Invalidation of a marriage contract: typical judicial practice

A marriage contract is a transaction based on the mutual and free expression of the will of two parties (husband and wife or persons intending to get married), therefore its terms establish mutual obligations and rights for the parties in relation to each other. At the same time, the law takes into account the fact that these obligations and rights cannot be unchanged in any life situations; therefore, they can be challenged and they can be changed or the contract can be terminated early, both during the marriage and after its end.

In connection with the above, the question of whether a marriage contract can be challenged in court or not makes no sense, since litigation under marriage contracts is the most commonly used method by which marital disagreements are resolved or the claims of creditors are satisfied.

However, going to court is not the only way in which you can challenge the terms of a marital contract . At any time, the marriage partner has the right to contact the other partner and offer him to change or terminate the current agreement with a notary. The advantages of this option are that it is faster in time and in most cases will require less money from the parties.

Is it possible to challenge a marriage contract?

According to the RF IC (Article 44), challenging a marriage contract in whole or in part, in certain points, is possible. To do this, you will need to provide evidence that the agreement put one of the spouses in an extremely unpleasant situation, for example, it led to the deprivation of their only place of residence and left them without a livelihood.

You can challenge the contract even before the dissolution of the marriage or after the divorce, taking into account some features.

Before the divorce

The contract begins on the day of official registration of marriage in the registry office. You can challenge the terms of the document until the divorce. The law also allows for the conclusion of a new contract or challenging an existing one.

After divorce

Awareness of the loss of property, the need to independently repay a loan, or other unpleasant consequences of a marriage contract may come after the divorce. The RF IC does not stipulate how much time is given to the spouse to challenge the concluded agreement, therefore the provisions of Art. 181 Civil Code of the Russian Federation.

Limitation period for challenging a marriage contract

After a divorce, you can challenge the contract within:

• 3 years, if we are talking about recognizing the transaction as void. The starting point is the date from which its execution began. If a claim for cancellation of the contract is filed by an interested person (for example, a representative of a credit institution), the 3-year period for him begins from the date when he learned or could have learned about the transaction between the spouses.
• 1 year, if it is necessary to declare the contract voidable and cancel the negative consequences for the plaintiff. The countdown of the period begins from the date of termination of the threatening circumstances under the influence of which the transaction was made, or from the moment when the plaintiff learned about the circumstances that led to the need to invalidate the contract.

Example. The marriage was dissolved in January 2020, and the claim for division of property was filed in January 2020 (the statute of limitations for filing a claim for the division of jointly acquired assets is 3 years after the divorce). At this moment, the second spouse realized that all the property under the contract was transferred to the plaintiff, and he needed to leave his place of residence. If the defendant realizes the consequences of the agreement, within 1 year he may file a counterclaim to invalidate the contract in terms of the clauses on ownership. Basis - Determination of the Armed Forces of the Russian Federation dated January 20, 2015 N 5-КГ14-144.

Since the limitation period depends on whether the contract is voidable or void, the difference between both concepts should be determined.

Differences between a voidable and void marriage contract

The basis for differentiating a void and voidable contract is laid down in the Family and Civil Codes of the Russian Federation. The transaction is void if:

• the contract was not notarized (Article 41 of the RF IC);
• one of the spouses is incompetent by a court decision due to the presence of a mental disorder and the inability to understand what is happening (Article 171 of the Civil Code of the Russian Federation);
• is imaginary, that is, committed only for the purpose of avoiding responsibility, punishment, or covering up the other party (Article 170 of the Civil Code of the Russian Federation);
• contains clauses that include restrictions on spouses to apply to judicial authorities, receive benefits from the state, and act in their own interests on the basis of the law (Articles 42, 44 of the RF IC).

If the contract is null and void, the spouses can independently recognize it as such; going to court occurs when one of the parties disagrees.

A void marriage contract does not cause contradictions among the spouses, but goes against the current legislation, and therefore cannot entail any legal consequences.

If such an agreement is cancelled, the rights and obligations of the parties remain the same as they were before its conclusion.

The transaction is voidable in the following cases:

• If one of the spouses has limited legal capacity, and the transaction was made without the consent of the appointed trustee. This applies to persons with gambling, alcohol or drug addictions; mental disorders.
• If the person concluding the agreement is legally capable, but at the time of signing it could not be aware of his actions (Article 177 of the RF IC).
• At the time of signing the marriage contract, violence, threats were used against one of the parties, and misrepresentation was made regarding the materiality of the transaction (Article 178 of the Civil Code of the Russian Federation).
• If the terms of the agreement lead to unexpected consequences, creating unfavorable living conditions for one of the parties (Article 44 of the RF IC).

The contestability and invalidity of the transaction must be proven in court. Spouses must comply with the terms of the agreement until a court decision to cancel it comes into force. After this, each party has new rights and obligations regarding the other half.

Relationships not regulated by a marital agreement

When concluding a marriage contract, it is necessary to take into account that it is prohibited to include the following provisions:

1. restriction of legal capacity of husband and wife (future spouses). The agreement cannot establish rules prohibiting the parties from working, choosing a profession, getting an education, moving freely, determining the place of stay and residence, etc.;
2. regulation of personal non-property relationships of spouses . A marriage contract cannot oblige a husband and wife to love each other, maintain marital fidelity, not abuse alcohol, not lead an idle lifestyle, etc. The exception is any property obligation of the spouse in the event of a certain case (for example, compensation for moral damages for beatings or the purchase of a fur coat at the birth of a baby);
3. establishing the rights and responsibilities of parents in relation to children . Such a document can only be concluded at the time of divorce; it is called an agreement on the payment of alimony. Also, during family life, there may be agreements on establishing the child’s place of residence if the mother and father are separated or on the procedure for the exercise of parental rights by a person living separately from the children. Non-property relations with a child (with whom he will remain in the event of a divorce or the order of communication with his father or mother) cannot be regulated by any agreements;
4. restriction of the right of a disabled party in need to receive maintenance . Since the mutual obligation of spouses to provide for each other is proclaimed by law, the contract cannot include a provision that contradicts this principle. No waiver of this right is valid.

In addition, according to the law, personal items of each spouse (for example, individual cosmetics, hygiene items, clothing, etc.), belongings of a minor child, and material goods acquired by each of them before marriage are not subject to division. This also includes gifts, inheritance and everything that was acquired through any other unilateral transaction.

Features of divorce in the presence of a marriage contract

If there is a written agreement between the spouses, they can divide property long before they decide to divorce (separation property regime). In other cases, this happens in court, in parallel with the consideration of the issue of divorce and decisions about the future of minor children, and the collection of alimony for them.

In many respects, a marriage contract is similar to an agreement on the division of property; however, if the former is present, the following features of this procedure can be mentioned:

1. the marriage contract initially establishes how property will be divided between the spouses, which will avoid a controversial situation in court or in case of divorce (things acquired in the present time and those planned for purchase in the future);
2. with the help of an agreement, spouses can establish that the division of property after a divorce will be delayed for a long period of time, in order to provide each other more time to complete all related procedures (drawing and receiving documents, children reaching adulthood, paying off the mortgage, etc.);
3. If there is a prenuptial agreement, spouses can divide property in accordance with its provisions within the general limitation period of 3 years. If the spouses did not make a division during this period of time, they will be able to do this later, but without the participation of the court and subject to mutual agreement on all issues;
4. cases on the division of property in the presence of a marriage contract at the time of the dispute are considered in the same order as in the case of its absence, that is, in accordance with the norms of family law.

Since a marital contract may establish the procedure for owning specific types of property, all other things that are not mentioned in the text are considered jointly acquired, therefore, subject to division by the court, in accordance with the general rules of the RF IC (usually in half).

Can a creditor challenge a prenuptial agreement?

A prenuptial agreement can become a serious obstacle to the collection of outstanding obligations from the borrower.

In accordance with Art. 46 of the RF IC, the spouse who entered into a marriage contract is obliged to notify the creditor about this. If this rule is ignored, the borrower has the right to demand reimbursement of the loan amount regardless of the terms of the agreement.

What are the negative aspects for a lender when a borrower enters into a prenuptial agreement? The most significant:

1. Borrowers are not responsible for concealing information about the conclusion of a marriage contract.
2. If the loan has already been issued, and then the borrower notifies about the conclusion of the contract, the lender cannot influence the content of the document.
3. Even if, under an agreement with the bank, the borrower is responsible for all of his property, the actual owner under the agreement may be his spouse. The creditor has the right to foreclose only on the debtor's property.

If it is impossible to collect the loan amount from the debtor due to his lack of property, the creditor, being an interested party, has the right to go to court to declare the marriage contract invalid in full or in some respects.

The creditor will need to prove the sham of the transfer of ownership, the fictitiousness of the concluded transaction in order to conceal the property necessary to repay the debt.

The statute of limitations for a credit institution in case of failure to fulfill obligations by the debtor is 3 years.

Grounds for challenge

The law provides for the following grounds for challenging a marriage contract:

• If, when concluding an agreement, one of the parties did not realize the significance of the actions being taken. This condition may include illness, nervous tension, and intoxication.
• If, when drawing up a contract, one of the parties was recognized as a person with limited legal capacity, and the consent of the trustee was not obtained.
• If the agreement was concluded in the presence of any misconceptions (about the property nature of the transaction) on one of the parties.
• If there was deception, violence, threat or other methods of pressure. In this case, one of the parties could not freely express its will. It does not matter who exactly exerted pressure or deceived the second party to the contract or third parties.
• If the agreement puts one of the parties in extremely unfavorable conditions.

Can bailiffs challenge a marriage contract?

When the Federal Bailiff Service (FSPP) receives a writ of execution, enforcement proceedings are initiated. The debtor spouse is given a period for voluntary fulfillment of obligations (no more than 5 days). Otherwise, the FSPP begins to force the debtor to fulfill the requirements of the writ of execution.

Regardless of the content of the agreement, within the framework of enforcement proceedings it is possible to seize the property of the violator, located in his or her possession or in the possession of third parties.

If the property is in common joint ownership, recovery is made solely on the share of the borrower.

When concluding a marriage contract, spouses can establish a new procedure for joint, shared, or separate ownership of any type of property, including those acquired in the future.

If the FSPP determines that the marriage contract is valid, it will be impossible to seize the property of the debtor that belongs to the spouse under the concluded agreement.

The bailiff is called upon to ensure the protection of legitimate interests, therefore a marriage contract on the initiative of the FSPP can be declared invalid if it is proven that the debtor’s actions were aimed at deliberately concealing income and avoiding liability.

The resolution of the Plenum of the Armed Forces of the Russian Federation dated October 17, 2017 No. 50 states that the bailiff, as well as the creditor, has the right to demand the allocation of the debtor’s share from the common property. When concluding a marriage contract, according to which the property actually belongs to the other spouse, the FSPP will need to challenge the executed contract.

In practice, in the absence of a court decision to invalidate the contract, the FSPP does not apply to the judicial authorities due to the complexity of the process. Ensuring compliance with a court order to confiscate tangible assets is the task of the interested credit institution.

Recognition of a marriage contract as an imaginary transaction

A contract is considered imaginary if any parts of it do not comply with the requirements of the current law or other legal acts (Article 168 of the Civil Code of the Russian Federation)

Some people may deliberately enter into a contract and transfer property to their spouse in order to avoid paying taxes and become “unattractive” to a creditor, owing him a large amount of money.

In this case, the creditor files a statement of claim with a request to recognize the marriage contract as an imaginary transaction.

A prenuptial agreement can be drawn up as a sham transaction covering up another transaction in which both spouses and third parties may be involved. For example, the hidden drafting of a will, a purchase and sale agreement.

In judicial practice, an agreement can be drawn up with the aim of infringing on the rights of heirs and creating the appearance of a real marriage between persons who entered into a fictitious marriage.

How to challenge a marriage contract

A marriage contract is a notarized document that strictly defines the rights and obligations of the parties, so it can only be challenged in court.

Order and procedure

To achieve the desired result, it is recommended to adhere to a certain algorithm of actions:

Step 1. Determining whether there are compelling grounds for challengeability

You should first check whether there really are grounds for going to court and whether the statute of limitations has expired.

In addition to 1 year for a contested transaction and 3 years for a void transaction, in some cases a 10-year limitation period is applied from the moment the contract is executed (clause 2 of Article 196 of the Civil Code of the Russian Federation).

Step 2. Drawing up a statement of claim

A claim to invalidate a marriage contract should be filed at the defendant’s place of residence. It states:

• name of the judicial authority;
• information about both parties to the contract (full name, date of birth, place of registration and actual residence);
• if the claim is of a property nature, the value of the disputed property shall be indicated;
• the contents of the document set out the circumstances of the case: when and under what circumstances the contract was concluded, what consequences it entailed, whose rights were infringed;
• legislative acts on the basis of which the claim is filed;
• petition to the court;
• list of applications;
• date, signature.

Sample:

Step 3. Payment of state duty

If the claim is not subject to assessment, the state fee for filing it will be 300 rubles.

The cost of property claims is calculated using the formula:

(Claim price - deduction) X n% + fixed amount.

The amount of the deduction, percentage (from 0.5 to 4%) and a fixed amount (from 400 rubles to 60 thousand rubles) depend on the price of the claim and are fixed in clause 3 of clause 1 of Art. 333.19 Tax Code of the Russian Federation.

If, for example, the price of the claim is 611 thousand rubles, the state duty will be (611 thousand rubles – 200 thousand rubles) X 1% + 5200 rubles. = 9310 rub.

The state fee is paid according to the details that can be found in court or on the official page of the website of the judicial authority. The receipt must be attached to the statement of claim.

Step 4. Preparation and submission of documents

The claim will be rejected if the following documents are not attached to it:

• copies of the statement of claim (for the defendant and third parties);
• a copy of the plaintiff's passport;
• check for payment of state duty;
• certificate of marriage (divorce);
• calculation of the amount disputed by the applicant; documents on the right to the disputed property;
• power of attorney, if interests in court are represented by a trusted person;
• marriage contract.

The list of applications depends on the circumstances of the case. They can be provided in preparation for the court hearing. The number of copies of documents must correspond to the number of interested parties.

The claim and applications are filed at the defendant’s place of residence. The exception is when the plaintiff has a minor child with him or his health condition does not allow him to come to court at the defendant’s place of residence.

The case is considered by the magistrate court if the cost of the claim does not exceed 50 thousand rubles. In other cases, you should contact the district (city) court.

The decision to accept documents is made within 5 days.

Step 5. Participation in the meeting, obtaining a court decision

You can participate in the process personally or entrust this responsibility to a competent person through a power of attorney previously executed by a notary.

As a result, the court will not grant the petition and invalidate several clauses or the entire marriage contract.

Transactions involving illegally entered items will be cancelled.

Process duration

After accepting the claim, the judge takes measures to notify the defendant of the scheduled hearing date.

In accordance with Art. 154 of the Code of Civil Procedure of the Russian Federation, the duration of consideration of a case in a magistrate court is 1 month, in a district court - 2 months. The period may be extended if new circumstances of the case arise or difficulties in notifying the defendant about the date of the hearing.

Pros and cons of drawing up a contract

Before drawing up an agreement, spouses determine the benefits for themselves. In different situations, the pros and cons of a marriage contract are different for each party.

Among the advantages are the following:

• In the event of a divorce, both spouses will remain with their property, which is written about in the document. If the husband acquired real estate during marriage, the wife will not have any rights to this.
• In case of debt on loans, the person who issued the loan will be responsible. The property of a spouse cannot be confiscated for the debts of the other.
• The ability to avoid lengthy court proceedings during divorce.

Despite the many advantages, there are also disadvantages:

• During a divorce, neither the husband nor the wife will be able to rely on the property and finances of the other party. Even if there are common children who will remain with one of the spouses, the court will not be able to make a decision up or down. The decision will be based only on the provisions described in the paper.
• Only property and financial issues are regulated. Other questions cannot be specified.

Each case has its pros and cons. Before drawing up a document, it is necessary to think through and agree on all aspects in detail.

Review of judicial practice

Recognition of a marriage contract as invalid as regards points

Citizen D. filed a claim against citizen L. in the district court to deprive him of the right to use a residential building and deregister him.

She indicated that she was married to L. and has 2 minor children from him. All family members are registered in the house purchased by L. and D. during marriage. According to the marriage contract, the house is the property of D. The defendant does not live with his family and refuses to be deregistered.

Citizen L. put forward a counterclaim in which he asked to recognize the marriage contract as invalid in terms of recognizing the defendant’s land plot and the house located on it (the plot number and the address of the property are indicated); cancel the entry in Rosreestr about citizen D.’s right to real estate. L. noted that the property was acquired with his funds, but according to the agreement, it remains with the spouse to whom it was registered during the marriage. L. was left in an extremely unfavorable position, since the man had no other housing.

According to the clarification of the Plenum of the Armed Forces of the Russian Federation No. 14 of July 2, 2009, former family members must vacate the premises. In accordance with Art. 33, 42 of the RF IC, the regime of joint ownership established by law can be changed by concluding a marriage contract.

The terms of the contract between D. and L. lead to the deprivation of his right to jointly acquired property and violate his housing rights. During the meeting, it turned out that the husband was fulfilling the loan obligations of citizen D.

Taking into account the circumstances, the court decided to refuse the request of citizen D. to remove her husband from the registration register.

Recognize the clause in the marriage contract regarding the property rights of citizen D. as void and cancel the corresponding entry in Rosreestr.

Collection of the share of the debtor's spouse

Citizen B. filed a claim against spouses Zh. and M. for the division of property to collect debt from the share of spouse M., the defaulter.

According to the court decision, a debt in the amount of XX thousand rubles was to be recovered from M. The bailiff initiated enforcement proceedings; during his execution M. did not have

It was established that M. entered into marriage with J. by drawing up a marriage contract. According to the document, the land plot and 2 residential buildings acquired during marriage are not jointly acquired property, but belong only to the spouse.

The plaintiff requests that M.’s share in the jointly acquired property be allocated to cover the debt.

Lawyer M. provided documents that the property was acquired after the conclusion of the marriage contract and the moment the credit debt arose.

Based on the data received, the court did not consider it possible to satisfy the plaintiff’s demands. The allocation of M.'s share in J.'s property was refused.

The possibility of concluding a marriage contract is provided for by the RF IC solely for the purpose of protecting the interests of the spouses. The contract is drawn up during marriage or on the eve of its registration. A thoughtless approach to the content of a document or violation of the order in which it is compiled can lead to negative consequences.

To avoid recognition of the nullity of the contract, you should consult with a lawyer on each point, finding out whether they violate the rights and freedom of the other half. Contacting a notary is a mandatory condition for legitimizing a contract and giving it legal force.

The Agreement does not provide a 100% guarantee of fulfillment of all obligations listed in it. If an interested party or creditor goes to court, it can be challenged. The most common reasons are the creation of difficult living conditions caused by the execution of the contract; deliberate conclusion of an agreement for the purpose of concealing property from a judicial authority or bailiff.

Drawing up and amending an agreement and going to court to challenge it raises many difficulties. Lawyers of the site ros-nasledstvo.ru are ready to help in resolving questions about what clauses are best included in the contract, how to prevent its challenge, and what to go to court with to achieve a positive result.

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Is unilateral refusal to fulfill the terms of a contract allowed?

Unilateral refusal to perform a contract is automatically considered a violation of its provisions.

The only exceptions can be those cases when a party backs up its reluctance to act in accordance with the contract with a lawsuit demanding to change or cancel the contract, while having good reasons for doing so. If the claim is denied and the justification is not considered significant, then the marriage contract will remain in force.

In this case, the guilty party, who refused to fulfill the terms of the contract, must compensate the losses to the other party to the contract, and sometimes pay fines.