How are we going to saw the piano, dear?

2024 Author: James Gerald | [email protected]. Last modified: 2023-12-17 14:00

I recently got hold of a popular magazine. I was amused by the article that foreign brides are very fond of marrying Russian guys. When asked why, one foreign lady replied:

- And you won't get bored with them! Now I am divorcing my Russian husband …..

- So what?

- How, what? If my husband was an American, for example, then everything would be simple: I would send my lawyer to his lawyer, once or twice they shared everything with us, three - we divorced! And a Russian husband is a completely different matter! Yesterday my husband and I sawed a piano!

Jokes as a joke, but what to do when the fatal hour comes and you have to decide: this is for me, and this is for you, dear. And most importantly, so as not to deprive yourself, your dear.

The relationship between spouses on property issues arising during marriage requires legal regulation. And it should be noted that the property relations of spouses lend themselves to legal regulation much better than personal non-property ones, since certainty is necessary in such matters - both the spouses themselves and third parties are interested in this: their heirs, creditors, counterparties.

But not all property relations of spouses are regulated by law - some of them remain outside the law, for example, agreements between spouses, concluded in everyday life, about who pays for an apartment, who pays for summer vacations, as a rule, are purely domestic in nature and not are subject to enforcement.

One of the basic principles of regulating family relations, equality of spouses, is the basis for the regulation of all family relations, including the basis for the regulation of property relations.

Probably, since families began to form, the question of Property began to arise: to whom does it belong and how to divide it?

It should be noted that initially, after the establishment of Soviet power in Russia, the regime of separate ownership remained. For example, the Code of the RSFSR "On acts of civil status, family and guardianship law" of 1918, established the separate ownership of each of the spouses for the property acquired by him, since "marriage does not create community of property of the spouses and the husband does not have the right to use and manage the property of the spouse and does not can get such a right under a marriage contract."

The property acquired during the marriage became the property of the spouse who earned it or acquired it at his own expense.

The purpose of this rule was to ensure the equality of spouses in marriage, but practice soon showed that the principle of separation of spouses' property significantly violated the rights and interests of women.

During the Civil War and the New Economic Policy, a woman was primarily unemployed, and since she did not have the right to earnings and income from her husband, she was completely financially dependent on him and was often left without a livelihood in the event of a divorce.

In cases where the wife was busy with household chores and childcare, she was also dependent on her husband, since she did not acquire an independent right to property acquired in marriage.

Such property relations did not contribute to the strengthening of the family and the achievement of equality of spouses in marriage, for which this norm was designed. And changing the property regime by concluding a marriage contract was prohibited.

Taking into account such a deplorable position of women in marriage, in Russia, since 1926, the regime of joint ownership of spouses' property was legalized.

I must say that this option for regulating property relations also did not suit everyone.

Therefore, family law has undergone changes again.

The Family Code, adopted in 1996 and currently in force, provides for two different regimes for spouses' property - legal and contractual, giving spouses the right to choose between them.

The legal regime of the spouses' property is the regime of joint ownership of property acquired by the spouses during the marriage. At the same time, the separate ownership of each of the spouses is established for premarital property, as well as for property received by each of the spouses during marriage as a gift or by inheritance, as well as for personal items, with the exception of luxury goods.

Moreover, we can say that the legal regime comes into effect automatically, after marriage, if the spouses have not chosen the contractual property regime.

This means that if you did not enter into a prenuptial agreement with your spouse at the time of marriage, then by default you accepted the legal regime of the spouses' property and in the event of a divorce, these legal norms will be applied during the division of property.

As practice shows, joint ownership of property acquired by spouses during marriage is still in the interests of most married couples. Despite the significant changes taking place in society, the income of the majority of women is lower than that of their husband. This is due to the fact that women are forced to combine a career with housekeeping and raising children and, therefore, cannot earn more than their spouse, but at the same time invest their energy in running a joint household. In such cases, it is true that a woman has the right to count on her husband's earnings.

In the United States, for example, recently, when considering divorce proceedings, this factor is taken into account and when dividing property they proceed from the principle: one career - two lives. This means that a spouse who helps her husband to achieve career heights by relieving him of numerous household responsibilities has an equal right to the fruits of his labor (income).

A few more words about the joint ownership regime. If you have any controversial questions, keep in mind that the law includes only property rights, but not obligations (debts) in the joint ownership of spouses, since the relevant article of the Family Code explicitly states that joint ownership includes property acquired in marriage, which literally means: what is acquired or received, not debts.

However, more and more women are now managing to earn higher incomes than their spouses. For them, the joint ownership regime is unfavorable, since women actually bear a double burden - at work and at home, investing significantly more time and labor than their husbands, and when they divide their property, they receive half.

Such situations can be avoided by the right provided by the Family Code to choose a different regime of matrimonial property - contractual, which is carried out by concluding a marriage contract.

The Family Code defines a marriage contract as an agreement between the spouses, establishing the property rights and obligations of the spouses in marriage or in the event of its dissolution. Only persons entering into marriage and spouses can be subjects of a marriage contract. In cases where a marriage contract is concluded by persons before marriage, it comes into force only from the moment of marriage. If the marriage is not subsequently concluded, then such an agreement is canceled.

The content of the marriage contract is the establishment of one or another legal regime of the property of the spouses. A feature of the subject of a marriage contract is that its conditions can relate not only to existing property rights, but also to future objects and rights that can be acquired by spouses during marriage.

With the help of a marriage contract, spouses, for example, can establish a separate property regime, which assumes that the property acquired in marriage by each of the spouses will belong only to that spouse.

In principle, the separation regime can be called the fairest for a modern family, in which both spouses more or less equally share household responsibilities and both have independent incomes.

The separation regime, applied on the basis of a prenuptial agreement, is also preferable for families in which the wife has a higher income than that of the husband, if she continues to manage the household and raise the children. In a separation regime, it is necessary to determine to what extent each of the spouses will allocate funds for the common household, housing and other expenses. These investments can be either equal or proportional to the income of each of the spouses.

In family life, it is almost impossible to avoid the acquisition of common property: a car, furniture. In the regime of separation, the spouses can establish that these objects, as an exception, will belong to them on the basis of common shared or joint ownership. They can also develop a procedure for using and incurring costs for the maintenance of common property, as well as determine in advance its fate in the event of a division.

The spouses have the right, using the conclusion of the marriage contract, to work out for themselves any other property regime. For example, they can use a model that exists in a number of Scandinavian countries, according to which property during marriage is treated as separate, but in the event of its termination, the increments of property of each of the spouses made during marriage are summed up and the resulting amount is divided equally between them. …

Spouses can subordinate only part of their property to the marriage contract - in this case, the property will be subject to the contractual regime, and the rest of the property will be subject to the legal regime of joint ownership.

A feature of the subject of a marriage contract is that its conditions may refer not only to existing property rights, but also to future items that can be acquired by spouses during marriage.

The introduction of a marriage contract into the family legislation of Russia does not mean that all persons upon entering into marriage or during the period of marriage are obliged to conclude such an agreement. The law only grants future spouses and spouses the right to independently determine their property relations in marriage in the marriage contract, but does not oblige them to do so.

It can be assumed that at present the majority of persons do not conclude a prenuptial agreement, since their property consists mainly of consumer goods. In this case, their relationship may well be regulated by the rules on the legal regime of the spouses' property, that is, in the regime of joint ownership.

At the same time, the presence of a prenuptial agreement allows some spouses to avoid disputes that often arise after the termination of the marriage.

The legislation of the developed countries of the West has long recognized it as expedient to conclude a marriage contract. Everywhere this institution has features, but the main purpose of the marriage contract is to provide spouses with ample opportunities for independent determination of property relations in marriage. But the practice of concluding a marriage contract exists, as a rule, in wealthy families.

The spouses who have determined that their property relations will be built on a contractual basis are obliged to comply with the procedure for concluding a marriage contract provided for by law, and also to ensure that its content does not contradict the permitted norms.

Since a marriage contract is a civil law contract with certain features, the Family Code provides for a special procedure and form for concluding a marriage contract.

Here are some of the legal requirements on this matter.

A marriage contract can be concluded before the state registration of marriage or at any time during the marriage. The marriage contract is concluded in writing and is subject to notarization. A marriage contract is not concluded when registering a marriage with a registry office, but before or after that in a notary office in the presence of each of the spouses personally.

A marriage contract can be concluded for a certain period or for an unlimited period, or it can make the emergence of certain legal relations dependent on certain circumstances, for example, from the birth of children.

A feature of a marriage contract is that the persons who conclude it must have the right to do so. The ability to conclude it is related to the ability of persons to marry. So, if a person has not reached the marriageable age, he / she cannot conclude a marriage contract without the consent of the parents or guardians until the moment of registration of the marriage. After marriage, the minor spouse acquires full legal capacity and has the right to conclude a marriage contract on his own.

If we compare the requirements of Russian legislation regarding the procedure for concluding a marriage contract and its form with the requirements of foreign law, then it is obvious that the procedure for concluding a marriage contract in foreign countries, as a rule, requires compliance with the written form and the presence of spouses. In France, for example, it is subject to notarization. In Italy, it must be registered with the local authority, and if the contract concerns real estate, then it must be registered with the authorities registering real estate transactions. In addition, in many foreign countries free access is provided to interested persons to familiarize themselves with the content of the marriage contract. This rule ensures, first of all, the interests of the spouses' creditors, which is important mainly for business relations.

The marriage contract can contain any conditions that do not contradict the law. For example, spouses have the right to define in a marriage contract their rights and obligations for mutual maintenance, ways of participating in each other's income, and the procedure for each of them to bear family expenses.

But a marriage contract cannot limit the legal capacity or capacity of the spouses, their right to go to court for the protection of their rights; the right to regulate personal non-property relations among themselves, the rights and obligations of spouses in relation to children; provide for provisions limiting the right of a disabled needy spouse to receive maintenance, and also cannot contain other conditions that put one of the spouses in an extremely disadvantageous position or contradict the basic principles of family law.

The legality of the terms of the marriage contract is ensured by its notarization, since notaries check the documents they certify for their compliance with the law.

As a general rule, it is stipulated that a marriage contract must be "reasonable and just" in all respects.

In addition to the fact that the marriage contract is recognized as invalid, at the conclusion of which the conditions for its conclusion in writing and notarization were not met, the court may invalidate the marriage contract (in whole or in part) concluded by the spouses in violation of the current legislation on the grounds, stipulated by the Civil Code of the Russian Federation for the invalidity of transactions.

The court may also invalidate the marriage contract in whole or in part at the request of one of the spouses, if the terms of the contract put that spouse in an extremely disadvantageous position.

For example, if the terms of a marriage contract put one of the spouses in an extremely unfavorable position ("bonded deal"), the recognition of these terms of the contract as invalid is made by the court at the suit of the person concerned.

In the presence of such violations, the condition of the marriage contract is null and void, which means its invalidity from the very beginning of its inclusion in the contract. Although the nullity of such a condition does not require its invalidation by the court, interested persons often apply to the court to declare it invalid.

Not only the spouse, but also other persons, for example, parents, other relatives of the spouse or creditors, have the right to apply to the court with a statement on the recognition of a marriage contract as invalid or null and void.

The practice of the contractual regime of spouses' property has not yet fully developed, although this law is being used more and more often. The experience of foreign countries, where this institution has a long history, shows that there marriage contracts are more widespread, from which it can be concluded that the implementation of this rule of law in life requires a significant amount of time and positive practical experience in the application of a marriage contract.

According to the weekly "Argumenty i Fakty", in the first year after the adoption of the Family Code, about 1.5 thousand marriage contracts were concluded in Russia. At the moment, it is difficult to say exact numbers, since a special survey is required to obtain these data. In this regard, we can invite the reader to remember how many of his friends entered into a marriage contract? Probably not a lot.

It should be noted that the marriage contract in Russia, as well as its foreign analogue, the marriage contract, for a number of objective reasons is not designed for the mass consumer, and therefore cannot and probably will not be chosen as a method of regulating property relations everywhere. …

This is confirmed by the experience of those countries in which the marriage contract has long been recognized by law, but only about 5% of those entering into marriage conclude it. Probably, this is the stable value within which the practical need of society for a marriage contract is realized.

Undoubtedly, the advantage of a marriage contract is that in the process of its conclusion, the true intentions of each of the parties are inevitably revealed, since at its conclusion it is necessary to stipulate all the material and sometimes not material claims of the spouses.

As for the personal opinion of the author of this article regarding the marriage contract, she is ready to share everything that she has with her loved one.

An example of a prenuptial agreement is here