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”.
Background
Previously, there were two types of family relationships:
- church marriage is a ceremony through which a man and a woman are officially considered a family. For centuries, the church played a dominant role along with the monarch;
- civil marriage - registration in registers and receipt of a document about it.
Today the church is separated from the state, it is considered secular, which means whether to get married or not is a voluntary choice of citizens. Our country is multinational, different faiths are represented in it, and the wedding ceremony is not the only way to legitimize relationships on a spiritual level.
Therefore, gradually the concepts changed. A civil marriage began to be called a marriage that was not registered with a special body. It is also called cohabitation. Registered relationships are called official marriage. It is this form of family that is considered today the only one protected by law and, as a result, the most convenient.
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.
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.
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.
Without a stamp in the passport: property problems of common-law spouses
Common-law marriage is commonly referred to as cohabitation without registration with the civil registry office. It is preferred by 10% of Russians, but this is not at all an alternative to official marriage, warns Tatyana Baklashova, lawyer at the Law Firm YUST YUST Federal Rating. group Foreign trade activities/Customs law and currency regulation group PPP/Infrastructure projects group Digital economy group Bankruptcy (including disputes) group Land law/Commercial real estate/Construction group Intellectual property (including disputes) group Tax consulting and disputes (Tax consulting) group Dispute resolution in courts of general jurisdiction TMT group (telecommunications, media and technology) group Financial/Banking law group Antitrust law (including disputes) group Arbitration proceedings (major disputes - high market) group Labor and migration law (including disputes) group Corporate law/Mergers and acquisitions 13th place in terms of revenue per lawyer (more than 30 lawyers) 16th place in terms of number of lawyers 20th place in terms of revenue. And the law doesn’t even have such a term. For example, the Third Court of Cassation of General Jurisdiction indicated that “actual cohabitation is not a civil marriage” (definition in case No. 88-2409/2019). So, from a legal point of view, it is more correct to call a relationship without registration “cohabitation”. It does not give rise to property rights and obligations of partners. Natalya Patseva, managing partner of FTL Advisers FTL Advisers Federal rating. group Family and inheritance law group Compliance group Private wealth management group Corporate law/Mergers and acquisitions group Tax consulting and disputes (Tax consulting), gives examples:
- the property is not recognized as jointly acquired;
- loan obligations are not general;
- The common-law spouse is not included in the inheritance queue.
Not joint, but personal
As a general rule, in relations between common-law spouses there is no concept of “joint”. Couples can buy cars, apartments and houses by sharing, but register it only in the name of one of the cohabitants. They don’t think that after a breakup it will be difficult to get back what they invested. The one who spent the money usually tries to recognize what he acquired as joint property, Baklashova notes. But the courts most often refuse, because cohabitation is not an official marriage (Clause 2 of Article 10 of the Family Code). For example, the courts came to such decisions in cases No. 88-3581/2020 and No. 88-6477/2020.
It is not always possible for a former common-law spouse to prove material participation in the construction of a house or renovation, Patseva notes. An example is the decision of the Nizhneingashsky District Court of the Krasnoyarsk Territory in case No. 2-469/2019. The court considered that joint repairs “do not entail satisfaction of the claim for recognition of ownership of a share in the residential premises.” In another case, common-law spouses tried to divide maternity capital, but the court refused, since the man was not an official member of the family (case No. 2-778/15).
In practice, it is rarely possible to claim a car, says Zimina. The Orenburg Regional Court in case No. 33-7279/2017 did not divide the car purchased in a civil marriage: it was not possible to prove that the second partner participated in the purchase.
When buying property, you need to register it in your name, otherwise after a disagreement you can leave with nothing.
Ekaterina Tyagai, partner at Pen & Paper
Kira Koruma, partner at AK Asnis and partners Asnis and partners Federal Rating, also agrees with Tyagai. group Family and inheritance law. To protect their property rights, cohabitants can enter into a maintenance agreement or agree to register the property as shared ownership. For example, “50 to 50” or in other shares. Depends on who spent how much money. Coruma offers another option - to enter into a written agreement that the purchase is general.
There are chances
Property relations between cohabitants are regulated by the general norms of civil law, so the position of the common-law spouse is not entirely hopeless. He may try to get a share in the property, Baklashova believes.
As an example, the expert cites case No. 88-6477/2020. Natalya and Oleg Rasskazov* were in a civil marriage. During this period, they bought a plot of land, built a house on it, furnished it with furniture and household appliances. Both invested the funds, and the property was registered in the “husband’s” name. Then the couple decided to legalize the relationship. They were even given a wedding date. But the wedding did not take place. Oleg Rasskazov died in a plane crash. Then his partner went to court to recognize the right to half of the property. The court of first instance rejected her, indicating that the house and land cannot be considered jointly owned. But the appellate court overturned this decision.
Civil marriage and property: The Supreme Court decided what would happen after the breakup
He indicated that in order to resolve the dispute, it is important to establish the fact of the wife’s material participation in the acquisition of the site and construction of the house. The plaintiff provided a preliminary contract for the purchase and sale of a land plot with the signatures of her and her common-law husband, a receipt from the seller of the land plot that he received money from Rasskazova as payment. Based on this, the court recognized the wife’s right to half of the house registered in the name of her cohabitant. The Eighth Court of Cassation upheld the decision.
Mortgage in a civil marriage
Often, a shared apartment purchased on credit goes to the cohabitant to whom it is registered, says Zimina. The fact of cohabitation is not enough for the courts; they need evidence that the other party also took financial part in paying the mortgage. Corum oh, then this will not be a powerful argument in court. At most, the expert believes, he can file a claim for unjust enrichment, but even in this case his chances of success are small.
An example is case No. 2-1156/16. Natalya Babushkina* and Kirill Yarovinsky*, being in a civil marriage, took out a mortgage. The contract with the bank was issued for the “wife,” as well as the apartment in Rosreestr. After some time, the couple separated; the cohabitant tried to divide the disputed property through the court. According to him, they paid the mortgage from common funds. But the court refused him, since there was no agreement between the parties, so the apartment belongs to Babushkina. Yarovinsky tried to appeal the decision of the court of first instance, but to no avail. The appellate instance also sided with Babushkina.
In such situations, Zimina advises attaching correspondence by email or instant messenger (certified by a notary) to the case to confirm that the mortgage was paid through joint efforts; witnesses can also help. In order not to be left without an apartment, Ekaterina Tyagai, partner at Pen & Paper, advises taking out a loan in equal shares even at the stage of applying for a mortgage. Then the ownership of the residential premises will be documented.
Problems with inheritance
In the event of the death of one of the cohabitants, the second is not an heir by law and is not included in the number of heirs of the first priority. Within the meaning of Art. 1142 of the Civil Code, they can only be considered an officially registered husband or wife.
In the vast majority of cases, Coruma says, the partner will not inherit. The exception is recognized dependents. But it is quite difficult to prove this, and judicial practice has not developed in the best way until recently.
The Supreme Court decided that the common-law wife will inherit
In court, the common-law spouse will have to prove that he was dependent on his partner for a year, that they lived together all this time, as well as his incapacity for work (in accordance with paragraph 2 of Article 1148 of the Civil Code). Zimina considers the ruling of the civil panel of the Supreme Court in case No. 5-KG20-66-K2 significant for the formation of practice. In it, the three judges pointed out the mistakes to the lower authorities. The Supreme Court clarified that dependency does not exclude one’s own income (receipt of a pension), since sometimes courts reject applicants on this very basis.
Cohabitants included in the will can also claim inheritance. At the same time, Tyagai says, it is necessary to directly indicate what the partner will receive after the death of the testator.
“Legalizing” these relationships will help resolve the property issue for common-law spouses, Patseva believes. Many countries have already taken this path. For example, in England it is permissible to conclude prenuptial agreements. They are similar to our marriage ones; they also determine the status of property and its ownership. Unfortunately, in Russia there is no such practice, so former cohabitants have to determine the status of property as common in court, and this is difficult. Success is by no means guaranteed, says Patseva.
When acquiring property outside of marriage, care must be taken to ensure that ownership is evident legally and not verbally.
Natalya Patseva, managing partner of FTL Advisers FTL Advisers Federal rating. Group Family and Inheritance Law Group Compliance Group Private Wealth Management Group Corporate Law/Mergers and Acquisitions Group Tax Consulting and Disputes (Tax Consulting)
* – first and last names have been changed by the editors.
- Anastasia Sinchenkova
- Supreme Court of the Russian Federation
- Civil process
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.
The right to receive a tax deduction for common real estate
The right to a tax deduction is granted to all citizens participating in the purchase of real estate. When a home is purchased using a mortgage loan, it is possible to apply a deduction in the amount of interest paid.
Civil spouses have the right to obtain a tax deduction only for their part of the real estate and within the limits of the funds paid by them. And in order to receive a tax deduction and tax refund, the apartment of common-law spouses must be divided between them into shares.
When a mortgage is issued in a civil marriage, the cohabitants act as co-borrowers of the loan and each pay off the debt for their part of the property.
The only advantage that common-law spouses have is that they are not interdependent and have the right to sell each other a share or the entire living space without obstacles, and also receive tax on this transaction.
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.
Responsibilities of spouses in de facto marital relations
Essentially, the 2021 law has not changed anything regarding family responsibilities. It’s just that now they are assigned to unregistered couples:
- run a joint household;
- provide children with material wealth, educate them and create comfortable childhood conditions;
- pay alimony in the event of a breakup.
Important! Responsibilities for maintaining children are imposed on the father only if he recognized the child and signed the paternity papers, which means he is included in the birth certificate. This can be done either immediately after birth or later.
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.
Disadvantages of cohabitation
Until 2021 - while cohabitation was not at all legalized in the Family Code - in the event of a breakup or the death of one of the spouses, many problems arose:
- it is extremely difficult to prove in court the right to part of the jointly acquired property;
- the surviving spouse was not entitled to half the share in the inheritance from the deceased if the relationship was not official;
- registering a newborn also took a little longer than for members of an official family. If the marriage is registered, in order to obtain a birth certificate, it was enough for one of the spouses to appear at the registry office and bring a marriage certificate. Cohabitants had to go to the registry office together: the husband must fill out a paper agreeing to recognize the child as his own. Otherwise, a dash will be placed in the “father” column on the birth certificate;
- psychological aspect: stereotypes about cohabitation, although becoming more illusory, still exist. Disdain and a feeling of “frivolity” can still be felt when it comes to this form of family. In addition, spouses who are not burdened with a “stamp” often separate over the slightest conflicts, since it is very simple: just pack your things and move out. There is no need for them to start an official divorce procedure, which means there is no incentive to sit down and just talk and try to save the relationship.
If the psychological aspect lies entirely with the citizens themselves, then the lack of social guarantees, difficulties with registering property and the shameful filling out of additional papers for a child are an acute problem that needs to be solved at the legislative level. There is already movement on this issue.
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.
Does a common-law wife have a legal right to an apartment when dividing property?
When dividing property, you can claim real estate if it was not only acquired during the period of cohabitation, but the woman can also prove her involvement in its purchase.
In an actual marriage, any property belongs to the person in whose name it is registered. If cohabitants fail to reach an agreement, then disputes are resolved in court.
In this case, the court will be guided by the norms of the Civil Code.
The mere fact of a civil marriage is not enough for property to be recognized as common property in the mode of shared ownership.
Both parties will need to provide evidence that they made a material contribution to its acquisition and maintenance.
Among them are:
- Checks and receipts;
- Bank statements;
- Testimony of relatives and friends;
- Correspondence between cohabitants, including in instant messengers, social networks, etc.
Evidence must be presented in proper form.
Thus, screenshots of correspondence must be certified by a notary office. Financial documents must be approved by the manager's signature and seal.
Question to the expert
Good evening! How to officially make a share in an apartment purchased early if you contribute part of the funds.
Good afternoon If you are not married, then the allocation of a share of the apartment is formalized either by a purchase and sale agreement or by a gift agreement with a notary. The owner of the apartment must sell and then you enter funds into the contract. Or donate this share.
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.
The right to alienate a property share and to return funds spent
When the common funds of common-law spouses are used to purchase property, and registration is made in the name of one of them, the second has the right to defend his rights in court. This happens when the shares in the property are not determined or one of the cohabitants passes away.
In this situation, there are 2 solutions:
- Alienation of a property share
, which is extremely difficult to do, since it is necessary to prove all the details of the acquisition of property. - Alienation of invested funds
as unjust enrichment of the second partner. Here you also cannot do without evidence, however, if the property is not common, then the money for it must be returned.
