It is so customary that people marry, first of all, out of love, mutual and worthy of taking oaths in front of witnesses to remain faithful to each other to the end. But life is unpredictable, and especially in our time, when various unpleasant circumstances come ahead of traditions that destroy the family and, unfortunately, it is not possible to foresee the occurrence of such situations.
Then a problematic question inevitably arises: how can we now competently divide jointly acquired property without a divorce procedure? And although Russian legislation has provided for the possibility of such a situation arising, nevertheless, planning purchases, acquisitions, dividing the family budget and regulating property relations, in general, all this is a forced but necessary condition in personal terms for marriage in modern conditions. But if the spouses were not so prudent, then the problem requires a solution.
What is the status of marital property?
Property acquired by spouses during marriage becomes joint property by law. This regime is established by Article 34 of the RF IC. The amount of common property of the spouses includes all property objects and things that were acquired during the marriage. This will include:
- real estate: houses, apartments, land plots and other permanently located objects;
- means of transportation, including motor transport, water and air transport;
- shares and bank deposits;
- antiques, jewelry and any valuables;
- general business.
Joint property will include objects that were acquired during marriage, regardless of whether they are registered in the name of one of the spouses. The main criterion is that the joint funds of the spouses were invested in them. It is possible to divide property without filing a divorce on the basis of Article 38 of the RF IC.
Expert commentary
Leonov Victor
Lawyer
You should know that property owned personally by a husband or wife, because was acquired by him with personal funds before marriage, cannot be subject to division. The same rules apply to property that becomes personal as a result of inheritance or as a gift.
The status of joint property limits the rights of the spouse in whose name it is registered to do anything with it without the consent of the other spouse. For example, you cannot sell a joint apartment without the consent of your marriage partner.
Restrictions on actions also apply when purchasing real estate. Any spouse while married cannot make a transaction to purchase real estate without agreeing with the other spouse.
What does the law say?
Article 34 of the Family Code of the Russian Federation states that all property acquired during marriage is jointly acquired.
And Article 38 of the RF IC states that objects and real estate belonging to this category can be divided during marriage and after its dissolution. There are a number of exceptions to the rule.
Before carrying out the procedure, it is advisable to consult with a specialist (an experienced lawyer) and collect the necessary documentation.
Reasons for dividing property during marriage
When the property of spouses is divided due to the dissolution of their marriage, this is understandable.
The need for division under these circumstances is a consequence of divorce, since it is accompanied by the termination of any relationships and joint activities, including participation in the management of a common household. It is another matter to carry out this procedure when the spouses are not divorced. Spouses in a registered marriage can be motivated to divide common property by valid reasons, which are important reasons for them. The classic reasons forcing spouses to divide property are:
- protecting your own rights in case of possible unpleasant situations in the future;
- separation of obligations arising from the need to maintain property;
- protection from seizure of part of the property if a spouse has a debt.
Often, the need for division of property may be prompted by differences in the contribution of husband and wife to the common household. When the entire material well-being of the family is supported by the income of one spouse, and the other does not seek to provide for the family, does not work for a long time and leads a dependent lifestyle, the earning spouse has a legitimate need to protect the property in which he has invested financially.
Expert commentary
Shadrin Alexey
Lawyer
Timely division of marital property can prevent problems with its distribution in the event that the marriage breaks up, and the issue of division of common property becomes especially acute.
What property can be divided before divorce?
There are two different types of property.
Property that a couple purchased during a marital relationship is called "matrimonial property." Property that was owned by each of a couple before marriage or was gifted to just one individual is called “personal property.” It happens that a married couple, before the divorce process, wonders whether it is possible to divide property before the dissolution of the marriage. Division of joint property without divorce is possible both before separation, during divorce or after it (Articles No. 7, No. 8, No. 9 of the Family Code of the Russian Federation).
Methods for dividing property in marriage
While married, a couple has ample opportunity to agree on the division of their property through a common decision. This is especially easy to do in relation to property that does not require state registration. If they decide to divide the real estate registered in Rosreestr, then their agreement will not mean anything if they do not re-register the property with government agencies in accordance with their agreement.
You can divide property while married as follows:
- draw up a marriage contract, which will include clauses with the conditions for the division of property;
- draw up a voluntary agreement on the distribution of shares in joint property;
- apply to a judicial authority for the division of the common disputed property.
The application of each of the listed ways of dividing marital property depends on the specific circumstances in the family that prompted the partners to divide.
Voluntarily drawn up documents may include conditions on the division of common property that differ from those provided for by the RF IC. Only when distributing property in court, usually the decision is based on the guidelines outlined in the family code, when all the property of the spouses is divided equally between them.
Five practical recommendations
The division of property in a marriage is a simple process that, if done correctly, will help avoid problems in the future, and often keep property in the family.
Below are several recommendations, following which, the couple will be able to complete the process to the benefit of both partners.
The earlier the better
In the case where one of the spouses bears property responsibility for the affairs of a company or enterprise, it is necessary to carry out the division as early as possible.
The activity involves risks, this is known in advance. As a rule, a business owner deals with the issue of division only in an acute situation.
Re-registration of the share or all rights to your spouse or close relative, in this case, may be challenged. The court will decide on the invalidity of the contract or agreement and return the parties to their original position.
For your information! When transferring all real estate to a spouse, there is a risk of losing it in a divorce. Property in this case is recognized as personal with all the ensuing consequences.
What to pay attention to
The prenuptial agreement should include absolutely all existing property and determine in detail the size of the shares. The contract format allows for any variations.
You should carefully consider the point about the fate of future acquisitions. The fact is that the cost and quantity are not known. The spouse who signed the agreement relieves himself of the rights to such property, which may be purchased with common money.
It is impossible to single-handedly change the terms of the contract, so there is a risk of loss due to the dishonest behavior of the husband or wife, especially during a divorce. It will also not be possible to completely cancel the contract. Because to do this, the fact of threats, coercion or deception must be proven.
How to reach consensus
In case of voluntary division, it is recommended to make a list of joint property in advance and evaluate it. Spouses must first distribute what will go to each of them in full, and what will be divided separately in shares.
When drawing up a contract or notarial agreement, a couple can set any size of share, so this point must be thought through in advance.
Determining the fate of joint property in a timely manner has positive aspects. So, when selling it in the future, the notarized consent of the spouse is not required.
What's better
When comparing a notarial agreement and a marriage contract, it is worth focusing on the second option. The fact is that you can draw it up even before marriage.
This will help future newlyweds determine property relations in advance and avoid risks in the event of a family split.
This option is suitable for people planning to buy real estate using their own savings.
It is not always possible to prove the fact of personal investment, and the contract will state that the apartment belongs entirely to only one spouse.
The drafting of an agreement or contract must be approached responsibly. It is difficult in principle to challenge this document, if necessary.
The contract is concluded for an indefinite period, and it is impossible to predict the development of family relationships.
Note! When deciding to transfer the majority of joint property to one of the partners, you should keep this in mind. In the event of a divorce, there is a risk of being left without housing or transport, which was previously re-registered in order to hide it from creditors.
If the general is nested
When determining shares, spouses can take into account personal investments in home repairs and maintenance, vehicle maintenance and other expenses.
The spouse who bore expenses paid from personal pre-marital savings has the right in an agreement or contract to demand an increase in his share in the common property.
If the partner does not agree to such conditions, the division is carried out in court.
It is mandatory to provide receipts confirming personal investments and to prove the source of these funds.
Division of property under a marriage contract
This document is called a marriage contract because it regulates the rights and obligations of spouses during a registered marriage relationship. It can be concluded before the couple gets married, but its effect begins only from the moment the official relationship is registered. However, on the basis of Article 42 of the RF IC, conditions may be included in the contract, the effects of which also apply after a divorce upon the occurrence of the events indicated in these conditions.
The agreement may include conditions for the division of property that differ from the rules established in the RF IC. As is known, the Family Code provides spouses with equal rights to property acquired during marriage. Therefore, in the event of its division, they are entitled to equal shares in the amount of ½ of the total value of the property. In the agreement, they have the right to distribute the property in a ratio that suits each of them. Spouses also have the right to transfer joint property acquired during marriage to the status of personal property of one of the spouses, which is especially important, for example, when dividing it during marriage in order to protect it from arrest. It is worth noting that this does not apply to the entire volume of family property; the second spouse must retain a certain minimum share.
Important! With the help of a marriage contract, you can determine the division of both the property of the spouses available at the time of drawing up the document, and regarding their future property, which will be acquired in the future.
The contract acquires legal significance after notarization and is valid throughout the entire period of marriage. However, regarding the division of joint property, it is valid until the property issue is resolved.
Nuances and rules of the section
The division of property without divorce is most often made equally between spouses. If one of them, for good reason, did not bring income to the family, he has the same property rights as the other half.
Only objects purchased during marriage are subject to division of property between husband and wife, such as:
- monetary resources in the form of any income (salary, pension, benefits, business income, etc.);
- movable and immovable property (cars, equipment, furniture);
- assets in the form of shares and securities;
- jewelry;
- deposits.
Important! It doesn’t matter who earned how much, who acquired the property and used it. Both spouses have equal rights to objects and things acquired during the marriage.
An exception may be the thoughtless waste of family savings by one of the spouses. In this case, parts of the property are distributed by the court.
The following cannot be divided between spouses:
- items purchased before marriage;
- things purchased during marriage, but with personal funds that belonged to one of the spouses before its conclusion;
- donated items;
- inherited property;
- personal items (clothing, special tools);
- bank deposits in the form of money for minor children;
- rights to the product of mental labor.
Attention! Personal property can be considered marital property if its value has been increased through the joint efforts of the spouses.
Property acquired by spouses after division will again be considered jointly acquired (the spouses own it in equal shares).
Division of property by agreement
Being married, it is convenient, if necessary, to divide family property by drawing up an Agreement between the spouses. The difference between this document and a marriage contract is the requirements established by law:
- the document can be drawn up regardless of the couple’s marital status, its validity begins from the moment it is signed by the parties and does not depend on the stamp in the passport;
- Only joint property that actually exists at the time of drawing up the agreement can be divided. Property acquired subsequently will continue to be joint property;
- In addition to the conditions for the division of property, it is not allowed to include solutions to other issues, unlike a marriage contract, which allows for the introduction of conditions, for example, on the obligation to provide financial support for the spouse.
By mutual agreement, the terms of the Agreement may include the transfer of property that is the personal property of the spouses. The law does not prohibit the division of any property belonging to spouses. However, it is usually drawn up when it is necessary to divide a specific property.
The document is drawn up in writing and does not require mandatory notarial confirmation. But, if the agreement provides for the division of real estate into shares or the transfer of the entire property into ownership of the other spouse, then the document is subject to registration in Rosreestr. Therefore, it is better to have it certified by a notary.
Limitations of the terms of the marriage contract and agreement
Despite the fact that the content of voluntarily drawn up documents can include conditions for the distribution of joint property at the discretion of the parties, the law nevertheless provides for certain restrictions when drawing them up:
- it is unacceptable to deprive one of the spouses of all joint property by transferring it into the ownership of the other party;
- the right to property cannot be made dependent on personal non-property conditions, including moral issues;
- It is not allowed to establish a procedure for property regulation in relation to other family members.
A distinctive feature of a marriage document in the Russian Federation from a similar agreement in Western countries is the absence of issues regulating the behavior and morality of spouses depending on property relations. For example, it is impossible to set a condition for depriving the right to joint property in case of adultery.
Expert commentary
Kolesnikova Anna
Lawyer
Spouses often include in the terms of the contract a clause regulating property belonging to children that is not related to their joint property. Such a condition cannot be included in this document, because They do not have the right to dispose of their children's property. Parents are exclusively representatives of the legitimate interests of their children until they reach adulthood.
Division of joint property in marriage through the court
Couples who have not been able to peacefully agree on the division of property usually go to court, but the need for division has arisen due to an upcoming divorce. You can initiate the division of property owned by spouses in court by filing a claim with this authority.
The court usually adheres to the rules established in the RF IC and decides to divide the property acquired by the spouses during marriage in half. However, before making a decision, the court considers all the circumstances of the financial condition of each party:
- presence of minor children;
- the amount of contribution of each spouse to the family budget;
- the presence of debt obligations of one of the spouses and the history of their occurrence. For example, a mortgage loan was issued for a joint property.
If a claim is filed for the division of specific property, for example, a built house, then depending on its value, the claim should be filed either in the magistrate’s court or in the district court. If the value of real estate is up to 100 thousand rubles, the division can be carried out in the magistrate’s court. If the cost of the object exceeds 100 thousand rubles, you will have to contact the district judicial authority.
The following documents must be attached to the statement of claim:
- a copy of the marriage certificate;
- certificate of ownership of real estate to be divided or transferred into the ownership of the other spouse;
- a document on the estimated value of real estate and all property subject to division, listing all objects;
- payment document confirming payment of the duty.
You may also need other documents, for example, an extract from the accounting department about earnings, if there are children, their birth certificates, etc.
After the court makes a decision, it must be presented to Rosreestr for re-registration of rights to real estate.
How to file a claim
We have already written more than once in our publications that statements of claim do not have a strict form, but must be drawn up in accordance with the requirements of Article No. 131 of the Code of Civil Procedure of the Russian Federation. This implies written form, the absence of spelling errors, blots, corrections, business style and consistency of presentation, and the presence of certain information.
Samples of such statements of division can be found on the Internet and rewritten, adapting them to your specific situation. Or seek help from a lawyer who will help you draw up a claim correctly, or indicate the address for safe downloading of the sample.
The claim must contain the following information:
- Official name of the judicial body
- Details of spouses and place of residence
- Date and place of marriage
- Information about joint children
- List of property requiring division (indicating whether it is joint property or personal property that has increased its value as a result of a common contribution)
- The cost of each property
- Who lays claim to this or that property, who uses it more, who initiated the acquisition or made a greater contribution
- Proposals on the method of dividing property (what property goes to whom)
- List of attached documents
- Date of filing and signature of the plaintiff
