joint property division right

The regulation of property relations arising between spouses is currently based on the existence of two regimes of matrimonial property - legal and contractual. In accordance with paragraph 1 of Art. 33 of the Family Code of the Russian Federation, the legal regime for the property of spouses is valid unless otherwise established by the marriage contract.

The legal regime of the property of the spouses, which, as noted earlier, is the regime of their common joint property (Article 33 of the Family Code of the Russian Federation) is established by Chapter 7 of the Family Code of the Russian Federation.

First, however, it is worth noting that in the theory of law a distinction is made between regimes of absolute (full) and limited (partial) community. According to the rules of the regime of absolute community, all property of the spouses, both movable and immovable, both belonging to each of them before marriage and acquired by them during marriage for any reason, including any income, as well as any property obligations and debts of each, is considered common. from spouses, regardless of the time of their acquisition by spouses. As an exception, L.B. Maksimovich identifies things for personal use that can be separately owned.

Under a limited community regime, the limitation may be based on a temporary or qualitative criterion, in accordance with which a particular regime is subsequently extended to marital property. Thus, with the temporary criterion, the starting point is marriage, from the moment of which, in accordance with the law or contract, community of marital property arises. In the second case, the community applies only to a certain type of property or a certain thing (for example, movable property or a car).

Along with the mentioned regimes, the legislation of foreign countries, as noted by I.V. Zlobina, I know six more various options property relations between spouses. At the same time, one should agree with M.V. Antokolskaya, who believes that the existing regime of joint property of spouses in Russia can be called a regime of limited community or community of acquisitions, since only the property acquired by the spouses during marriage becomes common.

In general, during the development of Russian family law, two main approaches were developed in resolving the issue of ownership of property by spouses: either recognizing property belonging to spouses as their common property, or recognizing separate property and property independence of each spouse. At the same time, in the conditions of regulation of relations between spouses regarding property according to the principle of community, the property belonging to each of the spouses before marriage (premarital property) was always allocated as part of the property belonging to the spouses. Such premarital property at various historical stages referred either to the personal property of each spouse or to the common property of the spouses.

At present, the main problem legal regulation relations related to common marital property is to determine the criteria that make it possible to classify acquired things, property rights and debts as the category of common property of spouses and, on this basis, to extend to them the legal regime of common joint property.

In accordance with Art. 34 of the Family Code of the Russian Federation, the joint property of spouses is property acquired by them during marriage. In this case, the property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during the marriage as a gift, through inheritance or through other gratuitous transactions, is not included in the common property to be divided between them.

Not limiting itself to establishing general characteristics of property related to the joint ownership of spouses, the family legislation of the Russian Federation establishes an approximate, non-exhaustive list of property to which spouses may have the right of common ownership (Article 34 of the Family Code of the Russian Federation). It is important that the concept of “property” in this case is interpreted broadly and implies not only things, but also property rights, as well as the obligations of spouses.

According to paragraph 2 of Art. 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage includes:

• - income received by each of the spouses as a result of his labor activity, as well as pensions and benefits and other payments that do not have a special purpose;
• - income received by each spouse from entrepreneurial activities (including a share of the profit of a commercial organization;
• - income received by each spouse from intellectual activity (author's fees, etc.);
• - movable and immovable things, securities, shares, deposits, shares in capital contributed to credit or other commercial organizations, acquired at the expense of the common income of the spouses;
• - any other property acquired by the spouses during the marriage.

A novelty in family law is the inclusion in the specified list of property arising from citizens and as a result of participation in commercial organizations. Yes, Art. 34 of the Family Code of the Russian Federation provides that the common property of spouses is securities, shares, deposits, shares in capital acquired at the expense of common income, contributed to credit institutions or other commercial organizations, regardless of which spouse’s name it was acquired or in the name of whom or which of the spouses the funds were deposited. However, the wording of the text of paragraph 2 of the said article of the Family Code of the Russian Federation, which characterizes shares in capital as “contributed to credit institutions or other commercial organizations,” seems incorrect, since it is well known that property transferred to a legal entity upon its creation becomes property organizations. In exchange for the transferred property, the participants acquire rights of claim against the legal entity, which are identified with the share belonging to them as participants in this commercial organization. Accordingly, spouses, by contributing property to the authorized (share) capital of a partnership or company, lose real rights to it and acquire liability rights in relation to the property of a legal entity. The exception is cases when property is transferred as a contribution to a commercial organization for use only. In any case, in monetary terms, the contribution made by a participant in a partnership or company corresponds to a share in the capital only at the time of creation of the commercial organization. In the future, the value of a share in the capital of a partnership or company is not limited to the value of the contribution and is determined in the manner established by the relevant norms of civil legislation.

Of course, one of the grounds for acquiring a share in the capital of the Company is participation in its creation, which provides for two acts: signing the constituent agreement and making a contribution to the authorized capital. However, the possibility of acquiring a share is not limited to participation in the creation of a company and does not always require a contribution Money into his capital. A share can be acquired by concluding an assignment of rights agreement, as well as on other grounds provided for by the civil legislation of the Russian Federation.

Taking into account all that has been said, we consider it necessary to cite the content of paragraph 2 of Art. 34 of the Family Code of the Russian Federation in accordance with the norms of civil legislation, namely, to exclude from it the phrase “contributed to credit institutions or other commercial organizations” following the words “shares in capital”. As for those used in paragraph 2 of Art. 34 of the Family Code of the Russian Federation of the words “deposited in credit institutions”, then they, apparently, refer to bank deposits and, accordingly, should follow after the mention of them.

In general, an analysis of the above norms of the Family Code of the Russian Federation shows that the main criteria for determining the community of property of spouses within the framework of the current legislation and, accordingly, the emergence of their right of common property are:

• - moment of acquisition of property: property must be acquired during the marriage; this condition is imperative, but it is not unconditional, since, for example, common property can also arise as a result of the transformation of the spouse’s personal property into common property;
• - the nature of the means of acquisition: the property must be acquired using the common funds of the spouses; in turn, the use of personal funds as an equivalent of the acquired property entails the emergence of ownership rights only for the spouse to whom these funds belonged;
• - method of acquisition (compensatory transactions, income from various types activities and others). The common property of spouses also includes property acquired through a gratuitous transaction, but in the name of both spouses.

At the same time, in our opinion, it seems controversial to include in the list of criteria for the emergence of the right of common matrimonial property the condition of spouses living together and running a common household. Of course, as I.V. rightly notes. Zlobina, property acquired by spouses during their separation shakes the presumption of common property, since such property can be recognized by the court as the property of each of the spouses, however, failure to comply with the condition of cohabitation does not entail automatic termination of the community of property of the spouses and therefore, it seems, cannot serve as a basis for the unconditional exclusion of this or that property from the scope of the legal regime of matrimonial property.

The defining feature of the legal regime of marital property is its non-shared nature, since the shares of the spouses in their common property are not determined in advance, and its entirety belongs equally to each of the spouses. The latter, thus, become co-owners of all the property they have acquired and are endowed with equal powers in relation to it. The shares of participants in common joint property are established only when deciding on the determination of shares in the division of common property, which entails the termination of joint ownership.

However, we should not forget that the entire totality of property owned by spouses consists of two parts: 1) property, the owner of which is each of the spouses (Article 36 of the Family Code of the Russian Federation); 2) property acquired during marriage, common joint property spouses.

Firstly, the legal regime of property predetermines the equality of rights of spouses to jointly acquired property. Equality is manifested, in particular, in equal opportunities for spouses to exercise the rights to own, use and dispose of property acquired during marriage. The equality of their rights is not violated even in the case when one of them, during the marriage, was busy running a household or did not have independent income for other valid reasons (clause 3 of Article 34 of the Family Code of the Russian Federation), Thus, taking into account the fact that often in the process of family life it is impossible to determine the contribution of each spouse to the creation of a joint household (in particular, when the wife provides for the organization of the house, raising children, and the husband creates the financial basis for their well-being), the legislator establishes equal rights of spouses to everything acquired during marriage property, regardless of who is its actual purchaser.

Secondly, along with the protection of the equality of rights of spouses in relation to common property, as a law enforcement measure in relation to the interests of a bona fide (working) spouse, the legislator provided for the possibility of reducing the share of one of the spouses in the common property of the spouses if he did not receive income for unjustified reasons or spent the common property of the spouses to the detriment of the interests of the family (clause 2 of article 39 of the Family Code of the Russian Federation). However, it is important to emphasize that this issue can only be resolved in court in the process of dividing common marital property.

Thirdly, the grounds for acquiring the ownership rights of spouses to property and the grounds for the emergence of obligations of the spouses are no different from general civil law grounds and are regulated by the Civil Code of the Russian Federation (Articles 8.218, 307 of the Civil Code of the Russian Federation).

Thus, an analysis of the norms of family legislation of the Russian Federation regulating the legal regime of matrimonial property allows us to identify three main limitations of the community regime provided for by law.

The first of them is due to the fact that only property acquired during marriage is recognized as common property. The very fact of marriage does not change the legal regime of property owned by a citizen before its conclusion. Each spouse retains personal ownership of the property.

The second limitation is due to the fact that the principle of community of property of spouses is based on a material criterion - common funds and (or) common labor. Accordingly, by analogy with how in family life the income of each spouse corresponds to their total budget, so the property acquired with these funds or through the labor of each spouse becomes their common property. The foregoing allows us to conclude that at the same time, all the property received by the spouses that is not acquired at the expense of the common means of the common labor of each of the spouses will not be included in the common property.

The third limitation of the regime of community of property of spouses is the rule established by the legislator that the personal belongings of each spouse are classified as his personal property, even if they were acquired from common funds. So, according to paragraph 2 of Art. 36 of the Family Code of the Russian Federation, “things for individual use (clothing, shoes and others), with the exception of jewelry and other luxury items, although acquired during the marriage at the expense of the spouses’ common funds, are recognized as the property of the spouse who used them.”

So, based on the above, it can be argued that the principle of partial, or limited, community of property of the spouses, which forms the basis of the legal regulation of matrimonial property, consists in establishing a presumption of community only for that property that was acquired by the spouses during the marriage at the expense of common funds and ( or) the labor of each spouse. In accordance with this presumption, all property of the spouses acquired during the marriage, until otherwise proven, is considered common, with the exception of that property that is withdrawn from the joint property of the spouses by direct instructions of the law. The effect of this presumption ensures the protection of the rights of the least advantaged party from an economic point of view marital relations in a dispute over the division of common property.

In light of the operation of the legal regime for the property of spouses, which is the right of ownership, it is interesting to consider the question of the possibility of including a share in the capital of a business company in the composition of the marital property.

At first glance, the inclusion of a share in the capital of a business company in the joint property of spouses seems quite logical, since participation in a commercial organization involves investing in its capital funds belonging to the citizen, which, if available, marital relations form part of the family budget. The use by one of the spouses of common (family) funds to purchase property entails the emergence of the other spouse's rights as a co-owner to the property in question. However, a share in capital is not property in kind (Article 213 of the Civil Code of the Russian Federation excludes the right of ownership of participants to the property of business companies or partnerships) and, as an object of civil rights, represents a property right.

The basis for the emergence of property rights is an obligation, the nature of which excludes the establishment of ownership of the rights and obligations generated by it, because “An abstract right cannot be the object of real rights.” In this regard, in the science of civil law, the question of the possibility of recognizing property rights as an object of property rights, as noted earlier, causes heated debate and discussion and mostly comes down to its denial.

The position of V.P. seems interesting. Mozolin, who considers a share in capital as the right to participate in the affairs of a partnership or company and recognizes “the autonomous right of ownership of a participant to the right (but not property) to participate in the affairs of the specified partnership or company.” "IN modern conditions“, writes the lawyer, “characterized by the strengthening role of property and complex rights in the sphere of civil circulation, there are sufficient grounds to talk about a tendency to expand the range of these rights acting as objects of property rights.” At the same time, this right, according to the named author, cannot extend to rights of claim against other persons. Otherwise, “the object of property rights becomes the social relations themselves, an integral element of the content of which are property rights.”

In this regard, the question arises: how is the ownership right of a spouse who is not a participant in a commercial organization exercised to the share in its capital acquired by the other spouse.

As is known, in its content the right of ownership is the most complete property right. “The right of property is a fundamental right, influencing directly or indirectly in essence all other civil rights.” The owner has the rights to own, use and dispose of property. At the same time, the main interest of the owner of the share is not its value, but the possibility of acquiring legal status participant in a commercial organization and the exercise of rights arising from the issued status.

Will the demands of the spouse of a participant in a company or partnership to amend the constituent documents of a commercial organization and to include him in the list of participants on the grounds that he is a co-owner of a share in the capital be legal? Can a spouse, based on his ownership right to a share in the capital, claim participation in a commercial organization before the division of the spouses’ common property?

It seems that the answer to the questions posed should be negative. The fact is that, as already shown earlier, the rights to the share of the spouse, who acts as its acquirer, arise from the legal connection between him and the legal entity, called an obligation, in the conditions of which, as a rule, the participant is the creditor, and the legal entity is the debtor . It should immediately be noted that this statement is often criticized in the theory of civil law. In particular, according to V.A. Lapacha, “an attempt to discover the basis for such an obligation among those listed in Art. 8 of the Civil Code of the Russian Federation leads to nothing.” Serious doubts regarding the issue of considering the rights of the founder in relation to a commercial organization as obligatory were also expressed by K.I. Sklovsky, according to whom, “this is an atypical obligation both in the method of occurrence and in content.” However, despite the doubts expressed, in accordance with the point of view established in the theory of civil law, as well as on the basis of the law (Article 48 of the Civil Code of the Russian Federation), the relations arising between the participants and the legal entities in question should be qualified as obligatory.

In this regard, even if the ownership right of a spouse who is not a participant in a commercial organization to a share in the capital of this Company or partnership arises from a direct indication of the law, then the obligation cannot arise directly from the law. The law establishes a presumption that the obligation does not give rise to rights and obligations for persons not participating in it and is of a personal nature. According to paragraph 3 of Art. 308 of the Civil Code of the Russian Federation, in cases provided for by law, other legal acts or agreement of the parties, an obligation may create rights for third parties in relation to one or both parties to the obligation. However, in our opinion, the inclusion of a share in capital in the common property of the spouses, which belongs to them by right of ownership, cannot be interpreted as the basis for the emergence of the obligatory rights of a spouse not participating in the obligation in relation to a business partnership or company. Otherwise, there will be a confusion of obligatory and proprietary legal relations. In this matter, in our opinion, it is worth supporting the point of view of K.I. Sklovsky, who writes: “There is no need to repeat all the arguments, which are ultimately based on a strict division that arose long ago and is very important for preserving the integrity of law into real rights (property and some others) and obligatory rights, by virtue of which any mixing and intertwining of these rights is unacceptable.”

Based on the foregoing, it seems that the right to a share in capital exists only in relations between spouses and therefore is included in the system of internal obligatory legal relations existing between them. In the absence of which, all claims of a spouse who is not a participant in a commercial organization are within the framework of the legal structure of joint ownership of the property in question, established by family law, and can only be brought against the spouse as a co-owner. Thus, presenting the above requirements to a legal entity before the division of the property in question has no legal basis, since the spouse of a member of the Company is not a party to the obligations arising between the spouse-participant and the legal entity.

Taking into account all that has been said, and also in view of the need to somehow regulate the duality of the legal essence of a share in the capital of the Company as marital property, on the one hand, and as an expression of the obligatory relations existing between the Company and its participants, on the other hand, it can be very conditionally accepted that shares in capital are objects of two types of legal relations - obligatory, arising between the spouse who is a participant in a commercial organization and the organization itself, and (conditionally) real, arising between spouses.

The “right to right” construction, which is reflected in the family legislation of the Russian Federation, does not give rise to real rights with all their inherent properties to a share in the capital of the Company in relation to relations arising between a spouse who is not a participant and a commercial organization.

As for the relations arising between spouses regarding a share in capital, the legal regime of joint ownership of spouses assigns to each of them the right to common property as a whole, regardless of which spouse it was acquired in the name of and, accordingly, which of them is a participant in a business partnership or company. In this case, the property right of a spouse who is not a participant in a commercial organization acts as a kind of guarantee of his property rights, since his funds, which constitute the common property of the spouses, were also spent on acquiring the share. Thus, joint ownership relations oblige its participants to exercise the powers of ownership, use and disposal of property by mutual agreement. According to Art. 35 of the Family Code of the Russian Federation, ownership, use and disposal of common property by spouses must be carried out by mutual consent. However, in this case it is necessary to again take into account the fact that it is possible to talk about the powers of possession, use and disposal, which constitute the content of the right of ownership of property, in relation to rights of obligations only very conditionally, because a share in the capital of a commercial organization does not have a material form. This excludes the right of possession, understood as actual dominion over a thing. The right of use is also excluded, since in obligatory legal relations the implementation of the rights of the creditor occurs not through one’s own actions, but as a result of the implementation of certain actions by the debtor. As for the power of disposal, it can be assumed that “the object of the right of disposal cannot be a law that includes the right of disposal itself.”

Based on the fact that the possibility of exercising the rights that constitute the content of a share in the capital is assigned to a person who has the status of a participant in a commercial organization, in our opinion, a share in capital as a set of rights and obligations of a participant in a commercial organization exists only for the spouse who is its participant. The basis of his rights is the fact of participation and obligations with a legal entity and the fact of membership in it. For a spouse who is not a participant in a business partnership or company, a share in capital is a kind of analogue of property that is the object of real rights, and is expressed through its economic essence - actual value, without rights in relation to the partnership or company, including without the right to participate in them. The rights of a spouse who is not a participant in a commercial organization to a share in the capital acquired from common funds by the other spouse and owned by both of them by right of joint ownership are reduced only to the right to a part of the property right of the participant’s claim to the partnership or company. At the same time, he does not own the right of claim itself, but the property received as a result of its satisfaction (profit received, liquidation balance, value of the share when a participant leaves the organization). At the same time, the disposal of shares in the capital, including the withdrawal of a participant from the organization, must be carried out by mutual consent of the spouses, since this is their common property.

Based on the foregoing, it must be assumed that the property right of a spouse who is not a participant in a commercial organization is realized as the right to property (part of it) received by a spouse who is a participant in the organization as a result of participation in its activities (distributed profit, liquidation balance), as well as income related to the alienation of a share in capital, including when a participant leaves the company or partnership. In addition, the spouse has the right at any time to demand the division of the common property of the spouses, including shares in capital.

Based on the above, in our opinion, we can conclude that the inclusion of a share in capital in the common property of the spouses was made by the legislator without taking into account the specifics of this type of property. One gets the impression that this approach is due to an erroneous interpretation of the concept of a share in capital as a thing, along with securities, other movable and immovable property, which are, as a rule, objects of the material world, or as an object understood only through its value. While the originality of the share in the capital is explained by the emergence in its owner of a whole complex of rights and obligations, different in nature and content, that constitute the content of the obligatory legal relationship between the participant and the commercial organization, the affiliation of which is associated with granting the person the status of a participant. Thus, many legal conflicts and practical difficulties arise from the procedure for spouses to exercise the rights arising from the fact of joint ownership of shares in capital.

All of the above once again confirms the conclusion about the objectively urgent need to improve family legislation in terms of the legal regulation of relations between spouses that arise between them and a commercial organization in connection with the acquisition by one of the spouses of a share in the capital of this organization. In particular, while maintaining the current situation, the procedure for the exercise by spouses of the rights arising in connection with the acquisition of a share in capital, as well as the procedure for its division, requires further development.

As an alternative to the legal regime, Chapter 8 of the Family Code of the Russian Federation stipulates the contractual regime of the property of spouses, which is important for matrimonial property relations and property relations in the family. The documentary basis of the contractual regime for the property of the spouses is the marriage agreement (contract).

The fact of introducing a marriage contract into the family legislation of the Russian Federation is one of its most significant innovations, since with the advent of this institution in family law In Russia, for the first time, spouses have the opportunity to independently establish the legal regime of their property, maximally satisfying the interests of each of them.

From the point of view of the topic under consideration, the moment of entry into force of the marriage contract and, accordingly, the beginning of the validity of the property rights and obligations of the spouses provided for by it is important. So, according to paragraph 1 of Art. 41 of the Family Code of the Russian Federation, a marriage contract can be concluded both before the state registration of marriage, and at any time during the marriage. In relation to the first case, the law provides that the agreement comes into force from the day of state registration of the marriage. As for the second case, the moment of entry into force of the marriage contract is not determined by law, which gives the spouses the opportunity to independently determine in the contract the exact date of its entry into force or to associate this moment with the occurrence of certain conditions or events.

Finally, it should be noted that, along with marriage contracts, among the transactions currently concluded between spouses, agreements on the division of property have become somewhat widespread, the possibility of concluding which is provided for in paragraph 2 of Art. 38 of the Family Code of the Russian Federation. These transactions have a certain similarity with marriage contracts, but, unlike the latter, they do not determine the legal status of property that can be acquired in the future, but only imply the determination of the share of each spouse or the division of already acquired, existing common property. The property that the spouses will acquire in the future is not taken into account in the agreement, due to which such property will be subject to the regime of joint ownership.

Registration of marriage relations in the registry office is the basis for the emergence of mutual legal rights and obligations among partners. This applies not only to the formation of a common family budget, but also to the distribution of material assets and the emergence of inheritance claims between husband and wife in relation to each other.

The joint property of the spouses begins to accumulate on the day following the wedding date. But each partner retains the right to own personal property, which cannot be divided in the future.

Legal regime of spouses' property

When considering issues related to the regime of joint and separate property of spouses, one must refer to the provisions of the Civil and Family Code Russian Federation. The provisions of these documents establish that registration of marriage implies the implementation of general expenses for the acquisition of common property (this mainly concerns real estate).

Thus, the common property of the spouses is in mutual use by both spouses, but alienation of property can only occur if the husband and wife wish to do so together. In the event of divorce, such properties are subject to equal division.

At the same time, each of the partners retains the right to acquire valuables that will be exclusively personal and there can be no claims on the part of the second spouse to the rights to own the thing.

Important! In addition to the universal rules for the distribution of material wealth between partners, it is also allowed to sign a marriage contract, which establishes special conditions for the accumulation and use of property.

The legal regime of property of spouses fixes who and in what parts is the owner of specific objects of property. As noted above, such a regime can be legal (in the absence of a contract and the application of universal rules to all couples) and contractual (a special procedure for the distribution of property rights is fixed in the contract).

Legal regime

The right of common joint property of spouses arises only after receiving a marriage certificate and is terminated on the following grounds:

• divorce;
• death of one of the partners (death);
• signing (can occur before the wedding or after the marriage).

The legal regime is based on the following principles:

• all valuables acquired after the wedding are considered common property and partners can use them in full, and not just a separate part;
• distribution of shared property occurs only upon divorce or signing of a contract;
• Material goods acquired after the termination of the marriage relationship will not be considered joint possessions.

The legislator has established conditions under which possessions acquired after the wedding will be considered the personal property of each partner separately.

Treaty regime

A prenuptial agreement allows the husband and wife to independently resolve financial issues regarding family property. This will avoid possible legal disputes in the future if the need arises for the division of values.

Drawing up a contract has the following features and rules:

• the agreement comes into effect from the moment it is signed and approved by a notary;
• termination of the contract is limited to the terms of the agreement or the date of divorce;
• the content displays the order of distribution of values ​​between husband and wife (bride and groom);
• The specific allocations of each partner for each type of property are indicated.

Types of property related to joint property of spouses

The articles of the law do not approve a single list of objects that can be recognized as common or separate property. But a list of circumstances under which mutual rights to property arise between spouses has been approved. Thus, the common (joint) property of spouses includes the following categories of values:

1. Money. This includes wages and other types of regular and periodic income of each partner. The rule also applies to social payments and rewards.
2. Maternal capital. This is a government subsidy available to couples raising two or more children. The money goes into the name of the child's mother, but belongs to the whole family and can only be used for general needs. These funds are common, but cannot be divided; they go to the spouse who is raising the children.
3. Bank deposits. Virtual money also belongs to the list of common possessions. The main thing is that a financial account should be opened after marriage.
4. Real estate. This category of material goods includes land plots, as well as real estate, regardless of their intended purpose and location.
5. Movable property. This is the largest section that includes household items that are not personalized. That is, it is not allowed to classify personal clothing and personal medications as common property.

Property acquired during marriage will not always be shared. Thus, the personal property of one spouse will include those values ​​that were transferred to use on the basis of a gift agreement or by inheritance.

Important! If the gift or inheritance is subsequently sold and real estate is purchased with the proceeds, then such objects will be considered common, since they were acquired using monetary capital, which does not exclude the participation of the second partner in the purchase.

Disposal of joint property of spouses

The property of each spouse gives the right to independently make decisions regarding the implementation of property rights to objects. But, if material wealth belongs equally to both husband and wife, then it is impossible to do without obtaining the official consent of the second partner.

Official consent is a document that displays permission to exercise property rights to common values. Such a document must be drawn up in writing and requires notarized approval. The absence of such permission excludes the possibility of alienation of property rights to common objects.

If the spouse participated in transactions without the permission of the other party, then such actions may be declared invalid with the subsequent return of the alienated material assets to the family.

Obtaining notarial consent to participate in property transactions is necessary not only when selling common property, but also when purchasing property that will later become joint property. An exception is the drawing up of a will to dispose of a personal share of material wealth.

Obtaining a notarial permit is not required if, after purchasing the objects, both spouses immediately register ownership rights to various shares of the object. Then each partner is free to independently dispose of his personal share of material wealth.

Division of joint property

It was indicated above what regime of ownership of spouses’ property can be established. If material assets are purchased in the name of one of the partners, then they will still belong equally to both husband and wife (legal regime). To avoid property disputes, you can divide material assets between partners immediately. This procedure is carried out based on the following principles:

• it is mandatory to draw up an agreement on the basis of which the procedure and conditions for the distribution of values ​​between relatives are fixed;
• If it is impossible to resolve the issue on your own peacefully, you have the right to go to court with statement of claim(the application is submitted by the interested party);
• personal property cannot be divided;
• the agreement may contain rules for the division of all property or only a separate part of it (those objects that were not affected by the agreement will be considered common).

Such an agreement can be drawn up by the participants at any time. This can be done before registering a marriage, as well as after establishing marriage legal relations. In case of divorce, the parties have three more years allotted to file claims for the forced distribution of property benefits between the participants.

Example: Citizen A. and citizen O. dissolved their marriage in 2005. The spouses were left with an apartment as joint property, which was not divided during the divorce. In 2016, citizen A. decided to sell her share of the apartment, therefore, having drawn up a purchase and sale agreement, she contacted Rosreestr to change the information about the new owner of the property. Rosreestr employees did not accept the agreement, since the apartment is still joint property and can only be sold with the consent of the second owner. Such a refusal is legal.

Since the statute of limitations for going to court to divide shares has already passed, the former spouses will have to independently contact Rosreestr and register their personal rights to the property. Only after this will citizen A. receive the right to alienate her share of the property.

Conclusion

According to statistics, only 20% of married couples in the country have signed marriage contracts, so in practice the legal regime of joint property of spouses is more common. In this way, the legislator protects the property rights of each partner and ensures that with a common investment of funds, everyone will receive a fair share of the property.

). We are talking about modifying common joint property into shared, separate, or vice versa. The methods for such changes are not clearly regulated by current legislation. However, this does not mean that the husband and wife cannot resort to those that are not listed in the RF IC. At the same time, interested parties need to remember the legal consequences of changing the property regime.

Ways to change the property regime of spouses

It is in it that the spouses establish that property can belong to them not only on the basis of joint, but also shared or separate ownership. In this case, this may refer to both all existing property, and to separate its parts (including those acquired in the future).

In addition to the above, all rights and obligations of the spouses regarding the maintenance of this property and the incurrence of expenses for it are also quite clearly defined in this agreement. At the same time, such conditions may be made dependent on the occurrence of any circumstances or limited in time.

Agreement on the division of marital property

Another way to change the legal regime of marital property is agreement on its division(Article 38 of the RF IC). As a rule, such a document is drawn up at the time of divorce, however, its conclusion is possible during the existence of the marriage, it all depends on the will of the spouses.

In its content, it also implies a change in the “state” of the property regime from common joint ownership to shared or separate. This document must clearly indicate name of the property, its value, to whom it goes (if not entirely, then in what share). Distinctive feature in this case is that the agreement may indicate only that property, which directly takes place in reality.

Just as when concluding a marriage contract, an agreement on the division of property can be drawn up in relation to all jointly acquired property, or a separate part of it. Moreover, for each type of property a separate document.

The following property is jointly owned by the Petrov spouses: 2 two-room apartments, 3 plots of land, 1 summer house, 2 cars and 100 shares. They did not enter into a marriage contract. At the same time, the spouses decided to divide this property through an agreement, but separately for each of the specified types. So, they will have three types of agreements on the division of property: real estate - in relation to apartments, cottages and land plots, movable property - vehicles, and also in relation to securities.

Other ways to change the property regime

Taking into account the norm specified in Art. 33 of the RF IC, it can be assumed that a change in the property regime of the spouses can only be accomplished by concluding a marriage contract. There is also no unambiguous approach to this issue in the scientific literature. However, in practice this is not entirely true. This is evidenced, first of all, by paragraph 2 of Art. 38 of the RF IC on an agreement related to the division of property.

And although it is practically impossible to find additional rules on changing the property regime of spouses in the RF IC, nevertheless, based on the norms established by the RF Civil Code (Article 256), it is possible to highlight following documents, which allow spouses to carry out “all kinds of operations” with their property:

• agreement on determining shares in common property;
• purchase and sale agreement defining shares in the acquired property;
• memorandum of association.

In these cases, the spouses act not only as subjects family, but also civil, including corporate legal relations.

Family law should not infringe on the rights of spouses to dispose of their property in simpler and more convenient ways than by concluding a marriage contract.

Consequences of changing the property regime of spouses

Regardless of the method in which spouses decide to change the legal regime of property, they need to remember the legal consequences that these actions carry. In particular, we are talking about the following:

• in the event of a divorce, spouses can no longer claim to divide property in equal shares;
• when transferring jointly acquired property to one of the spouses, the second loses the right of ownership to it in the legal sense of the word;
• Moreover, when it comes to residential premises, ex-spouse loses the right to reside in it;
• the order of inheritance by the second spouse in this case also changes (since he does not initially possess half of the inherited property).

Questions from our readers and answers from a consultant

When is a marriage contract concluded: before or after marriage registration?

It can be concluded at any time, but will come into force only from the moment of state registration of the marriage.

Can I stipulate in the marriage contract that my share in a privatized apartment after divorce or my death will be transferred to my son from my first marriage?

A marriage contract regulates property relations between spouses. Children, according to the RF IC, do not have the right to the property of their parents. A share in an apartment acquired through privatization is your personal property (unless otherwise established in the same marriage contract), therefore it cannot be divided. In order for it to pass to your son in full, you can draw up a will.

Legislative acts contain a rule according to which, upon entering into a marriage, all property that was purchased during this period belongs to both spouses on equal terms. Moreover, in this situation, property rights will be completely equivalent.

However, this is only possible in a situation where marriage took place on a general basis, and separate agreements were not concluded between the future spouses to establish a different regime for the ownership and use of this property.

The concept of common and joint property of spouses

Based on the key definitions specified in the Civil Code, joint property of spouses is a set of legal norms, the main task of which is to regulate property relations between a married couple and determine the total property mass, the right to dispose of which belongs to them on equal terms.

Based on all legislative definitions, there is no difference between common and joint property; these concepts are completely identical, and have the same functional purpose and legal nature.

However, at the same time, joint ownership does not imply the division of the property mass into separate parts, and the disposal of such property will be carried out by both spouses, based on the principle of good faith or on the basis of agreements between them.

If spouses have a desire to divide their property, then in this case it can be done on a general basis. However, at the same time, conditions will be created under which the property shares will form a common shared ownership.

Legal regime of spouses' property

In order to fully protect the rights and interests of each spouse, the state establishes for them a certain property regime, which regulates the spouses’ responsibilities towards each other and to the property that is in their possession.

The Civil Code of the Russian Federation provides for the existence of two types of legal regime. This is about:

• legal regime, which provides for the presence of personal and common property (in the first case, those values ​​​​that were owned before the marriage, and in the second - acquired at the moment when the spouses had already established family relationships). Article 35 of the RF IC provides that in case of common ownership of property, its disposal is carried out with the knowledge and permission of both spouses;
• contractual regime, according to which the property legal relations of spouses to each other are regulated by existing agreements. After a divorce, these agreements are automatically nullified and terminated. In addition, this regime provides that spouses can determine the property that will be considered joint and indicate this in the marital agreements.

Property acquired during marriage

In order to streamline property legal relations between spouses in the event of their divorce, the state establishes a general rule according to which all material property that was received by a married couple during the existence of their marriage belongs to them on an equal basis, unless otherwise regulated by additional agreements that spouses can enter into agreement with each other.

Thus, property acquired by spouses during marriage may consist of the following elements:

• permanent sources of income from professional activity spouses or payments provided to them by public and private funds and financial institutions;
• pension payments and benefits from various social funds;
• monetary compensation that is paid to one of the spouses due to loss of ability to work;
• funds that represent material assistance from the state or charitable foundations;
• any movable and immovable property that was purchased with general funds, regardless of who it was registered in the name of;
• property that has a certain value, including shares and other securities, investment contributions to commercial structures and bank savings.

Based on all of the above, we can draw a general conclusion that any valuables that have a material expression and that were acquired at the time when the spouses had already entered into a marriage relationship are common and belong to both spouses in equal shares.

Types of joint property of spouses

Issues of common property of a married couple directly affect current family and civil law. That is why legal relations between them, based on certain material interests, are regulated in accordance with the current dogmas and norms of these legislative acts.

As a general rule, married couple has equal rights to the values ​​that they received at the time of marriage. Moreover, even if the official marriage was not registered, property acquired in a civil marriage is subject to fair division if necessary.

However, there are certain nuances that must be considered during the trial. In particular, the court must establish the fact of joint business activities and obtain evidence that specific values ​​were obtained at the time when the civil marriage relationship existed.

Based on the provisions of Article 34 of the RF IC, the property legal relations of spouses provide for the presence of a certain amount of property that belongs to them on equal rights. This provision determines that the entire mass of material assets, which in the event of divorce is subject to fair and equal division, can be divided into three types:

• spouses' financial resources. These include all benefits received from the state, including social benefits and pension savings, funds that spouses received for performing their official duties at work, bank deposits and investment resources invested in commercial structures;
• real estate, which includes land holdings, as well as residential premises (houses, cottages, apartments, etc.);
• movable property, which includes household items, furniture, equipment, antiques and jewelry, as well as other things that are not classified as personal use (medicines, clothing, etc.).

Possession, use and disposal of common property of spouses

Considering the fact that property assets received during marriage belong to both spouses on an equal basis (unless otherwise provided by agreements between them or by law), the right to dispose of them must occur with the knowledge of both spouses.

Article 35 of the RF IC establishes that any actions related to the use of specific property can be carried out by spouses only in situations where the second spouse knows about it in advance. This rule is also supported by the provisions of Article 235 of the Civil Code of the Russian Federation, which establishes approximately the same rules for the disposal of property assets.

In accordance with the current rules, it is automatically considered that the second spouse has been informed in advance regarding the actions that apply to the first spouses in relation to the property. If he does not know about the peculiarities of the disposition process, and does not agree with the second spouse, he has the right to annul all property transactions in court.

Property acquired in a civil marriage

Increasingly, adult men and women prefer to run a joint household without registering their relationship. In order to protect their rights and interests, the state establishes that the right of common joint property of spouses also applies to this category of civil legal relations.

After the breakup of civil relations, partners can organize the division of the property that they acquired at the time of their cohabitation. However, there are some features that need to be taken into account.

In particular, among the factors that take an active part in the division of property of common-law spouses, we can highlight:

• contribution of each spouse to the purchase of property in monetary terms (Article 244 of the Civil Code of the Russian Federation);
• proof of fact of conduct life together(testimony of neighbors, mutual friends, etc.);
• availability of documentation regarding the financial status of each of the common-law spouses, including information about their income.

Division of property acquired during marriage

In a situation where a married couple decides to end their relationship and dissolve their marriage, the right of common joint property of the spouses comes into force in relation to their property interests, which provides that all material assets received during the marriage must be distributed equally between the spouses parts.

The key provisions of the Civil Code and the Insurance Code establish that the total property mass is divided equally, but in some cases it may not be distributed in equal parts. For example, this will happen in a situation where one of the spouses did not make any contribution to the family budget and lived off the income of the second spouse.

Experts argue that the division of marital property is a complex category that requires special attention and a good nervous system.

In order to distribute property as efficiently as possible, it is necessary to draw up a general list of it, as well as determine the shares of contributions of each spouse in it, if there are conditions under which an equal division would be unfair.

It is also worth noting that this question can be resolved either peacefully or in court. However, in the vast majority of cases, it is the courts that are forced to make final decisions.

Just like shared property, common joint property is characterized by the fact that in this case the same property belongs simultaneously and jointly to several persons. But there are significant differences between common shared and common joint property - both from the point of view of the content of the powers of the owners, and from the point of view of the grounds for the emergence of relations under common property.

The difference in the content of powers is manifested in the fact that participants in common shared ownership have a share in the right to common property, while participants in common joint ownership have equal rights to common property as a whole, but none of them has a share in the right to the same property . The corresponding shares are allocated last only when partitioning or allocating. But, firstly, a real share in the property is allocated, and not in the right of ownership to it, and, secondly, as a result of the division or allotment, relations under common joint property are terminated either entirely or for a given participant. As long as joint ownership exists, it does not know shares. The main legal feature of joint property is that it is shareless.

Possession, use and disposal of jointly owned property is carried out by all its participants. They jointly own and use common property, unless otherwise provided by agreement between them. When making a transaction to dispose of common property, the mandatory consent of the co-owners is required. The law's reference to possession and use “in common” and to disposal “by consent” is important. Due to the fact that the participants in joint ownership constitute a family or family-labor community that has common goals and interests, agreements between them are not concluded, but can be concluded. An order “by agreement of all participants” presupposes the existence of an agreement or is presumed to have one.

Each of the participants in joint ownership can enter into transactions for the disposal of common property, unless otherwise follows from the agreement of all participants. For example, such a right can be granted to only one of the participants, for which the others issue him a power of attorney.

If one of the participants in the common joint property is incapacitated, partially or partially incapacitated, then when making transactions with his participation, in order to protect his rights and interests, the special requirements established by law must be observed. Thus, for transactions in relation to privatized housing in which minors live (regardless of whether they are owners, co-owners or family members of the owners, including former ones) who have the right to use this residential premises, prior permission from the guardianship and trusteeship authorities is required. This rule also applies to residential premises in which a minor does not live, if at the time of privatization he had equal rights to this premises with the owner.

If one of the participants in joint ownership has made a transaction to dispose of the common property in the absence of the necessary powers, then it, at the request of the other participants, can be declared invalid only if it is proven that the other party to the transaction knew or should have known about it. This transaction is contestable, where the burden of proof rests on the party that requires the transaction to be declared invalid.

The legal regime of common joint property is applied insofar as the Civil Code or other laws do not establish otherwise for certain types of joint property. Thus, the development of the provisions enshrined in paragraph 3 of Art. 253 of the Civil Code of the Russian Federation and essentially reproduced in paragraphs 2 and 3 of Art. 35 of the RF IC, provides that in order for one of the spouses to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is necessary to obtain the notarized consent of the other spouse. In the absence of such consent, the other spouse has the right to demand that the court declare the transaction invalid within a year from the day when he learned or should have learned about the completion of this transaction.

Common joint property of spouses

Joint property of spouses arises only upon registration. Actual family life, even long-term, but without appropriate registration of marriage, does not create joint ownership of property. In such cases, common shared ownership may arise between persons who acquired some property through common labor or funds. Property relations in these cases will be regulated only by civil law.

Movable and immovable things acquired from the common income of the spouses are recognized as joint property. These things become joint property from the moment they are transferred to one spouse. Consequently, when one spouse acquires property from a third party, the other spouse also acquires ownership of this thing.

The right to the common property of the spouses also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income. Other valid reasons include illness, military service and other circumstances.

All property that washed up before marriage, as well as received by inheritance or under a gift agreement or other free transactions, And personal items, excluding jewelry and luxury items, is the property of each spouse. On the other hand, the property of each spouse can be classified as joint property if, during the marriage, investments were made into said property at the expense of the common property of the other spouse, which significantly increased the value of the property. However, this rule applies only when the agreement between spouses does not provide otherwise (Chapters 7 and 8 of the RF IC).

The issue of foreclosure on the common property of the spouses is resolved depending on whether only one of the spouses or both of them is a party to the obligation. If we are talking about the obligation of one of the spouses, then recovery can only be applied to property that is in his separate ownership, as well as to his share in the common property. But if both spouses can be recognized as a party to the obligation, then recovery can be applied both to property that is separately owned by each of them, and to common property (Chapter 9 of the RF IC).

Common joint property of members of a peasant (farm) enterprise. In accordance with current legislation, the property of a peasant (farm) enterprise is classified as common joint property. However, this rule is dispositive: an agreement between members of a farm may establish a different regime of ownership of the property of the farm.

The Civil Code of the Russian Federation does not establish who can be a member of a peasant farm.

In paragraph 2 of Art. 257 of the Civil Code of the Russian Federation determines what kind of property is jointly owned by a peasant farm. But the formulations given here also raise a number of questions. What, for example, does the phrase “a plot of land provided for the ownership of this farm” mean? According to the previously in force legislation, a plot of land was provided, although taking into account the number of members of the farm, but still to its head, a state land act (certificate), etc., was issued for it. Can we proceed from the fact that this plot was provided specifically to the farm as family-labor association, but the property was registered to the head? Probably, such an interpretation is in principle acceptable, especially for those peasant farms that were created by former collective farmers and state farm workers, i.e., persons who entered the farm with their own land shares. The previous legislation, in our opinion, unjustifiably deprived these persons of their land rights upon entering the peasant economy. If we recognize them as participants in joint (or shared) ownership of the land, then justice would be restored.