Do you think you are Russian? Born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is not true.

You are actually Russian, Ukrainian or Belarusian. But you think you are a Jew.

Game? Wrong word. The correct word is "imprinting".

The newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is inherent in most living creatures with vision.

For the first few days, newborns in the USSR saw their mother for a minimum of feeding time, and most of the time they saw the faces of the hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. The reception is wild in its essence and effectiveness.

All your childhood you wondered why you live surrounded by non-native people. Rare Jews on your way could do anything with you, because you were drawn to them, and others were repelled. And even now they can.

You cannot fix this - imprinting is one-time and for life. It is difficult to understand this, the instinct took shape when you were still very far from the ability to formulate. Since that moment, no words or details have survived. Only facial features remained in the depths of my memory. Those traits that you consider to be your own.

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System and Observer

Let's define a system as an object, the existence of which is beyond doubt.

An observer of a system is an object that is not part of the system he observes, that is, it determines its existence, including through factors independent of the system.

From the point of view of the system, the observer is a source of chaos - both control actions and the consequences of observational measurements that do not have a causal relationship with the system.

An internal observer is a potentially achievable object for the system in relation to which inversion of observation and control channels is possible.

An external observer is even a potentially unattainable object for the system, located beyond the event horizon of the system (spatial and temporal).

Hypothesis No. 1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of "gravitational radiation" penetrating the universe from all sides from the outside. The capture cross-section of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of objects and inversely proportional to the distance between them, which determines the density of the "shadow".

The capture of "gravitational radiation" by an object increases its chaos and is perceived by us as the passage of time. An object that is opaque for "gravitational radiation", the capture cross section of which is larger than the geometric size, looks like a black hole inside the universe.

Hypothesis No. 2. Internal observer

It is possible that our universe is observing itself. For example, with the help of pairs of quantum entangled particles spaced apart in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching the maximum density at the intersection of the trajectories of these particles. The existence of these particles also means that there is no sufficiently large capture cross section on the trajectories of objects to absorb these particles. The rest of the assumptions remain the same as for the first hypothesis, except:

Time flow

Third-party observation of an object approaching the event horizon of a black hole, if the “external observer” is the determining factor of time in the universe, will slow down exactly twice - the black hole's shadow will block exactly half of the possible trajectories of “gravitational radiation”. If the “inner observer” is the determining factor, then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the side.

Also, the possibility of combining these hypotheses in one proportion or another is not excluded.

In the event of a divorce of the spouses, it does not matter to the bank for whom the loan was issued. For existing debts, former spouses will have to make payments in equal measure. In the event that one spouse is hiding, the other half will have to bear responsibility to the bank. Of course, the most convenient option for modern relations is the conclusion of a marriage contract. In this agreement, the spouses clearly prescribe what property and who will then remain, who will have to pay debts. As a result, it is possible to avoid property and financial disputes during divorce.

But what should a spouse for whom a loan is issued and there is no marriage agreement? - According to the law, all debts accepted by both spouses or by one of them during their life together are common debts, that is, each spouse becomes a debtor. The basis for resolving the issue is the principle of equality of spouses... That is, by default, it is assumed that everyone becomes owed 1/2 of all debts. Exceptions are possible: by virtue of paragraph 2 of Art. 39 of the Investigative Committee of the Russian Federation, the court may deviate from the beginning of equality of spouses in order to protect the interests of the wife or husband, if the other spouse did not bring income to the family for unjustifiable reasons in marriage, spent the family's property not in her interests, or in defense of the child's interests.

Analyzing one of the cases on the division of debt between former spouses, the appellate instance of the Belgorod Regional Court indicated that if one of the spouses concludes a transaction related to the occurrence of a debt, such a debt can be recognized as common only if there are circumstances specified in paragraph 2 of Art. 45 of the Family Code of the Russian Federation, the burden of proof of which lies with the party claiming the distribution of the debt.

Supreme Court clarifies how to split loans after divorce

A very indicative decision was made by the Supreme Court in the case of the division of jointly acquired property in a divorce, where the main problem was the loans taken by one of the spouses before the divorce.

It is difficult now to find a family that does not have at least one loan, so the issue of dividing the borrowed amounts worries many. Moreover, some marriages live less than loan repayments.
So, a certain citizen turned to the Volgograd court with a claim against his already ex-wife. He asked to divide the jointly acquired property, including debts on loans.
The marriage between them lasted for 13 years. There were two loans: one was taken in 2011, the second - a year later. The plaintiff asked for everything in half: both acquired property and debts on loans. The ex-wife responded with a counterclaim, where she wrote that the former hid part of the good, including the car, and everything that is must be divided.
But the main thing is that the citizen was against the division of the two loans, stating that she did not know anything about them during the marriage and did not give consent to the conclusion of these loan agreements. The district court recognized the first loan as general. The regional court disagreed and recognized both loans as common. The ex-wife went to the Supreme Court, disagreeing with this section of unfamiliar loans. The Judicial Collegium for Civil Cases of the Supreme Court began to investigate this case.
It turned out the following: the loan in 2011 was received for urgent needs, and a certain man acted as a guarantor there. He and another citizen also became guarantors for the next year's loan. The family boat crashed into everyday life, and the relationship between the spouses ended in 2012. The official divorce is spring 2013.
The district court, considering the case, said that under the Family and Civil Procedure Codes, the ex-husband could not prove that the money from one of the loans was used for the needs of the family. The appeal, guided by the same articles, declared that "the emergence of monetary obligations during marriage in the interests of the family" must be proved by the wife. And she could not do it. Hence, debt is a common obligation of the spouses.
The Supreme Court in its conclusion emphasized: the total shares of the spouses in the division of common property are distributed among them in proportion to the shares awarded to them.
And besides this, the Family and Civil Codes (Articles 35 and 253) establish the presumption of the spouse's consent to the actions of the other to dispose of the common property. But the provision that such consent is assumed even if one of the spouses has debt obligations to third parties, our current legislation does not contain. Moreover, there is Article 45 in the Family Code, which explicitly provides that for the obligations of one of the spouses, the collection can only be on the property of this spouse... That is, it is possible to take the husband's debts only from the property that belonged to him.

According to our legislation, in marriage, each of the spouses is allowed to have their own obligations. Thus, according to Article 308 of the Civil Code, an obligation does not create obligations for "other persons", that is, for people who are not involved in the case as parties.
Consequently, the Supreme Court concludes, in the event that one of the spouses concludes a loan agreement or any other transaction related to the appearance of a debt, such a debt can be recognized as general under certain conditions.
These conditions, more precisely circumstances, are listed in article 45 of the Family Code. Judging by this article, the burden of proof that the money went exclusively to the needs of the family rests with the party that claims to distribute the debt.
According to article 39 of the Family Code, the obligation of a husband and wife will be common if it arose on the initiative of both spouses or was indeed an obligation of one of them, but everything received was spent on the needs of the family.
As the Supreme Court said, it is legally significant in this case to find out whether the money received by the husband was spent on the needs of the family. And in our case, the court of appeal did not even bother to clarify this issue. Considering that the ex-husband is a borrower, - said the Judicial Collegium for Civil Cases of the Armed Forces, it is he who must prove that all the money he received went to the needs of the family. And the statement of the appeal that the wife must prove it, the Supreme Court said, contradicts the requirements of our legislation. As a result, the Supreme Court overturned both the decision of the second instance in full and the decision of the district court, which ordered that the wife be paid half of the former's debts only on the first loan. So loans taken by the still legal husband will remain his problem if he does not prove that the money went to the family.

The spouse borrowed a large amount of money. I could not give it on time. Now the lender demands in court to return the debt with interest (he filed a lawsuit). Moreover, the defendant is not only the spouse, but also me. The plaintiff claims that the spouse spent his money on the needs of the family, which means that we, as spouses, are both debtors. Is such a requirement legal? After all, I am not a co-borrower, I have not signed a loan agreement?

Answer:

There are two positions on this issue. Consider the options

1. The spouse of the debtor is not responsible
for his obligations. This is a general rule

2. Acknowledgment of the duty of the spouse
common debt of spouses in case of spending
borrowed funds for the needs of the family

Not taking into account the above arguments, the courts, as a rule, proceed from the possibility of recognizing the debt of one of the spouses as the general debt of the spouses and recovering the amount of the debt from both at the creditor's claim for collection.

For example, the Omsk Regional Court ruled:

Recognize the common duty of the spouses Sh.E.V. and Sh.L.G. the amount of the loan under the loan agreement concluded by Sh.E.V. with Sh.V. Determine their shares in the total debt equal.

Collect from Sh.E.The. and Sh.L.G. in favor of Sh.V.V., on ... from each.

At the same time, the court gave the following reasoning.

Within the meaning of Article 45 of the Family Code of the Russian Federation, spouses have common debts due to their common obligations or the obligations of one of the spouses, if the court establishes that everything received under the obligations of one of the spouses was used for the needs of the family.

According to the above legal norms, it is not the participation of the second spouse in the conclusion of the contract that is fundamental for the recognition of the debt under the obligation of one of the spouses, but the use of everything received under this obligation for the needs of the family (see in more detail the appeal ruling of the Omsk Regional Court of 15.10.2014 in case No. 33 -6121/14).

The following case, considered by the Supreme Court of the Russian Federation, is of interest.

Makarov V. B. borrowed funds from Volkov A. A. The funds were not returned.

Volkov A.A. applied to the court with a claim for recovery. The court ruled to recover the amount of the debt both from the debtor under the loan agreement Makarov V.B. and from his wife Pesotskaya I.E.

The Supreme Court of the Russian Federation overturned the court rulings in the case, sent the case for a new trial, but not because there was no reason to collect the debt from the debtor's wife, but because the plaintiff did not prove that the borrowed funds were spent on the needs of the Makarov family. Thus, the Supreme Court agreed with the possibility of collecting debts from both spouses in such cases.

The RF Armed Forces indicated the following:

".. in order to impose on Pesotskaya I.E. a joint obligation to return borrowed funds, the obligation must be general, that is, as follows from paragraph 2 of Article 45 of the Family Code of the Russian Federation, arise on the initiative of both spouses in the interests of the family, or be an obligation of one of spouses, according to which everything received was used for the needs of the family.

Consequently, in the event that one of the spouses concludes a loan agreement or another transaction related to the emergence of a debt, such a debt can be recognized as general only if there are circumstances arising from paragraph 2 of Article 45 of the Family Code of the Russian Federation, the burden of proof of which lies with the party claiming distribution of debt.

Determination of the IC in civil cases of the Supreme Court of the Russian Federation of March 1, 2016 N 75-KG15-12 The court sent for a new consideration the case on recognizing the debt under the loan agreement as a general obligation of the spouses and its distribution, since if one of the spouses concludes a loan agreement or other transaction related to the emergence of debt, such a debt can be recognized as general if it arose on the initiative of both spouses in the interests of the family or is an obligation of one of the spouses, according to which everything received was used for the needs of the family

Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, composed of

presiding Yuryev I.M.,

judges Gorokhova B.A., Nazarenko T.N.

considered in open court a civil case at the suit of Mikhailova N.AND. to Mikhailov A.The. on the division of the jointly acquired property of the spouses, the recognition of the debt under the loan agreement as a general obligation of the spouses and the distribution of the debt, on the counterclaim of Mikhailov A.The. to Mikhailova N.I. on the division of the jointly acquired property of the spouses

on the appeal Mikhailova A.The. against the decision of the Medvezhyegorsk District Court of the Republic of Karelia dated December 29, 2014 and the appeal ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Karelia dated April 17, 2015 No.

After hearing the report of the judge of the Supreme Court of the Russian Federation Yuriev I.M., after hearing the explanations of the representative Mikhailov A.The. - Bogdanova M.V., who supported the arguments of the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation established:

Mikhailova N.I. I went to court with a claim against Mikhailov A.The. on the division of jointly acquired property, recognition of the debt under the loan agreement as a general obligation of the spouses and its distribution.

In support of the claims the plaintiff indicated that from October 8, 2006 to November 30, 2012 g. Was with Mikhailov A.The. married, family relations actually ended in July 2012. During the marriage, the spouses purchased a three-room apartment located at the address: Republic ..., while 2/3 of the cost of the apartment was paid by N.I. Mikhailova. at the expense of personal funds that belonged to her before marriage, and 1/3 of the cost - at the expense of the joint funds of the spouses, by virtue of which the share in the ownership of the apartment equal to 1/3 is subject to division. In addition, during the marriage, the spouses purchased a car of the brand "...", ... year of manufacture, furniture and household appliances, as well as in the name of N.I. Mikhailova. under the contract of August 20, 2008 N ... 8 in OJSC "Savings Bank of the Russian Federation" for the needs of the family a loan was taken, the balance of the debt on which at the time of divorce amounted to ... rubles. ... cop. Since the disputed property is jointly acquired property of the spouses, and the debt under the loan agreement is their common obligation, Mikhailova N.I. asked to divide this property and distribute the debt as follows: to recognize for Mikhailova N.AND. ownership of the apartment, recognize for Mikhailov A.The. the right of ownership of the car, furniture and household appliances to transfer to Mikhailova N.I., collecting from her in favor of the defendant compensation for the cost of 1/2 share in this property, to distribute the debt under the loan agreement in equal shares.

Mikhailov A.V. applied to the court with a counter statement of claim on the division of the jointly acquired property of the spouses, asked to divide the car and the share in the ownership of the apartment in accordance with the principle of equality of the shares of the spouses and to refuse the requirements of Mikhailova N.AND. on the recognition of the debt under the loan agreement concluded by her as a general obligation of the spouses.

By the decision of the Medvezhyegorsk District Court of the Republic of Karelia dated December 29, 2014, the initial and counterclaims were partially satisfied.

The division of the jointly acquired property of the spouses was carried out: for Mikhailova N.I. recognized ownership of 5/6 shares in the ownership of the apartment, for Mikhailov A.The. - for 1/6 of the share in the ownership of the apartment, as well as the ownership of the car; determined the property to be transferred to each of them: Mikhailova N.I. transferred furniture and household appliances in the amount of ... rubles., Mikhailov A.The. - a car worth ... rubles; debt Mikhailova N.I. under a loan agreement in the amount of ... rub. ... cop. recognized as a general obligation of the spouses and distributed among them in equal shares; with Mikhailova A.V. in favor of N.I. Mikhailova recovered monetary compensation for the difference in the value of the awarded property and loan obligations in the amount of ... RUB.

The rest of the initial and counterclaims were denied.

By the appellate ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Karelia dated April 17, 2015, the decision of the first instance court regarding the distribution of the debt was changed, from Mikhailova A.The. in favor of N.I. Mikhailova recovered monetary compensation for the difference in the value of the awarded property and loan obligations in the amount of ... RUB. ... cop.

The cassation appeal Mikhailov A.The. raises the question of the cancellation of the contested court decisions regarding the recognition of the debt under the loan agreement as a general obligation of the spouses and its distribution.

By the decision of the judge of the Supreme Court of the Russian Federation Yuryev AND.M. of February 8, 2016, the cassation appeal with the case was forwarded for consideration at the court session of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation.

Having checked the case materials, having discussed the arguments of the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds that there are grounds for canceling the decision of the Medvezhyegorsk District Court of the Republic of Karelia of December 29, 2014 and the appeal ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Karelia from April 17, 2015 regarding the recognition of the debt under the loan agreement as a general obligation of the spouses and its distribution.

In accordance with Article 387 of the Civil Procedure Code of the Russian Federation, the grounds for canceling or changing court decisions in cassation are significant violations of substantive law or norms of procedural law that influenced the outcome of the case and without which the restoration and protection of violated rights, freedoms and legal interests, as well as protection of public interests protected by law.

Such violations were committed by the courts of first and appeal instances when considering the present case.

As established by the court and follows from the case file, from October 8, 2006 to November 30, 2012 Mikhailova N.AND. and Mikhailov A.V. were married.

During the marriage, on the basis of a loan agreement dated August 20, 2008 No. ..., concluded with OJSC "Savings Bank of the Russian Federation", Mikhailova N.I. a loan was taken in the amount of ... rubles. (vol. 1, l.d. 20-27).

According to clause 1.1 of the agreement, the loan is provided to the borrower for personal consumption.

Resolving the dispute and satisfying the requirements of Mikhailova N.AND. on the recognition of the debt under the loan agreement as a general obligation of the spouses and its distribution, the court of first instance proceeded from the fact that the norms of family law established the presumption of the emergence of monetary obligations during marriage in the interests of the family, due to which the obligation to prove the opposite was imposed on Mikhailova A.V., challenging the use of credit funds for the needs of the family. Since Mikhailov A.The. did not provide evidence of the use of Mikhailova N.AND. funds for her personal purposes, the court concluded that these funds were spent on the needs of the family, which means that the obligation to return them is a common obligation of the spouses.

The appellate court agreed with the conclusions of the first instance court in this part. However, having established at the time of consideration of the dispute the existence of a different amount of debt, he redistributed the debt under the loan obligation, taking into account the already fulfilled loan obligations and the balance of the debt.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds that the courts of first and appeal instances committed a significant violation of the norms of substantive and procedural law, which was expressed in the following.

By virtue of paragraph 1 of Article 39 of the Family Code of the Russian Federation, when the common property of the spouses is divided and the shares in this property are determined, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses. The common debts of the spouses in the division of the common property of the spouses are distributed between the spouses in proportion to the shares awarded to them (paragraph 3 of this article).

Clause 2 of Article 35 of the Family Code of the Russian Federation, clause 2 of Article 253 of the Civil Code of the Russian Federation established the presumption of the spouse's consent to the actions of the other spouse to dispose of common property.

However, the current legislation does not contain provisions that such consent is also assumed in the event that one of the spouses has debt obligations to third parties.

On the contrary, by virtue of paragraph 1 of Article 45 of the Family Code of the Russian Federation, which stipulates that, according to the obligations of one of the spouses, execution can be levied only on the property of this spouse, each of the spouses is allowed to have their own obligations. At the same time, according to clause 3 of Article 308 of the Civil Code of the Russian Federation, the obligation does not create obligations for other persons who do not participate in it as parties (for third parties).

Consequently, in the event that one of the spouses concludes a loan agreement or concludes another transaction related to the arising of a debt, such a debt can be recognized as general only if there are circumstances arising from paragraph 2 of Article 45 of the Family Code of the Russian Federation, the burden of proof of which lies with the party claiming for the distribution of debt.

Based on the provisions of the above legal norms for the distribution of debt in accordance with paragraph 3 of Article 39 of the Family Code of the Russian Federation, the obligation must be general, that is, it should arise on the initiative of both spouses in the interests of the family, or be an obligation of one of the spouses, according to which everything received was used for the needs of the family.

In accordance with Part 2 of Article 56 of the Civil Procedure Code of the Russian Federation, the court determines what circumstances are relevant to the case, which party has to prove them, brings the circumstances up for discussion, even if the parties did not refer to any of them.

A legally significant circumstance in this case was the clarification of the question of whether the funds received by Mikhailova N.I. were spent. under a loan agreement, for the needs of the family.

Meanwhile, the indicated circumstances, which are essential for the correct resolution of the dispute, the appellate court left without research and legal assessment.

Taking into account the fact that Mikhailova N.I. is the borrower of funds, then it was she who had to prove that the debt occurred on the initiative of both spouses in the interests of the family, and everything received was used for the needs of the family. By virtue of this imposing by the courts on Mikhailov A.The. the burden of proving the fact that the spouse has used these funds for purposes other than family needs is contrary to the requirements of the current legislation.

In addition, having recognized the debt under the loan agreement as a general obligation of the spouses, the court concluded that half of the debt, including the outstanding part of it, should be collected from the defendant.

Meanwhile, the provisions of the law that, when dividing the common property of spouses, common debts and the right to claim for obligations arising in the interests of the family are taken into account, do not indicate the existence of legal grounds for collecting unpaid debt under a loan agreement from a spouse.

The obligations arising during the marriage under loan agreements, the obligations of which after the termination of the marriage lie with one of the former spouses, can be compensated to the spouse by transferring to him the ownership of the corresponding part of the property in excess of the share in the jointly acquired property due to him under the law. In the absence of such property, the borrowing spouse has the right to demand from the second spouse compensation for the corresponding share of payments actually made by him under the loan agreement. Otherwise, it would contradict the provisions of paragraph 3 of Article 39 of the Family Code of the Russian Federation and entail the onset of deliberately unfavorable consequences for the other spouse in terms of the period for the fulfillment of the monetary obligation.

Taking into account the foregoing, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds that the violations of substantive and procedural law committed by the courts of first and appeal instances are significant, they influenced the outcome of the case and without their elimination, it is impossible to restore and protect the violated rights and legitimate interests of Mikhailov A. V., in connection with which the decision of the Medvezhyegorsk District Court of the Republic of Karelia of December 29, 2014 and the appeal ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Karelia of April 17, 2015 regarding the recognition of the debt under the loan agreement as a general obligation of the spouses and its distributions with the recovery of monetary compensation cannot be recognized as legal, they in this part are subject to cancellation with the direction of the case for a new consideration in the court of first instance.

When reconsidering the case, the court should take into account the above and resolve the dispute in accordance with the circumstances established in the case and the requirements of the law.

Guided by Articles 387, 388, 390 of the Civil Procedure Code of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation determined:

the decision of the Medvezhyegorsk District Court of the Republic of Karelia dated December 29, 2014 and the appeal ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Karelia dated April 17, 2015 in terms of satisfying the requirements of N.I. Mikhailova to Mikhailov A.The. on the recognition of the debt under the loan agreement general obligation of the spouses and the distribution of the debt, collection from Mikhailova A.The. in favor of N.I. Mikhailova monetary compensation for the difference in the value of the awarded property and loan obligations in the amount of ... RUB. ... cop. cancel, send the case in this part for a new consideration to the court of first instance.

In the rest, the decision of the Medvezhyegorsk District Court of the Republic of Karelia of December 29, 2014 and the appeal ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Karelia of April 17, 2015 shall be left unchanged.

Judges

B.A. Gorokhov

T.N. Nazarenko

Document overview

A dispute arose between the spouses regarding the division of jointly acquired property and loan debt.

The latter was registered in the name of the spouse (she acted as the borrower under the agreement).

The courts of two instances, among other things, considered that the disputed debt on the loan was a general obligation of the spouses.

The Investigative Committee for Civil Cases of the RF Armed Forces did not agree with this conclusion and explained the following.

According to the RF IC, when the common property of the spouses is divided and the shares in it are determined, their shares are recognized as equal, unless otherwise provided by the contract.

The common debts of the spouses in the division of such property are distributed among them in proportion to the shares awarded to them.

The Investigative Committee of the Russian Federation and the Civil Code of the Russian Federation established the presumption of the spouse's consent to the actions of the other spouse to dispose of the common property.

However, there is no provision in the legislation that such consent is also assumed in the event that one of the spouses has debt obligations to third parties.

On the contrary, the Investigative Committee of the Russian Federation provides that, according to the obligations of one of the spouses, execution can only be levied on his property. That is, each of them is allowed to have their own obligations.

At the same time, under the Civil Code of the Russian Federation, an obligation does not create obligations for persons who do not participate in it as parties (for third parties).

Proceeding from the RF IC, the foreclosure is applied to the common property of the spouses under the obligations of one of them under a certain condition: the court established that everything received under such obligations was used for the needs of the family.

Consequently, in the event that one of the spouses concludes a loan agreement (or another transaction related to the occurrence of a debt), the latter can be recognized as general only if it is established that everything received under such an obligation has been used for the needs of the family.

Moreover, the burden of proving this lies with the party claiming the distribution of the debt.

In addition, the wrong conclusion was made that half of the amount of the loan debt, including the outstanding part of it, should be collected from the defendant.

However, there are no grounds for collecting the unpaid debt from the spouse (according to the law, compensation is possible at the expense of a part of the joint property in excess of the share due to the borrower's spouse, and in the absence of such property, compensation for the share of loan payments that have actually been made can be collected).

Good afternoon, A.Yu.!

In the event that one of the spouses concludes a loan agreement or concludes another transaction related to the occurrence of a debt, such a debt can be recognized as general.

For a joint and several obligation to return borrowed funds, the obligation must be general, that is, as follows from paragraph 2 of Art. 45 RF IC:

1. arise on the initiative of both spouses in the interests of the family;
2. or be an obligation of one of the spouses, according to which everything received was used for the needs of the family.

Thus, the legally significant circumstances for proving (subject of proof) in the case are:

• clarification of the issue of establishing the purpose of receiving funds and (or) other property under the transaction;
• reasons for the conclusion of the transaction;
• whether the funds and (or) other property received under the transaction were spent on the needs of the family.

At the same time, the burden of proving the above circumstances lies with the party claiming the distribution of the debt.

V. applied to the court with a claim against M., P. to recover the amount of the debt.

In support of the claim, he indicated that under the loan agreement, he transferred a certain amount of money to M.

At the time of the conclusion of the loan agreement M. was married to P. (M.).

Obligations to return funds under M.'s loan agreement were not fulfilled.

On the basis of paragraph 2 of Art. 45 of the RF IC, the plaintiff asked to recover the amount of the debt from M. and P. (M.) jointly and severally.

The case has been repeatedly considered by the courts.

In a new consideration of the case, the court of first instance, satisfying V.'s claims, guided by the provisions of Art. 310, 314, 322, 807, 810 of the Civil Code of the Russian Federation and Art. 34, 39 of the RF IC, proceeded from the fact that since at the time of the conclusion of the loan agreement P. (M.) was married to M. and the funds received by M. from V. were spent on the needs of the defendant's family, in particular on development of a joint business and for the purchase of real estate, then these funds are the common debt of the defendants in the case.

The appeal court agreed with the above conclusions of the first instance court.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, on P.'s cassation appeal, overturned the court rulings in the case and sent the case for new consideration to the court of first instance on the following grounds.

In accordance with paragraph 3 of Art. 39 of the RF IC, the total debts of spouses in the division of the spouses' common property are distributed between the spouses in proportion to the shares awarded to them.

According to paragraph 2 of Art. 45 of the RF IC, the foreclosure is applied to the common property of the spouses for the general obligations of the spouses, as well as for the obligations of one of the spouses, if the court established that everything received under the obligations of one of the spouses was used for the needs of the family.

Thus, in order to impose on P. a joint and several obligation to return borrowed funds the obligation must be general, that is, as follows from paragraph 2 of Art. 45 of the RF IC, arise on the initiative of both spouses in the interests of the family, or be an obligation of one of the spouses, according to which everything received was used for the needs of the family.

Clause 2 of Art. 35 of the RF IC, clause 2 of Art. 253 of the Civil Code of the Russian Federation established the presumption of the spouse's consent to the actions of the other spouse to dispose of common property.

However, the current legislation does not contain provisions that such consent is also assumed in the event that one of the spouses has debt obligations with third parties.

On the contrary, by virtue of paragraph 1 of Art. 45 of the RF IC, which stipulates that according to the obligations of one of the spouses, recovery can only be levied on the property of this spouse, each of the spouses is allowed to have their own obligations.

Consequently, in the event that one of the spouses concludes a loan agreement or another transaction related to the occurrence of a debt, such a debt can be recognized as general only if there are circumstances arising from paragraph 2 of Art. 45 of the RF IC, the burden of proof of which lies with the party claiming the distribution of the debt.

Meanwhile, having concluded that the funds borrowed by the defendant M. from the plaintiff had been spent on the needs of the family, including the purchase of real estate, the court, in violation of this article, indicated that no evidence to the contrary was presented to P.

According to Part 2 of Art. 56 of the Code of Civil Procedure of the Russian Federation, the court determines what circumstances are relevant to the case, which party has to prove them, brings the circumstances up for discussion, even if the parties did not refer to any of them.

In this case, a legally significant circumstance was the clarification of questions about the establishment of the purpose of M.'s receipt of the above sum of money, the reasons for M. and V.'s signing of two documents, and whether the money received by M. from V. was spent on the needs of M's family. ...

Satisfying V.'s claims, the court did not take into account the above circumstances, did not define them as legally significant for the correct resolution of the dispute, they were not included in the subject of proof in the case and, accordingly, did not receive a legal assessment of the court, which is a consequence of incorrect interpretation and application by the court provisions of paragraph 2 of Art. 45 of the RF IC to the relations of the parties.

These circumstances were also ignored by the court of appeal.