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Eviction of the former spouse from the apartment. How to evict a former spouse from an apartment: possible problems and ways to solve them

Situations are not uncommon when spouses did not share common property during the divorce process. In the future, one of the spouses sells this property without the consent of the other spouse. Consider whether it is possible to sell real estate without the consent of the other spouse and what to do in this case.

Common property

Clause 2 of Art. 244 of the Civil Code of the Russian Federation establishes two types of common property: common share and common joint. In this case, the common ownership of property is shared, except for cases when the law directly provides for the formation of joint ownership of this property. Such cases, in particular, include the formation of the common joint property of the spouses in accordance with Art. 256 of the Civil Code of the Russian Federation and Art. 34 RF IC.

The common property regime presupposes a special procedure for concluding transactions in relation to property.

If the property is in common shared ownership, the disposal of such property is carried out by agreement of all its participants (Article 246 of the Civil Code of the Russian Federation). In this case, it is necessary to observe the preemptive right to purchase other participants.

However, if the property is in common joint ownership, then, as a general rule, the disposal of such property does not require the special consent of other co-owners, such consent is assumed (Article 253 of the Civil Code of the Russian Federation). Moreover, if any of the co-owners was nevertheless against the conclusion of such a transaction, then the transaction, at his request, can be recognized by the court as invalid (clause 3 of article 253 of the Civil Code of the Russian Federation), if he proves that the other party in the transaction knew or knowingly must was aware of the lack of authority.

The disposal of the spouses' common property is governed by Art. 35 RF IC. With regard to real estate (property, the rights to which are subject to state registration), there is a special regime. In particular, such property can be disposed of only subject to the notarized consent of the other spouse. At the same time, if such consent is not obtained, the transaction may be invalidated by the spouse within a year from the day when he learned or should have learned about the completion of this transaction (Clause 3, Article 35 of the IC RF).

What happens to the common property of the spouses after the dissolution of the marriage from the position of the courts and what rules are applicable in the case of transactions involving the disposal of such property? For the purposes of this article, we will consider these issues using the example of real estate.

In practice, there are often cases when the spouses in the process of divorce, for one reason or another, did not divide the common property (in particular, real estate) acquired during the marriage. However, neither the Family Code nor the Civil Code define the regime of property acquired during a marriage after the spouses have dissolved the marriage. Subsequently, one of the former spouses (for convenience, the ex-husband) disposes of this property without obtaining the consent of the other ex-spouse (ex-wife).

If the ex-husband sells such immovable property acquired during the marriage, is it necessary to obtain the ex-wife's consent or is her consent presumed? Which norms should be applied: the Family Code or the Civil Code?

Need notarial confirmation ...

Over the past several years, the courts have resolved such disputes in different ways, and it is difficult to predict the outcome of the process. In some cases, the courts believe that the norms of the RF IC are also applicable when the marriage was dissolved, and, therefore, it is necessary to obtain the consent of the former spouse to alienate the real estate acquired during the marriage.

Thus, the Supreme Court of the Republic of Bashkortostan noted that neither the Civil Code of the Russian Federation, nor the Investigative Committee of the Russian Federation associate a change in the regime of common joint property of spouses with the fact of termination of a marriage. Therefore, after the dissolution of the marriage, the regime of common joint property of the spouses remains. In this regard, the completion of transactions for the disposal of real estate requires the receipt of a notarized consent of the ex-wife, and, accordingly, the ex-wife, whose notarized consent to the transaction has not been obtained, by virtue of paragraph 3 of Art. 35 of the Investigative Committee of the Russian Federation has the right to demand that the transaction be declared invalid in court within a year from the day it learned or should have learned about the transaction (Appeal ruling of the Supreme Court of the Republic of Bashkortostan dated November 22, 2012 in case N 33-12578 / 12).

This position is often encountered in judicial practice. The concept of maintaining the regime of the spouses' common property, despite the divorce, and the need to obtain a notarized consent of the former spouse to alienate immovable property are reflected in the decisions of not only the courts of first and second instances (Appellate rulings of the Kemerovo Regional Court of 21.01.2014 in case No. 33- 12881, Vologda Regional Court of 01.08.2014 N 33-3598 / 2014, Determination of the Primorsky Regional Court of 09.07.2014 in case N 33-5797), but also of the Supreme Court of the Russian Federation (Determinations of the Armed Forces of the Russian Federation of 13.08.2013 N 4-KG13- 19; dated 02.06.2015 N 5-KG15-47).

On the one hand, it is very difficult to agree with this approach of the courts. After all, the norms of the Family Code of the Russian Federation (in particular, the provisions of Article 35 of the IC RF) regulate relations exclusively between persons with a special legal status, that is, the status of spouses. And in the event of the loss of such a legal status, the application of the norms of Art. 35 IC RF from a formal point of view is unacceptable.

On the other hand, the extension of the regime of the common property of the spouses to the former spouses ensures a balance of interests of the former spouses, prevents the abuse of the spouse, who disposes of the common property, being its registered owner.

... or is consent presumed?

Another point of view is also widespread in judicial practice. The courts believe that the provisions of paragraph 3 of Art. 253 of the Civil Code of the Russian Federation, that is, in case of alienation of real estate by the ex-husband, the consent of the ex-wife is presumed.

In particular, the RF Armed Forces noted back in 2005 that the provisions of Art. 35 of the RF IC apply to legal relations that have arisen between spouses and do not regulate relations that have arisen between other participants in civil turnover (Definition of the RF Armed Forces of January 14, 2005 N 12-B04-8). Clause 3 of Art. 253 of the Civil Code of the Russian Federation. A similar position is set forth in later decisions of the RF Armed Forces (Definitions of the RF Armed Forces dated 05.07.2016 N 5-KG16-64, dated 30.08.2016 N 5-KG16-119).

This approach is also found in the decisions of the lower courts (Determination of the Ryazan Regional Court of 12.10.2011 N 33-2054, Appeal rulings of the Moscow City Court of 20.04.2012 in case N 11-5021, of the Moscow City Court of 14.07.2014 in case N 33- 22390/2014, Pskov Regional Court dated 04/26/2016 in case No. 33-647 / 2016). At the same time, the courts note that neither the Investigative Committee of the Russian Federation, nor other laws provide for the need to obtain a notarized consent of the ex-spouse for the transaction by the other ex-spouse in relation to real estate acquired together during the marriage.

However, this approach of the courts seems to be very controversial. As we noted above, according to Art. 244 of the Civil Code of the Russian Federation, common ownership of property is shared, with the exception of cases when the law provides for the formation of joint ownership of this property. At the same time, there is currently no law that would define the regime of the property of former spouses as common joint property. In this regard, it seems that the property of the former spouses should be subject to the regime of common shared ownership.

Thus, in judicial practice there is no unified approach to the question of whether the norms of the RF IC or the RF Civil Code apply to the disposal of the common property of former spouses (acquired during marriage), and a separate clarification of the Supreme Court of the RF on this issue is required. Meanwhile, the question of the application of Art. 35 of the RF IC or Art. 253 of the Civil Code of the Russian Federation is important from the point of view of challenging a transaction for the alienation of common property (immovable) by a former spouse.

To challenge the transaction for the disposal of property, made by the ex-spouse, to another in accordance with paragraph 3 of Art. 253 of the Civil Code of the Russian Federation, it is necessary to prove that the other party to the transaction knew or knowingly should have known about the lack of authority to dispose of the common property of the former spouses, which in practice is very problematic. Whereas according to Art. 35 of the RF IC, the absence of notarized consent is in itself a ground for dispute, and it is not required to prove that the other party to the transaction knew or should have known about the former spouse's disagreement.

As noted by the Constitutional Court of the Russian Federation, the provisions of paragraph 3 of Art. 35 of the RF IC are aimed at ensuring a balance of property interests of the spouses in relation to joint ownership (Definition of the Constitutional Court of the Russian Federation of 09.12.2014 N 2747-O). If the presumption of consent of the other spouse does not apply to the performance of certain transactions (including the disposal of real estate), then it would be quite logical if this presumption did not apply even in the case of transactions involving the disposal of real estate by the ex-spouse.

What should another ex-spouse do?

Given the lack of a unified approach in judicial practice, in each case, it is necessary to carefully study the strategy, including depending on what kind of transaction was made by the spouse (purchase and sale, donation), with whom the transaction was concluded (for example, with a close relative or another person ), in which court the dispute will be resolved, and other circumstances.

For example, if the ex-husband donated real estate to a close relative, it is possible that the transaction is fictitious, and the ex-wife should consider the possibility of demanding judicial recognition of the transaction as invalid and the division of property (Appellate ruling of the Murmansk Regional Court dated 03/10/2016 N 33-8312016).

If the ex-husband sold real estate to a third party, the ex-wife may try to recover the amount of unjust enrichment in the amount of / from the amount received by the ex-husband (Definition of the RF Armed Forces dated 02.06.2015 N 5-KG15-47). Alternatively, you can try to demand that the transaction be declared invalid on the basis of clause 3 of Art. 35 of the RF IC (but, as we can see, not all courts support this approach in relation to ex-spouses), restitution and division of property between ex-spouses.

In this case, it is necessary to take into account the limitation period. To declare a voidable transaction invalid, the limitation period is one year. The limitation period for the claim for the division of property, in accordance with paragraph 7 of Art. 38 of the RF IC, is three years. At the same time, according to the explanation of the RF Armed Forces, during the three-year limitation period for claims on the division of property, which is the common joint property of the spouses whose marriage has been dissolved, it should not be calculated from the time of the termination of the marriage (the day of state registration of the dissolution of civil registration authorities, and in case of divorce in court - the day the decision entered into legal force), and from the day when the person learned or should have learned about the violation of his right (for example, at the moment when the former spouse learned about the sale of common property ) (Clause 19 of the Resolution of the Plenum of the RF Armed Forces of 05.11.1998 N 15).

As we can see, in the case of the ex-husband's alienation of the property acquired during the marriage, the position of the ex-wife in terms of planning further actions is complicated both by the lack of uniformity of judicial practice on this issue and by the reduced limitation period for challenging such alienation. Of course, it is easier to avoid these difficulties by dividing the common property of the spouses in the process of divorce. However, if this did not happen, then the ex-wife needs to quickly work out a strategy and take measures to protect her rights.

Relationships associated with the alimony obligations of spouses and ex-spouses are regulated, in particular, by the following provisions of the articles of the Family Code of the Russian Federation:

However, the court did not take into account that the spouses A-you dissolved the marriage in 2003 and their relationship is governed by Art. 90 of the RF IC, according to which the right to demand alimony in court from the ex-spouse who has the necessary funds for this has a disabled, needy ex-spouse who became disabled before the dissolution of the marriage or within a year from the date of the dissolution of the marriage.

A spouse is incapacitated if he has reached the age of 60 and 55 (respectively, a man or a woman), or is a disabled person with a restriction to work.

In connection with the foregoing, the conclusion of the court that A. is not incapacitated contradicts the requirements of the law.

The case contains photocopies of documents confirming that the plaintiff is a disabled person of group 2 with limited ability to work (Determination of the Presidium of the Moscow Regional Court of July 21, 2004 N 409).

From a court decision in the case of collecting alimony for a spouse

Refusing the claim for the recovery of alimony for the maintenance of K.O., the magistrate proceeded from the fact that Art. 90 of the RF IC recognizes the right to collect alimony for an ex-wife during pregnancy and within three years from the date of birth of a child, a woman who is in a de facto marriage relationship does not have the right to demand that her actual spouse pay alimony for her maintenance during pregnancy and until three years years to a common child.

However, it can be seen from the case materials and confirmed by a marriage registration certificate that K.Yu. and K.O. (up to brother Z.) were in a registered marriage since June 10, 2000, they have daughters A. the cases by the court did not reach the age of three years.

The court's conclusion that the parties were not spouses, but were in a de facto marriage relationship, is not based on the case materials and is refuted by the available marriage registration certificate. The fact of the state in a registered marriage was not disputed by the defendant during the trial.

In this situation, the plaintiff had and currently has the right to demand from the spouse (ex-spouse) alimony for herself up to the age of three for her children (Resolution of the Presidium of the St. Petersburg City Court of March 28, 2007 N 44g-194/07).

Constitutional Court of the Russian Federation on the recovery of alimony for the ex-spouse

Court of general jurisdiction, guided, inter alia, by paragraph 1 of Article 90 and Article 91 of the Family Code Russian Federation, satisfied the requirements of the citizen T.N. Brezhneva to the citizen O. N. Brezhnev on the recovery of alimony for her maintenance until their common child reaches the age of three and alimony for the maintenance of the child.

In his complaint to the Constitutional Court of the Russian Federation, O.N. Brezhnev asked to recognize paragraph 1 of Article 90 and Article 91 of the Family Code of the Russian Federation as contradicting the Constitution of the Russian Federation, its Articles 15, 17, 18, 19, 20, 37, since they allow the courts to collect alimony for the maintenance of the former spouse from the income of the alimony payer, the amount of which after the payment of alimony for the maintenance of the child, it turns out to be below the subsistence level.

Refusing to accept the complaint for consideration, the Constitutional Court of the Russian Federation indicated the following.

Clause 1 of Article 90 of the Family Code of the Russian Federation, which establishes the grounds for the emergence of the right in court to demand the provision of alimony from the ex-spouse, as well as this Code, which enshrines the rule for determining the amount of such alimony, concretize the principle of building family relations on the basis of mutual assistance enshrined in clause 1 of its Article 1 and responsibility to the family of all its members. At the same time, by virtue of the aforementioned norms, the obligation to pay alimony for the maintenance of the ex-spouse can be imposed by the court only on persons who have the necessary means for this.

Thus, the contested norms, aimed at ensuring the preservation of the necessary level of life support for both the recipient and the payer of alimony, cannot in themselves be considered as violating the constitutional rights of the applicant listed in the complaint (Determination of the Constitutional Court of the Russian Federation of April 22, 2010 No. 546- O-O "On the refusal to accept for consideration the complaint of the citizen Oleg Nikolaevich Brezhnev on violation of his constitutional rights by paragraph 1 of Article 90 and Articles 91 of the Family Code of the Russian Federation").

Alimony obligations of spouses. Arbitrage practice

The Help of the Perm Regional Court dated March 10, 2008 "On the application of legislation on alimony obligations") contains explanations with examples from the practice of considering cases:

In a dispute over the recovery of alimony for the maintenance of a spouse (ex-spouse), the court, first of all, must establish whether the parties are subject to the alimony obligation: whether the plaintiff has the right to receive maintenance from the defendant and whether the defendant has an obligation to provide the plaintiff with maintenance.

Art. 89 of the RF IC provides for the obligation of the spouse to financially support the other spouse. In case of refusal of such support and the absence of an agreement on the payment of alimony, the right to demand the provision of alimony in court from the other spouse who has the necessary funds for this shall have:

disabled needy spouse;

wife during pregnancy and within three years from the date of birth of a common child;

a needy spouse caring for a common disabled child until the child reaches the age of eighteen or for a common child - disabled since childhood of the 1st group.

According to the provisions of paragraph 1 of Art. 90 of the RF IC the right to demand the provision of alimony in court from ex-spouse possessing the necessary funds have:

ex-wife during pregnancy and within three years from the date of birth of a common child;

a needy ex-spouse caring for a common disabled child until the child reaches the age of eighteen or for a common child - disabled since childhood of the 1st group;

an incapacitated needy ex-spouse who became incapacitated before the dissolution of the marriage or within a year from the date of the dissolution of the marriage;

a needy spouse who has reached retirement age no later than five years after the dissolution of the marriage, if the spouses have been married for a long time.

It should be noted that the incapacity for work of the defendant, who, like the plaintiff, has reached retirement age, does not in itself exclude his obligation to support his spouse. Thus, the payment of alimony to your spouse is the responsibility of the other spouse, regardless of his ability to work.

In this case, legal significance is attached to his material security, and not to the state of his ability to work.

The obligation to provide maintenance to his spouse is imposed on the other spouse only if he himself has the necessary means to pay alimony. The availability of the necessary funds is understood to mean such a level of security for the spouse at which, after the payment of alimony, he himself will remain secured with funds in the amount of at least the subsistence level. The availability of the necessary funds is determined by the court, taking into account all the circumstances of a particular case. The court has the right, in the presence of special circumstances, to consider that the spouse does not have the necessary funds, even if after paying the alimony he will have funds in the amount of the subsistence level, for example, if the paying spouse for health reasons needs significant funds for treatment, etc.

In determining the availability of the necessary funds, all types of earnings and income of the spouse are taken into account; whether he has property that brings income; the presence of persons to whom he is legally obliged to provide content and who are actually dependent on him; the presence of mandatory payments that he must make on the basis of a court decision or on other grounds. The presence of persons (parents, adult children) to whom the spouse paying alimony may, in turn, apply for alimony, becoming needy as a result of paying alimony to his spouse, is not taken into account.

By the decision of the magistrate of the judicial section No. 38 of the Sverdlovsk district court of the city of Perm, alimony was recovered from V. in favor of the former disabled wife. When deciding to satisfy the claims, the judge reasonably took into account the fact that, despite the provision by the defendant of daily material support in the amount of 150 rubles, this amount is insufficient for living.

The court, when deciding the issue of accepting a statement of claim for the recovery of alimony for a spouse (ex-spouse), should bear in mind that such a statement can be accepted only if there is no notarized agreement on the payment of alimony between the plaintiff and the defendant.

At the same time, according to the general provision, if the plaintiff, simultaneously with the claim for the recovery of alimony in court, raises the issue of terminating the agreement on the payment of alimony, on recognizing it as invalid, then the statement of claim, including these requirements, must be accepted for consideration by a magistrate.

The amount of alimony levied on spouses and ex-spouses in court is determined in a fixed amount based on the material and marital status of the spouses (ex-spouses) and other noteworthy interests of the parties. They are paid monthly.

Since the legislator refers to the money collected for the maintenance of disabled spouses as alimony, in court decisions it should not be named as money for the maintenance of a spouse, which is often found in judicial practice.

The right to demand the provision of alimony in accordance with Art. 89, 90 of the RF IC from a former spouse has a spouse who was only in a registered marriage. Thus, the Ordzhonikidze District Court of Perm overturned the decision of the magistrate, who satisfied G.'s claims to Z. to recover alimony for his maintenance until the child reaches three years of age due to the fact that the marriage between the parties was not registered, and therefore the requirements plaintiffs for the recovery of alimony for their maintenance are not based on the law.

In addition, it should be noted that the right to claim alimony was granted as a former spouse on the grounds of Art. 90 of the RF IC, and to the spouse during marriage in accordance with Art. 89 RF IC. At the same time, the Kirovsky District Court of Perm overturned the decision of the magistrate in absentia to collect alimony for the maintenance of the disabled wife. One of the reasons for canceling the court decision was that since at the time of the decision the parties were in a registered marriage, the right to demand alimony in court was granted to the former spouse, there was no reason to satisfy K.'s claim.

Provides for cases in which a spouse can be released from the obligation to support another disabled spouse or limit this obligation to a certain period both during the marriage and after its dissolution:

in the event that the disability of the spouse in need of assistance has occurred as a result of the abuse of alcoholic beverages, drugs or as a result of the commission of a deliberate crime by him;

in case of a short stay of the spouses in marriage;

in the event of misbehavior in the family of a spouse demanding the payment of alimony.

Release of a spouse from the obligation to support another spouse or limitation to a certain period both during marriage and after dissolution is right rather than a duty of the court.

At the same time, paragraph 4 of clause 2 of Art. 120 of the RF IC, the court was given the right to terminate the alimony obligations when the court recognizes the restoration of the ability to work or the termination of the need for assistance of the alimony recipient.

When considering disputes over alimony obligations, the courts need to keep in mind the fact that the court retains the right to limit the recovery of alimony by a certain period, which is indicated in the decision, while determining the period during which the alimony is paid, or a specific date for the termination of these payments ...

On the recovery of alimony by the ex-wife, whose incapacity for work occurred before the marriage

Canceling the decision of the magistrate and the court of appeal and issuing a new decision to dismiss the claim, the presidium of the Novgorod Regional Court indicated that the court's conclusion that M.O. has the right to receive alimony from M.D. as a disabled needy ex-spouse is not based on the law, since the concept "before the dissolution of marriage" defines the period of the marriage relationship from the moment of marriage to its dissolution, i.e. The right to claim funds for his maintenance is possessed by the former spouse, whose incapacity for work occurred exclusively during the period of marriage or within a year from the moment of its dissolution.

However, the Judicial Collegium considers that these conclusions of the supervisory instance court are based on misinterpretation and application of substantive law that influenced the outcome of the case.

According to Art. 90 (part 1) of the Family Code of the Russian Federation, the right to demand the provision of alimony in court from a former spouse who has the necessary means for this, has, among other things, a disabled needy ex-spouse who became disabled before the dissolution of the marriage or within a year from the date of the dissolution of the marriage. According to the current pension legislation, a spouse is disabled if he has reached the age of 60 and 55 (respectively, a man and a woman) or is a disabled person who has a restriction to work. Thus, one of the conditions for the ex-spouse to exercise the right to receive alimony is the presence of his incapacity for work, which occurred before the dissolution of the marriage or within a year from the moment of its dissolution. In other words, the law, in particular, connects the payment of alimony to a former needy spouse with the fact that he has a disability by the time of divorce (Determination of the Supreme Court of the Russian Federation of August 5, 2008 N 84-B08-4, included in Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2008, approved by the resolution of the Presidium of the Supreme Court of the Russian Federation of December 5, 2008).

Recovery of alimony from the ex-spouse is possible only if he has the ability to pay alimony

From the provisions of Part 1 of Art. 90 of the Family Code of the Russian Federation, it follows that a prerequisite for satisfying a claim for the recovery of alimony from a former spouse is that he has the funds necessary to pay.

The court recognized S. as having the necessary means, meanwhile, did not indicate in the decision the evidence on which this conclusion was based, which entailed significant violations of the rules of procedural law.

By collecting on the basis of Part 1 of Art. 90 of the RF IC from the defendant alimony, the court, in violation of this provision, did not find out whether S. possesses the necessary funds to pay alimony.

In the supervisory complaint S. points out that for health reasons he does not work, his mother, who is a disabled person of the first group, is dependent on him. From the case materials it follows that the defendant's representative referred to this circumstance at the hearing, but it was ignored by the court. In addition, S. points out that the plaintiff has an adult able-bodied son who can provide the mother with material assistance.

In accordance with Art. 91 of the Family Code of the Russian Federation, in the absence of an agreement between the spouses (ex-spouses) on the payment of alimony, the amount of alimony collected on the spouse (ex-spouse) in court is determined by the court based on the material and marital status of the spouses (ex-spouses) and other noteworthy interests of the parties in a fixed amount payable monthly.

Since the cited norms of the federal law provide that determining the possibility of the ex-spouse to pay alimony for the maintenance of the other ex-spouse must take into account all the interests of the parties deserving attention, and by virtue of Part 1 of Art. 87 of the Family Code of the Russian Federation, able-bodied adult children are obliged to maintain their disabled parents who need help and take care of them, then the presence or absence of the plaintiff of other persons obliged to support her was a fact that must be verified when considering this case (Resolution of the Presidium of the Moscow City court of October 25, 2007 in case No. 44g-708).

The ex-spouse does not have the right to demand alimony for her maintenance within 3 years from the date of the child's birth, if the ex-spouse is not his father

Within the meaning of paragraph 1 of Art. 90 of the RF IC, the ex-spouse has the right to demand the provision of alimony from the ex-spouse within three years from the date of the birth of the common child.

The effective decision of the Pervomaisky District Court of Vladivostok dated January 16, 2009 established that M.A.AND. is not the father of M.Z., therefore V.O.V. not entitled to demand from M.A.AND. provision of alimony for its maintenance.

One cannot agree with the opinion of the court of appeal, which does not provide for the possibility of exemption from the payment of alimony in connection with the exclusion of information about the father from the record of the child's birth.

In accordance with Art. 119 of the RF IC, in addition to the material and marital status of the parties, the court, when exempting the payer of alimony from paying them, may also take into account another noteworthy interest of the parties. The exclusion of information about the father from the birth certificate of a child is such a noteworthy circumstance (Resolution of the Presidium of the Primorsky Regional Court of October 23, 2009 N 44g-140).

The ex-wife during pregnancy and within three years from the date of the birth of the common child has the right to demand the provision of alimony in court from the ex-spouse (Article 90 Of the Family Code of the Russian Federation).

N. applied to the court on the grounds that from 25.06.1999 to 28.10.2005 she was married to N., they have a joint child from the marriage. After the dissolution of their marriage, they lived with the defendant together and kept a common household until April 2006. However, from September to December 2006, they maintained a relationship. When the defendant found out about her pregnancy, he did not abandon the child. But after 4-5 months he refused to acknowledge his paternity. On 23.07.2007 the plaintiff gave birth to a son M. The defendant refused to submit an application to the registry office for registration of paternity and does not provide her with maintenance for the child. On the grounds stated, the plaintiff asked the court to establish paternity, to recover child support from the defendant, and also asked to recover child support.

By the decision of the Belomorsk District Court, the claims were satisfied. The court established that the defendant is the father of the child M., born on 23.07.2007 to the plaintiff.

Alimony was recovered from the defendant in favor of the plaintiff for the maintenance of his son in the amount of 1/6 of the earnings and other income on a monthly basis from 08.08.2007 until the child reaches the age of majority.

By the indicated court decision, alimony for her maintenance was collected from the defendant in favor of the plaintiff on a monthly basis in the amount of 30 minimum wages from 08.08.2007 to 23.01.2009.

By the cassation ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Karelia, the decision of the Belomorsk District Court of the Republic of Kazakhstan was left unchanged.

The Presidium of the Supreme Court of the Republic of Karelia canceled the court decisions regarding the recovery of funds for the maintenance of the plaintiff in view of a significant violation of the norms of substantive law, indicating the following.

The court of first instance, satisfying the claims for the recovery of alimony for the maintenance of the plaintiff, came to the conclusion that the plaintiff has the right to demand the provision of material support from the defendant, since she was previously married to him, has two joint young children. The plaintiff takes care of the children and actually fulfills the bulk of parental responsibilities for the upbringing and development of children.

The plaintiff is not married and needs financial assistance. The defendant has the necessary funds to pay the alimony.

However, this conclusion of the court is based on an incorrect interpretation of the substantive law.

In accordance with article 90 of the Family Code of the Russian Federation, the ex-wife during pregnancy and within three years from the date of birth of a common child has the right to demand alimony in court from a former spouse who has the necessary funds for this.

From the meaning of this legal norm, it follows that the ex-wife retains the right to alimony only if the pregnancy occurred before the dissolution of the marriage.

The court of first instance established that on 28.10.2005 the marriage between the parties was dissolved. On July 23, 2007, the plaintiff gave birth to a son, whose father is the defendant.

Thus, the plaintiff's pregnancy came after the divorce. The termination of the actual marriage relationship, no matter how long it may be, does not give a woman the right to demand the payment of alimony for her maintenance from her ex-spouse during pregnancy and within three years from the moment of the birth of a common child.

The court of first instance, when considering this case, committed significant violations of substantive law, which were not eliminated by the cassation instance, in connection with which the court decisions adopted in the case were canceled in this part and in the case in this part the Presidium issued a new decision to dismiss the claim (Supervisory practice of the Supreme Court of the Republic of Karelia in civil cases, "Bulletin of the Supreme Court of the Republic of Karelia", 2008, N 2 (19)).

Article 90. Right of the former spouse to receive alimony after divorce

1. The right to receive material assistance is enjoyed not only by spouses, but also by former spouses. The Family Code of the Russian Federation contains an exhaustive list of circumstances in which a former spouse has the right to demand the provision of maintenance after divorce.

First of all, the law establishes the circle of persons who have the right to demand the provision of alimony in court from their former spouses. The first two grounds giving the right to receive alimony from the ex-spouse coincide with similar grounds on which spouses in a registered marriage are obliged to provide each other with material support. These include:

1) ex-wife during pregnancy and within three years after the birth of a common child. A prerequisite for the recovery of alimony is the origin of the child from the defendant. The ex-wife has the right to receive alimony from the ex-husband only if the pregnancy occurred in marriage, and the common child was born no later than 300 days from the date of the termination of the marriage (for the moment of termination of the marriage upon its dissolution, see the commentary to Article 25 of the IC RF ). Termination of actual marital relations, no matter how long they are, does not give the woman the right to demand payment of alimony for her maintenance from her former actual spouse during pregnancy and within three years from the moment of the birth of a common child * (278);

2) a needy ex-spouse caring for a common disabled child under the age of 18 or a common child disabled from childhood of group I. Legally significant facts for the emergence of the ex-spouse's right to alimony in this case are: the onset of the disability of a common child under the age of 18 or the recognition of the child as a disabled person since childhood of group I after reaching the age of majority, as well as the neediness of the ex-claimant spouse. The reasons and the moment of the onset of the child's disability (before or after the dissolution of the marriage by his parents) do not affect the emergence of the right to alimony.

The law states that only the spouse who is caring for a disabled child has the right to receive alimony from a former spouse. In this regard, it must be assumed that in order to acquire the right to receive funds for his maintenance from his ex-spouse, the claimant must take care of the child himself. When a child is placed in a boarding school for the disabled, the ex-spouse's right to receive alimony does not arise, and the payment of alimony already collected is terminated if the child does not need additional expenses. Additional costs associated with the treatment of such a child, payment for outside care, etc., should be covered by funds for his maintenance, which must be provided by both parents. However, the placement of the child in the hospital for inpatient treatment should not be the basis for the termination of the payment of alimony * (279);

3) a disabled needy ex-spouse who became disabled before the dissolution of the marriage or within one year from the date of the dissolution of the marriage. This refers to the incapacity for work that has arisen in connection with reaching the retirement age or in connection with disability. As a general rule, the reasons for the disability of the ex-spouse (and hence the occurrence of incapacity for work) do not matter. The exceptions are the reasons indicated in Art. 92 of the RF IC.

One of the conditions for the ex-spouse to exercise the right to receive alimony is the presence of his incapacity for work, which occurred before the dissolution of the marriage or within a year from the moment of its dissolution. This rule should be interpreted broadly, recognizing the right of the former spouse to receive alimony even if the incapacity for work occurred before the marriage. So, in the Decision in case No. 84-B08-4, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized the conclusions of the presidium of the regional court based on an incorrect interpretation and application of substantive law, indicating the following. The law connects the payment of alimony to a former needy spouse, in particular, with the fact that he has a disability at the time of the dissolution of the marriage. The incapacity for work of a former spouse, whose disability was established even before the marriage was concluded, is a legally significant circumstance when resolving the issue of his right to demand from the other former spouse to provide maintenance after the dissolution of the marriage. In such circumstances, the reference of the supervisory court to the fact that the inclusion in the period of time giving the right to receive alimony to the ex-spouse, the time preceding the registration of the marriage, is unlawful, does not correspond to the provision of paragraph 1 of Art. 90 SK RF * (280);

4) a needy spouse who has reached retirement age no later than five years from the date of divorce, if the spouses have been married for a long time. This provision on the alimony rights of the ex-spouse is an exception to the general rule that the ex-spouse has the right to receive support from the other ex-spouse only if his incapacity for work occurred before the dissolution of the marriage or not later than one year from the date of the dissolution of the marriage. It is designed to protect the interests of the spouse, who during the marriage was engaged in housekeeping, raising children and for this reason has little work experience, affecting the size of the labor pension, or does not have it at all, receiving only a social pension, the size of which is small * (281) ...

The ex-spouse's right to alimony arises when he reaches the retirement age no later than five years after the dissolution of the marriage, provided that the spouses have been married for a long time. This refers to reaching the retirement age from which a person acquires the right to assign him an old-age retirement pension on a general basis (men at 60, women at 55), regardless of his right to receive a pension on other grounds at an earlier age. , including the right to a disability pension.

The law does not disclose the concept of "being married for a long time." This issue is decided by the court independently, taking into account the age of the spouses and other specific circumstances of the case. According to established practice, a long marriage is considered to be a marriage that lasted at least 10 years.

For the alimony obligation to arise between the former spouses, it is necessary to have the need for material assistance from the recipient spouse. An exception is the ex-wife during pregnancy and within three years after the birth of a common child. The neediness of the ex-spouse is established by the court by comparing his income and necessary needs. The ex-spouse can be recognized as needy both in the absence of his means of subsistence, and in their lack. The question of the neediness of the ex-spouse should be resolved taking into account the specific circumstances of the case.

The court has the right to satisfy the claim of the former spouse for the recovery of alimony only on condition that the defendant has the necessary funds. The ex-spouse can be recognized by the court as having the necessary funds (wages, other income, property) to pay alimony, if, after paying alimony, both the ex-spouse and other persons whom he is obliged to support by law, will have funds for his own existence ...

2. In accordance with paragraph 2 of the commented article, the alimony obligations of the former spouses may be regulated by an agreement on the payment of alimony. Conditions on the amount and procedure for paying alimony to the ex-spouse in case of divorce can be included in the marriage contract. However, it must be remembered that a prenuptial agreement can be concluded either before the state registration of the marriage, or during the marriage. In other words, the former spouses can settle the rights and obligations of maintenance only in an agreement on the payment of alimony.

In the absence of an alimony agreement, the issue of paying alimony to a spouse can be resolved in court both directly upon divorce, and subsequently at the request of the former spouse who has the right to receive alimony. The terms for applying for alimony are governed by the provisions of Art. 107 of the RF IC.

Sometimes the separation is preceded by rather serious events: domestic terror, treason, alcoholism. In this case, the woman simply cannot maintain friendly feelings for her ex-husband. She wants to forget everything that happened and start life anew. And men most often, on the contrary, try to return their ex-spouse, who has endured all the antics for so long. They stalk, insist on a date. In this case, you should not even try to mend the relationship. No matter how good the ex-spouse tries to appear, he is unlikely to change, even if at first everything will be fine in the family.

Always weigh your actions against your desires. You shouldn't get along with your ex-husband if you are not ready for it yet. Take time, the situation may change very soon

If the divorce occurred by mutual agreement, the partners have a desire to remain friends, you can try to establish communication. It is quite possible if the former spouses have no claims to each other and have already begun to build new relationships. In this case, jealousy or other negativity will not arise from either the ex-husband or the ex-wife.

The same rake: how to communicate with ex

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How to understand what an ex-husband wants

Situations when former spouses manage to sort out the relationship, having parted forever or becoming friends, happen quite rarely. Most often, an understatement remains between former partners, which can lead to both a final breakup and a reunion. If a woman is ready to rebuild her family, she needs to observe the behavior of a man.

The ex-husband often calls and asks how he is doing, offers his help and is ready, as before, to do some household chores - this indicates that he wants to return to the family. In this case, you can easily restore the relationship by simply allowing the ex-spouse to do whatever he asks for.

If you want to get your husband back faster, take the initiative. Invite him to dinner, please with homemade treats, surround with affection. If he had any doubts about restoring his family, they will quickly pass

If the ex-husband appears from time to time, calls most often when he is drunk, comes only for the night, and then disappears for a long time, this means only one thing: he uses his ex-wife as an “alternate airfield”. That is, he devotes all his free time to new acquaintances, friends, entertainment, and comes to an old friend only when he does not find a better pastime on that day or night. In this case, one should not hope for the restoration of the family. Obviously, the feelings of a man, even if they were, are long gone. There is only a consumer attitude towards the ex-wife. And here, more often than not, it will be impossible to build even ordinary friendly relations.

A civil marriage is a voluntary union of two people who have an intimate relationship and lead a common household. But by law, common-law spouses do not have any obligations towards each other.

Therefore, there are legal problems. And at the death of a spouse, the question arises: does a common-law wife have the right to inheritance?

Legal features of civil marriage

Despite the convenient form of personal life, a civil union has negative aspects, since it is difficult for Russian legislation to regulate the rights and obligations of persons in an unregistered marriage. Therefore, only those spouses who have entered into an official marriage have them. Hence, inheritance by a common-law wife of the property of a deceased spouse is practically excluded.

The common-law wife has no right to the inheritance of her partner, even if she lived with him for many years and ran a joint household. Since the marriage was not officially registered, all joint property goes into the possession of the legal wife, children and parents of the deceased. However, there are a few exceptions., in which the common-law spouses have the right to inherit the property of the cohabitant in whole or can claim at least his share.

Possible options for the distribution of property

To determine whether it is possible to claim a part of the inherited property, let us turn to the civil code. According to him, the division of the property of the deceased can be carried out in one of the following ways:

  • Priority principle(the priority queue gets all);
  • The principle of freedom of disposal(the property is received by the persons whose names are in the will).

Let us consider each of the methods for dividing inherited property and determine what chances an illegitimate wife has to receive it.

Priority principle

According to Art. 1142 of the Civil Code of the Russian Federation in case of inheritance by law (the middle name of the principle of priority), the division of the property of the deceased occurs among the applicants who are in the priority queue. There are eight queues in Russia, distributed in descending order of priority:

  1. Children, as well as the mother and father of the deceased citizen, exactly like the legal (not civil!) Spouse;
  2. Grandparents along with the brothers and sisters of the deceased. At the same time, there is no separation between siblings and half-brothers and sisters. All of them are equal in entering into inheritance rights to the property of a deceased relative;
  3. Siblings and half-brothers with the sisters of the mother and father of the deceased (we are talking about uncles and aunts);
  4. Mothers and fathers of grandmothers, exactly like grandfathers;
  5. Brothers and sisters of grandmothers, grandfathers (who are full-blooded in relation to the deceased, they are also great-uncles with grandfathers). This list also includes children of full-blooded nephews (s), who in relation to the deceased will be considered cousins ​​and grandchildren;
  6. Descendants of brothers and sisters of all grandparents, as well as children whose parents are grandchildren, cousins;
  7. Non-native parents in the face of a stepfather or stepmother, as well as step children in the faces of stepdaughters or stepsons;
  8. Disabled dependents of the deceased.

If there is no will from the deceased, his property in full will be divided equally among the applicants in the priority queue. All queues that only follow the priority queue will be denied the right to inherit even a small part of the property.

From the above, it can be seen that there are no inheritance rights for the common-law wife, except when the illegal spouse was dependent on the deceased due to lack of ability to work or minority.

The principle of freedom of disposal

This principle of inheritance lies in the fact that each citizen has the right, during his lifetime, by drawing up a will, to independently indicate who will be the heir after his death.

Wherein any person can become heir, even not related to the deceased and has nothing to do with him at all.

There are two ways to draw up a will:

  • Make a list of the names of the heirs. Then all property will be equally divided among the heirs;
  • Make a list of heirs and indicate for each share to which he will apply.

According to the principle of free disposal of the citizens of the Russian Federation of property, the illegal wife has an undeniable right to the inheritance of the deceased partner, if he managed to write a will during his lifetime, in which her name appears.

Exceptions to the rule

There are deviations from the rules for the distribution of property. This is an exception to the principles of inheritance is mandatory shares in the inheritance... They are claimed by disabled dependents of the deceased, as well as heirs who are included in the primary composition:

  • Legal spouse;
  • Children (legal and illegitimate);
  • Parents (this does not include stepfathers and stepmothers).

Therefore, even if their names were not indicated in the will, dependents and heirs of the first order will still receive their shares without fail... This exclusion is a means of protecting their right to security of material nature. It arises from the fact that before the death of a relative (guardian) they were financially dependent on him.

According to the law, the minimum required share is 50% of the inherited property. Thus, if the will of the deceased was drawn up in the name of the common-law wife, but he was dependent on disabled persons or heirs of the first order, then the illegal spouse will be able to enter into inheritance rights for a maximum of half of the inherited property.

Attention! In the event that there is no will, the inheritance will be distributed according to the principle of priority, in which the chances of receiving a share are negligible. Therefore, the main document serving as the protection of the material security of the civil wife of the deceased husband is a will, drawn up by him during his lifetime.

Situations that give the common-law wife the right to inherit

According to the rules for the division of inheritance, a common-law wife can claim:

  1. For a share of the property in the event that when there is a will drawn up in her name if the deceased husband has persons who for a long time have been in direct financial dependence on him, as well as in the presence of heirs, who represent the list of the first priority. Or on the property as a whole in the absence of them.
  2. On an obligatory share, if she has indisputable facts proving that before her death the disabled spouse was a dependent (kept at the expense of the deceased).

The illegal spouse of the deceased is recognized as disabled if:

  • She is a disabled person of I or II group;
  • Has reached the age at which an old-age insurance pension is due (55 years). In this case, the pension does not have to be assigned.

According to the law, dependents are recognized as persons living together with a person who provides substantial material support for a year or more. At the same time, it makes no difference whether the common-law wife has her own salary or pension. But insignificant and irregular financial aid cannot be recognized as support.

Video: How the inheritance of 2 civilians and one legal wife of Mikhail Evdokimov was divided, who and what got in the end

Will made jointly with the spouse

On May 26, 2015, a bill was introduced to the State Duma, under which spouses will be able to draw up a will jointly. The law came into force on November 1, 2015.

However, the common-law wife will not be able to participate in the preparation of such a document due to the absence of an official marriage. But she retains inheritance rights in those cases that are discussed above.

Thus, a common-law wife does not have the right to inheritance after the death of her husband, if she is able to work even in the case when the main share of the property was purchased at her expense. But she has the right to receive at least part of the inheritance if the testator indicated the name of the illegitimate spouse in the testamentary sheet. And the obligatory share is due to the disabled common-law wife, if she was with the deceased citizen as a dependent.