Prenuptial agreement when buying an apartment during marriage: sample, does one of the spouses need to register the purchased property as separate ownership?

A significant drawback of legal relations in our country is legal nihilism and neglect of the rights that are granted to us by law.

It is believed that the desire to sign an agreement with a future spouse, which would determine their status in relation to future jointly purchased property, is dishonest and selfish.

At the same time, often the written execution of documents such as a prenuptial agreement for an apartment purchased during marriage can not only help in managing property, but also avoid quarrels on this basis, and often save the family.

What kind of document is this?

A prenuptial agreement is a special type of civil contract that formalizes an agreement between spouses or persons preparing to marry. The execution of the document is necessary to achieve the goal - establishing your own special order for the distribution of common material assets.

The general procedure is established by Article 33 of the Family Code of the Russian Federation and approves joint ownership of everything acquired during the marriage.

This regime applies to movable things and immovable objects. Ownership and disposal of existing valuables occurs jointly, both spouses resolve any property issues equally, and if they want to divorce, each will receive half of the property or the value of the things.

A prenuptial agreement sometimes includes a joint arrangement, but more often it is entered into to establish shared or separate property.

The main goals of formalizing contractual relations between spouses or citizens entering into marriage are the following:

Elimination of disputes about property at the beginning of family life and during the division of property acquired during marriage;
Protection of the values of one of the married couple from attacks by creditors or execution of punishment in the form of confiscation against the other;
The opportunity to acquire personal property, which by law is classified under the regime of separate ownership (gifts, inheritance);
The desire to make decisions regarding the fate of values independently without obtaining the consent of the spouse;
Saving things upon divorce from the other half, who led a dependent lifestyle and had no income;
The ability to predict the future for spouses who have maintenance established by agreement during the marriage relationship or after a divorce.

A marriage agreement cannot provide for personal non-property intra-family behavior. The agreement regulates only issues related to material assets. Issues of family morality are not addressed by him.

Marriage agreement for property acquired during marriage

In the preparation of the document, a separate role is given to property that was acquired during marriage. This could be an apartment or a house, as well as other things.

For a house or apartment purchased during marriage

Many factors influence who will own real estate in the event of divorce and division of property. It takes into account how much each spouse contributed. Also taken into account is the person’s participation in the form of contributing funds to the repair, construction, and maintenance of the specified property.

It is allowed to draw up a marriage contract and indicate in which cases future property - an apartment purchased during marriage, for example - can be transferred to the other party without claims.

For a share when buying an apartment

This form assumes situations where the contribution of each spouse is taken into account. Applies only to certain items that are considered part of the common property.

Based on this, in a document certified by a notary, it is written down: what specific property this applies to and what share of each family member (equal, depending on income, etc.).

When can I make it?

Typically, the parties come to the need to draw up a prenuptial agreement before marriage. Having decided on the main issues and drawn up the document, they officially enter into a family union.

Article 41 of the Family Code of the Russian Federation establishes two options for conclusion: before marriage and at any time during family relations .

At the time of divorce or after this procedure, the relevance of the contract is lost. The agreement remains valid only in matters of determining maintenance for one of the former spouses, established upon divorce.

The agreement between the future husband and wife acquires legal force from the moment the marriage is officially registered with the civil registry office. When the parties are married, the contract is considered valid from the moment the document is certified by a notary. The parties have the right to provide for a specific period or circumstance from which the agreement will come into force. For example, from the moment of birth of a child or after 15 years of marriage.

When a marriage is annulled, the agreement does not give rise to any rights or property obligations; the concluded contract remains only on paper.

Is it possible to conclude a contract after purchasing the property?

The document can indicate both the existing and future property of the married couple.

Subject of the agreement, rights, obligations and responsibilities of the parties

The subject of the agreement is the legal relations of the parties, which can be regulated by it in accordance with the current legislation. The Family Code defines the list of legal relations that are included in the subject of the marriage contract. These are the rights and responsibilities in relation to:

Expenses for maintaining the apartment, for example, payment of utilities, current or major repairs, expenses for replacing plumbing, etc.
Apartment ownership regime. Housing can be divided into shares, remain in joint ownership, or become the full ownership of one of the marriage partners.
Purchasing an apartment in the future. Spouses have the right to specify in the contract the exact period when they will buy real estate, indicate the shares of their contributions or their size, determine the amount of expenses for the apartment, for example, the cost of repairs, and distribute these expenses between them.
Division of the apartment in case of divorce.
Possible use of the apartment for earning money. For example, the distribution of income received between spouses from renting out an apartment.
Extracts from the home after divorce.

The law strictly prohibits establishing conditions in a marriage contract that relate to:

The civil legal capacity of the party to the agreement, for example, establishing a prohibition for the spouse-owner to freely own his share of the real estate.
The civil capacity of the party to the transaction, for example, the restriction of the right to dispose of an apartment, which is expressed in the prohibition on the sale, exchange, donation, bequest of property to other persons.
Non-property personal legal relations. For example, a husband does not have the right to demand that his wife give birth to two children and offer his share of the apartment for this.
Restrictions on the right to appeal to judicial authorities.
Division of an apartment in the event of the death of one of the marriage partners. For these purposes, you need to make a will.

Civil liability measures that may be imposed on a party that does not comply with the provisions of the contract are:

Fine. This is a one-time payment of a certain amount of money for a one-time violation of an obligation. For example, a husband is contractually obligated to buy his son sports uniforms and shoes every year for classes. If for some reason he did not do this, and his wife solved this problem instead, then, if there is an appropriate condition in the contract, she has the right to demand that he pay a fine.
Indemnification or compensation. It applies if the violation committed by a party has serious consequences. For example, a wife and husband agreed to pay a mortgage in the following proportion: the husband pays 75%, and the wife – 25%. After full payment, the parties receive ownership of the apartment in the following shares: husband - 3/4 shares, wife - 1/4 shares. If, for example, a wife cannot repay her part of the loan for any reason, and the husband takes on the wife’s obligation, then, according to the agreement, the wife may be deprived of her share of the apartment.
Penalty. It applies to ongoing offences. For example, the husband’s contractual responsibilities include full payment of utilities. If he does not do this before the deadline specified in the utility bills, then he pays in favor of his wife a percentage of the debt amount determined by the contract for each overdue day.

Why is it needed and what problems does it solve?

Determining the procedure for using the apartment, resolving issues of disposal (sale or pledge) and identifying the owner is the main task of the contract between spouses. But depending on the moment of acquisition of the real estate, the correct mode of ownership, in the opinion of the parties, is selected.

Contract for real estate purchased before marriage

Real estate owned by one of the spouses remains only his property. This rule is contained in Part 1 of Art. 36 IC RF.

Often, before marriage, a man and a woman live in a so-called “civil marriage”; in official terms, they cohabit. When real estate is purchased during the period of cohabitation, legal issues arise.

If we turn to the letter of the law, such an immovable object is considered to be purchased before marriage. Premarital property is recognized as personal property in accordance with Article 36 of the RF IC. If the buyers were cohabitants who subsequently decided to formalize their relationship, it is necessary to register the shared or joint regime of the purchased apartment, otherwise the owner of the apartment is the person indicated in the registration documents.

Making a contribution to the purchase of a real estate property must be proven, then there is a chance to receive a share commensurate with the money spent.

Drawing up an agreement will save the parties from collecting evidence and a long legal process. However, when seeking the help of a professional to draw up a document, you need to have papers confirming the amount of contribution of each party to the overall purchase. This includes checks, money orders, receipts, account statements for funds transfers and other financial documents.

The document is prepared independently or with the assistance of a specialist. Qualified assistance can be obtained from a notary's assistant; you just need to notify about your visit so that the executor has the opportunity to prepare a draft document.

Contract for housing purchased during marriage

Concluding a marriage contract for an apartment after receiving a marriage certificate has no fundamental differences. The procedure for drawing up an agreement between married couples and persons intending to take such a life step, in the number of submitted papers necessary to draw up the text of the document.

In addition to documents confirming the registration of the immovable property, it is necessary to prepare a marriage certificate and documentary evidence of payment. Until recently, registration of an object in Rosreestr was certified by a certificate, now - by an extract from the Unified State Register of Real Estate.

Housing purchased during the marriage is in most cases divided in half . However, there are cases when joint property is divided differently during a divorce.

For example, the Supreme Court issued a ruling that contradicted the legal division order. The ex-husband made demands for the division of the apartment purchased by his ex-wife after the wedding. The contract for shared participation in the construction was signed a month after receiving the marriage certificate. A month later, the transaction passed state registration.

The money invested by the wife in the construction was received by her after the sale of her previous apartment.

The lower courts, guided by Art. 34 of the RF IC, divided the joint housing equally. The highest authority drew attention to a legally significant circumstance - the source of funds for the purchase. It is important whose money was spent on purchasing the apartment.

The purchase of property assets during the period of formalized family relations, but with the personal money of one of the spouses, excludes this property from the regime of joint ownership.

The money received from the buyer of the previous apartment is, by law, personal property, does not constitute joint income and was not acquired during the marriage. The example shows that marriage does not provide a 100% guarantee of housing after divorce. The marriage contract between spouses is intended to :

fix the rights of partners to real estate and determine the procedure for use;
carry out a civilized division of acquired values upon divorce.

If the marriage contract stipulates the property rights of both parties, then subsequently it will be difficult for the dissatisfied spouse to challenge the established regime.

If purchased with a mortgage

Buying an apartment with a mortgage is a common option for purchasing housing. Sometimes the mortgage term exceeds the period of the marriage, and the apartment has to be divided as collateral from the bank. In such a situation, the marital contract determines not only the rights and obligations of the spouses among themselves, but also the procedure for interaction with the bank.

There may be several options for purchasing an apartment using credit funds.:

A mortgage agreement is concluded before marriage by one of the spouses. In this situation, there is only one borrower, but by agreement the newlyweds have the right to establish a certain procedure for joint repayment of the loan and allocate everyone’s shares in the housing purchased with common funds.
One of the partners takes out a mortgage during marriage, and the second spouse is not involved as a co-borrower due to an unconfirmed level of income or bad credit history. If monthly payments are made by one spouse, the contract protects their personal property after a divorce. When both pay, the contract guarantees that everyone will receive in proportion to the contributions made.
The mortgage is paid by the spouses' parents. In this case, you need to document that the larger share belongs to the person whose parents made the down payment or pay monthly payments.
The apartment was purchased under special mortgage programs (for example, the military mortgage system). Since the funds allocated are of a targeted nature - to provide housing for a serviceman, it will not be possible to divide the apartment. Only an agreement will help the other half to secure their right to real estate.

For registration, the following additional documents are required : mortgage agreement, payment documents, confirmation of encumbrance on the apartment.

Forms of legalized documentation

A prenuptial agreement (form) is an agreement that determines what property each spouse will receive upon divorce. This is a popular legal practice to avoid painful litigation in the future. With the help of such a contract, it is possible to protect personal property from unauthorized encroachment. Compiled by mutual agreement in writing.

The following forms of marriage contract exist:

With joint ownership regime.
With separate property of spouses.
With personal property.

The agreement can be concluded before or after marriage. The document must comply with the requirements set forth by the regulations of the Russian Federation. The husband and wife must have legal capacity to complete the transaction. The will of each spouse must correspond to their expression of will. The contract is drawn up in a special approved form.

How to compose?

The procedure for drawing up a marriage contract has some features. Part 2 Art. 41 of the RF IC prescribes a mandatory written form of the agreement and certification by a notary.

Where to contact?

The parties can draw up the text of the agreement . However, ignorance of the basics of civil and family law can play a cruel joke: unclear and vague wording, ornate phrases are an excellent tool for challenging a document.

For those who decide to trust professionals, there are two ways :

Contact a lawyer practicing in the field of family law;
Draw up an agreement immediately before certification at a notary office.

Required documents

In the process of drawing up a marital agreement, you will need the following documents :

Evidence of the acquisition of housing ownership, containing the exact address, cadastral number, technical characteristics;
Certificates, checks, payment receipts;
On repayment of mortgage debt;
Confirming the fact of owning other housing and selling it to invest in real property;
Passports;
Marriage certificate.

If the draft contract is drawn up independently, then 3 copies are presented to the notary for signature.

What should be included in the document?

The parties have the right to introduce any conditions relating to property relations. In relation to a shared apartment, the following points are prescribed :

Ownership mode – joint, shared, separate;
What share of the right goes to each person upon divorce;
Procedure for use during marriage and after, including by non-owners;
Provide for children's shares;
The obligation of the spouse to deregister at the location of the apartment.

It is impossible to include in the text of the agreement provisions that infringe on the legal capacity and capacity of the parties, affect personal non-property relationships, parental responsibilities, contradict the law or put one of the spouses in an unfavorable position.

In addition, it is better to exclude items that are not related to the circumstances of the transaction - excerpts from laws, elements of other types of contracts.

Registration cost

The cost of a document if prepared independently will be equal only to the amount of the state fee for certification by a notary . The fee in favor of the state is 500 rubles for any type of marriage contract.

Notaries estimate technical services for drafting a document from approximately 15,000 to 20,000 rubles, depending on the region. The state fee for the certificate is paid in addition to the tariff for preparing the draft agreement.

Differences between a marriage contract with separate property regime and an agreement on the division of property

First of all, the differences relate to the form of the document.
A marriage contract must be certified by a notary, while an agreement is simply drawn up in writing with the signature of both parties and does not require notarization. Information! A prenuptial agreement can be drawn up before or after marriage.
A separation agreement can be created even during the division of property in a divorce. Often a marriage contract is made at the time of purchasing a home with a mortgage or for an apartment when selling.

Changes in terms and conditions

Changing the terms of a marriage contract is possible in two ways: by agreement of the parties and through the court . If a married couple comes to the conclusion that it is necessary to make amendments to the current agreement, then the partners again turn to the notary. The amended document will be called an agreement to amend the marriage contract. All changes are made in a manner similar to the conclusion of a contract.

The court may change the original text of the contract if it considers the terms unfavorable or limiting the rights of one of the parties. Also, the basis for a court decision satisfying the requirement to amend the agreement is a significant change in circumstances.

Arbitrage practice

In the practice of Russian courts, there is a case in which one party, according to the marriage contract, was supposed to purchase an apartment in favor of the other party after the divorce. However, according to the ex-husband, his wife did not fulfill her obligation. In October 2020, this case was heard in the Maykop City Court of the Republic of Adygea.

So, the ex-husband demanded in court to force the ex-wife to fulfill the obligation she accepted under the marriage contract and to transfer to him an apartment that complies with the terms of the agreement. The apartment must be one-room, not on the top floor and not lower than the 2nd floor.

In turn, the ex-wife stated that the plaintiff has no grounds to demand the apartment, because she fulfilled her obligation. The defendant presented the court with a purchase and sale agreement, under the terms of which the ex-husband received sole ownership of a 1-room apartment that met the conditions set out in the marriage contract.

Taking this fact into account, the court decided that the defendant had fulfilled her obligations. Therefore, there is no reason why the court should take the plaintiff’s side. In this regard, the ex-husband's claim was rejected.

Is it necessary when buying in shared ownership?

The legal regime is joint ownership. Part 1 art. 33 of the RF IC, you can change the legal regime by signing a marriage contract.

The concluded agreement is submitted to Rosreestr for registration of shared ownership. If a married couple decides to divorce, there is no longer any need to divide the apartment - each will be assigned a specific share.

If you intend to use borrowed funds from the bank, then it is better to draw up a spousal agreement on the allocation of shares before applying for a mortgage.

Which option to choose

The advantage of a prenuptial agreement is that it is future-oriented , that is, it makes it possible to outline the rights and obligations to the property that has not yet been acquired. And thereby remove the need to determine its affiliation in the future, including after a divorce.

In addition, the participation of a competent specialist, such as a notary, will allow you to create a legally impeccable document.

One of the main disadvantages of a marriage contract can be considered its cost. Drawing up and certifying such a document requires certain expenses. The price depends on the region, for example, in Moscow it starts from 10,000 rubles. In addition, many citizens have a certain prejudice against concluding a contract as a manifestation of distrust in the spouse and marriage.

You can draw up an agreement on the division of common property yourself, which will significantly save money. This is a definite plus of the agreement. But drawing it up without violating anyone’s rights or interests is only possible if friendly relations have been maintained between the divorcing spouses and they trust each other.

The disadvantage of the agreement is the narrowness of its subject matter. Apart from information about what property which spouse will receive after a divorce, nothing can be included in it. And a prenuptial agreement allows you to resolve some other issues, in particular about financial support. Before making a choice, it is worth consulting with a specialist.

Is it necessary when purchasing using maternity capital?

In the situation with the purchase of an apartment using maternity capital, different legislation applies - Federal Law-256 “On additional measures of state support for families with children.”

Special rules establish the mandatory allocation of shares to all family members. Children automatically become home owners. Waiver of the right is considered void. Parents do not have the right to dispose of their children’s housing at their own discretion; until they turn 18, control over transactions is exercised by the guardianship and trusteeship authority.

The procedure established by law cannot be changed. A marriage contract establishing a different option is void. Its conclusion will be useless .