that the wife is obliged to take care of the house exclusively, that she should quit her studies, or that the husband does not have the right to get a job that the wife does not like, change his religion, etc.
• Prohibition on going to court or other authority to protect one’s interests.
• Any aspects of a relationship that are not property - obligations to give gifts, remain faithful, quit smoking, spend all weekends together, etc.
• The procedure for raising children, their place of residence in the event of divorce. You can only indicate who will bear the material costs associated with maintaining a child after a divorce.
• Determination of property rights in the event of the death of one of the spouses. This point is regulated at the legislative level, and not by a marriage contract.

Also, the marriage contract cannot stipulate a condition under which a spouse who has lost his ability to work does not have the right to apply for alimony for the second spouse. Such a provision would be contrary to current legislation and the court would declare the contract invalid.

In addition to the prohibited conditions, there are those that the court may find unfair, which is why precise wording and a legislative framework are needed. Thus, it is impossible to completely deprive one of the spouses of property after a divorce. Even if such a condition is spelled out in the contract and there are signatures of both parties, it can be easily challenged in court.

Sometimes one of the spouses resorts to a trick: he indicates in the contract the property that he allegedly owns and is even ready to provide documents confirming ownership, but in reality these objects do not exist. In this case, if the court establishes forgery, the contract will be declared invalid, and the cunning person may face troubles. Therefore, the marriage contract specifies only the property that the parties actually own. By the way, if at the time of drawing up the document the spouses had property, they sold it during marriage, and then decided to get a divorce, the court will also invalidate the document.

Let's look at the last situation using an example. Oksana and Pavel drew up a marriage contract, in which they indicated their property - a three-room apartment and a car. According to the terms of the agreement, in the event of a divorce, the apartment remains with Oksana, while Pavel remains with the vehicle. A year later the car was sold, a new one was not purchased, and a few years later the couple filed for divorce. In this case, according to the marriage contract, Pavel has no choice; the court may recognize the conditions as unfair and act in accordance with the law.

Sometimes the document may contain a condition according to which the property remains with the spouse in whose name it is registered. From the point of view of Russian laws, this situation is legal. But in the case when all the property is registered in the name of one spouse, and the second does not own anything, the judge can cancel such a condition of the agreement.

The wording in the contract may be different, as well as the conditions. The most important thing is that each party receives property in the event of a divorce. At the same time, its size (value) of shares should not differ significantly. In a situation where, according to the terms of the marriage contract, the wife gets a fur coat, and the husband gets a cottage, a car, all his savings and business, the court will be on the wife’s side.

Certification of the marriage contract by a notary

The marriage contract must be certified by a notary. Without this, none of the conditions specified in the document will be considered valid, and therefore, in the event of a divorce, any court will act according to the norms of the RF IC. The marriage agreement can be certified by any notary at the place of residence or at the location of the property.

To certify the document, the spouses must be present in person before a notary. He is obliged to make sure that both parties are capable, comply with the requirements of civil law, and do not act under duress. The notary must clearly explain to the participants of the marriage contract all the consequences of drawing up the document and the specifics of its execution. At the final stage, the document is signed in two copies by the spouses, then certified by a notary. Each party receives one copy of the marriage contract. The cost of notary services corresponds to the approved notary tariff and cannot be changed by it.

Cost of registration of a marriage contract

It is only possible to accurately report the amount of the state fee for notarization of a marriage contract - it is 500 rubles. At the same time, the prices of notaries and lawyers are not regulated in any way, and therefore the final execution of the marriage contract will cost more. The cost may be affected by:

• lawyer's qualification level;
• the number of requirements in the contract and the wishes of the parties;
• complexity of a particular situation.

Depending on the region, the popularity of the notary or legal office, a marriage contract in Russia can cost spouses 5-50 thousand rubles. At the same time, it is important not to skimp on a lawyer who will help you assess the risks and draw up the document as competently as possible.

Sometimes spouses go the other way: download a contract template and adapt it to their needs. This can also be done, but there is a danger - a notary may refuse to certify a document if he discovers an error or violation of the law in it.

Features of the terms of the marriage contract

Like other documents, a marriage contract is concluded with the aim of protecting the rights or interests of the parties, and therefore there may be certain nuances in it that are unknown to an ignorant person. In addition, the situations in which a marriage contract will be valid or it makes sense to conclude one are also different.

When a claim may be necessary

Any situation can change, and relationships can deteriorate. There are often cases when, after a certain time, spouses realize that the terms of the marriage contract have become unacceptable and require adjustment. If both parties agree to this, there are no problems. You need to draw up an annex to the agreement and have it certified by a notary or terminate the agreement altogether.

However, in a situation where one of the spouses has ceased to agree with the provisions of the marriage contract and grossly violates the conditions specified in it, there are difficulties - it is impossible to terminate or change it unilaterally. Therefore, you will have to file a claim in court and prepare for a lengthy lawsuit. In accordance with the Civil Code of the Russian Federation, you must first send a written proposal to the other party to the contract to resolve the dispute voluntarily. Only in cases where the other party does not cooperate can a claim be filed in court. However, you should be prepared to provide evidence that the claims are legitimate.

The statement of claim must be submitted to the court in writing. It should display the following information:

• the name of the judicial authority to which the claim is sent;
• last name, first name and patronymic of the plaintiff, his place of residence;
• Full name of the defendant, place of residence;
• the essence of the petition to the court: what rights of the plaintiff are violated by the marriage contract and what specific conditions, circumstances or other factors;
• references to legislative acts confirming the legitimacy of the plaintiff’s claims;
• available evidence, its type (attached to the statement of claim);
• information that the plaintiff contacted the defendant before filing a statement of claim in order to resolve the dispute out of court;
• a detailed list of documents attached to the statement of claim and sent to the court.

The Civil Code of the Russian Federation allows the presence in the statement of claim of the contact information of the plaintiff and the defendant - telephone numbers, email addresses, fax. In addition, it is possible to indicate other information that is not noted in the list, but is important for considering the claim and making a decision on it. the claim must be signed by the plaintiff or his representative if he has a notarized power of attorney.

A number of documents must be attached to the statement of claim. First of all, two photocopies of the claim (one for the court, the second for the defendant). You also need to attach a receipt confirming payment of the established state fee, evidence of the defendant’s violation of the terms of the marriage contract, or other information that will help in considering the case. If it is not possible to personally file a claim and be present at the proceedings, a representative can do this. A notarized power of attorney for him is also attached to the statement of claim. All documents are brought to the court office or sent to the court by mail.

If the court, after considering the circumstances of the case and the statement of claim, finds the plaintiff’s claims to be justified, then there may be three options for the development of events:

• Invalidation of the marriage contract.
• Making a decision to change controversial clauses of the agreement.
• Termination of the contract by court decision.

This usually happens if the marriage contract was drawn up in violation of the rights of one of the parties and compliance with its terms is impossible, or deprives the spouse of exercising civil rights and obligations. Another option is that the terms of the document violate the Family Code of the Russian Federation or another set of laws. In this case, the party that considers itself injured also has the right to go to court to resolve the dispute.

For mortgage

An apartment purchased by a family with a mortgage is considered jointly acquired property, and therefore in the event of a divorce it will be divided in equal shares between the spouses, regardless of who they were - a co-borrower or a guarantor. In some cases, this state of affairs may not suit the husband or wife, and then it is advisable to draw up a prenuptial agreement. This can be done at any stage: during preparation for the wedding or while already married. The main thing is that the deal is concluded on a voluntary basis: it is unacceptable to force one of the parties through threats, blackmail or any violent actions.

In the document you can indicate:

• the principle of dividing an apartment (house) in case of divorce;
• distribution of the amount of mortgage loan payments between spouses;
• principle of ownership regime (joint or separate).

At the same time, the marriage contract should not concern personal relationships between spouses. for example, the wording “the husband is deprived of a share in the apartment if he is convicted of adultery” is contrary to the law and will therefore lead to the invalidation of the marriage agreement. It is also impossible to indicate that in the event of a divorce, an apartment purchased with a mortgage remains with the wife, if the husband does not have any property - the court recognizes such a condition as unfair.

When buying an apartment

When buying an apartment, spouses rarely contribute the same amount, and therefore problems may arise in the event of a divorce. If the husband spent more money on purchasing real estate than the wife, he can demand a larger share. In this situation, it helps to draw up a marriage contract, which not only indicates who is the owner of the property after a divorce, but also determines the size of the shares.

If circumstances change during the marriage, the marriage contract can be unilaterally changed. To do this, you need to draw up an attachment to the document and have it certified by a notary. This is done if over the years of operation the apartment has been significantly improved or, conversely, has lost value, and therefore one of the parties has suffered losses.

About separate property

Usually, they resort to concluding a marriage contract in cases where they want to establish one of the options for owning property. According to Russian laws, there are three of them:

• Joint - money, things, real estate in common use. After divorce, they are divided equally between the spouses.
• Shared - property is divided into shares, each of which the spouses have the right to dispose of at their own discretion. If we are talking about an apartment, the share can be sold or donated. The size of the shares is determined individually and can be stipulated in the marriage contract.
• Separate - Husband and wife determine who owns what property. For example, a wife may be the owner of an apartment, and a husband may be the owner of a car. These points are also recorded in the marriage contract, and everything can be divided, right down to cutlery, furniture and other things. The same applies to loans or debts if they were made during marriage.

Typically, the option of separate property is resorted to when one of the spouses already had expensive property before marriage - an apartment, a house, a plot of land in a prestigious area, or some kind of enterprise. Another option is to have expensive personal items, with the exception of jewelry acquired by spouses during marriage. In these cases, it is important to indicate such points in the marriage contract, specifying to whom the property rights are transferred during a divorce and whether it can be divided according to shares.

Property that is not listed in the marriage contract will be considered jointly acquired and divided according to the law. Therefore, the contract can be supplemented throughout life, gradually adding purchased real estate, things or collected savings in the annex. If this is not done, difficulties may arise during the divorce process that will take up significant time. Property modes can be combined with each other. You can also distribute some financial responsibilities related to family budget planning. for example, a husband may pay utility bills while a wife pays for a new design project. At the same time, it is important that the provisions of the marriage contract do not violate the rights of each party and do not affect personal relationships.

Is it necessary to notarize it, or can I not do it?

The RF IC puts forward a requirement for a marriage contract - it must be drawn up in writing and must be notarized. Otherwise it will not have legal force. Without being interested in the legal side of marriage, one of the former spouses with a high degree of probability may end up on the street, trying for a long time and unsuccessfully to return the jointly acquired property.

When spouses have real estate and a business, dividing them in the event of a marriage breakdown is not easy. If the agreement is drawn up correctly, then it is able to protect both the property interests of citizens and their families. Disputes over property rights often cause discord in marriages. But if everything is determined in advance, based on trust and love, there is no need to quarrel.

If you find an error, please select a piece of text and press Ctrl+Enter.

Help from a lawyer and a lawyer with a marriage contract

When drawing up a marriage contract, it is extremely important to take into account all the features of the legislation and not to include provisions in the document that contradict it. There are many nuances here; an ignorant person cannot know. Therefore, it is recommended to seek the help of a lawyer who will help at all stages of drawing up and implementing a marriage contract.

Conclusion

The process of distributing the property of the spouses in the event of a divorce depends on how correctly the marriage contract is drawn up. If a competent lawyer worked on the document, it will be extremely difficult to challenge it in court. This means that the interests of each party will be protected to the maximum, and unforeseen situations are unlikely to arise during the divorce process. Also, legal assistance will help to avoid fraudulent actions on the part of one of the spouses involved in the transaction.

The help of a lawyer is indispensable in the following cases:

• checking the compliance of the spouses’ requirements with legal norms;
• checking the availability of ownership rights to the property specified in the marriage contract;
• checking the compliance of the parties to the contract with the requirements of civil law - age, legal capacity, lack of relationship, lack of a valid marriage;
• compiling a list of document provisions and their correct wording, avoiding violations of the law and ambiguity;
• full drafting of the contract, including the preamble, main and final parts.

Sometimes spouses, in an effort to save money, draw up a marriage contract on their own, without delving into the specifics of the legislation and not knowing how to correctly formulate the provisions. In this case, during the divorce it may turn out that the document was drawn up incorrectly and is therefore invalid. Therefore, it is recommended to show the finished version of the contract to a lawyer so that he can study it and make a conclusion on possible problems. It is better to terminate an already signed agreement with the consent of both parties and draw up a new one than to find yourself in an unpleasant situation during a divorce and distribution of acquired property.

Changing the provisions of the marriage contract

Competently changing the provisions of a marriage contract and introducing newly acquired property into it, including real estate and personal belongings, is impossible without qualified legal assistance. In accordance with Russian laws, changes can be made voluntarily, as well as compulsorily. In the latter case, one cannot do without the services of a lawyer who will help provide comprehensive protection to the client.

Legal assistance is required at the following stages:

• checking the legitimacy of the reasons for changing the contract;
• assistance in drawing up a voluntary agreement to amend the document;
• consultation on preparing a package of necessary documents;
• drawing up an addendum to the contract that complies with civil law standards.
• accompanying the client in court or in a notary office.

It is important to understand that property acquired by spouses after concluding a marriage contract, but not recorded in it, will be divided during a divorce on the general grounds provided for by the Family Code. Therefore, it is better for spouses to play it safe and invite a lawyer who will help draw up a competent addition to the document. You can do this an unlimited number of times until the contract expires.

Legislation is constantly being supplemented and changed, and each case is individual, so without the help of a lawyer you can suffer serious losses. Drawing up and executing a marriage contract is not a case where you can rely on your own strength and knowledge. The exception is if you are a lawyer yourself and specialize in family law.

Termination of the marriage contract

Terminating a marriage contract is somewhat similar to changing it, the only difference is in the details. Typically the procedure goes approximately in the following order:

• The parties draw up an agreement to terminate the marriage contract.
• Together with the contract itself, identification documents, as well as a marriage certificate, the spouses visit a notary.
• The consequences of the decision made are explained to them in an accessible form.
• If the parties have no objections, they sign.
• The contract is considered terminated.

If both parties agree to terminate the marriage contract, then no special difficulties arise. However, when one of the spouses is against termination of the document, the matter requires consideration in court. In this case, you cannot do without competent legal assistance.

The plaintiff will be required to provide significant evidence that the implementation of the marriage contract in the current conditions is impossible or will be contrary to current legislation. In addition, you can focus on the fact that the second spouse is violating the terms of the marriage contract and does not intend to change his line of behavior. In all of the above cases, it is better to rely on an experienced lawyer who can choose the optimal civil legal position.

According to the court's decision, in this case there may be two options for further developments, depending on the requirements set out in the statement of claim. Mutual restitution is possible - the return by spouses of property or funds transferred in accordance with the terms of the marriage contract earlier. Another option is to redefine shares. property division. A lawyer can delve into your interests, compare them with the possible outcome of the trial and advise which requirement to include in the statement of claim.

Regulatory framework