Marriage contract and children: division of children, transfer of property after divorce

A marriage contract is an agreement between 2 persons entering (or already entering) a marriage union, which determines the property responsibilities and rights of the parties (husband and wife). This document, in accordance with the requirements of the law, can be executed only before marriage or when citizens have already concluded it, but not after a divorce. For the first time, people began to talk about the possibility of registering a marriage contract in the Russian Federation in 1994. Since then, many married couples have taken advantage of the opportunity and entered into such agreements. Often, before drawing up such agreements, the parties are interested in such a topic as “prenuptial agreement and children”; in this case, a number of nuances need to be taken into account.

• Is it possible to include the rights and obligations of children in the contract?
• How to regulate parental rights without a marriage contract?
• Marriage contract and children, as a suspensive and dispensable condition

Does a marriage contract regulate the rights of children?

The concept of a marriage contract is strictly reflected in Art. 40 IC RF. This legislative norm provides that a marital contract is an agreement between citizens registering official relations on issues related to property rights, responsibilities of husband and wife during their marriage and in the event of divorce. Thus, this definition emphasizes that a marriage contract can only regulate those relations that are related to property.

IMPORTANT

Part 3 art. 42 of the RF IC indicates that the provisions of a marital contract cannot regulate personal relationships between husband and wife, as well as relate to the rights and obligations in relation to joint offspring. This suggests that a marriage contract cannot regulate or provide for the rights of children.

Topic 8

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Collection of alimony before the resolution of disputes by the court - in a case of collection of alimony, the court has the right to make a decision on the collection of alimony before the court decision enters into legal force; when collecting alimony for minor children - before the court makes a decision on collecting alimony.

Who will the children stay with under the marriage contract?

Determining the place of residence of children during a divorce can be done in two ways: voluntarily by agreement of the parties, or in court. The specific option chosen depends on the relationship between husband and wife. If we are talking about a voluntary arrangement, the spouses must enter into an agreement, but not a marriage contract. Part 3 art. 43 of the RF IC strictly states that a marriage contract cannot regulate the relations of parents in relation to joint daughters and sons. Issues concerning the place of residence of the offspring of a separating couple are regulated by the rules of the agreement on children concluded after the divorce.

Guardianship and trusteeship of children

It would seem that, while doing a good deed, a citizen who wants to take custody or guardianship of a child in need should not encounter obstacles on his way. Unfortunately, the “bureaucratic machine” sometimes not only does not help in the implementation of plans, but also hinders in every possible way.

In paragraph 3 of Art. 145 of the RF IC states that all relations arising with the establishment, implementation and termination of guardianship and guardianship are regulated by the Civil Code of the Russian Federation, the Federal Law of the Russian Federation “On the guardianship and trusteeship of children” and other regulations. According to paragraph 1 of Art. 35 of the Civil Code of the Russian Federation, these relations fall within the competence of the guardianship and trusteeship authority at the child’s place of residence. If the child, at the time of making the decision to appoint a guardian (trustee), already lives at the latter’s place of residence, the guardianship and trusteeship body located at the child’s place of residence has the right to transfer the ability to make decisions to the same body that is located at the place of residence of the guardian (guardian).

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What conditions about a child can be specified in a marital contract?

The content of the marital agreement is provided for in Art. 42 IC RF. Thus, Part 2 of the above article indicates that the rules of the contract may regulate the following aspects:

1. Rights and obligations regarding the material maintenance of spouses.
2. Options and ways for each marriage partner to participate in each other’s expenses.
3. The procedure for incurring mutual expenses after registering a marriage.

Attention
Based on the provisions of Art. 42 of the RF IC, we can conclude that a marriage contract cannot contain provisions regarding children, even in terms of alimony. At the same time, the norms of the marital contract may regulate the obligations for mutual maintenance of the husband and wife.

At what age is guardianship established?

Guardianship can be established over a teenager who has reached the age of 14.

With the onset of adulthood, a young person can begin an independent life.

Some families take on guardianship solely for selfish purposes - the benefit can significantly improve the family budget.

However, most guardians love, care for, and raise their “adopted” children freely and wholeheartedly.

Relations between adults and children are regulated by guardianship authorities; in case of violation of the rights of a minor, the contract is immediately terminated.

What do children mean as a suspensive and suspensive condition in a marriage contract?

Suspensive and dispensable conditions in a marriage contract are factors that influence the implementation of transactions depending on any event. The suspensive property is used in the process of implementing a marital contract, depending on the occurrence of one or another factor. For example, the birth of a baby may be the basis for transferring an apartment into the ownership of the mother. The birth of a newborn can be used in the following aspects:

1. Distribution of the property mass of spouses after divorce.
2. Transfer of property into the ownership of the child.
3. Distribution of common items of spouses among joint children.
4. Rights of children from other previous marriages.

IMPORTANT
The dispositive condition is the opposite of the suspensive condition. Thus, children act as a basis for terminating or changing the provisions of the marriage contract. For example, if a marital contract and registration of the official relationship between husband and wife were implemented during the woman’s pregnancy, the man can include in the document a condition for conducting a DNA examination. If the investigation shows that the newborn is not the father's natural child, the transaction is canceled and the provisions of the prenuptial agreement are no longer valid.

If a husband and wife have decided to use the birth of children as a suspensive or disqualifying condition in a marital contract, in order to avoid mistakes when drafting a document, it is better to take advantage of a free legal consultation on our website. If you make some mistakes during registration, the marriage contract will be declared invalid in court.

Resolution of disputes and conflicts

Often, the text of the agreement drawn up during a period of happy family relationships is the basis for disputes during the divorce process. This is explained by the fact that the rights and interests of each of the parties become much more significant, and someone may consider that the terms of an agreement drawn up many years ago are not fair or correct.

To get out of this situation, divorcees can change the terms of the contract by going to court. The court may decide to change the text of this document, or terminate the agreement if this action is provided for by the claim . In some cases, the terms of the agreement may be declared invalid.

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Thus, the fact of an agreement is not an obstacle to initiating the division of joint property in court.

Normative base

Issues related to the procedure for concluding a marriage contract, as well as certain aspects about children, are strictly regulated by the provisions of the legislation of the Russian Federation. In order to understand all the intricacies, one must understand the entire legal and regulatory system of the state.

How to conclude a prenuptial agreement with property for children?

Part 2 art. 41 of the RF IC indicates that a marriage contract must be concluded in writing and must also be certified by a notary. Thus, in order for a marital contract with property for children to be recognized as legal, it is necessary to contact a specialist at a notary’s office. At the same time, the law does not reflect rules on jurisdiction, that is, the husband and wife have the right to contact any specialist.

The list of papers required to draw up a marriage contract with property for children is not reflected at the legislative level; each situation is individual. The most general list of documents, based on practice, is as follows:

1. Passports of both spouses.
2. Child's birth certificate.
3. Marriage registration certificate, if registered.
4. Documents confirming ownership of the property, if necessary.
5. Certificates from place of residence.
6. Draft marriage contract.
7. Certificates about the baby’s health status – if necessary.
8. Documentation indicating the existence of loans.

Attention
Before certifying and signing a marriage contract with property for children, spouses are recommended to consult a notary for advice. The specialist will analyze the situation and establish a list of documents that must be provided at the reception.

Guardianship and trusteeship of minor children

The law does not oblige you to independently obtain a certificate from the Department of Internal Affairs (conviction of criminal record), Pension Fund and Housing Administration. The Guardianship Council may request them. But it is better to take care in advance to prepare all the documents for registration of guardianship, this will speed up the registration process somewhat.

The Guardianship Council always gives preference to the closest relatives if they meet other criteria. In addition, the procedure for registering guardianship of a child establishes the consent of the person under guardianship with the chosen candidate for guardianship. It is worth noting that the procedure for registering guardianship prohibits the following persons from being guardians:

Sample marriage contract with children

A marriage contract is the most important document that has priority for spouses compared to other provisions of the law. A well-drafted project is the key to a successful deal between husband and wife. In this regard, a married couple can seek the help of a notary or other lawyer, for example on our website, when drawing up a draft marital contract. In the event that citizens are oriented in the current legislation, it is not prohibited to form a marriage contract on their own. This issue is resolved at the discretion of the spouses.

An indicative sample of a marriage contract with children can be found

Spouses will need to supplement the proposed version of the draft marriage contract with relevant information about property and children individually for each specific situation. If the parties decide to use the services of a notary to draw up a document, there is no need to prepare the form themselves.

The bottom line: what does it do and why is it needed?

A prenuptial agreement plays an important role and protects the property of the spouses. Why is it needed? Often during the divorce process, couples hold resentment and anger towards each other and fail to assess the situation rationally. The husband and wife want to win as much capital as possible in their favor. In this case, it may turn out that one spouse is left with nothing. In this case, a marriage contract is needed; it acts as a guarantor of rights.

If the agreement assigns certain property to each of the spouses, then litigation can be avoided. The contract also allows you to maintain good relations in the event of a divorce.

According to the Family Code, a marriage contract regulates only property relations between spouses. You cannot include such conditions as: communication with children, abstinence from alcoholic beverages, housekeeping, etc. Is a prenuptial agreement good or bad, what are the pros and cons of concluding one? Find out more below.

pros

What is the advantage of confinement? An agreement between spouses has many advantages for concluding:

• it can be drawn up both before marriage registration and on any day after;
• the presence of a contract will protect you from conflicts when terminating a relationship;
• the ownership of property by a specific spouse is clearly established;
• the contract only applies to property acquired during the marriage;
• material relations are streamlined: each spouse understands what he will be left with after the divorce;
• it is possible to keep the property if problems arise due to the loans of the second spouse: with common joint property, all debts are divided equally.

Minuses

When concluding a contract, there are also negative aspects:

• in our country it is not customary to discuss the financial part before the wedding: it is considered selfish and indecent;
• payment for notary services: the transaction is subject to notarization and all changes and its termination, frequent visits to the notary will affect the family budget;
• complexity of formulation: all points must be clearly formulated in order to avoid double interpretation; ambiguities may lead to the invalidity of the document;
• the agreement regulates only property relations; for example, they cannot establish custody of children.

Is it profitable to conclude?

In what cases is imprisonment appropriate? The contract is beneficial to those couples who own a business or significant financial assets. Notarization costs are negligible compared to legal fees and family disputes.

However, the benefits of a prenuptial agreement can also be enjoyed by couples with average incomes. It regulates the property areas of married life: purchase and sale, loans, income and expenses, etc.

Registration procedure

The procedure for drawing up and signing a marriage contract with children is quite simple, which means the algorithm of actions will be as short as possible. A husband and wife who decide to enter into a marital contract must do the following:

1. Discuss all the provisions that are supposed to be included in the structure of the document. As part of a marriage contract with children, a variety of rules regarding the property rights of the parties may be provided. For convenience, it is recommended that all requirements be expressed in writing.
2. Prepare the necessary documents - it is advisable to clarify the list of papers with a notary in advance. The most generalized list is as follows: marriage certificate (if available), documents confirming the birth of children, deeds of title to the property of the husband and wife.
3. Choice of a specialist - the law provides freedom of choice for spouses, that is, citizens have the right to contact absolutely any notary, regardless of place of residence and other conditions. This right is strictly regulated by Art. 40 Federal Law “Fundamentals of legislation on notaries”.
4. Make an appointment with a specialist, show up at the appointed time and confirm the authenticity of the document with signatures. Both spouses must be invited to sign a marriage contract with children. The notary prepares three copies - one for each spouse, the third remains in the archive.
5. Pay for the services of a specialist in accordance with the tariffs established by law.

From the moment of signing, the marriage contract takes legal force, that is, comes into effect, unless otherwise stated in the document itself.

If the provisions of the contract in any way affect the obligations of the spouses, it is necessary to send a copy of the document to the credit institution to notify creditors.

Is it possible to allocate shares of property to children under a marriage contract?

According to the rule established by Art. 42 of the RF IC, the provisions of a marriage contract can change the established regime of joint property of spouses, which means that one of the shares of property can be transferred to a child or several children. In order to allocate a part of the property and transfer it subsequently to a minor offspring under a marital contract, you must do the following:

1. Discuss all the conditions of division, that is, establish the size of the share that will subsequently be transferred to the child under the marriage contract.
2. Collect the necessary documents: birth certificates of the baby and marriage registration of the spouses, acts confirming ownership of the apartment, certificate of family composition, loan agreement if available. The notary can supplement this list with additional documents.
3. At the appointed time, the husband and wife should appear to the specialist and sign the documents.
4. Draw up new acts of title, indicating a minor child as the owner of the property.

IMPORTANT
A marriage contract is a document that primarily regulates the rights and obligations of spouses in relation to each other. If we are talking about children and the allocation of a share of property, an agreement is most often concluded, which is also certified by a notary.

Is it possible to determine shares in an apartment for children in a marriage contract?

Within the meaning of Art. 42 of the RF IC, the provisions of the marriage contract can regulate the regime of ownership of the property of the husband and wife, as well as the procedure for its distribution in the event of termination of official relations. Thus, the norms of the document in question may fix the size of the shares of the apartment for children.

In order to determine shares in the apartment for children by marriage contract, the following should be done:

1. Discuss the provisions of the marriage contract, the size of the shares of the apartment that become the property of the children.
2. Collect a package of documents, checking the list with a notary in advance.
3. At the appointed time, contact a specialist, sign the document and certify it, receiving a copy for each spouse.
4. Contact the MFC branch or the territorial division of Rosreestr, registering the new owner’s right to the property. This point is very important; the child’s right to part of the apartment must be documented.

Attention:
If a marriage contract has been concluded between the spouses, you can draw up a gift agreement for the child. This option will be quite simple, because the transaction for donating an apartment does not need to be certified by a notary.

Can alimony be included in a marital contract?

According to Part 1 of Art. 42 of the RF IC, spouses in the provisions of the marriage contract have the right to establish rights and obligations for mutual maintenance. Thus, if we are talking about alimony for a wife (husband), it is possible to include appropriate provisions in the agreement. At the same time, financial obligations towards a child cannot be regulated by the norms of a marital contract.

If the spouses have decided to peacefully establish the amount, procedure and specifics of child support obligations, it is necessary to draw up an agreement, but not a marriage contract.

Guardianship and trusteeship

At the same time, the guardian or trustee has the right to independently determine the ways of raising the child, taking into account the child’s opinion and the recommendations of the guardianship and trusteeship authority, and demand the return of the child from any person who holds him not on the basis of the law or a court decision. He has no right to prevent the child from communicating with his parents and other relatives, except in cases where such communication is contrary to the interests of the child.

Guardianship and trusteeship are established over children who are left without parental care, and guardianship is established over a child under fourteen years of age, and guardianship over a child aged from fourteen to eighteen years. Guardianship and trusteeship of a child are established by the guardianship and trusteeship authority, as well as by the court in cases provided for by the Civil Code of Ukraine.

What happens to the prenuptial agreement with children in the event of a divorce?

According to the rule of Part 3 of Art. 43 of the RF IC, after the divorce is registered with the registry office, the marriage contract ceases to be valid. In the event that the document reflects provisions regarding the obligations of the husband and wife occurring after the breakup of the family union, the marital contract does not terminate. For example, when the norms of a marriage contract provide for the transfer of property to a child, after a divorce, ownership is formalized and the share of the property is transferred to the new owner or his representative.

What rights does a guardian of a minor child have?

Employers are vested with quite broad powers in this sense. All measures permitted by law aimed at providing benefits have the right to exist. At the same time, infringement of the interests of the guardian - and, consequently, the interests of the ward - is unacceptable .

In accordance with the legislation, the guardian does not have the right to dispose of the child’s property (since there is no right of ownership) - in particular, he cannot sell (donate, mortgage, exchange) the ward’s apartment .

Children in a prenuptial agreement before birth

Part 1 art. 42 of the RF IC indicates that the norms of a marriage contract may regulate the procedure for the distribution of spouses’ property, both existing and future. This rule is called a suspensive property, which is applied to a contract depending on the occurrence of one or another factor. Thus, a marriage contract comes into force after a certain event occurs, most often the birth of children. Spouses can include provisions in the contract regarding the division of property for an unborn child, but the provisions come into force only after the birth of the baby.

Can parents regulate their child support responsibilities?

Despite the ban on regulating personal disputes related to raising children, legislators allowed parents to independently agree on the following issues:

1. In what shares do parents provide for their common child?
2. From what funds should spouses allocate money to purchase for their children: Baby food;
3. Personal wardrobe items;
4. School supplies;
5. Medicines, etc.

The Family Code allows spouses to independently distribute the family budget, which includes child support expenses.

Most often, spouses agree on the division of material responsibilities for providing for the child, depending on the financial capabilities of each while maintaining the family budget separately. For example, the father pays for private school and additional education and related expenses (stationery, school and sports supplies), and the mother buys the child toys, food and clothing.

Problems and nuances

A marriage contract is a phenomenon that is becoming increasingly relevant and widespread in the Russian Federation, however, regarding children, the provisions of the contract have some features that should be taken into account:

1. Minor offspring, in most cases, act as a suspensive or disqualifying condition, that is, they are prescribed as conditions for the validity of the contract.
2. If there is a need to transfer a share of property to a child, it is recommended to draw up an agreement or a gift deed.
3. A change or early termination of a marriage contract is possible only in notarial form.
4. The norms of a marriage contract cannot regulate the rights and obligations of parents in relation to a minor child, including alimony.
5. Reflection in the marriage contract of norms relating to the rights and obligations in relation to the child is grounds for invalidating the document.