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Published: 02/16/2018
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The belief that “marriages are made in heaven” does not prevent spouses from signing agreements on the distribution of property.
- Marriage contract
- Purpose of the marriage contract
- Pros and cons of a prenuptial agreement
- Pitfalls of a marriage contract
A clear indication of what jointly acquired property will go to the husband and wife after a divorce, as well as the responsibilities for mutual financial support and other nuances important for a married couple, simplifies the divorce procedure and avoids unfounded claims.
Basic information
A marriage contract is an agreement between spouses or persons who plan to register their marital union in the near future. This document defines the property rights and obligations of the spouses both during their lives together and after the divorce.
The marriage contract must be signed by both parties to the agreement, and then certified by an employee of a notary agency.
What can be written in the text of a marriage contract? The agreement should include such information.
- Spouses specify which property is common property and which is private. For example, if the document indicates that the owner of the apartment is a woman, then after the dissolution of the marriage, her ex-husband will not have the right to apply for housing.
- You can indicate those property objects that the couple only plans to purchase in the future. It will be necessary to register who will be the owner, for example, of a car, and who will need to allocate additional financial resources for its maintenance.
- It should also be stated under what conditions the able-bodied spouse will provide for the disabled person, including after the dissolution of the marital relationship. You will need to write a specific monetary amount of benefits in the minimum wage.
Also, spouses have the right to indicate the amount of financial support that one spouse will provide to the other, even if he is able to work and does not need anything.
In addition, current domestic legislation establishes conditions that are prohibited from being included in a marriage contract:
- conditions that limit the rights or capacity of a particular spouse (for example, the wife will be forced to quit her job to become a housewife, or either of the couple will be prohibited from protecting their rights by initiating legal proceedings);
- conditions that are contrary to the Family Law of the Russian Federation put one of the couple in an unfavorable position.
The marriage contract can be changed and supplemented. Each new adjustment requires certification from an employee of a notary agency. It is possible to change the marriage contract either through a peaceful agreement or through going to court.
The same applies to the termination of a marriage contract. If one of the spouses realizes that in order to cancel the document he will need to go to court, then the following steps must be taken:
- draw up a claim;
- prepare a package of necessary documentation;
- pay the state fee (its cost is 300 rubles).
Once the judge has granted the claim, the marriage contract will be dissolved and marital property obligations will be terminated.
Benefits of having a prenuptial agreement
The point of drawing up a marital contract is that the spouses seek to protect themselves from possible property problems in the future if their life together leads to divorce. You should not assume that the husband and wife are preparing in advance for the dissolution of their marriage by drawing up this agreement.
So, the advantages of a marriage contract include the following:
Protecting your own property
If one of the spouses owned residential premises before registering the marriage, then after the divorce the second spouse may try to divide this property in court. The arguments are different: the plaintiff invested significant amounts of money in repairs, was on maternity leave, cared for children together, etc.
When the marriage contract stipulates that the spouse’s property, which was acquired by him before marriage, remains his personal property during a divorce, then there will be no need to divide living quarters during a divorce.
In addition, this reason for drawing up marriage contracts is often voiced by successful entrepreneurs and owners of expensive real estate and movable property.
Establishing financial obligations of spouses towards each other
Current domestic legislation prohibits stipulating conditions in a marriage contract that would limit a disabled spouse’s ability to receive financial support. The document can specify the amount of cash payments that the second spouse will pay to his ex-husband/wife in the event of a divorce.
Establishing financial obligations of spouses towards their children
Spouses can prescribe in advance that in the event of a divorce, the parent who will live separately from the former family undertakes to pay the children a certain amount of money.
If the alimony holder stops fulfilling his financial obligations, he can be held accountable.
In addition, in the marriage contract you can specify with whom the common minor children will live in the event of a divorce of their parents.
Simplified trial procedure
If a divorcing couple has common minor children, as well as disputes due to the division of property acquired during their life together, then the court, in its decision, will rely on the text of the marriage contract. As a result, court proceedings will be carried out according to a simplified procedure, which will save both the time and money of the spouses.
What is the advantage of the agreement?
- The agreement can be concluded before marriage or at any stage of family life, even if it is the day before the divorce.
- With the help of a prenuptial agreement, you can immediately distribute whose property is where. For example, you can indicate that something purchased during marriage is not considered joint, but is the property of the person with whose money it was purchased.
- It is possible to resolve the issue of ownership of property, which according to the RF IC cannot be divided. This is something that was received by inheritance or under a gift agreement. Spouses can classify this as shared ownership if they wish.
- Since all the conditions for owning property are already spelled out in the marriage contract, during a divorce, controversial issues on this matter no longer arise: everything is divided as it was already agreed and stated in the document.
- Distribute income and expenses - who is responsible for providing for the family, for the purchase of real estate or some expensive equipment, whose funds are spent on some other family needs, and so on.
- Resolve the debt issue. According to the law, debts, like property, are divided in half between spouses during a divorce. But this is not always fair, since one spouse can accumulate loans, and the second will have to pay at least half. So the contract can immediately state that the loans are from the person who took them.
- Maintenance of a disabled spouse. Within 5 years after the divorce, the ex-spouse, if he is in distress and has no relatives, has the right to file for alimony from his ex-husband or wife. This is also not always fair, so you can also indicate this point in the marriage agreement.
On the one hand, this looks somehow cynical: people get married, everything should be together in sorrow and joy, but here is an agreement where everything is written out as if for strangers. But no one can ever be sure that in a few years the spouses will not become strangers to each other, and during a divorce, often all feelings, even those that have passed, are completely forgotten and the division of property begins.
This is important to know: Alimony for the mother of a child under 3 years old: how it is calculated during a divorce
Disadvantages of a prenuptial agreement
These include the following.
- In Russian society at the current time, the following attitude still exists: the presence of a marriage contract indicates the spouses’ distrust of each other. However, experts note that this attitude towards marriage agreements is controversial.
By concluding a marriage contract, spouses indicate their property rights and obligations, which gives them confidence in their own security in the event of unfavorable life circumstances.
- Another disadvantage of a marriage contract is the fact that the spouses will need to regularly adjust the text of the agreement and supplement it, because their financial capabilities and the list of property objects change during their life together.
- The provisions of the prenuptial agreement will need to be followed even if the spouses are hostile to each other after the divorce. Otherwise, the person who violates the terms of the marriage contract will need to be held accountable for his actions.
Disadvantages of a prenuptial agreement
- "Indecent"
- Cost of notary services
- Legislative changes
- The complexity of legal regulation of multifaceted family relationships
- Disputes due to ambiguous wording
- Only property relations
- Divorce mindset
- Manipulation, coercion, deception
- Entry into force
Advantages and disadvantages of a marriage contract briefly: table
Briefly, the pros and cons of a marriage contract can be summarized in the following table.
| Advantages | Flaws |
| 1. Prevention of controversial situations due to the division of property acquired during the marriage or acquired before registration of marriage, if the spouses decided to divorce | 1. There is a strong opinion in society that the presence of a marriage contract indicates a lack of trust between spouses |
| 2. Establishment of financial obligations of spouses in relation to their common children after divorce, to each other (if any of the adults loses their ability to work and needs material support from their ex-husband/wife) | 2. Since the list of property owned by the spouses is constantly changing, they will need to regularly adjust the text of the agreement, adding new features and nuances to it |
| 3. The procedure for divorce in court will be significantly shortened and simplified, since the judge, when making his decision, is guided specifically by the text of the marital contract | 3. If any of the spouses, during their life together or after a divorce, “changes their mind” about fulfilling the financial obligations specified in the marriage contract, then they face corresponding liability |
| 4. The opportunity to preserve their property for those wealthy people who are owners of expensive apartments, cars, profitable businesses, etc. |
Disadvantages of a prenuptial agreement
Expert opinion
Orlov Denis Ignatievich
Lawyer with 6 years of experience. Specialization: family law. Has experience in drafting contracts.
A prenuptial agreement has many positive characteristics. But there are still negative ones. The analysis of this document would not be so objective and comprehensive if only the pros were told and kept silent about the cons.
- "Indecent"
Most of our compatriots consider a marriage contract, borrowed from the “decaying West,” to be something selfish, mercantile, greedy and malicious. In the understanding of many people, discussing the material side of family life is considered simply indecent.
Although, frankly speaking, a prenuptial agreement testifies to the openness and honesty of the relationship between spouses, and not to false “decency.”
- Cost of notary services
The conclusion of a marriage contract requires notarization, as well as making changes or terminating this document. Repeated visits to a notary require a lot of money and a lot of time (see “Drafting a marriage contract with a notary: review of prices“).
- Legislative changes
If significant changes are made to family or civil legislation, the marriage contract will also have to be changed in accordance with the new legal norms. Otherwise it will simply be invalid.
Judicial practice knows cases when, “over the course of time,” a marriage contract has lost its relevance, and therefore its legality. And the spouses had to divide the property under the terms of the new legislation.
- The complexity of legal regulation of multifaceted family relationships
Even with a strong desire, it is impossible to provide for absolutely everything in a marriage contract. It may be necessary to add and amend the contract, which will entail additional costs for legal and notary services.
- Disputes due to ambiguous wording
If the text of the contract contains ambiguous language and ambiguities, this will lead to conflicts, disputes and litigation. In the worst case scenario, the prenuptial agreement may be declared invalid.
Drawing up a legally competent, complete, detailed text of an agreement requires highly qualified specialists, a lot of time and, of course, is more expensive.
- Only property relations
Spouses may find it advisable to include in the marriage contract not only property, but also other important aspects of family life. For example, the procedure for maintaining children during a divorce, the procedure for dividing property in the event of the death of one of the spouses. The law prohibits this.
It is also prohibited to stipulate in the marriage contract personal aspects of the relationship between husband and wife (for example, who takes out the trash, how often to give flowers and perform marital duties).
A marriage contract in which such provisions are found is declared invalid - in whole or in part.
- Divorce mindset
From a psychological point of view, a prenuptial agreement orients spouses towards a likely divorce, thereby destroying trust and devotion between husband and wife. It seems that each of the spouses is trying to “lay out straws” and protect themselves in case of failure in family life.
Expert opinion
Orlov Denis Ignatievich
Lawyer with 6 years of experience. Specialization: family law. Has experience in drafting contracts.
But, on the other hand, it is not very reasonable to expect that love lasts forever and the likelihood of divorce is zero. It is much more advisable to make sure that the divorce does not bring, in addition to disappointment, material losses.
- Manipulation, coercion, deception
There is no guarantee that the process of concluding a marriage contract is completely transparent. Even if outwardly spouses sign documents voluntarily, there is always the possibility of pressure from one of the spouses or members of his family.
This is especially true for so-called “unequal marriages”, which are concluded between spouses with different financial status.
- Entry into force
If a marriage contract is concluded long before the start of family life, it will come into force only on the day of marriage registration.
