Divorce in the presence of a marriage contract. ✔ Marriage contract in the Family Code. Why Prenuptial Contract Designer

07.05.2019

In addition to other issues in a divorce, former spouses will definitely have to resolve property disputes. Perhaps they will be resolved peacefully and without the involvement of the court. However, in some cases this cannot be done, so the division of the property of the husband and wife becomes the subject of litigation. A marriage contract, which is drawn up regarding everything jointly acquired in marriage, can greatly facilitate the solution of such issues.

What is a marriage contract?

According to the norms and rules proclaimed by the Family Code of Russia, there are several options for the regime of property of a husband and wife. They are established by the RF IC or by the husband and wife themselves, depending on their desire. So, the RF IC provides for the presence of two varieties of the position of divorcing spouses in the event of a division:

law. Chapter 7 of the RF IC sets out the basic rules for the division of everything acquired in marriage, which operate automatically;
Chapter 8 of the RF IC provides for the possibility of establishing a contractual regime for the property of a husband and wife, which presupposes the existence of a marriage contract.

That is why many couples draw up a marriage contract in case of divorce in order to avoid numerous conflicts. It can determine the main points of the division of everything that was acquired during the period of marriage.

The structure and content of the agreement are determined by the parties and in accordance with the legislation of the Russian Federation. For example, there is certain types instructions and conditions that cannot be included in the text of the marriage contract and not taken into account when drawing it up. These include:

prohibition of one of the spouses to seek help from the court in the event of a dispute;
the obligatory presence of the voluntary consent of both parties to the signing of such a contract;
the absence of items that are contrary to the law;
notarization of the finished document;

Since the form for such a document is set as written and certified by a notary, the parties undertake to comply with all the nuances of registration. The notary puts confirmation that the spouses voluntarily entered into an agreement.

What does a prenuptial agreement give in a divorce?

Definitely, the presence of a contract implies a completely different procedure for the division of property than in a situation in its absence. If such a document has not been drawn up between the husband and wife, then the division of property is assumed in equal shares. Not subject to division only:

personal property of each spouse, which was used only by him. This may include individual cosmetics, personal hygiene items, clothing, etc.;
things minor child, since they pass to the spouse with whom the person under the age of 18 remains to live;
property acquired before marriage, donated or inherited, as well as under another unilateral transaction.

If there is a marital agreement, the division of property will take place in a completely different way. It is the text of the signed agreement that will determine what property the husband will get, and for what period of time. It is permissible to draw up a contract in favor of one of the spouses. In addition, the marriage contract guarantees the receipt of specific types of jointly acquired property by one of the spouses in the event of the death of the other, if, under the terms of the agreement, this object was due to the surviving spouse.
Not only real estate, money or valuables can be divided in an agreement drawn up between a husband and wife. It can include conditions and rules for the fulfillment of obligations that arose during the period of marriage. For example, if a family purchased an apartment on a mortgage, then the contract may prescribe the rules for repaying the debt and distributing property after paying off the loan.

Thus, the marriage contract guarantees the property status of each of the spouses after the divorce, in the event of the death of one of them to some extent, as well as in the event that one of the parties demands the division of property. It can include certain conditions, events, the occurrence of which guarantees the distribution of property between husband and wife or in favor of one of the parties.

Validity

Properly drawn up, signed by the parties and certified by a notary, the marriage contract has no expiration date. The conditions and clauses prescribed in it do not have a statute of limitations, are not limited to any time period. The spouses have the right to indicate the occurrence of a certain event or point in time, after which the distribution of property will take place in favor of one of the parties or between them in a certain ratio. However, the contract itself is valid for a period of time: from the moment it is signed and certified by a notary and until the moment it is relevant.

Cancellation of the conditions proclaimed in the agreement between husband and wife is possible only by mutual agreement of the parties, or in some cases, by a court decision. This can be done both during the period of the marriage, and after its dissolution. If the parties agree that the situation has changed, the effect of the marriage contract is no longer relevant, they have the right to terminate it at the notary. IN judicial order this can be done with the disagreement of one of the parties, but in the presence of compelling circumstances provided for by law.

Thus, annulment of a marriage contract during a divorce or before its registration is possible only with the consent of both parties. In this case, they can agree on a different procedure for the distribution of property. In a judicial proceeding, the termination of the contract is possible in exceptional cases upon the occurrence of circumstances that the parties could not take into account when drawing up the contract or otherwise provided for by law.

Mortgage in marriage contract

A contract concluded between a husband and wife may contain not only instructions regarding the distribution of property, but also similar instructions regarding the division of debt obligations between them. One of the most common such obligations today is a mortgage. If an apartment was purchased in a marriage on a mortgage loan, then the spouses can divide the property between themselves as follows:

repay the loan equally and have equal rights to the immovable object;
repay the loan in certain shares and share the purchased housing in the same shares;
one of the spouses can assume all obligations to repay the loan and become the sole owner of the acquired property.

Other division options are possible at the request of the parties. Marriage contract allows you to protect the interests of the parties who issued the mortgage. It prevents conflicts and litigation over the distribution of shares in acquired real estate and determining the share of obligations in the total mass of outstanding debts of each of the spouses.

Is it possible to conclude a prenuptial agreement after a divorce?

The Family Code of Russia indicates the possibility of concluding a contract between spouses before marriage is registered or at any time after. However, after the divorce is registered, the rules for the legal division of the property of the spouses automatically come into force. Signing a prenuptial agreement after a divorce is not advisable if it has not been formalized before.

Both sides have legal right resolve all issues related to the division of property peacefully and without involving the court. This means that even a contract will not be needed if the parties decide to independently determine the fate of the property. Otherwise, it will be divided equally.

If one of the parties does not agree to such a scenario, you will have to go to court and defend your interests there.

Thus, spouses have the right to draw up a marriage contract during the period of marriage or before its conclusion. The prenuptial agreement in a divorce gives each of the parties the rights to certain objects acquired during the period family relations. The text of such an agreement may include various conditions and clauses relating to the rules for the distribution of everything that was acquired by the spouses in marriage.

2.1. Division of property subject to

marriage contract

Chapter common property spouses can be made both during the period of marriage and after its dissolution at the request of any of the spouses, as well as in the event that the creditor claims the division of the common property of the spouses in order to levy execution on the share of one of the spouses in the common property of the spouses.

The most significant difference between a marriage contract and an agreement on the division of property is that in the case of the 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. That is, by agreement on the division of the spouses can determine the fate of their common property, and only that which they have at the time of signing the agreement. It is impossible to determine the fate of the property that may appear with the spouses in the future (before the termination of the marriage), the fate of the property that belongs to each of them, as well as the fate of family income by an agreement on the division of property. On the other hand, to conclude a division agreement, it is not required to be notarized, the law only suggests the possibility of this (clause 2, article 38 of the UK). In addition, the agreement on the division of property is not subject to the rules provided for in paragraph 1 of Article 46 of the Family Code of the Russian Federation on the obligation to notify the creditor (creditors) of the conclusion, amendment or termination of the marriage contract.

Thus, spouses whose marital relations come to an end, must choose how to settle their property relations.

In the event that relations in the family are somewhat tense and there is a possibility that the division of property will end in court, it is still worth concluding a prenuptial agreement. Mandatory notarization of this transaction gives it more weight, requires a more serious approach, because the contract itself and the title documents attached to it are evaluated by a notary. In the event of a dispute subsequently, it will be difficult for both parties to challenge the contract on the grounds that it was concluded under pressure or as a result of misrepresentation.

An agreement on the division of property can be concluded without the participation of a notary and subsequently appealed by one of the parties on the above grounds, because. relations between spouses at the time of dissolution of marriage can be very different and simply juggling of facts is possible.

In addition, a prenuptial agreement can help avoid disputes regarding the satisfaction of creditors' claims, both real and imaginary.

In the latter case, we are talking about persons who, for one reason or another, help one of the spouses illegally redistribute common property in their favor. As mentioned above, a former spouse can conclude one or more fictitious transactions with his acquaintances, after which the false creditors will declare their alleged rights and demand foreclosure on the property of the spouses. When entering into a marriage contract, the parties may agree that the determination of the regime of separate or shared ownership of the property of the spouses was made taking into account the fact that at the time of signing the contract, none of the spouses has unfulfilled obligations under civil law transactions.

In the event that, after the conclusion of such an agreement, imaginary creditors of one of the spouses appear, then the case on the division of property, one way or another, will be considered in court. There, the creditors will probably state that they were not informed about the conclusion of the marriage contract by the debtor, and, on the basis of paragraph 1 of Article 46 of the Family Code of the Russian Federation, they will demand that their claims be satisfied without taking into account the terms of the marriage contract.

If, at the request of false creditors, the transactions were concluded by them before the conclusion of the marriage contract, then the second spouse may dispute the very facts of the transactions in which the debtor is the first spouse. There will be two grounds: the fact that when concluding a marriage contract, which was certified by a notary, the first spouse misled the second (it cannot be called otherwise); the fact that false creditors are friends or acquaintances of the first spouse (this will have to be proven).

If it is stated that the transactions were concluded after the conclusion of the marriage contract (i.e., literally before the divorce), then it is necessary to tell the court that there was no common property received under the transactions, because. everything previously acquired is already indicated in the marriage contract. That is, the first spouse spent everything he received exclusively to satisfy his needs.

It must be said that many judges already have experience of such proceedings involving front creditors of one of the spouses. They are well aware of the value of such performances. That's why arbitrage practice usually this: the court, on the one hand, can go to the division of property without taking into account the marriage contract, but then, on the basis of clause 2 of Article 39 of the Family Code of the Russian Federation, deviate from the equality of shares in the common property of the spouses and recognize the debts of one of the spouses as his own due to the fact that that he spent everything he received exclusively for his own needs, not related to the interests of the family. And perhaps the court will not consider it possible at all to carry out the division of property without taking into account the marriage contract.

It is very important to conclude a marriage contract even if the spouses have real debts. An agreement on the division of property cannot determine the procedure for their repayment after a divorce, and marriage contract- Can.

One of the advantages of concluding a prenuptial agreement compared to an agreement on the division of property is that the spouses can in a certain way install the division of property. Property relations today are so diverse that it is possible that after the dissolution of the marriage, the former spouses will need a significant period of time for the final division of property. Circumstances may vary: the need for children to achieve certain age, the end of certain educational institutions, the possibility of their marriage, the need for solidarity payment mortgage loan etc. An agreement on the division of property cannot solve these problems, and the marriage contract can include the most different conditions, which will allow the spouses to observe their interests after the dissolution of the marriage.

This is all the more relevant, since the claims of spouses on the division of the common property of spouses whose marriage has been dissolved are subject to a three-year limitation period (clause 7, article 38 of the UK). This means that if the spouses do not have a real opportunity to divide the common property during this period, then later they will be able to do this only if they have mutual agreement on all issues, because the dissenting party will not be able to use judicial protection.

When a marriage is dissolved, the greatest controversy arises, oddly enough, around movable property. This refers to disputes not so much judicial as disputes of a purely everyday nature. By concluding a marriage contract before the registration of marriage or after little time after that, it is impossible to foresee which movable property will be acquired. Therefore, it is advisable to conclude a new marriage contract before the dissolution of the marriage or to change the existing one (if it has already been concluded). IN new treaty should be made maximum amount movable objects and their location.

The fact is that it is not uncommon for one of the spouses to simply take out movable property to their home during the absence of the second spouse at the place of former joint residence.

In such cases, you should contact the internal affairs authorities with a statement about the theft of property. Almost always in such cases, based on the facts of such statements, a decision is made to refuse to initiate a criminal case, since the police officers see in the actions of the spouses signs of a civil law dispute under the jurisdiction of a justice of the peace.

However, such statements are not in vain: they are checked, witnesses are interviewed, the fact of the removal of things from the common dwelling is recorded, sometimes even things are found and returned. In the event that a trial begins, it will be possible to petition the court to demand from the internal affairs bodies the verification materials on the application for the loss of things. In court, having these materials in hand, it can be proved that all or part of the movable items acquired during marriage are in the possession of one of the spouses. If things are listed in the marriage contract, then it will be easier to prove your case.

Cases on the division of property in the presence of a marriage contract in the event of a dispute are considered in the same manner as the division of property under the legal regime of ownership. These cases, in accordance with subparagraph 3 of paragraph 1 of Article 23 of the Civil Procedure Code of the Russian Federation, are under the jurisdiction of justices of the peace, regardless of the value of the claim.

In accordance with Article 28 of the Civil Procedure Code of the Russian Federation, a claim is filed in court at the location of the defendant, or if the defendant's place of residence is unknown, or he does not have a place of residence in Russian Federation, in accordance with paragraph 1 of Article 29 of the Code of Civil Procedure of the Russian Federation, a claim may be brought in court at the location of his property or at his last known place of residence in the Russian Federation.

In addition, in accordance with paragraph 9 of Article 29 of the Code of Civil Procedure of the Russian Federation, claims arising from contracts in which the place of their execution is indicated can also be brought to the court at the place of execution of such an agreement. Or, in accordance with Article 32 of the Civil Procedure Code of the Russian Federation, the parties may, by agreement among themselves, change the territorial jurisdiction for this case before the court accepts it for its proceedings. This means that when concluding a marriage contract, the parties may include in it a condition on the territorial jurisdiction of disputes over the division of property of the spouses. Such conditions must be included in cases where one of the spouses is a foreigner or he has the opportunity, in the event of a divorce, to reside only in a territory remote from the place of residence of the family.

As already mentioned, a claim for the division of property may be filed within three years from the date when the person knew or should have known about the violation of his right. This may not necessarily be the moment of divorce, it is not uncommon for the former spouse to find out only after a significant period of time that the second spouse life together made certain acquisitions that were not included in the common property to be divided.

So, for example, the spouses entered into a marriage contract, according to which a regime was determined for real estate separate property, and for movable - joint. In a divorce, the spouses divided the property in accordance with the terms of the contract, but only the property that they both knew about. Four years later, one of the spouses found out that during the period of marriage, the second spouse had purchased an expensive car, while hiding the fact of the acquisition. IN this case the first spouse is entitled to receive compensation in the amount of half the cost of the car at the time of the division of property, while the period for filing a claim with the court will begin to run not from the moment of divorce and not from the moment of division of property, but from the moment when the first spouse learned about the acquisition of the second.

True, when submitting statement of claim the first spouse will have to somehow motivate the fact that he did not know about buying a car at the time of the division of property, and that he found out about it only later certain period. If these facts are confirmed by any documents, then the claim will certainly be accepted by the court for consideration. If not, then the option of refusal due to missing the statute of limitations is not ruled out.

The same applies to the obligations of the spouses under the marriage contract, the effect of which is provided for the period after the termination of the marriage. If one of the former spouses over time ceased to fulfill the obligations stipulated by the marriage contract, then the second spouse has the right to file a lawsuit with a court within three years from the moment the obligation was terminated or (if the second spouse did not immediately find out about it) from the moment when he became aware of the violation of his rights.

If, for the period after the termination of the marriage, the contract provides for certain encumbrances on the property belonging to one of the spouses in favor of the second spouse and this property has been alienated to third parties, then the protection of the right of the second spouse to use this property is carried out in the same manner.

If, after the dissolution of the marriage, one of the spouses refuses, for one reason or another, to transfer to the second spouse the property that should belong to the latter on the basis of the marriage contract, it is necessary to file a vindication claim with the court, i.e. a claim for the recovery by the owner of a thing from someone else's illegal possession (Article 301 of the Civil Code).

The easiest way to resolve the issue is if the claimed things are movable and are named directly in the marriage contract. The fact is that when claiming movable property, if the claim is based on a notarized transaction, the judge may issue court order.

In this case, on the basis of Articles 121-123 of the Civil Procedure Code of the Russian Federation, an application is submitted for issuing a court order, which, in accordance with the rules established by Article 126 of the Civil Procedure Code of the Russian Federation, is issued within 5 days from the date of receipt of the application to the court. Judgment issued without judicial trial and calling the parties to hear their explanations. A court order is at the same time an executive document and is enforced in the manner established for the execution of court decisions.

In the event that the ownership of a thing is not disputed, a court order is the simplest and most fast decision question. But if the judge may have assumptions that the right of ownership can be challenged (for example, generic, but not individual signs of the claimed thing are indicated), on the basis of Article 125 of the Civil Procedure Code of the Russian Federation, the judge refuses to accept the application. In this case, it will be necessary to file a claim in the usual manner.

It often happens that after the dissolution of a marriage, one of the spouses does not have the opportunity to use the property belonging to him.

So, for example, the spouses entered into a prenuptial agreement, according to the terms of which for the home ownership acquired by them in marriage, the regime of shared ownership is chosen with a ratio of shares of two-thirds to one spouse and one-third to the second spouse. Relations between the spouses deteriorated and began to approach a divorce. The first spouse, having decided that, as the owner of the majority, has a greater right to use the bathroom and the bathroom, he installed a partition that restricts the access of the second spouse to these premises.

In this case, filing with the court in accordance with Article 304 is necessary. Civil Code RF negatory claim, i.e. a claim for the elimination of any violations of the right of ownership, even if these violations were not connected with deprivation of possession.

Such claims include claims for the eviction of former spouses from the dwellings owned by them. former second halves. Here, references to both civil and housing legislation are possible. On the one hand, refusal to leave a dwelling owned by a former spouse is a violation of the right of ownership of this property: the owner is deprived of the opportunity to use the dwelling at his own discretion. This is the basis for filing a negative claim. On the other hand, the procedure for protecting the right of ownership of a dwelling is determined by housing legislation.

In accordance with Article 31 of the Housing Code of the Russian Federation, in the event of termination of family relations with the owner of a dwelling, the right to use this dwelling is not retained by the former family member of the owner of this dwelling, unless otherwise established by agreement between the owner and the former member of his family. If the former family member of the owner of the dwelling has no grounds for acquiring or exercising the right to use another dwelling, and also if the property status of the former family member of the owner of the dwelling and other noteworthy circumstances do not allow him to provide himself with another dwelling, the right to use the dwelling owned the specified owner, may be retained by a former member of his family for a certain period on the basis of a court decision. In this case, the court has the right to oblige the owner of the residential premises to provide other residential premises ex-spouse and other members of his family, in favor of which the owner fulfills maintenance obligations, at their request.

Upon the expiration of the term for the use of residential premises, established by a court decision, the corresponding right to use the residential premises of a former family member of the owner shall be terminated, unless otherwise established by an agreement between the owner and this former member of his family. Before expiration specified period the right to use the living quarters of a former family member of the owner terminates simultaneously with the termination of the ownership right to this living quarters of this owner or, if the circumstances that served as the basis for the preservation of such a right have ceased to exist, on the basis of a court decision.

A former member of the owner's family who uses the dwelling on the basis of a court decision has the rights, obligations and responsibilities provided for by housing legislation for family members of the owner of the dwelling.

As you can see, the eviction of a former spouse is a rather lengthy process, but this is primarily due to the observance of the guarantees given by the Constitution on the right of every citizen to housing. Although the rights of the owner have received incomparably greater protection in comparison with the previous housing legislation, the citizen's right to housing is only partially protected.

The right to housing is also subject to protection, only now the main role in this belongs to the citizen himself, entering or entering into marriage. As already mentioned, the only remedy for protecting this right is the conclusion of a marriage contract, which will include a condition on the preservation of the right of use for the former spouse for a certain period after the termination of the marriage.

However, such conditions are often violated by the owners of residential premises, both former spouses and new owners of this property, who have become such on one or another basis (sales transactions, donations, as well as on the basis of inheritance acceptance). Cohabitation in the same room of two former spouses - serious reason for conflicts, as a result of which one of its parties may neglect its obligations, given earlier when concluding a marriage contract, and create obstacles for the ex-spouse to live in his home. Thus violating the latter's right to housing in general and the right to use certain premises in particular.

The protection of such rights of former spouses is carried out on the basis of Art. 305 of the Civil Code, which establishes that the rights provided for in Articles 301-304 of the Civil Code also belong to a person, although not being the owner, but owning property on the basis of the right of lifetime inheritable possession, economic management, operational management, or on other grounds provided for by law or contract. This person is entitled to the defense of his possession also against the owner.

Demanding the elimination of the circumstances that caused the violation of their rights, the former spouse is also entitled to demand compensation for losses associated with the need to live in another place, for example, to reimburse the cost of renting another home for the period when the injured party could not live in the premises specified in the marriage contract .

By marriage contract, spouses may provide for the maintenance of one spouse by the other both during the period of marriage and after its dissolution. Typically, such conditions provide for the regular payment of certain sums of money. In the event that one of the parties ceases to fulfill its obligations, the other may apply to the court with a claim for the recovery of these funds. Most often, former spouses evade the fulfillment of such conditions; in marriage, such cases are rare, with the exception of cases when the spouses intend to divorce.

In the event that the contract provides for the imposition of certain sanctions (fines or penalties) for non-fulfillment of this obligation, the claim may also require their recovery. If sanctions are not provided for by the contract, this does not mean that the former spouse will not bear any responsibility.

In accordance with paragraph 1 of Article 395 of the Civil Code of the Russian Federation for the use of other people's in cash as a result of their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or saving at the expense of another person, interest on the amount of these funds is subject to payment. The amount of interest is determined by the discount rate of bank interest existing at the place of residence of the creditor on the day of fulfillment of the monetary obligation or its corresponding part. When recovering a debt in court, the court may satisfy the creditor's claim based on the discount rate of bank interest on the day the claim is filed or on the day the decision is made. These rules apply unless a different amount of interest is established by law or by agreement.

No family is immune from the breakup and the troubles and problems associated with it. Is it possible to challenge the marriage contract after a divorce - this question is often addressed to lawyers.

To minimize the time of separation, many couples try to decide on their own property issue and make up.

However, this is not a solution to all problems, since in some situations the contract may be unfair. Is it possible to arrest the contract after the dissolution of the marriage, you will learn from this article.

Document composition

Like any document, a contract between spouses has a number of features:

It must be concluded by mutual agreement and without prejudice to the couple. If the injured party proves that the agreement was signed by him under pressure, the agreement will be considered invalid.
It is necessary to notarize the written version, and also to ensure that the text does not have a double meaning and is not misinterpreted. To prevent this from happening, it is worth discussing all the nuances with a notary before signing.
The contract can only concern property relations: it is impossible to prescribe personal relations in it, for example, forbid one of the family members to abuse alcohol, go to work, oblige to give birth to a son or cook. However, certain conditions can be prescribed, for non-fulfillment of which the delinquent spouse is deprived of his share: for example, note that in cases of adultery, the wife or husband is deprived of the entire share of the property.
The contract should not in any way restrict the rights, freedoms and obligations of the spouses. You cannot control the choice of work, educational institution, place of residence, choice of friends, etc.
It is impossible to forcibly limit the material maintenance of a disabled family member. For example, a husband cannot deprive his wife of financial support if she becomes pregnant, but can limit assistance if she is able to work and can support herself.
A document can be changed or terminated only by mutual agreement of both parties, however, in some cases, an agreement can be canceled in unilaterally: for example, if the financial situation in the family has changed a lot or someone has violated the terms of the contract, depriving another member of many benefits.
A prenuptial agreement may be entered into before marriage or during it. In the first case, the document comes into force immediately after registration.

It is important to know: the contract loses its legal force at the moment of its termination - from that moment on, during a divorce, the spouses have equal rights to property, no matter what the conditions were initially.

How to change

Like any document, a contract can be changed or canceled.

You can do this in two ways:

Voluntarily: if the spouses were able to come to a common decision and agree to change the conditions, they must contact the notary and make the necessary changes.
Forced: the victim can go to court and get a review of the conditions, even if the second spouse does not agree with this.

It is worth considering separately the situation of divorce. During the dissolution of the marriage, the agreement helps the spouses to divide the property independently, in accordance with their wishes.

This is especially useful for those who would like to speed up the process, as well as for couples who do not want to "pull" the property solely in their favor. The court will not challenge the decision of the parties, and the annulment of the marriage will be completed much faster.

Please note: you can change or annul an agreement not only during marriage, but also during the divorce process, if it is drawn up unfairly and harms one of the parties.

You can change the text if:

one of the couple significantly violated some of the conditions of the document;
changed financial situation families and former conditions became unacceptable;
the agreement was concluded on unfavorable terms for one side;
the document was signed under pressure or threats.

For example, according to the documents, in the event of a divorce, the husband, with whose money the property was purchased, receives it as property, and the wife, who was sitting with the children, is left without anything.

During a divorce, the wife can prove that the agreement significantly infringes on her rights, and, therefore, it is concluded incorrectly and must be canceled. Then the spouse can claim half of the property.

Divorce dispute

During the divorce, the injured party must file a claim for the invalidation of the document and attach the evidence that she has.

(You can download a sample statement of claim to invalidate the contract).

Then the bailiffs will be able to seize the property until a final decision is made.

During the consideration of the case, the court will listen to both spouses and take into account their arguments regarding the terms of the contract.

Please note: in some cases, the plaintiff cannot do without the help of an experienced lawyer who will help find convincing evidence and wording.

An agreement is of great benefit in a divorce, helping couples come to an agreement more quickly. general agreement on the division of property.

However, if the contract was initially drawn up incorrectly, the injured party will have to prove it in court and only then count on justice.

Watch the video in which the lawyer explains whether it is possible to challenge the prenuptial agreement:

Russian law provides that everything that spouses earn during marriage is in their joint property. It means that one spouse is responsible for the debts of the other 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 consider in detail the issues of a marriage contract: what it is, what laws regulate it, how and when to draw up, amend and terminate the contract, what it is for, what clauses to include in the contract, and I will also write a number practical advice to help you avoid mistakes in the future.

○ Part 1. Marriage contract (general information).

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

✔ Marriage contract in the Family Code

The possibility of concluding a 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 possibility of spouses to establish mutual property rights and obligations themselves.

The Family Code of the Russian Federation, which entered 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), in which it was deciphered in detail how a marriage contract is concluded, what exactly it may contain , in what terms it is valid, as well as many other issues that allow citizens to independently conclude or terminate such contracts.

✔ When can a prenuptial agreement be concluded?

A marriage contract can be concluded both at any time during the marriage and before the registration of the marriage - in relation to the property already available to the future spouses, as well as in relation to what will be acquired by them in the future.

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

✔ Terms and period of validity of the marriage contract

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

However, it should be noted that some provisions of the marriage contract may continue 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 contract, a prenuptial agreement can be challenged. The RF IC does not specifically provide grounds for this and a special limitation period, therefore in relation to a marriage contract, customary norms civil law.

But, everything is not so simple! Here we willy-nilly touch upon the very controversial issue, according to which even professional lawyers there is no consensus.

There are at least two possible scenarios:

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

2. Article 9 of the RF IC provides that There is no statute of limitations in cases arising from family relations, unless otherwise provided by law..

As a result, even judicial practice develops in different ways.

Only one piece of advice can be given here: when filing a lawsuit to terminate or invalidate a marriage contract, it is still 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 the divorce

The marriage contract is concluded during or before marriage and is valid all the time family life up to . However, this does not mean that immediately after the divorce, the contract can be forgotten. The point is that one of the most important reasons, according to which such agreements are generally concluded, is precisely the suppression of possible disputes about.

The marriage contract in this case clearly defines in what shares the property of the spouses is divided after a divorce, and, if necessary, what exactly from 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 different kind business rights.

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

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

✔ When to conclude a contract: before marriage or during marriage?

If the contract is concluded before the registration of marriage, then in it can only provide for the ownership of the property that (presumably) will T acquired in the future during a joint life.

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

No one bothers, of course, even before marriage, to transfer something to the future husband or wife - 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 donation or sale of any real estate - only from the moment the transaction is registered in the relevant government agency. Confusion can arise - and it is easier to avoid it in advance.

A marriage contract may be concluded at any time after the conclusion of the 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 each by adding a clause to the contract with approximately the following wording: “For property not specified in this contract, the rules provided for by the current legislation."

The contract concluded during the marriage describes in detail which of the spouses already owns, as well as how income is distributed.

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

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

✔ What are the types of marriage contracts?

There are two main types of marriage contracts:

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

Such an agreement is suitable for couples who do not want to argue over who and what was donated, who exactly 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 fact, as a single entity in property relations with third parties.

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

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

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

A marriage contract in Russia is far from 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 the spouses, what are its positive and negative sides.

✔ Benefits of marriage contract:

There are no disputes in the division of property. Everyone who happened to get a divorce or watch the divorce of relatives or friends will confirm: very often, after the dissolution of a marriage, disputes begin, and the more was acquired in the marriage, the more bitterness between the former spouses. Very often, unable to agree, they are forced to go to court with a claim for the division of property. (our ). A marriage contract, in which such questions will be written in advance, will save a lot of time and nerves.
You can determine which of the spouses is responsible for which debts. This is especially true for entrepreneurs, but it is also very useful for ordinary citizens.
If expensive property was given to someone before or during marriage, it is possible to determine in advance to whom and under what conditions it belongs.

✔ Cons 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 takes both time and money.
If the law changes, spouses will have to edit the contract, bringing it into line with the new laws, otherwise the contract could easily be invalid. These are additional costs for lawyers.
Marriage contract demands clear legal language from spouses, otherwise it will itself 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 of the spouses is obliged to do what around the house) are invalid from the point of view of the law.
Psychologically, the marriage contract is largely sets up spouses for a future divorce and destroys family trust.

Video

Video in the program General interest about the advantages and disadvantages of marriage contracts.

○ Part 3. What is desirable to include in the content of the prenuptial agreement?

Having figured out 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 drafting a prenuptial agreement, you must specify 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 passes into joint ownership, or a share in it is allocated to the other spouse (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, inherited.

2 point: joint property.

The contract must regulate in detail the ownership of property and funds that are received or can be received during the marriage. In law, all this must be jointly owned by the spouses, but the contract can provide, say, that the income of each of the spouses or the property acquired on them belongs only to him alone.

3 point: Property expenses.

Property issues include the cost of maintaining the property: the cost of repairs, in relation to 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 streamline the household expenses in the contract, for example, 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, questions related to children arise. It must be clearly remembered here that marriage contract regulates issues related only to property- and children, of course, they are not. Therefore, it is unacceptable to include clauses in the marriage contract regarding which of the children will remain with which of the parents in the event of a divorce. This part of the contract will be invalid.

5 point: child support.

In the same way, it is impossible to regulate possible child support by a marriage contract. 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 debt problems of spouses. It may provide for separate ownership of family property- and in this case, each will answer for his debts only with what belongs to him, without affecting the interests of the other spouse.

7 point: mortgage and credit.

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

1. If a marriage contract is concluded before a mortgage is taken, then it is necessary to clearly state who and in what amount makes payments on the loan, and who exactly will own the acquired property. It may eventually turn out to be both the property of one of the spouses (but in this case he alone will bear the costs), and their common property (and here it is necessary to indicate to whom and what share belongs).

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

✔ What should not be included in a marriage contract.

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

They restrict 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 former place of residence.
Regulate non-property relations.
Curious agreements under which the wife undertakes to monitor her appearance and regularly visit a beautician, or under which the spouses try to specify how many times a week they are obliged to have sex, have no legal force in this part. It is also impossible to oblige the spouses to be faithful to each other. Sometimes in contracts they try to indicate the amount of compensation for non-pecuniary damage in the form of the amount that the unfaithful spouse must pay, but this item is very controversial.
Regulate relations with children that are not related to the cost of their maintenance.
As already mentioned, it is pointless to indicate with whom the children will remain after the divorce, 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, provide for who and in what amount bears the costs of ensuring the maintenance of the child (for example, who pays for kindergarten, paid school, university, etc.).
Limit the rights of a disabled spouse.
The RF IC expressly 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 other spouse - regardless of what is said about this in the marriage contract.
They put one of the spouses in extremely unequal conditions. More on this will be discussed below.

○ Part 4. Marriage contract and property of spouses.

Consider how specifically a prenuptial agreement can regulate issues related to certain types of property

✔ Marriage contract for an apartment and other real estate.

Describing the rights to real estate in the 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 appropriate authority. Otherwise, such change will have no legal effect.

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

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

✔ Marriage contract for a car and movable property

With regard to movable property, there are no restrictions indicated above - although there are some subtleties here. In particular, although the registration of a car in the traffic police does not affect property rights to him, but still, when the car passes under the contract into the ownership of another spouse, it is better to re-register.

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

Divide property by type(for example, indicating that computers and consumer electronics belong to the same spouse, and furniture, dishwashers or washing machines- to another, regardless of their brand, model and time of purchase).
Each time, acquiring expensive things, because of which a dispute is possible, amend the marriage contract. It's far from the best the best option, but it is allowed.
Determine the ownership of each thing, depending on whose funds it was purchased. 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 a share in the total value of the property of the spouses 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 spouses, when concluding a marriage contract, should independently choose one of these methods or come up with their own.

✔ Marriage agreement for debts, loans, mortgages.

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

1. Common joint property Both spouses are equally liable for debts.

2. Shared ownership- each of the spouses is liable for debts only to the extent of the value of their share in the family property, and the amount of debt greater than this share cannot be recovered from the second spouse.

3. Separate property- in this case, each of the spouses 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 the conclusion of the marriage contract, it should be remembered: in accordance with Art. 46 of the RF IC on 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 the content of the marriage contract will no longer be of interest to anyone.

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

Video

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

○ Part 5. How to conclude a prenuptial agreement?

So you've decided to get married. What do you need to know for this?

✔ Conditions for concluding a marriage contract.

1) The age and legal capacity of the parties. A marriage contract (as well as a marriage in general) cannot be concluded if at least one of the parties has not reached 18 years of age (if there are valid reasons and with the consent of local governments - 16 years), or if it is recognized by the court as incompetent.

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

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

Often, marriage contracts are concluded by spouses whose marriage is gradually turning into a nominal one, when the spouses, in principle, would be ready to terminate it, but for one reason or another do not do this.

Most often this is due to the reluctance to apply psychological trauma minor children. At the same time, spouses can live in the same dwelling, maintain friendly relations to a greater or lesser extent, but at the same time realize that sooner or later these relations will end, and jointly acquired property will have to be divided.

Such marriage contracts have a significant similarity with agreements on the division of property concluded on the basis of paragraph 2 of Art. 38 SC.

The division of the common property of the spouses can be made both during the period of marriage and after its dissolution at the request of any of the spouses, as well as in the event that the creditor claims the division of the common property of the spouses in order to levy execution on the share of one of the spouses in the common property of the spouses.

The most significant difference between a marriage contract and an agreement on the division of property is that in the case of the 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. . That is, by agreement on the division of the spouses can determine the fate of their common property, and only that which they have at the time of signing the agreement. It is impossible to determine the fate of the property that may appear with the spouses in the future (before the termination of the marriage), the fate of the property that belongs to each of them, as well as the fate of family income by an agreement on the division of property. On the other hand, to conclude a division agreement, it is not required to be notarized, the law only suggests the possibility of this (clause 2, article 38 of the UK). In addition, the agreement on the division of property is not subject to the rules provided for in paragraph 1 of Art. 46 of the UK, on the obligation to notify the creditor (creditors) of the conclusion, amendment or termination of the marriage contract.

Thus, spouses whose marital relationship is coming to an end must choose for themselves how to settle their property relations.

In the event that relations in the family are somewhat tense and there is a possibility that the division of property will end in court, it is still worth concluding a prenuptial agreement. Mandatory notarization of this transaction gives it more weight, requires a more serious approach, because. the contract itself and the title documents attached to it are evaluated by a notary. In the event of a dispute subsequently, it will be difficult for both parties to challenge the contract on the grounds that it was concluded under pressure or as a result of misrepresentation.

An agreement on the division of property can be concluded without the participation of a notary, and subsequently appealed by one of the parties on the above grounds, because. relations between spouses at the time of dissolution of marriage can be very different and simply juggling of facts is possible.

In addition, a prenuptial agreement can help avoid disputes regarding the satisfaction of creditors' claims, both real and imaginary.

In the event that, after the conclusion of such an agreement, imaginary creditors of one of the spouses appear, then the case on the division of property, one way or another, will be considered in court. There, the creditors will probably declare that they were not informed about the conclusion of the marriage contract by the debtor, and on the basis of paragraph 1 of Art. 46 UK will require satisfaction of their requirements without regard to the terms of the marriage contract.

It must be said that many judges already have experience of such proceedings involving front creditors of one of the spouses. They are well aware of the value of such performances. Therefore, judicial practice is usually as follows: on the one hand, the court can go to the division of property without taking into account the marriage contract, but right there on the basis of paragraph 2 of Art. 39 of the UK to depart from the equality of shares in the common property of the spouses and recognize the debts of one of the spouses as his own due to the fact that he spent everything received exclusively for his own needs, not related to the interests of the family. And perhaps the court will not consider it possible at all to carry out the division of property without taking into account the marriage contract.

One of the advantages of concluding a prenuptial agreement compared to an agreement on the division of property is that the spouses can in a certain way install the division of property. Property relations today are so diverse that it is possible that after the dissolution of the marriage, the former spouses will need a significant period of time for the final division of property. The circumstances may be different: the need for children to reach a certain age, for them to graduate from certain educational institutions, the possibility of them entering into marriage, the need for solidary payment of a mortgage loan, etc. An agreement on the division of property cannot solve these problems, and a variety of conditions can be included in the marriage contract that will allow the spouses to observe their interests after the dissolution of the marriage.

This is all the more relevant, since the claims of spouses on the division of the common property of spouses whose marriage has been dissolved are subject to a three-year limitation period (clause 7, article 38 of the UK). This means that if the spouses do not have a real opportunity to divide the common property during this period, then later they will be able to do this only if there is mutual agreement on all issues, because. the dissenting party will not be able to use judicial protection.

When a marriage is dissolved, the greatest disputes arise, oddly enough, around movable property. This refers to disputes not so much judicial as disputes of a purely everyday nature. When concluding a marriage contract before the registration of marriage or a short time after that, it is impossible to foresee what kind of movable property will be acquired. Therefore, it is advisable to conclude a new marriage contract before the dissolution of the marriage or to change the existing one (if it has already been concluded). The new contract should include the maximum number of movable items and their location.

The fact is that it is not uncommon for one of the spouses to simply take out movable property to their home during the absence of the second spouse at the place of former joint residence.

Cases on the division of property in the presence of a marriage contract in the event of a dispute are considered in the same manner as the division of property under the legal regime of ownership. These cases in accordance with sub. 3 p. 1 art. 23 of the Code of Civil Procedure (CPC) are within the jurisdiction of justices of the peace, regardless of the value of the claim.

In accordance with Art. 28 of the Civil Procedure Code, the claim is brought to the court at the location of the defendant, or if the defendant's place of residence is unknown or he does not have a place of residence in the Russian Federation, in accordance with paragraph 1 of Art. 29 of the Code of Civil Procedure, a claim may be filed in court at the location of his property or at his last known place of residence in the Russian Federation.

In addition, in accordance with paragraph 9 of Art. 29 of the Code of Civil Procedure, claims arising from agreements in which the place of their execution is indicated may also be brought to the court at the place of execution of such an agreement. Or in accordance with Art. 32 of the Code of Civil Procedure, the parties may, by agreement between themselves, change the territorial jurisdiction for this case before the court accepts it for its proceedings. This means that when concluding a marriage contract, the parties may include in it a condition on the territorial jurisdiction of disputes over the division of property of the spouses. Such conditions must be included in cases where one of the spouses is a foreigner or he has the opportunity, in the event of a divorce, to reside only in a territory remote from the place of residence of the family.

As already mentioned, a claim for the division of property may be filed within three years from the date when the person knew or should have known about the violation of his right. This may not necessarily be the moment of divorce, it is not uncommon for a former spouse to find out only after a significant period of time that the second spouse made certain acquisitions during their life together that were not included in the common property to be divided.

So, for example, the spouses entered into a marriage contract, according to which the regime of separate ownership was determined for real estate, and joint ownership for movable property. In a divorce, the spouses divided the property in accordance with the terms of the contract, but only the property that they both knew about.

Four years later, one of the spouses found out that during the period of marriage, the second spouse had purchased an expensive car, while hiding the fact of the acquisition. In this case, the first spouse has the right to receive compensation in the amount of half the cost of the car at the time of the division of property, while the period for filing a claim with the court will begin to run not from the moment of divorce and not from the moment of division of property, but from the moment when the first spouse found out about the acquisition second.

True, when filing a claim, the first spouse will have to somehow motivate the fact that he did not know about buying a car at the time of the division of property, and that he found out about it only after a certain period of time. If these facts are confirmed by any documents, then the claim will certainly be accepted by the court for consideration. If not, then the option of refusal due to missing the statute of limitations is not ruled out.

In this case, on the basis of articles 121-123 of the Code of Civil Procedure, an application is submitted for the issuance of a court order, which, in accordance with the rules established by Art. 126 Code of Civil Procedure is issued within 5 days from the date of receipt of the application to the court. A court order is issued without trial and without summoning the parties to hear their explanations. A court order is at the same time an executive document and is enforced in the manner established for the execution of court decisions.

Appendix N 6 provides an example of an application for issuing a court order to recover a car from someone else's illegal possession.

In the event that the ownership of a thing is not in dispute, a court order is the simplest and fastest solution to the issue. But if the judge may have assumptions that the right of ownership can be challenged (for example, generic, but not individual signs of the claimed thing are indicated), on the basis of Art. 125 Code of Civil Procedure, the judge refuses to accept the application. In this case, it will be necessary to file a claim in the usual manner.

Appendix N 7 gives an example of a claim for the recovery of movable things from someone else's illegal possession.

It often happens that after the dissolution of a marriage, one of the spouses does not have the opportunity to use the property belonging to him.

In this case, it is necessary to apply to the court in accordance with Art. 304 of the Civil Code of a negatory claim, i.e. a claim for the elimination of any violations of the right of ownership, even if these violations were not connected with deprivation of possession.

Such lawsuits also include lawsuits for the eviction of former spouses from dwellings owned by their former spouses. Here, references to both civil and housing legislation are possible. On the one hand, the refusal to leave the dwelling owned by the former spouse is a violation of the ownership of this property: the owner is deprived of the opportunity to use the dwelling at his own discretion. This is the basis for filing a negative claim. On the other hand, the procedure for protecting the right of ownership of a dwelling is determined by housing legislation.

In accordance with Art. 31 of the LCD in the event of termination of family relations with the owner of the residential premises, the right to use this residential premises for the former family member of the owner of this residential premises is not retained, unless otherwise established by agreement between the owner and the former member of his family. If the former family member of the owner of the dwelling has no grounds for acquiring or exercising the right to use another dwelling, and also if the property status of the former family member of the owner of the dwelling and other noteworthy circumstances do not allow him to provide himself with another dwelling, the right to use the dwelling owned the specified owner, may be retained by a former member of his family for a certain period on the basis of a court decision. At the same time, the court has the right to oblige the owner of the residential premises to provide the former spouse and other members of his family with other residential premises, in whose favor the owner fulfills maintenance obligations, at their request.

Upon the expiration of the term for the use of residential premises, established by a court decision, the corresponding right to use the residential premises of a former family member of the owner shall be terminated, unless otherwise established by an agreement between the owner and this former member of his family. Before the expiration of the specified period, the right to use the residential premises of the former family member of the owner shall be terminated simultaneously with the termination of the ownership right to this residential premises of this owner or, if the circumstances that served as the basis for the preservation of such a right have disappeared, on the basis of a court decision.

Appendix No. 8 contains an example of a statement of claim for the eviction of a former spouse.

However, such conditions are often violated by the owners of residential premises, both former spouses and new owners of this property, who have become such on one or another basis (sales transactions, donations, as well as on the basis of inheritance acceptance). Joint residence of two former spouses in the same room is a serious cause for conflicts, as a result of which one of its parties may neglect its obligations given earlier when concluding a marriage contract and create obstacles for the ex-spouse to live in his home. Thus, violating the latter's right to housing in general and the right to use certain premises in particular.