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Marriage contract compensation in case of divorce. ✔ What are the types of marriage contracts? item: determination of ownership of property, joint property

Art. 40 of the Family Code of the Russian Federation defines a marriage contract as an agreement between spouses that fixes their property rights.

Competently compiled marriage contract in divorce helps to avoid all sorts of disagreements.

The division of property is carried out quickly and painlessly, if, in fact, the regimes of ownership are clearly defined in the marriage contract.

The subject of the marriage contract in case of divorce

Marriage contract(sample 2016, 2017), like all standard agreements, must have a description of the subject. In Art. 42 of the RF IC states that property relations are the subject of the transaction.

In addition, the spouses have the right to designate the conditions for mutual maintenance and the procedure for incurring expenses.

Family (personal) relationships, as well as interaction with a child (children) cannot be the subject of an agreement.

Spouses who try to limit each other's legal capacity run the risk that the agreement will be declared invalid in court (more precisely, a specific part). However, in accordance with Art. 180 of the Civil Code of the Russian Federation, the remaining parts of the agreement (for example, in relation to property) can be recognized as valid.

Form and parties of the marriage agreement (contract)

Marriage contract (sample for married couples) typical and is no different from the forms for those who are just preparing for registration) is drawn up in writing.

In Art. 41 of the RF IC states that one of the essential requirements is the certification of the contract in the manner prescribed by the legislator.

Parties to the agreement can only be capable citizens who have reached the age of marriage.

Rights and obligations under the marriage contract

sample marriage contract for divorce is no different from standard agreements. The contract contains a list of classical rights and obligations of each of the parties:

1. Spouses must take into account the interests of each other, it is forbidden to restrict the legal and legal capacity of one of the parties;

2. Spouses undertake to warn creditors about the divorce in order to make adjustments to the existing agreement between financial institution and the borrower

3. Each of the spouses can fully dispose of the property that belongs to him personally (you can donate it, sell it, and so on).

Application of a marriage contract in a divorce

A prenuptial agreement in case of divorce and division of property will help you disperse without trial and lengthy proceedings.

In the contract, the parties determine the ownership regime in relation to the actual property, as well as in relation to the property that will be acquired in the future.

It is important to pay attention to Art. 256 of the Civil Code of the Russian Federation. Peculiarities:

1. Property acquired during marriage is a priori considered joint property and is divided 50/50 upon divorce (or 2/3 of the apartment or house can be allocated to one of the spouses with whom the child remains). The contract may secure for the spouses the rights of separate, shared and joint property;

2. Everything that was acquired before marriage is not subject to division between spouses. This category also includes property received as a gift or by inheritance;

3. Rights product intellectual activity are separate property, but the proceeds from the sale of this product are joint property(unless the agreement provides otherwise).

Art. 37 of the RF IC makes it possible to take a slightly different look at property rights. Even if the property was received as a gift or acquired before marriage, the court may recognize it as common property if the other spouse made capital investments. For example, he carried out repairs at his own expense or through the sale of his own real estate / car, which significantly affected the value of the property.

The parties should be aware that the debts of one of the spouses in the absence of a marriage contract are also jointly acquired “property”. They will have to be given equally.

Why a prenuptial agreement constructor?

You can prenuptial agreement free download on one of the sites on the Internet, but no one guarantees you the correctness of the agreement and its compliance with the requirements of the legislator.

We recommend drawing up a contract using the ProstoDocs constructor. The service is simple and intuitive. You just need to answer the questions, and the answers will automatically be distributed according to the form. Use the service and you can easily appreciate all its advantages!

The wedding of people in Russia is usually associated with promises to go through "grief and joy" and spend a lifetime together. People are set to create long and strong family relations, are engaged in pleasant chores of organizing a celebration and try to avoid the thought of a hypothetical divorce. Only a small proportion of couples think about the need to create a marriage contract.

We live in a unique country where, according to statistics, half of marriages end in divorce, but almost all newlyweds are sure that this will not affect them. A few years later cohabitation people decide that they no longer want to be with each other for one reason or another, and divorce proceedings begin with all the ensuing consequences. Everything will end quickly and simply if the couple did not have much property either before marriage or during it. However, in most cases there are fierce disputes over the division of all things, even the most insignificant. As a result, the divorced spouses get on each other's nerves, swear incredibly and part as enemies. This outcome can be completely avoided if you draw up a marriage contract.

In Russia on this moment only 4% of couples enter into a marriage contract. As a rule, these are people who have considerable property before the wedding, who do not want to part with it after a possible divorce. Those who have children from previous unions are also favorable to the preparation of a marriage contract, thereby protecting the rights of their offspring. However, one should not think that the marriage contract is relevant only for the rich - in our country, many citizens have their own small business, they give someone expensive gifts for a wedding, someone receives an inheritance, in the end, some take housing on a mortgage for 20-30 years. During a life together, the budget is still mixed up, and during a divorce it turns out that one spouse helped the other develop his business, made repairs in a donated or inherited apartment, contributed more funds to pay off the mortgage - and it is already extremely difficult to unambiguously determine who owns what. This is what a marriage contract is for.

Advantages of a marriage contract.

1. The prenuptial agreement can clearly state who owns what and who will have what in the event of a divorce.. It solves everything contentious issues about property that existed before the wedding, acquired during marriage, donated by third parties, inheritance, gifts between spouses.

2. A marriage contract allows you to plan family income and expenses. It can describe everything in detail, down to how much money everyone should contribute to the general savings and what items of expenditure to pay. It is also possible to immediately distribute the roles of spouses: for example, one earns, the other leads household and raising children.

3. The prenuptial agreement prescribes the procedure for repaying loans during a divorce. Mortgages and other loans for divorcing spouses are very often the subject of controversy. To avoid lengthy litigation, it is better to immediately identify all aspects related to the division of debts.

4. The marriage contract can specify, for example, that the wife will remain dependent on her husband after the divorce, and it will contain information about the size, frequency, indexation of payments.

5. A prenuptial agreement will significantly reduce the cost of money and time division of property in the event of a divorce.

6. You can conclude a prenuptial agreement before the wedding, and after it, and right before the divorce. You can change it at any time

At the same time, the marriage contract has several important disadvantages.

1. Only property relations are fixed in the marriage contract. By Russian laws, the contract cannot stipulate the terms of custody of children after a divorce, impose fines for infidelity, alcohol abuse, prescribe the amounts due to one of the spouses upon divorce for each year of cohabitation. Such articles can be challenged and such an agreement declared invalid or partially invalid.

2. Too long prenuptial agreement with ambiguous wording will lead to litigation. When drawing up a contract, it is important to write everything briefly, succinctly and to the point. "Smeared" wording during a divorce can be completely refuted in court.

3. You will have to pay a lot to a notary to draw up and certify a marriage contract. Some additionally hire lawyers so as not to miss a single nuance - this also costs money. You will also have to pay when making changes to the contract.

4. It is necessary to follow changes in legislation. If the country appears new law, which will be contrary to the conditions adopted in the marriage contract, these conditions will have to be changed, otherwise the document will become invalid.

5. Stereotypes about the conclusion of a marriage contract. Unfortunately, in Russia, citizens not only have a negative attitude towards marriage contracts, but also like to condemn those who sign them. Apart from public opinion, disputes between future spouses often become a stumbling block - some are so carried away when drawing up a contract, as if they are already in the process of divorce and thereby expose their uncontrollable greed. Statistics say that 20% of couples who decide to enter into a prenuptial agreement never get married because of disagreements.

6. The marriage contract begins to operate from the moment of marriage. In other words, for couples who have not registered their relationship, drawing up this agreement impossible.

In general, the marriage contract is very convenient way regulation property relations between spouses. It is not necessary to be an oligarch to compile it, because this document reflects the issues that most middle-income families face. You should not be afraid of condemnation from the outside, but you should control yourself when drawing up a contract so as not to scare your other half with your negative essence. However, if the bride or groom behaves inappropriately when signing the marriage contract, perhaps this is a real sign that living together it will not work with this person - neither the template promises "to live together until the grave" nor the declaration of eternal love will save here.

It is understood that an agreement drawn up by subjects who are married or entering into it, through which property relations are regulated that arise between subjects, both during the period of marriage and upon its dissolution.

The marriage contract is concluded personally by the subjects themselves, in writing and, as prescribed by law, notarized. Not certified by the same is considered invalid and without legal force.

The contract may provide for certain conditions, depending on whether they occur or not, respectively, any rights and obligations of the subjects will arise or cease. In addition, the contract should not conflict With fundamental principles current family law Otherwise, the aforementioned marriage contract, after marriage, as well as during it, may be challenged and declared invalid.

Advantages of a prenuptial agreement in a divorce

The undoubted advantage of the treaty under consideration is sufficient effective protection property rights. So, in particular, the marriage contract in case of divorce allows you to properly manage questions arising about the rights to premarital property of each of the subjects. In addition, the contract can provide for the mechanics of using the living space or the vehicle. You can also settle the rights to jewelry, income, household appliances etc.

Another advantage is the fact that the marriage contract after a divorce allows you to provide quite adequate relations between the parties. As a rule, it entails certain moral costs associated, in particular, with.

The presence of a contract allows you to determine in advance how the relationship will actually take place and, thus, the marriage contract after marriage allows you to remove most of the issues that arise immediately, as soon as the divorce proceedings are initiated.

A little about the content of the marriage contract

As already mentioned, a marriage contract is concluded in relation to the property of the subjects, either currently available or acquired in the future. Since the current civil legislation provides for three main modes of ownership, any of them or a combination of them can be freely established. So, in particular:

  • joint ownership regime- all property acquired by the subjects before or during marriage is considered common. Thus, the subjects are equal and full owners of all property;
  • fractional ownership regime- property at the discretion of the parties, can be divided into shares as a whole, or its specific part. The size of the shares is determined by the parties independently;
  • separate ownership regime- each of the subjects owns specific property or things. Such a regime can be established both for all property and for its part.

If none of the mentioned regimes is established on the property, then it considered generic by default. Also, the agreement may establish the rights and obligations of subjects for mutual maintenance, the procedure for maintaining family expenses for common needs, etc.

Thus, as can be seen, the marriage contract in divorce is very useful thing, but its conclusion requires exclusively serious attitude and professional approach. Therefore, the preparation of a contact should be entrusted to experienced lawyers who can legally correctly link all possible difficulties without prejudice to the interests of the parties.

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 rules and regulations proclaimed family code In 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 no such document has 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. 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 terms proclaimed in the agreement between husband and wife can only be mutual agreement parties, or in some cases, by court order. 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. AT 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 during marriage 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. A prenuptial agreement allows you to protect the interests of the parties who have issued a mortgage. It prevents conflicts and litigation regarding 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 parties have the legal right to 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. A prenuptial agreement during a divorce gives each party rights to certain objects acquired during the period of 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.