joint ownership section right

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

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

Preliminarily, however, it is worth noting that in the theory of law, the regimes of absolute (full) and limited (partial) generality are distinguished. According to the rules of the regime of absolute generality, all property of the spouses is considered common, both movable and immovable, both belonging to each of them before marriage, and acquired by them in marriage for any reason, including any income, as well as any property obligations and debts of each of spouses, regardless of the time of their acquisition by spouses. As an exception, L.B. Maksimovich identifies things of personal use, which may be in separate ownership.

Under a regime of limited generality, a temporary or qualitative criterion can be taken as the basis of the restriction, in accordance with which the distribution of a regime to marital property is subsequently carried out. Thus, under a temporary criterion, the starting point is marriage, from the moment of the conclusion of which, in accordance with the law or the contract, a 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 said regimes, the legislation of foreign states, as I.V. notes Zlobin, six more different options for property relations between spouses are familiar. At the same time, one should agree with M.V. Antokolskaya, which believes that the current regime of joint ownership of spouses in Russia, can be called the regime of limited community or community of acquisitions, since only property acquired by spouses during marriage becomes common.

In general, during the development of Russian family law, two basic approaches have been developed in resolving the issue of property of spouses: either recognition of property belonging to spouses as their common property, or recognition of separate property and property independence of each spouse. At the same time, in the conditions of regulation of relations between spouses regarding property on the basis of commonality, property belonging to each spouse before marriage was always allocated as part of property belonging to spouses (premarital property). Such premarital property at various historical stages related either to the personal property of each spouse, or to the common property of the spouses.

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

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

Not limited to the establishment of common signs of property related to joint property of spouses, the family law of the Russian Federation establishes an approximate, non-exhaustive list of property to which spouses may have the right to common property (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 obligations of spouses.

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

• - 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 activity (including the share of profit of a commercial organization;
• - income received by each of the spouses from intellectual activity (royalties, etc.);
• - movable and immovable things, securities, shares, deposits, capital shares contributed to credit or other commercial organizations acquired at the expense of the spouses' general income;
• - any other property acquired by the spouses during the marriage.

A novelty of family law is the inclusion in the specified list of property arising from citizens and as a result of participation in commercial organizations. So, Art. 34 of the Family Code of the Russian Federation provides that the common property of spouses is securities, shares, contributions, equity interests acquired from credit institutions or other commercial organizations, acquired at the expense of general incomes, regardless of which spouse it is acquired in or in the name of whom or by whom of the spouses money has been paid. However, the wording of the text of clause 2 of the aforementioned article of the Family Code of the Russian Federation, characterizing 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 organization. Instead of the property to be transferred, participants acquire claims to the legal entity, which are identified with the share belonging to them as members of this commercial organization. Accordingly, spouses, when contributing property to the charter (joint-stock) capital of a partnership or company, lose their property rights to it and acquire binding rights with respect to the property of a legal entity. The exception is cases when property is transferred for use only as a contribution to a commercial organization. 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 a commercial organization. Subsequently, 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 law.

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: the signing of a 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 the introduction of funds in its capital. A share can be acquired by concluding an agreement on assignment of rights, as well as on other grounds provided for by the civil legislation of the Russian Federation.

Given all of the above, we consider it necessary to bring the content of paragraph 2 of Art. 34 of the Family Code of the Russian Federation in accordance with the norms of civil law, namely, to exclude from it the phrase “contributed to credit institutions or other commercial organizations” following the words “equity interests”. As for those used in paragraph 2 of Art. 34 of the Family Code of the Russian Federation of the words “contributed to credit institutions”, they, apparently, refer to bank deposits and, accordingly, should follow after mentioning 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 commonality of spouses' property in the framework of the current legislation and, accordingly, the emergence of their common property rights are:

• - time of acquisition of property: property must be acquired during the marriage; this condition is mandatory, 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;
• - the nature of the means of acquisition: property must be acquired at the common expense of the spouses; in turn, the use of personal funds as an equivalent of acquired property entails the occurrence of a property right only for the spouse to whom these funds belonged;
• - the method of acquisition (paid transactions, income from various types of activities and others). The common property of the spouses also includes property acquired under 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 conditions for the joint residence of spouses and their common household. Of course, as I.V. Zlobin, property acquired by the spouses during their separate residence, hesitates the presumption of common property, since such property can be recognized by the court as the property of each spouse, however, failure to comply with the cohabitation conditions does not automatically terminate the common property of the spouses and therefore does not seem to be serve as the basis for the unconditional exclusion of a property from the scope of the legal regime of marital property.

The defining feature of the legal regime of matrimonial property is the non-share nature, since the spouses' shares in their common property are not predetermined, and the entire set of spouses belongs equally to each of the spouses. The latter, therefore, become co-owners of all property acquired by them and are vested with equal powers in relation to it. The shares of participants in common joint ownership are established only when deciding on the determination of shares in the shared property section, which entails the termination of joint ownership.

However, one should not forget that the entire aggregate of property available to spouses consists of two parts: 1) property owned by each of the spouses (Article 36 of the Family Code of the Russian Federation); 2) property acquired during marriage, the joint property of the spouses.

Firstly, the legal regime of property predetermines the equality of spouses' rights to jointly acquired property. Equality is manifested, in particular, in equal opportunities for the spouses to exercise the rights to own, use and dispose of property acquired in marriage. The equality of their rights is not violated in the event that one of them during the marriage was busy with housekeeping or did not have an independent income for other valid reasons (paragraph 3 of article 34 of the Family Code of the Russian Federation), therefore, taking into account of 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 farm (in particular, when the wife provides the device at home, raising children, and the husband creates the financial basis for their well-being), the legislator establishes equal ie the right of spouses to all the property acquired in marriage, regardless of who is its actual purchaser.

Secondly, along with the protection of the equal rights of spouses in relation to common property, as a law enforcement measure in relation to the interests of a conscientious (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 ungrounded reasons or spent the common property of the spouses to the detriment of the interests of the family (Clause 2, Article 39 of the Family Code of the Russian Federation). However, it is important to emphasize that this issue can only be resolved in a judicial proceeding in the process of sharing common marital property.

Thirdly, the grounds for acquiring the spouses' ownership of property and the grounds for the emergence of spouses ’obligations do not differ from the 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 the family legislation of the Russian Federation governing the legal regime of matrimonial property allows us to identify the three main limitations of the community regime stipulated by law.

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

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

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

So, on the basis of the foregoing, it can be argued that the principle of partial or limited commonality of spouses' property, which forms the basis of legal regulation of spousal property, consists in establishing a presumption of commonality only on property that was acquired by 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, unless otherwise proved, is considered common, with the exception of property that is removed from the joint property of the spouses by a direct indication of the law. The effect of this presumption protects the rights of the least economically secured party to marital relations in a dispute on the division of common property.

In the light of the legal regime of spouses' property, 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 as part of spousal property.

At first glance, the inclusion of a share in the capital of a business company in the joint property of the spouses seems quite logical, since participation in a commercial organization involves the investment in its capital of funds owned by a citizen, which, in the presence of marriage, form part of the family budget. The use by one of the spouses of common (family) funds for the acquisition of property entails the emergence of the other spouse's co-owner's rights to the property in question. However, a share in the 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 it represents property law.

The emergence of property rights is based on an obligation, the nature of which excludes the establishment of the right of ownership to the rights and obligations generated by it, because "Abstract law cannot be the object of property 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 debate and is reduced mostly to its denial.

Interesting is the position of V.P. Mozolin, considering the share in the capital as the right to participate in the affairs of the partnership or company and recognizing the "autonomous right of ownership of the participant to the right (but not property) to participate in the affairs of the specified partnership or company." “In modern conditions,” the lawyer writes, “characterized by the increasing role of property and complex rights in the field of civil circulation, there is sufficient reason to speak of a tendency to expand the range of these rights that act as objects of property rights." At the same time, this right, in the opinion of the named author, cannot extend to claims to other persons. Otherwise, "the object of the property right becomes public 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 member of a commercial organization realized for a share in her capital acquired by the other spouse.

As you know, the content of the right of ownership is the most complete property right. “The right of ownership is a fundamental right that directly or indirectly influences substantially all other civil rights.” The owner owns the powers of ownership, use and disposal of property. Moreover, the main interest of the owner of the share is not its value, but the possibility of acquiring the legal status of a participant in a commercial organization and the realization of the rights arising from the published status.

Will the requirements of the spouse of a member of a company or partnership be correct to amend the constituent documents of a commercial organization and to include him in the membership on the basis that he is a co-owner of a share in the capital? Can a spouse, based on his ownership of a share in the capital, apply for participation in a commercial organization before the division of the common property of the spouses?

It seems that the answer to these questions should be negative. The fact is that, as has been shown earlier, the rights to the share of the spouse acting as its acquirer arise from a legal relationship between him and the legal entity called an obligation, under which, as a rule, the participant acts as the creditor and the legal entity as the debtor . It should be noted right away 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 of such an obligation among those listed in Art. 8 of the Civil Code of the Russian Federation does not lead to anything. ” Serious doubts regarding the consideration of the rights of the founder in relation to a commercial organization as binding were also expressed by K.I. Sklovsky, in whose opinion, "this is an atypical obligation both in terms of its origin and content." However, despite the doubts expressed, in accordance with the point of view that has been established in the theory of civil law, as well as on the basis of the norms of the law (Article 48 of the Civil Code of the Russian Federation), relations arising between participants and legal entities under consideration should be qualified as binding.

In this regard, even if the ownership right of a spouse who is not a member of a commercial organization to a share in the capital of this Company or partnership arises from a direct indication of the law, the obligation cannot arise directly from the law. The law establishes the presumption that an 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 by agreement of the parties, the 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 the capital in the common property of spouses belonging to them by right of ownership cannot be interpreted as the basis for the emergence of the obligation rights of a spouse not participating in the obligation in relation to an economic partnership or company. Otherwise, there will be a mixture of liability and property 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 ultimately are based on a strict, long-standing and very important for maintaining the integrity of the right to divide into property rights (property and some others) and mandatory rights, by virtue of which any confusion, "interweaving" of these rights is unacceptable. "

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

In view of the foregoing, and also because of the need to somehow resolve the duality of the legal nature of the share in the capital of the Company as spousal property, on the one hand, and as an expression of the obligation relations existing between the Company and its participants, on the other hand, it is very conditional to allow that the shares in the capital are objects of two types of legal relations - - obligations arising between the spouse-participant of the commercial organization and the organization itself, and (conditionally) material, arise their spouses.

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

As for the relations arising between the spouses regarding the share in the capital, the legal regime of the joint ownership of the spouses secures for each of them the right to the common property as a whole, regardless of the name in the name of which spouses it was acquired and, accordingly, which of them is a member of a business partnership or company. In this case, the ownership right of the spouse, who is not a member of the commercial organization, acts as a kind of guarantee of his property rights, since his funds constituting the common property of the spouses were spent on the acquisition of the share. Thus, relations of joint ownership oblige its participants to exercise the powers of possession, use and disposal of property by mutual agreement. According to Art. 35 of the Family Code of the Russian Federation, the ownership, use and disposal of the common property of the spouse must be carried out by mutual agreement. However, in this case it is also necessary to take into account the fact that it is only very conditional to speak about the powers of possession, use and disposal constituting the content of the right to own property, as a share in the capital of a commercial organization does not have a material form. This excludes ownership, which is understood as actual domination of the thing. The right to use is also excluded, since in the obligation relationship, the creditor's rights are not realized through his own actions, but as a result of certain actions taken by the debtor. As for the competence of the order, it can be assumed that “the object of the right to order cannot be the law, which includes the right to order”.

Based on the fact that the possibility of exercising the rights that comprise the content of a share in the capital is reserved for a person with the status of a participant in a commercial organization, in our opinion, a share in the capital as a set of rights and obligations of a participant in a commercial organization exists only for the spouse who is its member. The grounds for his rights are the fact of participation and commitment 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, the share in the capital is a kind of analogue of property that is the object of property rights, and is expressed through its economic essence - the 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 member of a commercial organization to a share in the capital acquired at the expense of common funds by the other spouse and belonging to both of them on the 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 demand, but the property obtained as a result of his satisfaction (profit received, liquidation balance, value of the share upon withdrawal from the organization). In this case, the disposal of shares in the capital, including the withdrawal of the participant from the organization, should 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 ownership right of a spouse who is not a party to a commercial organization is realized as the right to property (part of it) obtained by the spouse participating 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 the capital, including when a participant leaves the company or partnership. In addition, the spouse has the right at any time to demand a division of the common property of the spouses, including a share in the capital.

Based on the foregoing, in our opinion, we can conclude that the inclusion of a share in the capital in the total 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 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. At the same time, the originality of the share in the capital is explained by the emergence of a whole range of rights and obligations of its owner that are different in nature and content, constituting the content of the obligatory legal relationship between the participant and the commercial organization, the belonging of which is associated with giving the person the status of a participant. Thus, a lot of legal conflicts and practical difficulties give rise to the procedure for the realization by spouses of the rights arising from the fact of joint ownership of a share in the capital.

All of the above once again confirms the conclusion about the objectively urgent need to improve family legislation in terms of legal regulation of relations between spouses arising 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 position established to date, refinement requires the procedure for the realization by spouses of the rights arising in connection with the acquisition of a share in the capital, as well as the procedure for its division.

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

The fact of the introduction of a prenuptial agreement into the family legislation of the Russian Federation is one of its most significant short stories, since with the advent of this institution in Russian family law, spouses for the first time had the opportunity to independently establish the legal regime of their property that best met the interests of each of them.

From the point of view of the topic under discussion, the moment the marriage contract comes into force and, accordingly, the beginning of the validity of the property rights and obligations of the spouses stipulated by it, is of great importance. 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 contract comes into force from the date of state registration of marriage. As for the second case, the moment of entry into force of the marriage contract is not legally defined, which gives spouses the opportunity to independently determine in the contract the exact date of its entry into force or to relate this moment to the onset of certain conditions or events.

Finally, it should be noted that along with prenuptial agreements among transactions currently concluded between spouses, agreements on the division of property received a certain distribution, the possibility of which is provided for in paragraph 2 of Art. 38 of the Family Code of the Russian Federation. These transactions have some similarities with prenuptial agreements, but, unlike the latter, they do not determine the legal status of property that may be acquired in the future, but only assume a determination of the share of each spouse or a section of already acquired common property. The property, which the spouses will acquire in the future, is not taken into account in the agreement, in connection with which such property will be subject to the joint ownership regime.

Registration of marriage in the registry office - the basis for the emergence of mutual legal rights and obligations of partners. This applies not only to the formation of a common family budget, but also to the distribution of material values \u200b\u200band the occurrence of hereditary claims in husband and wife in relation to each other.

The joint property of the spouses begins to accumulate from the day following the date of the wedding. But each partner retains the right to own personal property that is not subsequently divided.

Legal regime of spouses' property

When considering issues relating to the regime of joint and separate ownership of spouses, it is necessary to turn to the provisions of the Civil and Family Code of the Russian Federation. The provisions of these documents established that the registration of marriage implies the implementation of the total cost of acquiring common property (mainly for real estate).

So, the common property of the spouses is in mutual use by both spouses, but the alienation of property can only occur if the husband and wife wish together. In the event of divorce, such possessions shall be equally divided.

At the same time, each of the partners reserves the right to acquire values \u200b\u200bthat will be exclusively personal and there can be no claim by the second spouse for the right to own the thing.

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

Legal regime

The right of joint ownership of the spouses arises only after receiving a marriage certificate and terminates on such grounds:

• divorce;
• death of one of the partners (recognition as dead);
• signing (may occur before the wedding or after marriage).

The legal regime is based on the following principles:

• all values \u200b\u200bacquired after the wedding are considered common property and partners can use them fully, and not just a separate part;
• distribution of shared ownership occurs only upon divorce or signing a contract;
• joint possessions will not be considered material wealth acquired after the termination of the marriage.

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

Contractual regime

The marriage contract allows the husband and wife to independently resolve financial issues related to family property. This will avoid possible litigation in the future if it becomes necessary to share values.

Drafting a contract has the following features and rules:

• the contract begins to operate from the moment of its signing and approval by a notary;
• termination of the contract is limited by the terms of the agreement or the date of divorce;
• the content displays the order of distribution of values \u200b\u200bbetween husband and wife (bride and groom);
• specific distances of each partner to each type of property are indicated.

Types of property related to joint ownership of spouses

Articles of the law do not approve a single list of objects that may be recognized as common or separate property. But a list of circumstances was approved under which mutual property rights for spouses arise. So, the common (joint) property of spouses includes the following categories of values:

1. Money. This includes salaries and other types of regular and periodic incomes of each partner. The rule also applies to social benefits and rewards.
2. Maternal capital. This is a state subsidy, which can be received by couples raising two or more children. Money goes to the name of the mother of the child, but belongs to the whole family and can only be used for general needs. These funds are common, but cannot be divided; they are given to the spouse, whose children remain in the upbringing.
3. Deposits in banks. Virtual cash is also on the list of common holdings. The main thing is that the financial account be opened after marriage.
4. Real estate. This category of material goods includes land, 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 individual. That is, classification of personal clothing and personal medications as common property is not allowed.

Property not always acquired during marriage will be shared. So, the personal property of one spouse will include those values \u200b\u200bthat have been transferred to use on the basis of a gift agreement or by inheritance.

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

Disposition of joint property of spouses

The property of each of the spouses gives the right to independently decide on issues related to the implementation of property rights to objects. But, if material goods belong equally to both husband and wife, then you can not do without obtaining the official consent of the second partner.

Formal consent is a document that displays permission to exercise property rights to common values. Such a document must be compiled in writing and requires notarization. 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 invalidated with the subsequent return of the alienated material values \u200b\u200bto the family.

Obtaining notarized consent to participate in property operations is necessary not only when selling common property, but also when purchasing property, which will subsequently become jointly acquired. An exception is the preparation of a will to dispose of a personal share of material wealth.

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

Section of joint property

It was indicated above which mode of ownership of spouses' property can be established. If material assets are acquired in the name of one of the partners, then all the same they will equally belong to both husband and wife (legal regime). To avoid property disputes, you can share material values \u200b\u200bbetween partners immediately. Such a procedure is carried out on the basis of the following principles:

• obligatory execution of the contract, on the basis of which the procedure and conditions for the distribution of values \u200b\u200bbetween relatives are fixed;
• if it is impossible to resolve the issue independently by peaceful means, there is the right to appeal to the court with a statement of claim (the petition is submitted by the interested party);
• personal property is not subject to separation;
• the agreement may contain rules for the separation of all property or only a separate part of it (those objects that are not affected by the agreement will be considered common).

Such an agreement may be drawn up by the parties at any time. This can be done before marriage registration, as well as after the establishment of marriage relations. In a divorce, the parties have three more years allotted for the application for claims for the compulsory distribution of property between the participants.

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

Since the statute of limitations has already been missed for going to court in order to split shares, the former spouses will have to turn to the Rosreestr on their own and fix their personal property rights. Only after this, citizen A. will receive the right to alienate her share of the property.

Conclusion

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

) We are talking about modifying common joint ownership into shared, separate or vice versa. The methods of such a change are not clearly regulated by applicable law. However, this does not mean that the husband and wife cannot resort to those of them that are not indicated in the RF IC. At the same time, interested parties must be aware of 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 the property can belong to them not only on the right of joint, but also shared or separate ownership. Moreover, this may refer to all available propertyso to separate  its parts (including acquired in the future).

In addition to the above, all the rights and obligations of spouses in the maintenance of this property, the bearing of the costs of it are also quite clearly defined in this agreement. At the same time, such conditions can be made dependent on the onset of any circumstances or be limited by time.

Spouses Property Sharing Agreement

Another way to change the legal regime of spouses' property is to partition agreement (Article 38 of the SK of the Russian Federation). As a rule, such a document is drawn up during the dissolution of the marriage, however, its conclusion is also possible during the existence of the marriage, it all depends on the will of the spouses.

In terms of its content, it also implies a change in the “state” of the property regime from general joint ownership to shared or separate. This document needs to be clearly indicate  the name of the property, its value, to whom it is transferred (if not in full, then in what proportion). A distinctive feature in this case is that the agreement may indicate just that propertywhich directly takes place to be in reality.

As well as when concluding a prenuptial agreement, an agreement on the division of property can be drawn up in relation to all jointly acquired property, or its separate part. Moreover, for each type of property can be made separate document.

The joint property of the Petrovs' spouses is the property: 2 two-bedroom apartments, 3 land plots, 1 summer house, 2 cars and 100 shares. They did not conclude a marriage contract. In this case, the spouses decided to divide this property through an agreement, but separate for each of these types. So, they will have in their hands three types of agreements on the division of property: real estate - in respect of apartments, cottages and land, movable property - vehicles, as well as in relation to securities.

Other ways to change ownership

Given the norm specified in Art. 33 IC RF, it can be assumed that changing the regime of property of spouses is possible only by concluding a marriage contract. The scientific literature also does not have a unique approach to this issue. However, in practice this is not entirely true. This is evidenced, first of all, paragraph 2 of Art. 38 of the IC of the Russian Federation 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, it is possible to single out on the basis of the norms established by the Civil Code of the Russian Federation (Article 256) following documentsthat allow spouses to carry out "all kinds of operations" with their property:

• agreement on the determination of shares in the common property;
• purchase and sale agreement with determination of 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 more simple and convenient ways than concluding a prenuptial agreement.

Consequences of a change in spouses' ownership

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

• in the event of a divorce, the spouses can no longer claim to share property in equal shares;
• when transferring jointly acquired property to one of the spouses, the second loses the ownership right to it in the legal sense of the word;
• moreover, when it comes to housing, the former spouse loses the right to reside in it;
• the inheritance order of the second spouse in this case also changes (since he does not initially have half of the inherited property).

Questions from our readers and consultant answers

When do you conclude a marriage contract: before or after registration of marriage?

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

Can I prescribe in a prenuptial agreement that my son’s share in a privatized apartment after the dissolution of the marriage or my death will pass to my son from his first marriage?

A marriage contract governs property relations between spouses. Children according to the RF IC are not entitled to the property of their parents. A share in an apartment acquired through privatization is your personal property (unless otherwise specified in the same prenuptial agreement), therefore it cannot be subject to division. In order for her to be transferred to your son in full, you can make a will.

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

However, this is possible only in a situation where the marriage took place on a common basis, and between the future spouses no separate agreements were concluded on the establishment of a different regime of possession and use of this property.

  The concept of common and joint ownership of spouses

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

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

However, in this case, joint ownership does not imply the division of property 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 the spouses have a desire to share their property, then in this case it can be carried out on a common basis. However, at the same time, conditions will be created under which property shares form a common share ownership.

  Legal regime of spouses' property

In order to maximally protect the rights and interests of each of the spouses, the state establishes a certain property regime for them, which regulates the responsibilities of the spouses in relation to each other and to the property that they own.

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 \u200b\u200bthat were owned before the marriage, and in the second - acquired at the moment when the family relations were already established between the spouses). Article 35 of the RF IC stipulates that in case of common ownership of property, its disposal is carried out with the knowledge and permission of both spouses;
• contractual regime, in accordance with which the property relations of spouses to each other are governed by existing agreements. After a divorce, these agreements are automatically leveled and terminated. In addition, this regime provides that spouses can determine the property mass that will be considered joint, and indicate this in the marriage arrangements.

  Marital property

In order to streamline property relations between spouses in the event of their divorce, the state establishes a general rule according to which all tangible property that was obtained by the couple during the existence of their marriage belongs to them on an equal footing, unless otherwise regulated by additional agreements that spouses can conclude with each other.

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

• permanent sources of income from spouses' professional activities or payments provided by public and private foundations and financial institutions;
• pension payments and benefits from various social funds;
• monetary compensation paid to one of the spouses due to disability;
• funds that constitute material support from the state or charitable foundations;
• any movable and immovable property that was purchased with general funds, regardless of who it was drawn up for;
• property that has a certain value, including stocks and other securities, investment contributions to commercial structures and bank savings.

Based on all of the above, we can conclude that any values \u200b\u200bthat have a material expression, and which were acquired at the time when the spouses had already entered into a marital relationship, are common, and belong to both spouses in equal shares.

  Types of joint property of spouses

Matters of common ownership of a couple directly affect current family and civil law. That is why the legal relationship between them, based on certain material interests, is regulated in accordance with the existing dogmas and the norms of these legislative acts.

As a general rule, a married couple has equal rights to those values \u200b\u200bthat were received by them at the time of the marriage. Moreover, even if an official marriage has not been registered, property acquired in a civil marriage is subject to a fair division if necessary.

However, there are some nuances that should be considered during the trial. In particular, the court must establish the fact of joint business activities and obtain evidence that specific values \u200b\u200bwere obtained at the time when civil marriage was in place.

Based on the provisions of Article 34 of the IC of the Russian Federation, property relations of spouses provide for the presence of a certain mass of property that belongs to them on an equal footing. In this provision, it is determined that the entire mass of material assets, which in the case of divorce is subject to a fair and uniform division, can be divided into three types:

• financial resources of spouses. These include all benefits received from the state, including social benefits and pension savings, funds that spouses received for the performance of 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, villas, apartments, etc.);
• movable property, which includes household items, furniture, appliances, 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 values \u200b\u200bthat were obtained during marriage belong to both spouses on an equal footing (unless otherwise provided by agreements between them or legally), the right to dispose of them should come from the knowledge of both spouses.

Article 35 of the IC of the Russian Federation establishes that any actions that relate to the use of specific property can be carried out by spouses only in situations where the second spouse is aware of this 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.

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

  Property acquired in a civil marriage

Increasingly, adult men and women prefer to conduct a joint household, while not 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 breakdown of civil relations, partners can organize a division of the property that they acquired at the time of cohabitation. However, there are some features that must 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 distinguish:

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

  Division of property acquired in marriage

In the situation when the seed couple decides to terminate their relations and terminate the marriage, in respect of their property interests, the right of joint joint property of the spouses comes into force, which stipulates that all the values \u200b\u200bof the material plan received during the marriage should be equally distributed 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 existed at the expense of the income of the second spouse.

Experts argue that the division of spouses' property is a complex category that needs special attention and a good nervous system.

For the most efficient distribution of property, it is necessary to compile its general list, as well as to determine in it the share of contributions of each spouse, if there are conditions under which an equivalent section will be unfair.

It is also worth noting that this issue can be resolved both peacefully and in court. However, in the overwhelming majority of cases, it is the courts that are forced to make final decisions.

As well as shared, common joint property is characterized by the fact that in this case the same property belongs simultaneously to several persons together. But there are significant differences between common and common joint property, both in terms of the content of the powers of the owners and in terms of the grounds for the emergence of relations on 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 shared joint property impose equal rights to common property as a whole, but none of them have a share in the nature of the same property . Corresponding shares are highlighted last only in the division or allocation. But, firstly, the 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 separation, relations on the common joint property are terminated either entirely or for the given participant. As long as joint ownership exists, it does not know the shares. The main legal feature of joint ownership is that it is non-share.

The possession, use and disposal of jointly owned property is carried out by all its participants. Together they own and use common property, unless otherwise provided by agreement between them. When making a transaction by order of common property, the obligatory consent of the co-owners is required. Indication of the law on the possession and use of "together", the disposal of "by consent" is important. Due to the fact that participants in joint ownership constitute a family or family-labor community having common goals and interests, agreements between them are not concluded, but can be concluded. The order “by agreement of all participants” implies the existence of an agreement or is presumed to be.

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

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

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

The legal regime of general joint ownership applies insofar as the Civil Code or other laws do not establish otherwise for certain types of joint ownership. So, 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 IC of the Russian Federation, provides that for a spouse to complete a real estate management transaction 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 in court the recognition of the transaction invalid within a year from the day when he learned or should have learned about the completion of this transaction.

Shared joint ownership

Joint property of spouses arises only at registration. Actual family life, even long, but without proper registration of marriage, does not create joint ownership of property. In such cases, common ownership of persons who have acquired property through common labor or means may arise. Property relations in these cases will be regulated only by civil law.

Movable and immovable things acquired at the expense of the common income of the spouses are recognized as joint property. These things become joint property from the moment of transfer to them 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 carried out housekeeping, caring for children or for other valid reasons did not have an independent income. Other good reasons include illness, military service, and other circumstances.

All property that   washed before marriage, as well as received by inheritance or under a gift agreement or otherwise gratis deals, and   personal items, excluding jewelry and luxury goods, is the property of each of the spouses. On the other hand, the property of each spouse can be attributed to joint ownership, if during the marriage investments were made to the 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 the spouses does not provide otherwise (chap. 7 and 8 of the IC RF).

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

The common joint property of members of a peasant (farm) economy. In accordance with applicable law, ownership of a peasant (farmer's) farm belongs to   common joint ownership.  However, this rule is dispositive: in the contract between members of the farm, a different regime of ownership of the farm’s property may be established.

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

In paragraph 2 of Art. 257 of the Civil Code of the Russian Federation it is determined which property is jointly owned by the peasant farm. But the wording given here also raises a number of questions. What, for example, does the phrase “the land granted to this farm” mean? According to previous legislation, the land plot was granted, although taking into account the number of farm members, but still to its head, a state land certificate (certificate) was drawn up on it, etc. Is it possible to proceed from the fact that this land plot was granted specifically to the farm as family-labor association, but did he take ownership of the chapter? Probably, such an interpretation is in principle permissible, especially for those peasant farms that were created by former collective farmers and workers of state farms, that is, persons who entered the economy with their land shares. The previous legislation, in our opinion, unreasonably deprived these persons of their land rights when they entered the peasant economy. If we recognize them as participants in joint (or shared) ownership of land, then justice would be restored.