Written and oral form of the marriage contract, its concept and content

Legal regulation of marriage contract in Russia

Issues of concluding, maintaining, amending a marriage contract, as well as issues of declaring it invalid are regulated by a separate chapter of the Family Code of the Russian Federation, namely Chapter 8, which is called “Contractual regime of property of spouses”.

It is worth immediately noting that despite the worldwide popularity of this institution, in Russia the concept of a “nuptial agreement” appeared relatively recently: in the Civil Code the possibility of concluding such an agreement was first mentioned in 1994, and in the Family Code - in 1996.

Can a contract determine personal non-property aspects of life?

Let's consider what is not subject to regulation by the contract, what issues of family life it cannot determine. A marriage contract cannot regulate non-property relations – that is, those relations that are not expressed in money. Examples of such non-property relations may be:

form and methods of spouses’ participation in raising children;
distribution of responsibilities in housekeeping;
determining the time and place for joint recreation;
obligations to give up “bad habits.”

The contract cannot include conditions for divorce in the event of infidelity of one of the spouses, as is practiced in the laws of some other countries. Thus, the contract cannot stipulate unfavorable conditions for divorce for the guilty party.

Drawing up a marriage contract is still not very common in Russian practice - only 14% of respondents , according to the results of surveys conducted by the Higher School of Economics in 2020 and 2020, spoke in favor of the need to conclude such agreements between spouses.

However, judicial practice shows that the number of peaceful divorces, during which neither party would feel disadvantaged or offended, is negligible.

As a rule, property becomes the subject of bargaining and manipulation; for such situations, the presence of a marriage contract would be far from unnecessary. Moreover, the agreement initially implies a fair approach to the regulation of property relations, rights and obligations, can only be signed with the full voluntary consent of the spouses, and must be notarized.

We talked about whether notarization of a marriage contract is necessary here, and from this material you will learn how much the services of notaries and lawyers can cost when drawing up this document.

Features of a marriage contract in Russia

The main features of a marriage contract in Russia can be outlined as follows:

Firstly , a marriage contract in Russia can only determine property rights and obligations. That is, non-property issues are not regulated by a marriage contract in Russia. And this significantly distinguishes the Russian marriage contract from the European one. What does it mean?

For example, a marriage contract in Russia cannot specify with whom the children will live if their parents divorce. Also, issues related to love, fidelity or moral support cannot be specified in the marriage contract.

What then might it contain? This question is answered by Article 42 of the RF IC:

“Spouses have the right to determine in a marriage contract their rights and obligations regarding mutual maintenance, ways of participating in each other’s income, and the procedure for each of them to bear family expenses; determine the property that will be transferred to each of the spouses in the event of divorce, and also include in the marriage contract any other provisions relating to the property relations of the spouses.”

Secondly , a prenuptial agreement can be concluded both before and during marriage. If it is concluded before the marriage, it does not come into force immediately, this is stated in Article 41 of the RF IC: “A marriage contract concluded before the state registration of the marriage comes into force from the day of the state registration of the marriage.”
Thirdly , the marriage contract defines the property rights and obligations of the spouses not only in the event of divorce, but also during marriage. Although, of course, a prenuptial agreement is most often resorted to precisely in the event of the end of a marriage, including in the event of its dissolution.
Fourthly , the marriage contract must be concluded in writing. The text of the agreement must specify all the essential terms agreed upon by the parties.
Fifthly , the marriage contract must be notarized. During certification, the notary explains to the spouses their rights and obligations, the meaning and significance of the concluded agreement.
Sixth , a marriage contract can be concluded both in relation to the existing and future property of the spouses.
Seventh , a marriage contract may limit rights and obligations to certain periods or make them dependent on the occurrence or non-occurrence of certain conditions, if the spouses have agreed on this.
Eighth , the marriage contract should not contain some conditions specified in the law.

Procedure for preparation and required documents

You can draw up an agreement in one of the following ways:

and adjust it at your own discretion;
Contact a law firm for advice and drawing up a competent agreement;
Compose the text with a notary.

A visit to a notary when concluding a contract is a mandatory procedure. Without notarization, the document will not be considered valid .

Before going to a notary, you should prepare the passports of the spouses, a marriage certificate, and documents on the ownership of property.

The exact list of documents will be provided by the notary completing the transaction. To conclude an agreement, spouses will have to pay a state fee of 550 rubles and technical work provided by a notary.

What cannot a marriage contract contain?

A marriage contract in Russia cannot contain certain conditions that may be regarded as illegal or unfair. A marriage contract cannot:

limit the legal capacity or capacity of spouses, their right to go to court to protect their rights. This also includes a ban on working;
regulate personal non-property relations between spouses, the rights and obligations of spouses in relation to children;
provide for provisions limiting the right of a disabled, needy spouse to receive maintenance;
contain other conditions that place one of the spouses in an extremely unfavorable position or contradict the basic principles of family law.

Rights and obligations of the parties

The subject of the marriage contract also includes the rights and obligations of the parties in terms of forming a family budget and supporting each other. The section includes the following items:

The percentage of income that each spouse must spend on general family needs. In this case, the list of income that is subject to division can also be defined in the contract.
Maintenance of a spouse in case of incapacity for work. The procedure for maintaining a wife during pregnancy and up to a certain age of the child is often separately distinguished.
Amount and order of maintenance after divorce . However, this item can be enabled regardless of whether the recipient is working or not.

The procedure for owning property, as well as any rights and obligations that are not defined in the marriage contract, are regulated by the norms of current legislation.

Why is a prenuptial agreement important?

A marriage contract can change the legal regime of the spouses’ property, as is expressly stated in the legislation. Paragraph 1 of Article 33 of the Family Code of the Russian Federation contains the provision that “the legal regime of the property of the spouses is valid unless otherwise established by the marriage contract.”

To what regime can the legal regime of joint ownership be changed? Article 42 of the RF IC states that, in addition to the joint ownership regime, a marriage contract may establish:

Shared ownership regime;
Separate property regime.

Important: Regimes can be established both in relation to the entire property and in relation to its individual parts.

It turns out that a marriage contract gives spouses much more freedom in terms of regulating property rights than the regime of joint property under the law.

Also, a prenuptial agreement makes it possible to facilitate the process of dividing property in the event of a divorce. If a divorce does not occur, a prenuptial agreement allows you to regulate the property rights and obligations of the spouses during the marriage, which also allows the spouses to come to an agreement on all property issues that could become a cornerstone in the absence of a prenuptial agreement.

Who can enter into an agreement

The agreement can be concluded both by people planning to start a family, and after marriage .
If a prenuptial agreement is drawn up before marriage, then the date of commencement of mutual obligations is considered to be the wedding day. A contract drawn up by spouses during their marital relationship begins to be valid from the date of signing .

The following are not entitled to enter into a contract:

citizens of the same sex - same-sex weddings are prohibited in Russia;
close relatives, adoptive parents and adopted children;
persons who are in a so-called “civil marriage” and do not intend to legalize their relationship;
persons without legal capacity;
persons under marriageable age;
if at least one of the parties to the contract is married to another person.

In other cases, the law permits the transaction.

Subject of the agreement

The subject of the marriage agreement is the property and financial relations of the spouses.

Financial relations - cash income (salaries and pensions, bank deposits, profits from business activities) and family expenses (debts, loans, mortgages, loans). The contract stipulates the rules for drawing up a family budget, and the obligation of one spouse to provide for the other.

Property relations include the division of the rights of spouses to movable and immovable property of the family, the determination of the conditions for joint ownership of things purchased during marriage.

The contract specifies all real estate, cars and land plots already available and planned for acquisition. The agreement specifies what property goes to each spouse in the event of a divorce.

By law, everything acquired during marriage is considered common and is divided equally upon divorce.

The contract will help establish a fundamentally different procedure for the distribution and use of property:

joint - used when the property was owned by each of the spouses before marriage;
separate - when everything that is purchased with the wife’s funds is her property. The same applies to the husband's property.
shared – the percentage share of each spouse is established both in jointly acquired property and in property acquired in the future.

Is it possible to change or terminate a marriage contract?

Of course you can!

A marriage contract can be changed or terminated at any time by agreement of the spouses or by a court decision. Since, at its core, a marriage contract is a bilateral transaction, all conditions regarding the invalidity of transactions are applicable to it, which is why the court may declare it invalid in whole or in part if certain conditions are met. It is not allowed to unilaterally refuse a marriage contract.

The agreement to amend/terminate the marriage contract must also be drawn up in writing and subject to notarization.

As a general rule, a marriage contract terminates from the moment the marriage ends, but the marriage contract itself may contain other conditions for its termination, so there are exceptions to this rule.

Validity of the marriage contract

A prenuptial agreement comes into force in two ways:

when drawing it up before registering a marriage - on the day of actual registration;
when drawing it up during the existence of a marriage relationship - from the day of its notarization.

A marriage contract is valid throughout the entire marriage, and in some cases, if provided for in the contract, even after the end of the marriage relationship. Unless otherwise stipulated by the concluded agreement, the marriage contract terminates upon registration of the dissolution of the marriage relationship (Article 43 of the RF IC). If the marriage is declared invalid by the court, then the contract is automatically invalidated (clause 2 of article 30 of the RF IC).

But, nevertheless, the document can be edited, so new circumstances that arise during the marriage can be included in the contract at any time and also notarized. In addition, the contract can be canceled if the spouses wish.

Article on the topic: amendment and termination of the marriage contract.

Commentary on Article 40 of the RF IC

One of the innovations that appeared in Russian family legislation in connection with the introduction of the Family Code of the Russian Federation is the marriage contract. Although the majority of the marriage contract has been in effect for a long time, it should be recognized that the institution of a marriage contract has not yet found wide application in Russian legal practice.

The institution of the marriage contract introduced into family law the flexibility necessary for complex social connections; spouses, of their own free will, can choose the property regime that, from their point of view, will most contribute to the realization of their property interests. At the same time, in a marriage contract it is possible to use both legal and contractual regimes of jointly acquired property in marriage. For example, the contract can indicate that certain types of property will be subject to legal regime.

The prenuptial agreement is subject to the rules of both civil and family law. Since a marriage contract is one of the types of civil law contracts, the regulation of relations related to a marriage contract can be carried out exclusively by the Russian Federation.

It can also be defined as a mixed contract, since it may contain a combination of elements of various contracts provided for by law or other legal acts. The agreement may include both civil law (for example, donation, gratuitous use of property, etc.) and family law agreements (the establishment of a particular legal regime in relation to certain property of the spouses, an agreement on the division of marital property, an agreement on determining shares in marital property, etc.).

One of the features of a marriage contract is its complex nature. It regulates two types of relations, namely: 1) the rights and obligations of spouses regarding property and 2) the rights and obligations for mutual maintenance of each other. However, being a type of civil law contract, a marriage contract at the same time has very significant specifics - it differs from other civil law contracts: 1) in its special subject composition, 2) subject and 3) content.

The nature of the relationship, established between its subjects even before the conclusion of the marriage contract and defined in the literature as personal-trust, since we are talking about relationships that have developed in the family legal sphere, is also its specific feature. As a result, some foreign lawyers define a marriage contract as a personal, or intimate, contract <5>. ——————————— <5> Weitzman L. The marriage contract. The Free Press. 1981.

For the first time, the conclusion of a marriage contract became possible after the Civil Code of the Russian Federation came into force, i.e. from January 1, 1995 In Art. 256 of the Civil Code of the Russian Federation states that “property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for matrimonial property.”

It can be concluded by both spouses and persons entering into marriage. We have to agree with L.B. Maksimovich is that the term “persons entering into marriage” used in Art. 40 of the Family Code of the Russian Federation, is not entirely successful, because makes it possible to assume that the parties must marry, if not immediately after the conclusion of the marriage contract, then at least in the near future after its conclusion.

In fact, the law does not contain any restrictions or instructions on how soon after the conclusion of the contract the marriage must be registered.

It should be noted that in other countries, concluding a marriage contract is only possible for persons who are already married. So, according to Art. 1408 of the German Civil Code, a marriage contract can only be concluded by spouses, that is, by persons already married.

There are a number of additional conditions and restrictions for persons entering into a marriage contract. Only persons of different sexes can enter into a marriage contract, since same-sex marriages are not allowed in Russia, and in the absence of obstacles to marriage established by Article 14 of the Family Code of the Russian Federation.

To enter into a marriage contract, a person must have legal capacity and reach marriageable age. However, both in theory and in practice, the question arises about the possibility of concluding a marriage contract by persons who have received permission to lower the marriageable age, have already married before reaching 18 years of age, or are emancipated. It seems that with regard to minors who are already married, the issue should be resolved positively - they are already spouses, have full legal capacity and, in this regard, can easily regulate their property legal relations, including by concluding a marriage contract.

As for the emancipated, the situation is as follows. In accordance with Art. 27 of the Civil Code, emancipation is the declaration of a minor who has reached the age of 16, working under an employment contract or, with the consent of his parents, engaged in entrepreneurial activity, as fully capable. The purpose of emancipation is to make a minor a full participant in civil transactions. The joint Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation” emphasizes that “a minor declared emancipated in accordance with Art. 27 of the Civil Code of the Russian Federation, has full civil rights and bears responsibilities, with the exception of those rights and obligations for the acquisition of which an age limit is established by federal legislation” (clause 16).

Thus, an emancipated minor can enter into a marriage contract, which is a type of civil legal contract, if he gets married.

The issue of the right of an emancipated minor to marry on this basis is resolved differently. Since emancipation changes the status of a minor only in the sphere of property relations, its presence in itself does not have any impact on the marital capacity of the emancipated person. It follows that an emancipated minor must obtain a marriage license.

The question of whether citizens with limited legal capacity, as well as guardians of incapacitated married persons, can enter into a marriage contract is not regulated in any way by the Family Code of the Russian Federation, and therefore it is resolved ambiguously in the theory of family law.

As for guardians of incapacitated married persons, it must be concluded that such agreements can be concluded. This is due to the fact that the legislator allowed the guardian to enter into property agreements for his wards. It would therefore be illogical to make an exception for prenuptial agreements.

The issue of concluding a marriage contract by a person with limited legal capacity should be resolved similarly. Since such persons can enter into transactions with the consent of the trustees, they can also enter into marriage contracts after receiving such consent.

The conditions and procedure for concluding marriage contracts established by Chapter 8 apply to marriage contracts concluded after March 1, 1996. Marriage agreements concluded before March 1, 1996 are valid to the extent that they do not contradict the provisions of the Code (see commentary to paragraph 5 of Article 169 of the Family Code).