Conditions for the necessity of concluding a marriage contract. Marriage contract. ✔ When to enter into an agreement: before marriage or during marriage

Russian legislation stipulates that everything that spouses acquire during marriage is their joint property. It means that The other spouse is also responsible for the debts of one spouse, that in order to sell, say, an apartment or a car, the consent of the other spouse is required. However, I hasten to note that this mode is not convenient for every family!

In this article I will examine in detail the questions about the marriage contract: what it is, what laws it is regulated by, how and when to draw up, amend and terminate the contract, why it is needed, what clauses to include in the contract, and I will also write a number practical advice that will help you avoid mistakes in the future.

○ Part 1. Marriage agreement (general information).

So, what is a prenuptial agreement? In short, this is an agreement concluded by spouses during or before registration of marriage and regulating property relations between husband and wife, as well as (possibly, but not necessarily) the responsibilities of spouses in marriage and .

✔ Marriage agreement in the Family Code

Possibility of conclusion marriage contract first appeared with the adoption of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) in 1994. Art. 256 of the Civil Code of the Russian Federation for the first time in Soviet and post-Soviet law provided for the ability of spouses to establish mutual property rights and obligations themselves.

The Family Code of the Russian Federation, which came into force on March 1, 1996, specified the concept of a marriage contract (sometimes also called a marriage contract), devoting an entire Chapter 8 to it (we recommend that you read it), which explained in detail how a marriage contract is concluded, what exactly it may contain , during what period it is valid, as well as many other issues that allow citizens to independently enter into or terminate such contracts.

✔ When can you conclude a marriage contract?

A prenuptial agreement can be concluded either at any time during the marriage or before the registration of the marriage - in relation to the property that the future spouses already have, as well as in relation to what they will acquire in the future.

By law, such a contract must be certified by a notary, therefore, a contract concluded by spouses during marriage comes into force from the moment the notary puts a certification mark on it. In the same case, if the future spouses enter into a contract even before registering the marriage, then, according to Part 1 of Art. 41 of the RF IC, such a contract comes into force after the marriage itself is concluded and registered with the civil registry office.

✔ Terms and period of validity of the marriage contract

The law also determines the validity period of the marriage contract. By general rule, the contract, whether it was concluded before or during marriage, valid for the entire period of marriage until divorce(in the event of the death of one of the spouses, slightly different rules regarding inheritance apply).

However, it should be noted that some provisions marriage contract may also apply after divorce. This happens if the spouses have provided for these conditions in advance, for example, who will support whom after the divorce and how exactly the property will be divided.

✔ Limitation period for marriage contracts

Like any other agreement, a marriage contract can be challenged. The RF IC does not specifically provide grounds for this or a special limitation period, therefore In relation to a marriage contract, the usual rules of civil law must apply.

But it's not that simple! Here we inevitably touch upon a very controversial issue, on which even professional lawyers do not have a consensus.

There are at least two possible scenarios:

1. Article 44 of the RF IC, which describes the grounds for declaring a marriage contract invalid, refers to the RF Civil Code. Therefore, on formal grounds one could conclude that a marriage contract can be challenged in court within three years from the moment of conclusion.

2. Article 9 of the RF IC provides that limitation period for cases arising from family relations, no at all, unless otherwise provided by law.

As a result, even judicial practice develops differently.

Here we can give only one piece of advice: when filing a lawsuit to terminate or invalidate a marriage contract, it is better to focus on a three-year period - however, the expiration of this period does not mean that everything is lost and the contract is no longer subject to challenge.

✔ Validity of the marriage contract after divorce

A prenuptial agreement is concluded during or before marriage and is valid at all times. family life up to . However, this does not mean that immediately after a divorce you can forget about the contract. The fact is that one of the most important reasons why such agreements are concluded at all is precisely to suppress possible disputes about.

In this case, the marriage contract clearly defines in what shares the property of the spouses is divided after a divorce, and, if necessary, what exactly of the property goes to each of the spouses. This is the main function of the document and is very useful when family members own not only money, but also expensive property (apartments, cars, Jewelry, antiques, etc.), as well as various types of rights to the ongoing business.

Eg:
A businessman husband can stipulate in the contract that his wife has nothing to do with the shares or shares in the authorized capital - or, on the contrary, leave a specific enterprise to her.

However, due to the principle of equality of spouses in marriage enshrined in law, a rich wife also has similar rights in relation to her husband.

✔ When to enter into an agreement: before marriage or during marriage?

If the contract is concluded before the marriage is registered, then in it it is possible to provide only for the ownership of the property that (presumably) will be T acquired later with life together.

Usually this is real estate (apartments, houses, land), movable property (cars, other vehicles, business, etc.).

Of course, no one is stopping you from transferring something to your future husband or wife even before marriage - however, these relations will be regulated by other types of contracts: those provided for by civil law. It is not recommended to include this transfer in the marriage contract..

The fact is that a marriage contract comes into force only from the moment the marriage is registered, but, for example, a contract of gift or purchase and sale of any real estate - only from the moment the transaction is registered with the relevant government agency. Confusion can arise – and it’s easier to avoid it in advance.

A prenuptial agreement can be concluded at any time after marriage. In this case, the spouses will have to describe in detail in it who exactly owns the existing property, so that there are no disputes in the future.

However, the law does not prohibit leaving part of the property in joint ownership - however, even here it is necessary to clearly describe what exactly belongs to everyone, adding to the agreement a clause with approximately the following wording: “In relation to property not specified in this agreement, the rules provided for by the current legislation."

A contract entered into during marriage details who already owns what, as well as how income is distributed.

By law, almost everything that spouses acquire is their joint property (with minor exceptions, such as clothes, shoes, gifts, intellectual property, etc.) - but at the same time, both spouses are responsible for the debts of one of the spouses at once.

If one of the married couple is an entrepreneur, then the legal regime of property can lead to the fact that after an unsuccessful transaction the whole family will find themselves in poverty. This is where a marriage contract is extremely useful: by dividing the property in advance, the spouses at least guarantee themselves that in the event of ruin, the unlucky entrepreneur risks only his share in the property, without affecting the interests of the wife (or husband).

✔ What types of marriage contracts are there?

There are two main types of prenuptial agreements:

1) An agreement under which all property is in their common joint ownership.

Such an agreement is convenient for married couples who do not want to argue about who was given what, who is responsible for what obligations - and both spouses hope that there will be no divorce and division of property. In this case, the family acts, in essence, as a single entity in property relations with third parties.

2) An agreement under which the rights to ownership of property are separate.

This option protects the second spouse from the debts of the first, and provides a clear and transparent procedure for the possible division of property. The disadvantages of this type of marriage contract include only the possible property inequality between spouses- however, if they voluntarily agree to this option, this is their purely family matter and does not concern any outsiders.

○ Part 2. Pros and cons of a prenuptial agreement.

A prenuptial agreement in Russia is no longer a new thing, but over the past years it has not become a mass phenomenon. Let's try to briefly formulate what exactly it gives to spouses, what its positive and negative sides are.

✔ Advantages of a marriage contract:

There are no disputes regarding the division of property. Anyone who has ever gotten a divorce or watched relatives or friends get divorced will confirm: very often, after the dissolution of a marriage, disputes begin, and the more was gained in the marriage, the greater the bitterness between ex-spouses. Very often, unable to reach an agreement, they are forced to go to court with a claim for division of property. (our ). A marriage contract that spells out such issues in advance will save a lot of time and nerves.
It is possible to determine which spouse is responsible for which debts. This is especially true for entrepreneurs, but is also very useful for ordinary citizens.
If expensive property was given to someone before or during marriage, you can determine in advance who it belongs to and under what conditions.

✔ Disadvantages of a marriage contract

The marriage contract is always must be certified by a notary, all changes and additions to it too. Going to a notary requires both time and money.
If the legislation changes, spouses will have to edit the contract, bringing it into compliance with new laws, otherwise the contract could easily be invalid. These are additional costs for lawyers.
Marriage contract requires spouses to have clear legal language, otherwise he himself will become a cause for controversy in the future.
Marriage contract regulates only property relations. All other conditions (for example, with whom the children will remain in the event of a divorce, which spouse is obliged to do what around the house) are invalid from the point of view of the law.
Psychologically, the marriage contract is largely prepares spouses for future divorce and destroys trust in the family.

Video

A video in the "General Interest" program about the advantages and disadvantages of prenuptial agreements.

○ Part 3. What is desirable to include in the content of the marriage contract?

Having understood what a marriage contract is, we will explain what points the document should contain so that there are no claims in the future.

1 point: determination of ownership of property, joint property.

When drawing up a marriage contract, you should indicate what kind of property does it apply to?. In particular, if before marriage each of the spouses owned something, it is necessary to indicate whether this property, as specified in the law, remains the property of one spouse, whether it becomes joint property, or whether the other spouse is allocated a share in it (this is especially important for real estate objects: apartments, cottages, land plots).

Spouses also have the right to determine who exactly will own what is donated or inherited.

2 point: joint property.

The contract must regulate in detail the ownership of property and funds that have been received or may be received during the marriage. In law, all this must be jointly owned by the spouses, but the contract can stipulate, say, that the income of each spouse or the property acquired with it belongs only to him alone.

3 point: property expenses.

Property issues also include the costs of maintaining the property: expenses for repairs, and for housing - utility bills. Although this is not directly provided for by law, it can be included in the content of the marriage contract and the regulation of these issues. You can also arrange household expenses in an agreement, for example, by indicating that they are made at the expense of one of the spouses - or that both are obliged to participate in them jointly.

4 point: children.

Quite often, when discussing a marriage contract, issues related to children arise. Here it is necessary to clearly remember that a marriage contract regulates issues related only to property- and children, of course, are not. Therefore, it is unacceptable to include clauses in the marriage contract regarding which child will remain with which parent in the event of a divorce. This part of the contract will be invalid.

5 point: child support.

Likewise, a marriage contract cannot regulate possible child support. Spouses have the right to conclude, but only separately and after a divorce. It is better to avoid such clauses in the content of the marriage contract.

6 point: debts.

As already mentioned, a prenuptial agreement is an excellent tool for resolving possible problems with the spouses’ debts. It may provide for separate ownership of family property - and in this case, everyone will be responsible for their debts only with what belongs to them, without affecting the interests of the other spouse.

7 point: mortgage and loan.

And, since we are talking about debts, it is necessary to separately mention the costs of property purchased on credit against collateral - namely, a mortgage. There are two options here:

1. If a marriage contract is concluded before a mortgage is taken out, then it is necessary to clearly state who makes payments on the loan and in what amount, and who exactly will own the purchased property. It may end up being either the property of one of the spouses (but in this case, he alone will bear the expenses), or their common property (and here it is necessary to indicate who owns what share).

2. If a marriage contract is concluded with a mortgage already taken out, then the possibilities of the spouses are limited by the existing agreement with the bank. According to the law, the acquired property is common joint property, but the debt can also be recovered from both spouses. In order to indicate any other conditions in the marriage contract, spouses you will have to obtain the bank’s consent and renew the mortgage agreement. As practice shows, banks are extremely reluctant to do this.

✔ What should not be included in the marriage contract.

Well, now let’s talk about what should under no circumstances be included in the content of the marriage contract. As already mentioned, it is impossible to indicate with whom the children will remain after a divorce - this is directly prohibited by Part 3 of Art. 42 IC RF. In addition, it is unacceptable to include in the marriage contract conditions that:

They limit the rights of spouses to work, freedom of movement, the right to go to court, etc.
For example, a contract cannot oblige a wife to give up work or study and force her to do only housework. In the same way, in the event of a divorce, one of the spouses cannot be obliged to leave for another city and no longer appear at their previous place of residence.
Regulate non-property relations.
Curious agreements, according to which the wife undertakes to monitor her appearance and regularly visit a cosmetologist, or according to which the spouses try to indicate how many times a week they are obliged to have sex, have no legal force in this part. It is also impossible to oblige spouses to remain faithful to each other. Sometimes contracts try to indicate the amount of compensation for moral damage in the form of the amount that the unfaithful spouse must pay, but this point is very controversial.
Regulate relationships with children that are not related to the costs of their maintenance.
As has already been said, it makes no sense to indicate who the children will stay with after the divorce and how they will communicate with their parents. The maximum that is possible here is in accordance with Part 1 of Art. 42 of the RF IC to provide for who and in what amount bears the costs of providing for the maintenance of a child (for example, who pays for kindergarten, paid school, university, etc.).
Limit the rights of a disabled spouse.
The RF IC directly provides that spouses are obliged to financially support each other. So if one of the spouses becomes disabled, he in any case receives the right to alimony from the second spouse - regardless of what is said about this in the marriage contract.
They place one of the spouses in extremely unequal conditions. This will be discussed in more detail below.

○ Part 4. Marriage contract and property of spouses.

Let's consider how specifically a marriage contract can regulate issues related to certain types of property

✔ Marriage agreement for an apartment and other real estate.

When describing the rights to real estate in a marriage contract, it should be remembered that it is subject to state registration.

In accordance with Part 2 of Art. 2 Federal Law“On state registration of rights to real estate and transactions with it” any change in the status of apartments, land plots and other real estate, including in connection with the conclusion of a marriage contract, must be registered with the relevant authority. Otherwise, such change will not have any legal force.

In addition, it should be noted here that when real estate is included in the marriage contract, the spouses will have to present to the notary and documents for the relevant property.

The marriage contract must also stipulate who has the right to use real estate and in what order, and who bears the costs of its maintenance.

✔ Marriage agreement for car and movable property

With regard to movable property, there are no restrictions indicated above - although there are some subtleties here too. In particular, although registering a car with the State Traffic Safety Inspectorate does not affect the property rights to it, it is still better to re-register when the car is transferred under an agreement into the ownership of the other spouse.

It should also be remembered that most movable property has a limited service life, so even if it is described in detail in the contract, by the time of division these particular things may no longer be available. There are several ways you can do this:

Divide property by type(for example, indicating that computer equipment and consumer electronics belong to one spouse, and furniture, dishwashers or washing machines– to others, regardless of their brand, model and time of purchase).
Every time you purchase expensive items that may cause a dispute, amend the marriage contract. This is far from the most the best option, but it is acceptable.
Determine the identity of each item depending on whose funds it was purchased with. This option is acceptable if the marriage contract provides for separate ownership of property.
Do not indicate specific things, but provide in the contract for the share in the total value of the spouses’ property belonging to each of them. The disadvantage of this method is the need for an independent assessment or the absence of a dispute about the value between the spouses.

Unfortunately, there is no single solution, and when concluding a marriage contract, spouses should independently choose one of these methods or come up with their own.

✔ Marriage agreement for debts, loans, mortgages.

A prenuptial agreement is an excellent tool for settlement possible problems with debts. Depending on the property ownership regime chosen by the spouses, three options can be distinguished:

1. Common joint property– both spouses are equally responsible for debts.

2. Common shared ownership– each spouse is liable for debts only to the extent of the value of his share in the family property, and an amount of debt greater than this share cannot be recovered from the second spouse.

3. Separate property- in this case, each spouse is responsible for the debts himself, and the second has nothing to do with them.

However, with regard to those debts that already exist at the time of concluding the marriage contract, it should be remembered: in accordance with Art. 46 of the RF IC about the conclusion, amendment or termination of a marriage contract, the debtor spouse is obliged to notify all his creditors. If he did not do this, then the debts will be collected in the manner prescribed by law - and no one will be interested in the contents of the marriage contract.

Moreover, creditors in accordance with Art. 451 of the Civil Code of the Russian Federation and Part 2 of Art. 46 IC RF may demand through the court a change in the conditions or termination of the marriage contract, if circumstances have changed significantly (for example, with the separate property of the spouses, the debtor spouse has lost his ability to work and can no longer independently answer for the contract).

Video

Lawyer Yaroslav Mukhin answers citizens' questions about the marriage contract and the nuances of its preparation.

○ Part 5. How to conclude a marriage contract?

So, you have decided to enter into a prenuptial agreement. What do you need to know for this?

✔ Conditions for concluding a marriage contract.

1) Age of majority and legal capacity of the parties. A prenuptial agreement (as well as a marriage in general) cannot be concluded if at least one of the parties has not reached the age of 18 (if there are good reasons and with the consent of the authorities local government– 16 years old), or declared incompetent by the court.

2) The absence of already registered marriages with other persons of any of the spouses. IN Russian Federation Polygamy and polyandry are not allowed, so in this case neither the marriage nor the marriage contract will have legal force.

3) No consanguinity or adoption between the parties. Since a prenuptial agreement is concluded only together with the conclusion of a marriage, the same restrictions apply here: it is unacceptable to conclude a marriage or a prenuptial agreement between parents and children, brothers and sisters, etc. Also, adoptive parents and adopted children cannot be parties.

Our visitors often ask questions about what are the pros and cons of a marriage contract, how to conclude it, and in what cases a marriage contract is invalid. Sooner or later, people entering into a marriage or already in one think about which spouse owns what property and will belong to it in the event of a divorce. As a general rule, in accordance with paragraph 1 of Article 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property. However, this regime of property of spouses can be changed by concluding a marriage agreement (contract).

Consultations: 70

What is a prenuptial agreement (contract)

According to Article 40 of the RF IC, a marriage contract is recognized as an agreement between persons entering into marriage or an agreement between spouses defining their property rights and obligations in marriage and (or) in the event of its dissolution. This, in fact, is the essence of the contract.

A marriage contract can be concluded during the period from the moment of filing an application for marriage registration until its dissolution in the registry office or the court’s decision on divorce. In this case, the agreement concluded before the state registration of the marriage comes into force from the moment of such registration.

Every year everything lies in Russia large quantity marriage contracts. Currently, their number has reached 50 thousand per year. And although now such contracts are concluded not only by very wealthy citizens, but also by representatives of the middle class, so far the parties to the contract most often become spouses who are already in the process of divorce. Concluding a prenuptial agreement allows you to avoid lengthy litigation and significant costs for qualified lawyers.

The procedure for concluding a marriage contract

It is necessary to keep in mind that a marriage contract is concluded in writing and must be notarized. Only in this case does it have legal force.

What conditions can be included in a marriage contract?

Since the conclusion of a marriage contract is aimed at changing the legal property regime of the spouses, it is first necessary to determine which regimes can be used instead. In accordance with paragraph 1 of Article 42 of the RF IC, a marriage contract may establish the following property regimes for spouses.

· Joint ownership regime: property is in the possession, use and disposal of spouses without determining shares. The disposal of such property is carried out with the consent of both spouses, regardless of who it is registered in the name of and, accordingly, who makes a particular transaction in relation to this property. Since this regime applies to property acquired during marriage by default, the marriage contract can stipulate, for example, that this regime applies only to part of the property. Another way of using this regime in a marriage contract is to extend it to property that, by law, is the personal property of each spouse. This applies in particular to premarital property. As a general rule, the latter belongs to the spouse to whom it belonged before marriage. In the event of division of jointly owned property, the shares of each spouse will be allocated. Let us note that, by virtue of the norms of the RF IC, the shares are assumed to be equal, unless otherwise established by the agreement between the spouses.

· Shared ownership regime: when each spouse is assigned a specific share of ownership of the property. Ownership and use of such property is carried out by agreement of both spouses. However, each spouse has the right, at his own discretion, to sell, donate, bequeath, pledge his share or dispose of it in any other way, subject to the rule on the pre-emptive right to purchase the share by the second spouse when it is sold to third parties. This regime allows you to take into account the contribution of each spouse to the acquisition of specific property. Depending on such contribution, shares in the ownership of property can be determined. It is very important to specify in the marriage contract which property of the spouses is subject to the shared ownership regime and what criterion is used to determine the share of each spouse. Under this regime, there is no requirement to allocate shares in the event of division of marital property.

· Separate property regime: The property is the personal property of one of the spouses. Possession, use and disposal of such property is carried out by the owner-spouse at his discretion without taking into account the opinion of the second spouse. This regime can be extended to all property of the spouses, to their individual species(for example, real estate, securities) or for specific property. Most often, separate ownership is established in relation to registered property, namely: real estate, vehicles. Accordingly, the owner of specific property is the spouse in whose name it is registered. But nothing prevents the provision of separate ownership, for example, of bank deposits, securities or luxury goods. Please note that this regime is beneficial for spouses, one of whom has children from a previous marriage, since in the event of the death of the parent-spouse, his children will not be able to claim the property of the second spouse.

The above marriage contract regimes can be applied both to existing property and to property that will be acquired in the future.

We also note that in a marriage contract it is possible to use one of the modes or a combination of them.

Property that is not provided for in the contract will be considered the joint property of the spouses.

In addition to determining the property regime in relation to existing or future property, as well as the composition of the property transferred to each of the spouses in the event of divorce, the following provisions can be included in the marriage contract:

· About the rights and obligations regarding mutual maintenance. The amount of maintenance is determined by the spouse at her own discretion.

· About ways to participate in each other's income. In this case, income means wage, dividends from securities, income from leasing property and other income related to the participation of property in civil circulation, income in kind, for example, harvest, as well as any other income obtained legally. Under the terms of the marriage contract, the income of one of the spouses can be distributed in a certain way, for example, 30% is the personal property of the spouse who received it, and the remaining 70% is transferred to the second spouse for targeted spending on the needs of the family.

· On the procedure for each spouse to bear family expenses. We can talk about any family expenses: paying utility bills and property taxes, purchasing food, paying for treatment, education, etc.

· Other provisions relating to property relations between spouses. For example, the conditions for a spouse to use residential premises owned by the second spouse.

What conditions cannot be included in a marriage contract?

According to clause 3 of Article 42 of the RF IC, a marriage contract cannot limit the legal capacity or legal 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.

Considering popular questions regarding the terms of a marriage contract, it should be clarified that, based on the above, clauses on marital fidelity and household responsibilities cannot be included in the contract, for example, that the husband undertakes to take out the garbage and the wife to prepare breakfast, lunch and dinner every day. It is also impossible to establish a reward for the birth of a child. However, by virtue of clause 2 of Article 4 2 of the RF IC, 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. Thus, it can be stated, for example, that in the event of the birth of a child, the regime of separate property of spouses changes to the regime of joint property.

The marriage contract cannot regulate the issue of children's residence in the event of parental divorce. The rights and responsibilities of parents in relation to children can only be specified in an agreement on children.

It should also be noted that under the terms of the marriage contract, all the property of the spouses cannot become the sole property of one of them. In this case, we will be talking about the extremely disadvantageous position of the second spouse. Since such an agreement is a civil transaction, such a circumstance will be grounds for invalidating the marriage contract.

Is it possible to change or terminate a marriage contract?

At any time until the marriage is dissolved, the spouses have the right to enter into an agreement to amend or terminate the contract.

If the spouses want to change the text of the marriage contract or terminate it, such an agreement must also be concluded in writing and certified by a notary.

The marriage contract automatically terminates upon the termination of the marriage, with the exception of those provisions that are provided for in the event of its termination.

What else do you need to know

· Marriage contract and civil marriage

The question often arises about the possibility of concluding a marriage contract between common-law spouses. Let us note that in the legislation there is no such thing as “civil marriage”. In accordance with paragraph 1 of Art. 10 of the RF IC, marriage is concluded in the civil registry office. According to paragraph 2 of this article, the rights and obligations of spouses arise from the date of state registration of marriage with the civil registry office. Thus, according to Russian law, only official marriage is recognized. Since the marriage contract is concluded between spouses or persons who submitted an application for marriage registration, which is expressly stated in Art. 40 of the RF IC, the conclusion of such an agreement between common-law spouses is impossible. To change their property relations, such spouses can enter into any other civil law agreement: purchase and sale, exchange, donation, etc.

· Marriage contract and property division agreement

The RF IC provides for another way to change the property relations of spouses - an agreement on the division of property. What's the difference? Firstly, a separation agreement can only be concluded between spouses, while a prenuptial agreement can be concluded before official registration marriage. Secondly, the subject of the division agreement is exclusively the property already acquired by the spouses, and the subject of the marriage contract is also property acquired in the future. Thirdly, clauses on the property responsibilities of the parties cannot be included in the division agreement.

· Invalidity of the marriage contract

A marriage contract may be declared invalid by the court in whole or in part on the grounds provided for by the Civil Code of the Russian Federation for the invalidity of transactions.

If you have any additional questions related to the preparation of a marriage contract, you can ask our lawyers using the website.

Thank you

The regulation of legal relations in marriage falls under the function of the Family Code of the Russian Federation. But this problem is solved in another way. In this article we will look at the conditions and procedure for concluding a marriage contract. Signing a contract is popular in Europe and America. In Russia, this format for regulating relationships in marriage is only gaining popularity.

Why enter into a prenuptial agreement?

The current legislation regulates the relationship between spouses under the articles of the eighth chapter of the Russian Federation. But it contains an important note. Property acquired jointly belongs to both spouses at the same time, unless this is specifically stated in the signed marital agreement. This fundamentally affects the conditions and procedure for concluding a marriage contract.

All acquired assets together belong to both signatories of the contact. The legislation does not provide for distribution based on income. Both spouses have equal rights. Therefore, after a divorce, all property is divided equally. This leads to the fact that even a housewife wife will receive half of all jointly acquired values during a divorce.

Pension savings;

Cash payments;

Profit from doing business.

This also includes values resulting from the joint income of the signatories of the agreement. They include cash deposits in banks, shares in business, land shares and everything else that any of the signatories took possession of after the official marriage.

Personal property is the property that belongs to a husband and wife even before their relationship is legally formalized. These are cash deposits, capital and other material assets that the signatories of the contract owned before getting married. Buildings and other valuables donated or otherwise received free of charge. For example, a building obtained as a result of privatization.

The definition of a marriage contract is quite precise. This is a contract of people entering into an official marriage, or an agreement between spouses, distributing rights to ownership of valuables, and the obligations of signatories who are officially married or annulling it. The conditions for concluding a marriage contract include theses that complement or seriously change the nature of the property relationship. This allows each signatory to protect their legal rights.

What conditions can be included in a marriage contract?

Under the terms of concluding a marriage contract in the Russian Federation, a new regime for the ownership of valuables is being formed. It is regulated in the form of separate, joint or shared ownership. It applies to all types of material assets: houses, apartments and others. The terms of a marriage contract in the Russian Federation concern the regulation of relationships, both between spouses and people preparing to get married.

Under a contract, it is permissible to transfer the personal assets of one signatory into joint ownership with another. The law also allows for the redistribution of personal assets between the signatories of the contract. Conditions that may be included in a prenuptial agreement include:

Rules regulating the financial support of spouses;

Methods for generating family income;

Mandatory family expenses;

Values received by contract signatories when initiating divorce proceedings.

The mandatory conditions of a marriage contract are simple. The contract is concluded in writing and certified by a notary. If the second clause is violated, the agreement is deprived of all legal force. None of the signatories are obliged to comply with it.

conditions for concluding a marriage contract in the Russian Federation?

A marriage contract is concluded before or after the official registration of marriage. If the contract is signed before the marriage, it is a deferred transaction. The agreement will enter into legal force after the completion of the official marriage procedure.

If the contract is signed, it will come into effect after being certified by a notary. The deal can be concluded at any time after the wedding. The paper is signed exclusively personally by each party.

The contract fixes the fate of valuables belonging to the parties before the official marriage, and property received during their life together. A signed document changes the rules regarding personal property. For example, an apartment purchased before marriage by one of the parties to the transaction can become a joint property according to the signed contract.

The procedure for distributing jointly accumulated values after a divorce is also specified in the agreement. It indicates what will go to the wife and what will go to the husband (for example, it can be stated that the car will go into the possession of the husband, and the house - to the wife).

The contract can be fixed-term or indefinite. In the first case, the contract will terminate upon the annulment of the marriage. In the second, it will be valid for the period prescribed by the agreement. Check out.

Principles of annulment of a marriage contract

Signatories have the right to cancel the contract at any time. The procedure follows a similar procedure to concluding a contract. It is done in writing and certified by a notary. The procedure is implemented as an additional agreement.

Separate withdrawal from the contract is not permissible. Spouses do not have the opportunity to terminate the agreement unilaterally. Except in cases that are consistent with the Civil Code. This happens exclusively in court. The reason is a situation in which one of the signatories grossly violates the rules prescribed in the agreement. The court considers the claim and makes an appropriate decision to cancel the contract.

To terminate the agreement, serious reasons are needed, a change in the circumstances under which the contract was signed. Only significant reasons are taken into account. They could not be foreseen in advance. And if they were known in advance, it would be impossible to conclude a deal a priori.

Individual provisions or the entire contract are considered invalid if its terms cause significant damage to the plaintiff. The agreement does not limit the legal rights of signatories to apply to judicial authorities or other authorities to protect civil rights. The contract clauses do not include statements establishing rules for the treatment of children or the like.

Section of material assets

In this matter, you must be guided by the standards specified in the concluded contract. To do this, an agreement is drawn up on the implementation of the clauses contained in the contract. It looks like a document about changing the legal status of real estate. It is drawn up within the framework of current Russian legislation.

If the contract contains clauses that directly contradict the law, they are challenged in court. If this happens, in the future all property disputes will be resolved exclusively through the implementation of the rules contained in Family Code. It is worth remembering that the contract only applies to the values described in it. All other material assets will be subject to the provisions of the Family Code.

Pros and cons of prenuptial agreements

Such transactions are not very popular in the Russian Federation. There are certain reasons for this. The opinion of most citizens is based on the fact that concluding such transactions is a manifestation of greed or deliberately malicious intent. Although the signing of such agreements just indicates the honest attitude of the signatories towards each other.

Young people getting married do not have any significant values. Therefore, they have the opinion that they have nothing to regulate. A prenuptial agreement is initially associated with divorce. People, at the time of marriage, think that it is for life. Therefore, there is no point in prescribing provisions that come into force after a divorce.

The deal has its advantages. Each of the signatories knows what will happen during the divorce. Each spouse knows what his rights and responsibilities are. The signatories, for their own consideration, dispose of the material assets acquired before the marriage.

The agreement fixes the rights of ownership of real estate. If one of the signatories of the contract incurs a debt, it will not be repaid from the jointly acquired material assets acquired by the other signatory of the marriage agreement.

It should be noted that the popularity of such transactions in the Russian Federation is growing every year. Citizens become legally literate and pragmatic. Therefore, they strive to carefully protect their rights. The trend indicates that in the near future, prenuptial agreements will become popular in Russian society, if citizens are already actively interested in what conditions may be included in a prenuptial agreement.

is a contract that stipulates the property rights of persons entering or entering into marriage:

It is necessary to understand that the article describes the most basic situations and does not take into account a number of technical issues. To solve your particular problem, get legal advice on housing issues by calling the hotlines:

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during cohabitation(i.e. throughout the marriage, until the death of one of the spouses or divorce);
in case of divorce (that is, official dissolution of marriage).

In some countries (USA, UK) documents of this kind may contain:

Features of management household(some couples even stipulate who will clean the house).
Issues of raising common children - both during the period of cohabitation of spouses and after divorce. In the latter case, it is agreed upon with whom the child will live, how often the second parent will be able to see him, and what amount will have to be paid to the spouse who will live separately from the family.

According to Russian law, a marriage contract can't regulate relationships between parents and children, as well as personal relationships between husband and wife.

List of conditions upon conclusion

The procedure and conditions for concluding a marriage contract must comply standards legislation of the country in which it is signed.

Conclude a marriage contract it is possible either directly on the day of engagement (giving) or, or during the marriage of the spouses. It is also possible to sign a marriage contract in the period between submitting an application to the registry office and the actual wedding. Validity The document usually applies to the entire period of residence of the spouses in marriage, however, the conditions for concluding a marriage contract may be disputed any time. This happens if the husband or wife believes that the agreement violates his/her interests.

It is possible to conclude a marriage contract in oral form, however, it has no legal force. Only a written marriage contract has legal force, which will have to be presented at trials or in notary offices if necessary.

Only adults with legal capacity can enter into such an agreement. To document text it is unacceptable to include points:

Violating the laws of the Russian Federation (or another country in which the document is issued).
Restricting personal rights and freedoms provided for by law. If the document contains requirements that violate the personal rights of the husband and wife entering into marriage, the disagreeing party has the right to go to court. A marriage contract cannot prohibit spouses from going to court to protect their interests or regulate their personal relationships not related to property.

There cannot be a clause in a marriage contract transfer of ownership one spouse to the other of property subject to mandatory state registration.

Incapacitated persons do not have the right to sign a marriage contract (this applies to mentally ill people and minors).

Pros and cons of a prenuptial agreement

Many people note positive sides concluding a written agreement upon marriage. Unconditional advantages of a marriage contract:

the ability to avoid lengthy trials in cases where they arise;
For wealthy people, such a written agreement is a reliable way to protect property from possible marriage scammers(if, according to the contract, the real estate acquired by the wife before marriage belongs to her after the wedding, then the husband cannot in any way claim half of the wife’s property after the divorce).

Despite the obvious advantages, the document has certain flaws:

some people are prejudiced against prenuptial agreements, considering them to be the basis for consumer relations in the family (as a result, mistrust arises between husband and wife);
a marriage contract cannot be a guarantee against the personal shortcomings of the spouses (difficult character, tendency to cheat, cruelty towards the family), as well as against incompatibility of characters;
the conclusion of a marriage contract cannot guarantee the spouses’ observance of parental responsibilities in the case (we are talking about the payment of alimony or periodic visits to the child by a father or mother living separately);
the document does not provide for force majeure circumstances (death of one of the spouses, natural disaster);
a marriage contract does not allow for the quick transfer of property from one spouse to another if problems arise with creditors.

Conclusion

The marriage contract regulates exclusively the proprietary (property) rights of the spouses.
You can conclude a marriage agreement at any time after submitting an application to the registry office and throughout the entire period of engagement and marriage.
A prenuptial agreement can always be negotiated in court.
The document does not concern interpersonal relationships between husband and wife, as well as raising common children. Family relations of a non-property nature are regulated as well as by informal agreements between family members.
Such an agreement has both advantages (preservation of property acquired before marriage for the person) and significant disadvantages (not everything can be foreseen).

The most popular question and answer regarding concluding a marriage contract

Question: The bride has a car, but it was purchased on credit. Not wanting to pay it, the girl suggested to the groom the idea of concluding a prenuptial agreement, according to which on the wedding day the car automatically becomes his property. Is it possible to do this?

Answer: No, because car ownership requires mandatory state registration. If the bride wants to give the groom a car, this must be done separately in accordance with the procedure established by law.

Having decided to conclude this kind of document in a newly created or existing family, it is necessary to find out what conditions must be reflected in it.

If any essential clause is incorrectly drawn up, such an agreement loses its legal validity.

Information about the parties

Subjects of the marriage contract are husband and wife. In this legal contract, both spouses, in good faith, must reflect the following information about themselves:

Date of Birth;
place of residence (by registration);
passport details;
Contact details.

Information about the subject of the contract

This section should reflect, in accordance with Art. 40 of the RF IC, only clauses relating to the property rights and obligations of spouses. It can be:

regulation of income/expenses;
division of real and movable property;
bank funds (loans, assets in accounts, securities).

In this case, it is advisable to clarify what kind of property it will be - acquired before marriage or jointly acquired.

Contract form

The document must be drawn up only in writing in triplicate and must be certified by a public or private notary or other authorized person.

Also each copy is signed by both spouses and a notary officer and is distributed one at a time among all participants who signed it.

Read more about the form of a marriage contract.

should disclose the subject of the agreement in more detail: relate to what is being established, determine the participation of each of them in income and expenses, relate to the division of property and other property relations.

However, its content should not:

introduce restrictions on the legal capacity of both subjects, go to court to defend their legal rights and interests;
concern non-property relations;
regulate the rights and obligations of spouses in relation to children;
provide for clauses restricting a disabled spouse in need from receiving maintenance;
include other conditions that contradict existing family law and put one of the spouses in an unfavorable position.

These clauses may have any time restrictions, and may also be dependent on the occurrence of any specific conditions. According to the theory of concluding civil contracts, there are suspensive and dispensable conditions.

Suspensive

Can a marriage contract be concluded under suspended conditions? Such conditions imply the onset of certain rights and obligations for one of the spouses upon the occurrence of a specified circumstance, although these circumstances may not occur.

The conclusion of a marriage contract under a suspensive condition is legal according to Art. 157 Civil Code of the Russian Federation. Typically in family practice, such conditions are the appearance of children, loss of ability to work, and the purchase of real estate on credit.

For example:

when a joint child appears, some property becomes the property of the mother or, in the event of a divorce, the spouse undertakes to pay a certain amount monthly;
if a spouse loses his or her ability to work, certain rights to property change;
when purchasing real estate on credit by one of the spouses, the second will have the right to own it in proportion to its participation in repaying the loan.

It is advisable to enter into a prenuptial agreement under a condition precedent in cases of purchasing expensive property (apartment, car) on credit. In this case, one of the spouses has certain protection, according to Art. 46 of the RF IC, from financial credit fraud of the second.

Article 46 of the RF IC. Guarantees of creditors' rights when concluding, amending and terminating a marriage contract

The spouse is obliged to notify his creditor (creditors) of the conclusion, amendment or termination of the marriage contract. If this obligation is not fulfilled, the spouse is liable for his obligations, regardless of the contents of the marriage contract.
The creditor (creditors) of the debtor spouse has the right to demand changes in the terms or termination of the agreement concluded between them in connection with significantly changed circumstances in the manner established.

Cancellative

These the terms of the contract are negotiated by the spouses and terminate any of their rights and obligations of a property nature specified in this agreement, while it is also unknown whether these conditions will occur or not.

For example:

in the event of a divorce, all real estate becomes the property of the spouse, only if she did not initiate it, otherwise all real estate goes to the husband;
if a spouse, for objective reasons (loss of job, illness), cannot repay the loan for real estate, then he loses the right to own it.

At what points is a conclusion necessary?

Despite the division of opinions regarding the registration or non-registration of a marriage contract, there are certain conditions when this is necessary, although not mandatory:

When one or both spouses own a large business.
When creating a marriage union that is unequal in terms of property.
When entering into a marriage between spouses who have a large age difference and children from previous marriages.
Upon remarriage.
If both spouses wish to protect themselves from legal proceedings related to the division of property in the event of dissolution of the family union.

Registration of a marriage contract between spouses in our country in Lately is beginning to gain popularity, since this document completely resolves the issues of modern family property relations. It is important to correctly and in accordance with existing legislative norms compose it and issue it.

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