How does joint property of spouses arise?

The concept of common (joint) property of spouses

Property owned by 2 or more persons belongs to them under the right of common ownership.

Property may be in common ownership:

• with determination of the share of each owner in the right of ownership (shared ownership);
• without defining such shares (joint ownership).

According to Art. 244 of the Civil Code of the Russian Federation, common ownership of property is shared, except for cases where the law directly provides for the formation of joint ownership of this property.

According to the law, only individuals (citizens) related to each other by family or other close relationships (spouses, members of a peasant (farm) household) can have the right of joint ownership.

This means that no other participants in civil legal relations can, at their own request (including within the framework of an agreement or contract concluded between the parties), form joint ownership of the thing belonging to them.

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The right of common joint ownership initially formalized the unification of property of members of one family, whose relationships were largely built on personal trust and often even on cohabitation, which did not imply and did not require complete certainty in the scope of the powers of their participants.

Property of spouses acquired during marriage

In accordance with Art. 35 of the Constitution of the Russian Federation, the right to private property is protected by law. Everyone has the right to own property, own, use and dispose of it, both individually and jointly with other persons.

Possession, use and disposal of property acquired by spouses during marriage are carried out by law or by agreement. Of course, this division is conditional, since both the first and second grounds are regulated by federal legislative acts. It should be especially emphasized that regulation is carried out precisely by federal legislation, since property relations are regulated by civil legislation, which, in accordance with the Constitution of the Russian Federation (Article 71), falls under the exclusive competence of the Russian Federation. Subjects of the Federation have no right to adopt regulations on these relations.

Norm clause 1 art. 34 of the RF IC “property acquired by spouses during marriage is their joint property” looks like mandatory (generally binding), but this provision cannot be considered without connection with Art. 33 of the RF IC, as well as with a norm similar in essence, but expressed, as it seems to us, in a more laconic form, clause 1 of Art. 256 of the Civil Code of the Russian Federation: “ Property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property.”

(emphasis added by us. - P.K.).”

For a property agreement between spouses (nuptial agreement), see Chapter. 4 of this work.

Common property of spouses is a type of joint property <1>. Property relations between spouses are regulated by the Family Code, as well as a number of norms of the Civil Code (Articles 244, 253 - 256).

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<1> Federal law may establish other types of joint ownership. Thus, the Civil Code of the Russian Federation indicates joint ownership of members of a peasant farm (Articles 257, 258). In addition, joint ownership includes property of common use acquired or created by a horticultural, gardening or dacha (non-profit) partnership (see Article 4 of the Federal Law “On horticultural, gardening and dacha non-profit associations of citizens” // SZ RF. 1998. N 16. Art. 1801).

Regardless of the method of participation in the formation of joint property, spouses have equal rights to common property.

In judicial practice, disputes related to preferential acquisition of property have been repeatedly considered. Thus, in the Determination of the Primorsky Regional Court dated June 26, 2014, it was indicated that land plots, both acquired under a purchase and sale agreement, and allocated during the marriage, including free of charge, to one of the spouses as a person who has the appropriate benefit, do not become separate property - such land plots are subject to the legal regime of property of spouses <1>. Unlike participants in shared ownership, participants in joint ownership do not have a specific share in the right of common ownership; it can only appear during separation or division, i.e. in case of termination of joint ownership.

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<1> Ruling of the Primorsky Regional Court of June 26, 2014 in case No. 33-5026 // ATP “ConsultantPlus”.

In paragraph 2 of Art. 34 of the RF IC provides an approximate list of sources for the emergence of the right of joint ownership of spouses. The grounds for the emergence of the right of common joint property of spouses are such civil transactions as purchase and sale, exchange, gift to both spouses, etc.

Objects of joint property of spouses include property (including property rights) acquired by spouses subject to two conditions.

First, the property must be acquired during the marriage

. As follows from paragraph 2 of Art. 256 of the Civil Code of the Russian Federation, things that belonged to each of the spouses before marriage are not included in joint property.

Secondly, the property must be acquired using general funds

. According to paragraph 2 of Art. 256 of the Civil Code of the Russian Federation and Art. 36 of the RF IC, things received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions are his property and are not part of the common property.

The legislator, establishing the rule on joint property of spouses, makes an exception regarding the fate of things for individual use. Such property, except for jewelry and other luxury items, is recognized as the sole property of the spouse who used it.

Joint property may include any movable and immovable property that has not been withdrawn from civil circulation: money, furniture, securities, animals, residential premises, enterprises, land plots, etc. Property acquired by spouses during marriage is considered joint property, regardless of to whom the specific item is registered. For example, a car or a cooperative apartment, the shares for which have been paid, are often registered in the name of one of the spouses, meanwhile, subject to the conditions discussed above, this property is the joint property of the spouses.

The Review of Judicial Practice of the Supreme Court of the Russian Federation for the III quarter of 2002 in civil cases (approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation dated December 4, 2002) <1> contains the question: are shares acquired by one of them subject to inclusion in the joint property of spouses? spouses during the privatization of an enterprise on a preferential subscription?

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<1> Bulletin of the Supreme Court of the Russian Federation. 2003. N 3. P. 10.

The response states that in accordance with paragraph 2 of Art. 34 of the RF IC, property acquired by spouses during marriage (common property of spouses) includes the income of each spouse from work, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose (amounts of financial assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, etc.). The common property of the spouses also includes movable and immovable things acquired at the expense of the common income of the spouses, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses, regardless of in whose name of the spouses, it was acquired or in the name of one or by which of the spouses funds were deposited.

Thus, if these securities were received by a spouse as a result of his labor participation in a privatized enterprise during the marriage, then they are the joint property of the spouses. If they were acquired, albeit during the marriage, but with the personal funds of the spouse or are due to him for labor participation in the work of the enterprise before marriage, they should not be included in the common property of the spouses, since they were not acquired by them during the marriage.

According to paragraph 3 of Art. 34 of the RF IC, the right to the common property of the spouses also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income

. At the same time, the Code does not provide an exhaustive list of valid reasons, naming only two: housekeeping and child care. It seems that the lack of independent income due to illness, study, military service in the Armed Forces, etc. should be considered valid reasons.

In cases where spouses are participants in joint property, they, according to Art. 253 of the Civil Code of the Russian Federation and Art. 35 of the RF IC, jointly own and use common property. The disposal of such property is carried out by spouses by mutual consent. In case of disposal of common property by one of the spouses, the legislator establishes a presumption of consent of the second spouse. In the absence of consent, the second spouse has the right to demand that the court declare the transaction for the disposal of common property invalid only if the other party to the transaction knew or should have known about such refusal.

In the Civil Code, the presumption of consent was not limited to the type of property being alienated or the form of the alienation agreement. Before the entry into force of the Family Code, a spouse could independently sell (or otherwise dispose of) any property, including real estate.

Article 35 of the RF IC eliminated this gap by pointing out the need for notarization of the consent of the second spouse in the following cases:

— alienation by the other spouse of jointly owned real estate;

— making a transaction requiring notarization and (or) state registration.

In the absence of a properly executed consent, the spouse has the right to demand that the transaction be declared invalid within a year. It is obvious that the norm in question will serve to protect the family from rash decisions of negligent spouses. At the same time, the norm of Art. 35 of the RF IC does not contradict the Civil Code, since in paragraph 4 of Art. 253 of the Civil Code of the Russian Federation talks about the possibility of establishing a regime of ownership, use and disposal of joint property that is different from this Code.

After the death of the surviving spouse - a participant in the joint property, the inheritance is opened in accordance with the general procedure. This means that if there is a will, then the person(s) indicated in it is called to inherit. If there is no will, then the property belonging to the spouse alone and the right to a share in joint property are transferred to the first priority heirs, which includes the spouse of the deceased. For example, at the time of the death of one of them, spouses had joint ownership, in addition to other property, of an apartment. However, there was no will, which means that inheritance must be carried out according to law. Taking into account the fact that the spouses have two children, the inheritance opens to 1/2 share in the ownership of the apartment, i.e. distributed among three heirs in equal shares - the surviving spouse and two children. In this case, the surviving spouse has the right to file an application for the absence of his share in the property acquired during the marriage. In this case, all this property is included in the inheritance (clause 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 29, 2012 No. 9 “On judicial practice in inheritance cases” <1>).

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<1> Bulletin of the Supreme Court of the Russian Federation. 2012. N 7.

Along with the property owned by spouses under the right of common ownership, each of the spouses owns this or that property under the right of sole (individual) ownership. The composition and quantity of such property depend on various legal facts.

The property belonging to each spouse (separate property) is divided (can be divided) into three parts.

First, premarital property

, i.e. property acquired before marriage. It is important to note that property acquired, albeit during marriage, but with the personal funds of one of the spouses that belonged to him before marriage <1> is also not considered joint property.

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<1> Resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 N 15 “On the application of legislation by courts when considering cases of divorce” // Russian newspaper. 1998. November 18; Library of the Russian newspaper. 1998. Vol. 34.

Secondly, property acquired free of charge

, i.e. property acquired during marriage through gratuitous civil transactions. The law includes inheritance, a gift agreement, as well as the acquisition of residential premises through privatization <1> to such transactions. State and other awards also apply to separate property.

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<1> It should be borne in mind that in the original version of the RSFSR Law of July 4, 1991 “On the privatization of housing stock in the RSFSR” a combined method was proposed, i.e. 18 sq. m per family member plus 9 sq. m per family free of charge; if the area was larger, then it should have been purchased. However, the Law of the RSFSR of December 23, 1992 provides for the “free transfer into the ownership of citizens of the housing they occupy,” regardless of the area.

Third, personal property

, i.e. things for personal use, including those acquired at the expense of general funds. In Art. 36 of the RF IC only mentions clothing and footwear, but does not provide an exhaustive list of such property. At the same time, it is obvious that such things should include linen, personal hygiene items, and other property that, under normal conditions, is intended for use by only one person.

The only exception to this rule is property related to jewelry and other luxury items.

According to Art. 37 of the RF IC, the property of each of the spouses can be recognized as their joint property if it is established that during the marriage, investments were made at the expense of the common property of the spouses or the property of each of the spouses or the labor of one of the spouses, significantly increasing the value of this property (major repairs, reconstruction, re-equipment, etc.).

The object of this rule, as a rule, is real estate that originally belonged to one of the spouses: a residential building, apartment, garage, enterprise, river boat, etc. To recognize such property as an object of common property of spouses, two circumstances must exist: technical and legal.

Technical includes the implementation of reconstruction, major repairs, re-equipment, superstructure, etc.

The legal aspect should include the recognition by the court of an increase in the value of the object due to the above-mentioned technical circumstances. In practice, courts only take into account significant increases in the value of property.

As L.G. rightly noted. Kuznetsov, we are talking about the “transfer” of the property itself from the category of separate to the category of common, joint. At the same time, it is incorrect to classify as joint property of the spouses not the thing itself, the value of which has increased as a result of investments made in it, but only a part of the thing corresponding to the amount by which its value has increased <1>.

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<1> See: Kuznetsova L.G. Some issues of the practice of applying legislation on separate and joint property of spouses // Legislation on marriage and family and the practice of its application. Sverdlovsk, 1989. P. 47.

Unless otherwise established by the agreement, then to spouses who are members of a peasant (farm) household, property belongs to the right of joint ownership (Articles 257, 258 of the Civil Code). However, in this case, joint ownership has some differences. In particular, not only spouses can be the subjects of the right of joint ownership of a peasant (farm) enterprise. The head of a farm is recognized as an entrepreneur from the moment of state registration of the farm.

The object of joint ownership of a peasant (farm) enterprise is the property acquired for the enterprise using the common funds of its members. Such property, in particular, includes a plot of land granted to the farm or acquired, plantings, outbuildings and other buildings, reclamation and other structures, productive and working livestock, poultry, agricultural and other machinery and equipment, vehicles, inventory and other property . Fruits, products and income received as a result of the activities of a peasant (farm) enterprise are the common property of the members of the enterprise and are used by agreement between them.

When one of its members leaves the farm, the land plot and means of production belonging to the peasant (farm) farm are not subject to division. Those who leave the farm have the right to receive monetary compensation commensurate with their share in the common joint ownership of this property.

When a peasant (farm) enterprise is terminated due to the withdrawal of all its members or for other reasons, the common property is subject to division.

Source: Textbook "FAMILY LAW" edited by P.V. KRASHENINNIKOVA. Authors: Gongalo B.M., Krasheninnikov P.V., Mikheeva L.Yu., Ruzakova O.A.

The right of ownership of spouses to common (joint) property

The property of the spouses acquired by them during marriage is common, regardless of in the name of which of them it was acquired (Clause 2 of Article 34 of the Family Code of the Russian Federation).

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The right of common joint property of spouses can be registered in the Unified State Register of Real Estate:

• to one of the spouses - the title owner as the right of ownership;
• on spouses jointly as the right of common joint property.

The title owner is a person whose ownership of a thing is documented, registered in the Unified State Register of Real Estate, and who has the right to exercise the owner’s powers to own, use, and dispose of the thing.

The common (joint) property of spouses includes property acquired during marriage, including:

• income of each spouse from labor activity, entrepreneurial activity and results of intellectual activity;
• pensions, benefits received by each spouse, as well as other monetary payments that do not have a special purpose (amounts of financial assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, and others);
• movable and immovable things acquired at the expense of the spouses' common income;
• securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations;
• any other property acquired by the spouses during the marriage.

Real estate acquired during marriage by one of the spouses on the basis of a lifelong maintenance agreement with dependents is also considered joint property of spouses.

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A contract of lifelong maintenance with a dependent is not gratuitous, since under the terms of the agreement the annuity payer undertakes to provide lifelong maintenance with the dependent of a citizen and (or) a third party (persons) indicated by him (clause 1 of Article 601 of the Civil Code of the Russian Federation). Since all expenses under a lifelong maintenance agreement with dependents are made from the common income of the spouses, real estate acquired on the basis of the agreement is their joint property (Review of judicial practice of the Supreme Court of the Russian Federation dated 06.23.2004, 06.30.2004 Review of judicial practice of the Supreme Court of the Russian Federation Federation for the first quarter of 2004).

A spouse who, during the marriage, for good reasons, did not have an independent income, since, for example, he was involved in housework and childcare, also has the right to common property (Clause 3 of Article 34 of the Family Code of the Russian Federation).

The regime of common joint property of spouses does not apply to property acquired during marriage, but to funds that belonged to one of the spouses personally (Review of judicial practice of the Supreme Court of the Russian Federation No. 2 (2017), approved by the Presidium of the Supreme Court of the Russian Federation on April 26, 2017). These rules apply unless otherwise established by the marriage contract between the spouses.

In relation to property jointly owned by spouses, transactions between spouses are prohibited, since as a result of these transactions the property still remains in their joint ownership.

About common property

Most of the changes concern the Family Code. First of all, the content of the concept of “common property of spouses” is clarified. The bill plans to exclude from Art. 34 of the Family Code linking common property to assets acquired from the common income of the husband and wife, in order to eliminate the interpretation of this phrase found in judicial practice as allowing the possibility of acquiring property during the marriage from so-called personal funds, which does not belong to the common property of the married couple . The general provisions of this article include property rights and general obligations of the married couple.

Property of each spouse

Property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions, is his property.

A land plot provided free of charge to one of the spouses during marriage on the basis of an act of a local government body is the joint property of the spouses (“Review of the judicial practice of the Supreme Court of the Russian Federation No. 2 (2018)”, approved by the Presidium of the Supreme Court of the Russian Federation on July 4, 2018).

Items for personal use (clothing, shoes, etc.), with the exception of jewelry and other luxury items, although acquired during marriage at the expense of the spouses’ common funds, are recognized as the property of the spouse who used them.

Despite the fact that, as mentioned earlier, income from the results of intellectual activity of one of the spouses is their joint property, the exclusive right to the result of such activity belongs to its author, unless otherwise provided by the agreement between them (Article 36 of the Family Code of the Russian Federation).

The property of each of the spouses may be recognized as their joint property in court if the court establishes that during the marriage, investments were made at the expense of the common property of the spouses or the property of each of the spouses or the labor of one of the spouses, significantly increasing the value of this property (major repairs). , reconstruction, re-equipment and others) (Article 37 of the Family Code of the Russian Federation)

With regard to property that is separately owned by spouses, it is possible to conclude any transactions between spouses.

Income in cash and in kind received by one spouse from the other as a gift is not subject to personal income tax.

In case of concluding a transaction for the purchase and sale of housing between spouses, property deductions are not provided.

Make a family agreement

An important interpretation of the law on inheritance was made by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation. She reviewed the decision of local courts, which dealt with the shares of the deceased person in the joint family property of the spouses.

His son from a previous marriage asked the court to determine the father’s share. The plaintiff's father died, and his wife was unable to reach an agreement with her adult son from a previous marriage on the division of the remaining inheritance.

Such family inheritance disputes are found in the practice of all courts without exception. They are complex, painful for the disputants, and not cheap. Yes, and the time can drag on for years. Therefore, if you find yourself in a similar situation, it is important to understand the main arguments that guide the most competent judges in the country when resolving such disputes.

In the lawsuit, which a citizen brought to one of the district courts of Bashkiria, there was a request to determine the shares of his father in the joint property of the spouses. The son also asked to include in the inheritance a share in the garage cooperative, half the share in the ownership of the land and to recover half the cost of the car from the widow.

The son explained in court that during the lifetime of his father and his wife, they bought a plot of land and a car. My father was also a member of a garage cooperative, which he joined before marriage.

The widow and son simultaneously applied to the notary to accept the inheritance. But the notary explained to his son that he would not inherit the plot, since the land was registered in the name of the deceased’s spouse, and the car was sold immediately after the death of the testator.

The district court, and later the Republican Supreme Son, refused. He had to go all the way to the Supreme Court of the country. There, the Judicial Collegium studied the case and said that both the district court and the appeal made mistakes in resolving this dispute.

Free transfer of a plot to one of the spouses does not make it personal property

This is what the Supreme Court of the Russian Federation saw in the materials of this case. During the marriage, by decree of the district administration, the woman was given free ownership of a plot of land “for gardening.” And the ownership of these acres is registered as expected. The woman's husband died two years after the land was registered.

Local courts, when they refused to son, said that it was impossible to include half of the plot in the inheritance and give him half of the plot, since these hundred square meters are not subject to the “joint ownership regime.” Because the citizen’s ownership of the land arose “as a result of privatization free of charge, and the joint funds of the spouses were not spent on the acquisition of the land.” The Supreme Court did not agree with this conclusion and stated that the courts “committed significant violations of substantive law.” These are the violations.

Article 1112 of the Civil Code states that the inheritance includes things and property belonging to a person on the day the inheritance is opened. This list also includes property rights. Article 1150 of the same code states that the right of inheritance belonging to the surviving spouse by will or by law does not detract from his right to that part of the property that was the joint property of the spouses. The deceased spouse's share in this property is included in the inheritance and passes to the heirs under Article 256 of the Civil Code.

The Supreme Court recalled the resolution of its plenum, specifically dedicated to inheritance cases (dated May 29, 2012 No. 9). It says that the inheritance after the death of a married person includes his share in the family property, regardless of who this property was registered in, who bought it and paid for it. The exception is the terms of the marriage contract.

From all the above rules, the Supreme Court concludes that in our case, when determining the son’s share of the plot and including this share in the common inheritance, it is legally important to determine the legal regime of this property on the day the inheritance is opened. That is, can the plot be classified as the common property of the spouses or the personal property of the widow.

Photo: Depositphotos/Photoxpress.ru

The Family Code says that common property includes movable and immovable property purchased with common income - housing, cars, furniture, and so on. And it doesn’t matter who it’s registered to or who paid. But what is received by each spouse before marriage or during marriage as a gift, by inheritance or “through other gratuitous transactions” is the property of each spouse individually.

The Supreme Court of the Russian Federation did not agree with the opinion of the district court that the land acquired by the woman was transferred to her by the district administration free of charge, which means it is considered her personal property. The High Court stated that the free transfer of a plot by a local government body to one of the spouses during marriage cannot be an absolute basis for classifying the hundred square meters as the personal property of the husband or wife. This is contrary to the Family and Civil Codes. Therefore, the testator's spousal share of the jointly acquired property must be included in the inheritance.

Local courts must now decide whether a plot of land belongs to the common property of the spouses, taking into account the clarifications of the Supreme Court of the Russian Federation.

Peculiarities of disposing of the common property of spouses

Spouses own, use and dispose of common property by mutual consent.

When one of the spouses makes a transaction to dispose of common property, it is assumed that he acts with the consent of the other spouse.

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A transaction made by one of the spouses to dispose of the common property of the spouses may be declared invalid by the court on the grounds of lack of consent of the other spouse only at his request and only in cases where it is proven that the other party to the transaction knew or should have known about the disagreement of the other spouse to complete this transaction (clauses 1, 2 of Article 35 of the Family Code of the Russian Federation).

In order for one of the spouses to enter into a transaction for the disposal of property, the rights to which are subject to state registration, a transaction for which a mandatory notarial form is established by law, or a transaction subject to mandatory state registration, it is necessary to obtain the notarized consent of the other spouse. The spouse, whose notarized consent to carry out the specified transaction was not received, has the right to demand that the transaction be declared invalid in court within a year from the day when he learned or should have learned about the completion of this transaction (clause 3 of Article 35 of the Family Code of the Russian Federation).

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Arbitrage practice

The entrepreneur sold 25% in the LLC. During the transaction, the seller presented a Russian passport, which did not have a marriage registration stamp. The notary, unable to double-check the information, certified the transaction.

It turned out that the seller was married after all (the marriage was registered in another state). His wife challenged the deal in court.

One of the stumbling blocks in this case was the question of whether the plaintiff was required to prove that the buyer knew or should have known about the seller’s wife’s disagreement with the transaction.

The lower courts, guided by paragraph 2 of Art. 35 of the Family Code of the Russian Federation, they decided that it was obliged. However, the Supreme Court determined the opposite: it is not obliged (Decision of the Supreme Court of the Russian Federation dated May 17, 2018 No. 305-ES17-20998 in case No. A40-167485/2015), since in this case clause 3 of Art. 35 IC RF.

Personal or joint: division of property during divorce

Since the beginning of the year alone, the courts have received 3,031 lawsuits regarding the division of property between spouses. The majority of such disputes were considered by the Moscow City Court (133 cases), slightly fewer cases were processed by the authorities of the Stavropol Territory, Bashkiria and the Sverdlovsk Region (according to the system for lawyers Caselook.ru as of September 17, 2021). The appellate and cassation instances had to resolve the property issue of the ex-spouses; problems arise in practice when the courts need to deviate from the general rule of “everything in half” and divide the property acquired during the marriage in different shares.

Matkapital is not divided

Couples encounter difficulties if they partially purchased the property not from common funds, says Anna Artamonova, partner at AB EMPP EMPP Federal Rating. group Family and inheritance law group Criminal law group Arbitration proceedings (medium and small disputes - mid market) group Corporate law/Mergers and acquisitions TMT group (telecommunications, media and technology) 20th place By revenue per lawyer (less than 30 lawyers) 49th place By revenue Profile companies For example, they invested maternity capital, such a dispute arose between Irina and Andrei Makarov*. The wife filed a claim against her ex-husband to divide the apartment acquired during marriage. They bought the disputed housing on credit and paid off part of it with maternal capital. The court of first instance and the appeal decided that it was necessary to divide the entire apartment, but the Supreme Court reminded that in this case it is necessary to determine the shares minus maternity capital. The board indicated that the certificate funds are not subject to division, since they are not common property, but have a designated purpose (by virtue of paragraph 2 of Article 34 of the SK) (case No. 18-KG19-57).

The position of the courts on this issue has been formed, says Anastasia Rastorgueva, senior partner at Barshchevsky and Partners Barshchevsky and Partners Federal Rating. Criminal Law group. According to the law, children must be allocated a share; accordingly, during a divorce and division of property, the spouses no longer divide the entire apartment among themselves, but only that part of it that remains after deducting the children’s share. The “Review of judicial practice in cases related to the implementation of the right to maternal (family) capital” is devoted to this issue. Despite this, the courts of first instance do not always make the “correct” decision. They have to be corrected by higher courts. For example, in cases No. 2-2841/17 and No. 2-3/2018

In case of divorce, the unused certificate itself is not divided, clarifies Irina Oreshkina, lawyer at S&K Vertical S&K Vertical Federal Rating. group Family and inheritance law group Private wealth management group Arbitration proceedings (major disputes - high market) group Bankruptcy (including disputes) group Corporate law/Mergers and acquisitions 18th place By revenue 25-27th place By number of lawyers 6th place By revenue per lawyer (more than 30 lawyers ) . It remains with the person in whose name it was written out. Typically the mother of the child.

"Mortgage" real estate

Not only the property or material assets of spouses, but also obligations are recognized as common, says Svetlana Ivanova from 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) . For example, a loan spent on family needs. As for the mortgage, Rastorgueva clarifies, the property, the apartment itself, is divided in the same proportion as the debt for it (this principle is contained in clause 3 of Article 39 of the Insurance Code).

If one of the spouses proves that he contributed most of the loan from personal funds, then the court may increase his share in the apartment and, accordingly, reduce the amount of debt. Using the same principle, you can get the entire apartment, as happened in case No. 2-809/2016. Alina and Oleg Kataev* took out a mortgage to buy an apartment. But it was paid both during the marriage and after its dissolution only by the spouse. She asked the court to transfer ownership of the disputed real estate to her, and provided receipts for payment of monthly payments as evidence. The fact that the mortgage debt was paid off only by the wife was also confirmed by the husband. The Leninsky District Court of Tomsk satisfied Kataeva’s claim; the parties did not appeal the decision.

According to Rastorgueva, if the former spouse can still count on most or all of the mortgaged apartment, then it will not be possible to collect (if the mortgage is paid off by only one of the partners) the paid amount from the ex-husband or wife - the courts will consider that the payment was made from common funds. At the same time, Artamonova says, there are no legal mechanisms to force the former spouse-co-borrower to pay half of the monthly mortgage payment. A good way of financial protection in this case is a prenuptial agreement. It may relate exclusively to the procedure for paying the mortgage and distributing real estate between the owners after repaying the loan or in the event of divorce. For example, the size of shares in real estate can be tied in proportion to the amount of funds paid to the bank after the termination of the marriage by each spouse, the expert concluded.

Inherited

Property that one of the spouses received as an inheritance is not subject to division (according to paragraph 1 of Article 36 of the Family Code), but there is an exception to this rule: if it has been improved at the expense of common funds. This is stated in Art. 37 SK. At the same time, Ivanova clarifies, the courts take into account not the size of the investment, but the increase in the value of this property. But this needs to be proven.

The situation is illustrated by case No. 11-6249/2013. During their life together, the couple made several renovations to the apartment, which the husband inherited. This helped increase the price of real estate, the ex-wife believed. But the court did not side with her: “There is no evidence that investments increased the value of the property, which means it cannot be recognized as joint property.” The Naro-Fominsk City Court of the Moscow Region took a similar position in case No. 2-3835/2019; it indicated that the price of a house would increase significantly if a major renovation or other significant reconstruction of the property was carried out there. In both disputes, the plaintiffs failed to prove an increase in the value of the property - this is what the courts decided.

The practice of recognizing inherited property as joint property is quite disappointing. Basically, the courts refuse due to lack of proof of material investments or a significant increase in cost.

Svetlana Ivanova, lawyer at 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)

Premarital assets

The property that belonged to each spouse before marriage is his property (according to Article 36 of the Family Code). It would seem that everything is easy, says Alina Laktionova, lawyer at the Law Firm Mitra Mitra Regional Rating. group Tax consulting and disputes group Arbitration proceedings group Bankruptcy (including disputes) group Land law/Commercial real estate/Construction 10-11th place By the number of lawyers, but in practice the application of the article causes difficulties.

A difficult situation arises if one of the spouses bought a plot of land before marriage, and then, together with his wife or husband, built a house on it. This happened in case No. 2-1408/2018) Alan Burangulov* bought a small rural house before his wedding. Afterwards, he demolished it and built a new one. After getting married, he and his wife continued the reconstruction, eventually increasing the area of ​​the building several times. The court of first instance considered that the disputed real estate was his personal property and was not subject to division during a divorce. The appeal, on the contrary, decided to divide everything equally. The case reached the Supreme Court, which took a different position: it is necessary to estimate the value of the house before Safiullin entered into marriage and divide the shares of the parties accordingly. At the same time, the case dealt with the issue of dividing the house, and not the plot that was left to the spouse. In this case, according to Artamonova, the land will remain with the original owner, since it is a personal asset. But the buildings should be divided between spouses.

It’s another matter, Artamonova says, if the plot was received by one of the spouses free of charge, from a local government body, that is, transferred for indefinite use. It is not equivalent to a gratuitous transaction in the sense of Art. 36 SK. Therefore, the free transfer of a land plot is not a basis for classifying it as personal property, the Supreme Court came to this conclusion in case No. 2-7993/16

You can defend the right to real estate if you prove that one of the spouses bought it with personal funds. As it happened in case No. 2-456/2018. The wife sold the “premarital” apartment, and 5 days later she paid for the share participation agreement in the new property. The housing purchased with her money cannot be considered common, the civil court panel of the Supreme Court concluded.

Another similar dispute reached the Constitutional Court. The husband purchased the apartment before marriage, but it had an encumbrance - an obligation for lifelong maintenance with dependents. After the divorce, the husband tried to admit through the court that the ex-wife had lost the right to use the residential premises. But she did not agree with this and filed a counterclaim. In it, she asked to divide the disputed apartment in half. She justified this by the fact that they paid payments under the lifelong maintenance agreement with dependents together. The situation is not standard; there is no direct regulation. The lower courts rejected the ex-wife. Then she turned to the Constitutional Court. He regarded the obligations of the spouse, fulfilled at the expense of common funds, as unjust enrichment at the expense of the second spouse (No. 352-О-О).

Unfortunately, despite the decision of the Constitutional Court, the practice is negative and the second spouse, who bore the burden of fulfilling obligations jointly, often does not have the right to compensation in proportion to his share in the common property of the spouses. Which doesn't seem fair to me.

Alina Laktionova, lawyer at Law Firm Mitra Mitra Regional rating. group Tax consulting and disputes group Arbitration proceedings group Bankruptcy (including disputes) group Land law/Commercial real estate/Construction 10-11th place By number of lawyers

Experts: IC is outdated

According to Artamonova, the Family Code, adopted back in 1995, is outdated and does not sufficiently regulate the property relations of spouses in modern realities. Therefore, the expert believes, when dividing property, a lot of questions arise. Including when jointly acquired property is not divided equally. The law indicates that the court can release equality of shares (Clause 2, Article 39 of the Criminal Code), but does not determine the situations when this is possible.

In order to eliminate gaps and update the rules, changes have been introduced to the State Duma to simplify the division of property. The bill is currently under consideration and approved by the State Duma in the first reading.

The authors of the initiative were Pavel Krasheninnikov, Chairman of the State Duma Committee on State Building and Legislation, and Tamara Pletneva, Head of the Lower House of Parliament Committee on Family Issues.

The main change is that the Family Code proposes to consolidate the concepts of common property of spouses, that is, everything acquired during marriage will be considered as a whole complex (both property and debts). Now, according to the initiators, the same spouses are filing several claims for division of property. When, within the framework of one case, shares in real estate are established, and after a while in another - found assets or an alienated car.

Alexandra Stirmanova lawyer ABS&K Vertical S&K Vertical Federal rating. group Family and inheritance law group Private wealth management group Arbitration proceedings (major disputes - high market) group Bankruptcy (including disputes) group Corporate law/Mergers and acquisitions 18th place By revenue 25-27th place By number of lawyers 6th place By revenue per lawyer (more than 30 lawyers ) believes that in this case the court will need to take an active position in identifying property, which means that the time for consideration of the case may increase in this regard. Another question, the expert continues, is what if one of the spouses found out about the presence of other property acquired during the marriage, after the consideration of the case on the division of property? Obviously, changes must take into account the presence of such situations.

Another change concerns clause 2 of Art. 34 of the IC, they plan to remove the phrase “acquired from general income” from it. This will give the norm a broader meaning.

Rastorgueva is wary of this change. According to her, if the amendments are adopted, then personal property sold and purchased with this money already in marriage will be recognized as “common.” Now it is considered personal.

The State Duma is currently planning to take up the issue in October and, perhaps, the output will be a completely different document. So far, experts generally support him. “It [the bill] will have a positive effect on law enforcement practice and, obviously, will reduce the number of disputes,” Stirmanova concluded.

• Anastasia Sinchenkova

• Supreme Court of the Russian Federation
• Civil process

Checking the marital status of the other party to the transaction

When making a major transaction (buying a share in a business, purchasing real estate, etc.), it is better to find out in advance whether the other party to the transaction (counterparty) is married in order to protect yourself as much as possible from possible negative consequences.

Unfortunately, there is no way yet to reliably establish the marital status of any counterparty. However, a number of measures can be taken to reduce the risk of adverse consequences:

• ask the counterparty to obtain a certificate from the registry office indicating that the marriage has not been registered.

Read more…

If the marriage is registered abroad, information about it will not be reflected in such a certificate. If you have any suspicions that the counterparty could have entered into a marriage abroad, try to obtain information from foreign countries through the Ministry of Foreign Affairs or the Ministry of Justice. Keep in mind that this verification will take a long time.

• require from the counterparty a statement that the alienated property was paid for during the period when the participant was not married, and (or) a statement that there was no registered marriage.

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In the case of a notarial transaction, such statements are requested by the notary.

• use social networks: in some cases, researching the seller’s pages on social networks can help - it may directly indicate that he is married.

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In the near future it will be possible to use the Unified State Register of Civil Status Acts. True, it will be possible to obtain information only through a notary or counterparty. In addition, the registry may not have all the information about foreign marriages.

Division of common property

The legal grounds for terminating the regime of community of property of spouses are:

• termination of marriage (death/declaration of spouse as deceased or divorce);
• conclusion by spouses of a marriage contract establishing a different legal regime for the property of the spouses (Article 42 of the Family Code of the Russian Federation).

Changes, as well as complete or partial termination of the legal regime of common joint property of spouses may occur as a result of:

• division of their common property;
• transforming joint property into separate or shared property without dividing the common property.

The procedure for dividing the common (joint) property of spouses is regulated by Article 38 of the Family Code of the Russian Federation.

It can be carried out both during the marriage and after its dissolution at the request of any of the spouses, as well as in the event of a creditor’s claim to divide the common property of the spouses in order to foreclose on the share of one of the spouses in the common property of the spouses.

The common property of the spouses may be divided between the spouses by agreement, if there is no dispute between the spouses regarding the division of property. In this case, the agreement on the division of common property acquired by the spouses during the marriage must be notarized (clause 2 of Article 38 of the Family Code of the Russian Federation).

In the event of a dispute, as well as in the case of determining the shares of spouses in common property, its division is carried out in court (clause 3 of Article 38 of the Family Code of the Russian Federation).

When dividing the common property of the spouses and determining the shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses (clause 1 of Article 38 of the Family Code of the Russian Federation).

The court has the right to deviate from the principle of equality of shares of spouses in their common property, based on the interests of minor children and (or) based on the noteworthy interests of one of the spouses, in particular, in cases where the other spouse did not receive income for unjustified reasons or spent common property spouses to the detriment of the interests of the family (clause 2 of article 38 of the Family Code of the Russian Federation).

When dividing the common property of spouses, the court, at the request of the spouses, determines what property is to be transferred to each of the spouses. If one of the spouses is transferred property, the value of which exceeds the share due to him, the other spouse may be awarded the appropriate monetary or other compensation (clause 3 of Article 38 of the Family Code of the Russian Federation).

The court may recognize the property acquired by each of the spouses during the period of their separation upon termination of family relations as the property of each of them (Clause 4 of Article 38 of the Family Code of the Russian Federation).

Items acquired solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, children's library and others) are not subject to division and are transferred without compensation to the spouse with whom the children live (Clause 5, Article 38 Family Code R).

Contributions made by spouses at the expense of the spouses' common property in the name of their common minor children are considered to belong to these children and are not taken into account when dividing the spouses' common property (Clause 5 of Article 38 of the Family Code of the Russian Federation).

A 3-year statute of limitations applies to the claims of spouses for the division of common property of spouses whose marriage is dissolved.

In the case of division of the common property of the spouses during the marriage, that part of the common property of the spouses that was not divided, as well as the property acquired by the spouses during the marriage in the future, constitute their joint property (Clause 6 of Article 38 of the Family Code of the Russian Federation).

Section and shares

The bill makes significant adjustments to the mechanism for dividing the common property of a husband and wife. It is no longer uncommon for spouses to purchase real estate as shared ownership. But if this was not done, the courts, when resolving a dispute about the division of property between husband and wife, are required to do so, by analogy with paragraph 1 of Art. 254 of the Civil Code initially establish the size of the share of each spouse in all their common property and the list of objects that are transferred to one of them on account of his share in the joint property established by the court. This approach will make it possible not to raise the issue of determining the size of each person’s share every time in court if, for example, they do not share everything at once.

In this case, the rights to objects that are not distributed between spouses in accordance with the shares determined by a judicial act will belong to them in the specified shares from the moment the judicial act enters into force. In the event that the rights to these objects are subject to state registration (for example, registration of common joint property of spouses), the rights of each person to the corresponding shares in this object will also be subject to registration. They have similar rights in relation to undistributed property even if they previously concluded a division agreement in which they determined the shares of each.

The bill proposes, during judicial division, to establish a restriction on the fragmentation of business assets (rights of participation in various corporate structures - these are shares in the authorized capital, stocks, shares) due to a disproportionate decrease in their value. In these cases, it is prescribed to recognize such assets as belonging to the spouse who exercised sole or predominant use in relation to them, on account of the value of his share in the common property. If the value of business assets transferred to one of them exceeds the value of the share due to him, then monetary compensation must be recovered in favor of the other spouse.

When a husband or wife is unable to pay monetary compensation to the other immediately after the end of the trial on a dispute over the division of property, the court has the right not only to defer or install such payment, which is allowed now, but also to establish a pledge and a ban on the alienation of the business to secure it -assets or other property. This allows for a balance of interests between the former spouses.

Contents of the marriage contract

The spouse has the right to change the regime of joint property established by law by a marriage contract. In addition to the regime of joint ownership, a marriage contract may establish shared or separate ownership of all the property of the spouses, of its individual types, or of the property of each spouse.

A marriage contract is concluded in writing and is subject to notarization; it can be concluded both in relation to the existing and in relation to the future property of the spouses.

A marriage contract concluded before the state registration of marriage comes into force from the date of its state registration.

The content of the marriage contract is regulated by Article 42 of the Family Code of the Russian Federation. Thus, spouses have the right to determine in a marriage contract their rights and obligations for mutual maintenance, ways of participating in each other’s income, and the procedure for each of them to bear family expenses; determine the property that will be transferred to each of the spouses in the event of divorce, and also include in the marriage contract any other provisions relating to the property relations of the spouses (clause 1 of Article 42 of the Family Code of the Russian Federation).

The rights and obligations provided for in a marriage contract may be limited to certain periods or made dependent on the occurrence or non-occurrence of certain conditions (Clause 2 of Article 42 of the Family Code of the Russian Federation).

In accordance with paragraph 3 of Art. 42 of the Family Code of the Russian Federation, a marriage contract cannot:

• limit the legal capacity or capacity of spouses, their right to go to court to protect their rights;
• regulate personal non-property relations between spouses, the rights and obligations of spouses in relation to children;
• provide for provisions limiting the right of a disabled, needy spouse to receive maintenance;
• contain other conditions that place one of the spouses in an extremely unfavorable position or contradict the basic principles of family law.

If state registration of the transfer of ownership of property is necessary, the marriage contract is the basis for state registration.

November 14, 2021 DIVISION OF LAND UNDER A HOUSE IN COMMON SHARE OWNERSHIP

Despite the fact that the law does not directly establish the rule that the division of a plot is possible only simultaneously or after the division of a house (allocation of a share in the right of common ownership of a house), nevertheless, based on the norms of paragraph 4 of subparagraph 3 of paragraph 4 of Article 35 The Land Code of the Russian Federation and paragraph 1 of Article 273 of the Civil Code of the Russian Federation, we can conclude that the allocation in kind of a share in the right of common ownership or the division of a land plot with the leaving of a residential building located on it in the common shared ownership of the participants contradicts the requirements of existing legislation, since in this case there is no allocation to each of the co-owners of a separate land plot, free from the rights of third parties.

November 7, 2021 TERMINATION OF STATE CADASTRAL REGISTRATION AND STATE REGISTRATION OF RIGHTS

Prior to the implementation of state cadastral registration and (or) state registration of rights or refusal of state cadastral registration and (or) state registration of rights, consideration of applications and (or) documents submitted for state cadastral registration and (or) state registration of rights may be terminated on the basis joint application of persons who submitted an application and (or) documents for state cadastral registration and (or) state registration of rights.

November 1, 2021 HOW TO FIND OUT THE BORDERS OF YOUR LOT?

Sooner or later, every owner faces the need to clarify the boundaries of his land plot. And this is really necessary information. There are several ways to find out the boundaries of your land plot. The most obvious and simple option is to find out the boundaries using the cadastral number of the object.

October 26, 2021 REGISTRATION OF OWNERSHIP OF AN APARTMENT

Dear applicants! We remind you that registration of ownership of an apartment is an important procedure that is necessary to formalize the transfer of ownership of this residential premises. In order for registration to proceed quickly, without any difficulties, you need to immediately collect a complete set of documents required for registration.

October 17, 2021 MARRIAGE CONTRACT – DETERMINATION OF PROPERTY RIGHTS

A prenuptial agreement, or prenuptial agreement as it is often called, is an agreement between persons planning to marry or an agreement between spouses. A prenuptial agreement is aimed at defining the property rights and obligations of each spouse, both during marriage and after its dissolution. The rules and procedure for concluding a marriage contract are regulated by articles of the Family Code of the Russian Federation (Chapter 8). Since a marriage contract is a bilateral transaction, the completion of which requires the expression of the will of both parties, the rules of Chapter 9 of the Civil Code of the Russian Federation (“Transactions”) apply to it.

October 9, 2021 CONFIGURATION OF A LAND WHEN LANDING

The configuration of a land plot is determined by the location of its boundaries. At the same time, Part 10 of Article 22 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate” establishes the procedure for determining the location of the boundaries of a land plot when they are clarified, which is determined based on the information contained in the document confirming the right to the land plot, or in the absence of such a document, based on the information contained in the documents that determined the location of the boundaries of the land plot when it was formed.

October 3, 2021 CADASTRAL NUMBER OF THE OBJECT

According to Article 5 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate”, each property, information about which is included in the Unified State Register of Real Estate, has an unchangeable cadastral number that is not repeated over time and on the territory of the Russian Federation, assigned rights registration authority (Rosreestr). It is assigned to each object in the Riobet real estate casino after the procedure for entering it into the state real estate cadastre.

Change and termination of the marriage contract

The marriage contract can be amended and/or terminated at any time by agreement of the spouses. An agreement to amend or terminate a marriage contract is made in the same form as the marriage contract itself.

Unilateral refusal to execute a marriage contract is not allowed (Clause 1, Article 43 of the Family Code of the Russian Federation).

At the request of one of the spouses, the marriage contract can be changed or terminated by a court decision on the grounds and in the manner established by the Civil Code of the Russian Federation for changing and terminating the contract (Clause 2 of Article 43 of the Family Code of the Russian Federation).

The validity of the marriage contract terminates from the moment of termination of the marriage, with the exception of those obligations that are provided for in the marriage contract for the period after the termination of the marriage (Clause 1 of Article 44 of the Family Code of the Russian Federation).

Grounds for the emergence of common joint property

The law allows the formation of joint ownership of property in exceptional cases when the property:

1) is indivisible , since it cannot be divided without changing its purpose (for example, a car). Recognition of a thing as indivisible entails certain legal consequences - part of an indivisible thing cannot be the subject of independent civil rights. In Art. 133 of the Civil Code of the Russian Federation states that a thing, the division of which in kind is impossible without destroying, damaging the thing or changing its purpose and which acts in circulation as a single object of real rights, is an indivisible thing even if it has component parts. In this case, the replacement of some components of an indivisible thing with other components does not entail the emergence of another thing, if the essential properties of the thing are preserved. A classic example of an indivisible thing is an “indivisible” plot of land. Yes, Art. 11.9 of the Land Code of the Russian Federation establishes the maximum size of land plots in respect of which, based on the legislation on urban planning activities, urban planning regulations are established.

2) is not subject to division by force of law . For example, paragraph 3 of Art. 37 of the Civil Code of the Russian Federation establishes the presumption of inseparability (indivisibility) of the property of the ward, clause 1 of Art. 113 of the Civil Code of the Russian Federation establishes the presumption of inseparability (indivisibility) of the property of a unitary enterprise, clause 2 of Art. 54 of the Federal Law of June 25, 2002 N 73-FZ “On objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation” establishes that monuments and ensembles that are in common ownership, including monuments and ensembles related to the housing stock, as well as land plots within the boundaries of which the specified monuments and ensembles are located are not subject to division.

3) is divisible, but is jointly owned by force of law (for example, the property of a farm) or an agreement (simple partnership). So, for example, by virtue of Art. 34 of the RF IC, property acquired by spouses during marriage is their joint property. That is, common joint property, as a general rule, is established on the basis of law in relation to any property of the spouses. Such common property may also include divisible items. For example, spouses can have any item (from furniture to food) under the right of common joint ownership.

In common ownership, one object (the object as a single whole) belongs to several subjects. In this regard, co-owners, in addition to relations with third parties (which are of an absolute nature), enter into certain relations with each other. The legal regime of relations between co-owners depends on the type of common property.

Legal consequences of changing the property regime of spouses

Regardless of the method in which spouses decide to change the legal regime of property, they need to remember the legal consequences that these actions carry. In particular, we are talking about the following:

• in the event of a divorce, spouses can no longer claim to divide property in equal shares;
• when transferring jointly acquired property to one of the spouses, the second loses the right of ownership to it in the legal sense of the word;
• when transferring jointly acquired residential premises to one of the spouses, the second spouse in the event of divorce also loses the right to reside in it;
• when transferring jointly acquired property to one of the spouses in the event of his death, the order of inheritance by the second spouse changes (since he does not initially possess half of the inherited property).

The legal consequences are irreversible. They are canceled only if the agreement or prenuptial agreement is canceled or declared invalid.

Transformation of the right of joint ownership into shared ownership

Clause 5. Art. 244 of the Civil Code of the Russian Federation establishes a rule on the transformation of the right of joint ownership into shared ownership. As a general rule, the law indicates the need to obtain consent from all participants in joint ownership. The external form of consent as a legal fact is an agreement to determine a share, which is an agreement that changes the regime of joint ownership without defining shares to the regime of shared ownership with the definition of the shares of each of the co-owners. At the same time, in the absence of such consent, the issue of transforming common joint property into shared ownership may be referred to the court. For example, a type of such agreement may include a marriage contract, on the basis of which spouses can change the regime of common joint property.

Thus, shared ownership can be established for common property that is in joint ownership:

• voluntarily - by agreement of the participants in joint ownership;
• forcibly - by a court decision if agreement is not reached between the participants in joint ownership.