When it comes to marriage, property issues often take a backseat. Newlyweds have enough trouble as it is. During moments of celebration and in the first few years of marriage, few people think about the possible division of everything they have acquired together.
As practice shows, only in the event of a divorce do spouses begin to divide their joint wealth. Everyone wants the division to take place “justly.” A prenuptial agreement helps to avoid this and other controversial situations.
What is a prenuptial agreement?
A marriage contract (agreement) is a new phenomenon, which is still treated with caution. More often it is concluded by wealthy people. But if the spouses have an average income, it can also be useful.
Initially, everything acquired in marriage is common. Even if one spouse bought an apartment and registered it in his or her own name, the housing becomes the property of both spouses. Without division into shares and parts.
Why do you need a marriage contract? To change the general rule regarding common joint property of spouses. A marriage contract allows you to secure other regimes for all property or part of it.
From a legal point of view, a marriage contract is a transaction with certain rights and obligations of the spouses. Its execution is as mandatory as the execution of a sales contract or any other civil contract between persons.
Marriage contract for separation of property
This document establishes the specifics of the division of property that belongs to one or another spouse. Property can be acquired both before the registration of a marriage union, and during the period of joint life of the parties to the agreement.
Statistics show that this type of agreement is most often concluded by people who have significant cash savings and a profitable business. Movable and immovable property will be the property of the spouse in whose name they are registered. It doesn't matter when exactly they were purchased.
If any property does not require documentation, then its owner is the person with whose money it was purchased. If the funds were contributed in parts, then the owner of the property becomes the person who contributed the bulk of the amount.
As for objects of individual use, their owner is the person who used them.
The owner of a residential premises has the opportunity to transfer the right to use it to his relative without registering.
The spouse's income belongs exclusively to him, so he will dispose of the funds at his own discretion. The same applies to credit cards and bank accounts.
Download a sample marriage contract with separate property of the spouses
When is a marriage contract concluded?
The law provides freedom in choosing the time to conclude a marriage contract. You can enclose it:
- Before marriage;
- After registration of marriage at any time.
You can draw up an agreement even if you are just planning to become a family. So to speak, discuss “on the shore” all possible difficulties. If you change your mind about getting married, it will not have any consequences. If you get married, the contract begins to be valid from the day the marriage is registered.
You can also agree on the treatment of your property 10 or 20 years after the wedding, that is, at any time after marriage.
Change and extension
If the contract is fixed-term, then everything that will be acquired after the end date will be legally classified as joint or personal property. According to the law, what was acquired jointly will be divided in half if the term of the marriage contract has expired .
With an open-ended version of the marriage transaction, its effect will extend to property acquired subsequently (paragraph 2, paragraph 1, article 42 of the RF IC), but only if this is stipulated by the contract.
A marriage contract can be supplemented, changed, extended and even terminated at any time in family relations by mutual consent of the spouses or by court.
In what form is a marriage contract drawn up?
As with any civil contract, the form is of great importance. A mandatory requirement is a notarized form of the marriage contract.
If you simply agreed orally or printed the agreement on paper, then it will not have legal force.
The contract must be concluded with a notary. This can be any notary in any city in Russia. You must appear before him when you have clearly defined the contents of the agreement (more on this later).
Please note that the conclusion will require financial expenses:
- state duty for certifying the contract - 500 rubles;
- The fee for drawing up an agreement is several thousand rubles, depending on the notary.
Responsibility of spouses
By putting his signature, the representative of the couple agrees with the contents of the transaction . This does not mean that you can “hang” all your debts on another marriage partner, or divide them unfairly.
When preparing the paper, the principle of fair division should be applied.
If, after a break in the relationship, one of the parties did not comply with the terms of the agreement and caused material and moral damage, then it may be held legally liable, namely:
- compensation for damage;
- payment of penalties;
- payment of interest for the use of other people's property, etc.
These penalties are provided for in Art. 393 – 397 Civil Code of the Russian Federation. The person who signs the contract is obliged to fulfill its terms , otherwise there will be lawsuits and unpleasant showdowns with the ex-spouse.
Contents of the marriage contract
The content of a marriage contract is a direct list of the rights and obligations of the two parties in relation to each other. That very “core” of the agreement, for the sake of which everything is started.
The main purpose of the agreement is to consolidate a new regime, “rules” for property. What modes can there be:
- joint (valid by law for property acquired during marriage);
- shared (each spouse has his own share in the property, not necessarily equal);
- separate (no common property).
Modes can be combined as desired.
For example, one of the spouses in a marriage bought a car, and the second bought an apartment for a child from his first marriage. They can provide for separate ownership regime for the car and this apartment.
The couple also bought an apartment together for their residence, but one of them invested more money. The contract can indicate that the share of one spouse in the purchased apartment will be 70%, and the second 30%.
Read about the nuances of buying an apartment in our previous material.
Other conditions can be specified in the marriage contract:
- how property will be divided in case of divorce;
- who will contribute to family expenses and how much;
- responsibilities to support each other.
Entry into force and termination procedure
The marriage contract comes into force after notarization and payment of the state fee . Such an agreement may be terminated if:
- its validity period has expired;
- marriage ties are officially severed;
- the contract is terminated;
- one of the couple died;
- the transaction is declared invalid or void.
A marriage contract can be terminated by mutual consent or unilaterally, with the intervention of the court.
You can change the terms of the contract at any time. This occurs by drawing up a written document with bilateral signatures. After signing an addendum to an existing contract , the new conditions are valid starting from the date of amendments to the contract .
There may be several changes if both representatives of the couple agree.
How to conclude a prenuptial agreement for a mortgage
When purchasing an apartment from developers or on the secondary market, spouses often use a mortgage. In this case, a marriage contract is also useful.
For example, two spouses may make different amounts of mortgage payments. Most often, the man earns more, so the bulk of the debt will be on him. At the same time, the apartment purchased with a mortgage becomes common property. This means that in case of divorce it will be divided equally.
The contract can indicate that after a divorce, the entire apartment will go to one of the spouses. For example, a husband gives such a generous gift to his wife in honor of confirmation of his serious intentions.
The opposite situation may also occur, when the husband and wife agreed that after a divorce, 80% of the share in the apartment goes to the husband, and the wife only 20%.
What conditions cannot be included in a marriage contract?
Not everything can be enshrined in a contract. It is impossible to stipulate in the contract conditions that are contrary to the law, including:
- It is impossible to regulate non-property rights and obligations.
Cooking dinner every evening, the obligations of spouses under a marriage contract to take out the trash in the morning, the prohibition of infidelity - all these and many other things cannot be terms of the contract.
- You cannot prohibit going to court to protect your rights.
Every person has the right to protection. Any terms and conditions that impair this right will be void.
- The legal capacity or capacity of a spouse cannot be limited.
You cannot prohibit your spouse from entering into transactions or waive such a right yourself. Only a court can limit legal capacity and only in certain circumstances.
How to divide real estate?
The most common options for dividing real estate are the following:
- Leaving living space to one side.
- Division into shares.
- Sale.
- Exchange.
Let's consider these options taking into account the specifics of the mortgage.
In the first case, the party that becomes the sole owner must give the former “other half” ½ of the amount of funds that have already been deposited into the bank. Compensation may occur at the expense of common property.
In the second option, during a divorce, spouses can agree that each of them receives their share and pays the creditor bank for it. The contract can include a condition on the allocation of a share in kind. Such a division is not possible if there is extensive damage to the housing or if a separate entrance cannot be allocated.
In the third option, the sale of residential space encumbered by a mortgage will be legally formalized as a transfer of debt obligations. Here the parties are:
- creditor – financial structure;
- debtors - wife and husband;
- the new debtor is the purchaser of the mortgaged property.
The new debtor will take the place of the wife and husband in the debt obligation. The debt will be transferred to him, and he will transfer to the spouses the funds they contributed to pay for the mortgage. After selling the living space, part of the funds received must be returned to the bank as debt, and the rest can be divided. The size of each person’s share is also specified in the marriage contract.
The option of exchanging mortgage real estate can only be implemented if the existing home is sold and a new one is purchased. In this case, the consent of the bankers will also be required.
Termination of the marriage contract
The two spouses must comply with all provisions before the prenuptial agreement is modified, dissolved, or the marriage ends. Like any contract, its content can be changed at any time or all clauses can be terminated at the same time. The main requirement is agreement of the parties.
If both spouses are ready to terminate the contract, then it is necessary to go to the notary and enter into a termination agreement. Important: it must have a written notarial form, similar to the marriage contract itself.
While the contract is in force, you cannot refuse to fulfill it without permission. Any refusal must be justified by serious reasons. To change the terms or terminate the contract at the will of one of the spouses, you need to go to court.
For example, two people entered into a marriage contract and stipulated that one of the spouses would contribute 70% of their income to family expenses. This spouse becomes seriously ill and loses his job. He can no longer contribute such a large percentage to family expenses. But the second husband continues to demand money. In this case, upon application of the first spouse, the court may terminate the contract without the will of the second spouse.
Types of matrimonial property
Property is divided into joint, separate and personal.
- If the spouses have not entered into a marriage contract, then their property belongs to the first type. Joint property consists of those property assets that were acquired during cohabitation. It includes pensions, scholarships, spouses' income, and income from intellectual work. It also includes apartments, houses, land, cars, securities, etc. During the divorce process, these objects are divided equally between the spouses, even if, for example, the husband invested more in property, and the wife was on maternity leave, caring for their joint spouses. small children and was not employed.
- The second type of property is personal property. It includes objects of human professional activity (for example, musical instruments). It does not matter whether they were acquired before marriage or during the period of marital relations.
Attention! Expensive things given to one or another spouse are his personal property. As for paintings, antiques, etc., this is joint property, which in the event of a divorce will need to be divided between the spouses.
- The separate type of property includes property that was acquired by a spouse before the registration of the marriage union. It also includes property transferred to the spouse on the basis of a testamentary document or a gift agreement.
Marriage agreement in case of divorce
A prenuptial agreement is especially effective in cases of divorce. It allows you to remain calm in such a stressful situation and not worry about your property.
If there is no agreement, then all acquired property is divided in half. Often one of the spouses protests against this situation because he does not want to share his wealth.
You can write down your rules for the division of property in the marriage contract. After the divorce, you will thank yourself for saving time and money.
It must be borne in mind that the agreement regulates only property issues. It cannot determine who the child will stay with after the divorce or how much time the second spouse will spend with him. You also cannot leave instructions in the event of the death of one of the spouses. In the latter case, only the will is applicable. Read more about inheritance issues here.
What legal status exists between spouses without a contract?
Important. The Family Code of the Russian Federation (Article 33, paragraph 1) establishes that without a marriage contract, the regime of shared ownership applies to the property of a married couple - this status is called legal.
After a divorce, property acquired during marriage is divided in equal shares between husband and wife - regardless of who actually acquired this property, for whose money, and in whose name it is registered. If there are minor children, the court may make an exception and increase the share of the spouse with whom the children remain.
This legal status does not include property received by a husband or wife as an inheritance, as a gift, or through other gratuitous transactions. Also, this does not include personal items and material assistance received from the state, from an employer (for example, disability benefits due to an industrial injury) or another person.
In addition to the legal regime, there are also contractual regimes of property ownership, determined by the marriage contract.
conclusions
To summarize the above, let us highlight the main thoughts from the article:
- The marriage contract is concluded on a voluntary basis. If it is available, both the borrower and the lender will know how the loan and real estate will be divided in case of divorce and other situations.
- In some cases, a marriage contract is forced to be drawn up when taking out a mortgage.
- The agreement should reflect the interests of the spouses and those who will live in the purchased property.
- The bank must be notified of the existence of a marriage contract, the fact of its termination and the intention to draw up a document when the mortgage has already been taken out.
Requirements for different banks
Almost all Russian banks put forward identical requirements for a marriage agreement, since its foundations are regulated by the Civil and Family Codes. It is more profitable for a credit institution if the borrower is one spouse. In this case, it is important to comply with the provisions not to infringe on the rights of the other half.
Many financial organizations, when drawing up an agreement, include the husband (wife) as a co-borrower, defining his rights to real estate and responsibility for timely repayment of debt. The document forms are approximately the same for all banks.
Required documents
The law does not stipulate what documents are required to draw up a contract. In most cases, the following documents are required:
• passports of spouses;
• marriage registration certificate;
• documentation of property confirming the existence of obligations or ownership rights.
Where to apply for registration
The rules for drawing up a contract are prescribed in Article 41 of the RF IC. If the document is written before marriage, then it acquires legal force only after the official registration of the relationship. The agreement is drawn up in writing and must be certified by a notary office. You can draw up an agreement yourself or use the help of a lawyer. If the agreement is drawn up solely for a loan, then first of all you need to contact a financial institution, where they will issue a ready-made sample document.
Contract cost
There is a fee for notarizing the contract. According to Art. 333.24 of the RF IC, its amount is 500 rubles. There are no additional fees. Verification of a document by a notary is paid separately; how much the service costs must be clarified in your region. If spouses involve a lawyer in the procedure for drawing up a contract, then its cost increases. The price depends on the region and the specialist’s prices, on average from 5,000 to 10,000 rubles. In the capital, a lawyer’s services will cost more – from 30,000 to 40,000 rubles.
How long will it take to process
Drawing up an agreement will not take much time. In most cases, it takes 1-2 days to compile it. The document gains legal force after the marriage is registered, if it is drawn up before the official registration of the relationship or after certification by a notary, if the couple is already married. The paper stops working in the following situations:
• divorce of spouses;
• bilateral refusal of the contract;
• the arrival of the period specified in the agreement as the expiration date of the document;
• the contract was declared invalid in court.
Invalidation of the contract
A contract can only be declared invalid in court. Circumstances under which a contract may be invalidated:
- no notarization;
- the contract was signed by the spouse declared incompetent;
- forced registration of the database;
- the provisions specified in the contract contradict the current legislation.
A representative of the credit institution must take part in the process.
