Article 34 of the RF IC. Joint property of spouses

Author of the article: Elena Petrenko Last modified: January 2020 2605

According to the law, the legal regime of spouses’ property is divided into two types – legal and contractual. There are differences between them: for example, under a contractual regime, the parties have the right to independently determine who gets what, while under a legal regime, everything is regulated by the Insurance Code and the Civil Code of the Russian Federation. To understand the issue in more detail, it is recommended that you familiarize yourself with the distinctive features and other important nuances.

Legal regime of marital property: general characteristics, concept

Content

The legal regime of property is a regime where the husband and wife use the assets acquired during marriage jointly and have equal rights to them. Unlike the contractual one, where property relations are regulated by the marriage contract, under the legal regime, issues of ownership of property are determined by Chapter. 7 RF IC.

Under the legal regime, common property includes (Article 34 of the RF IC):

• Income from any labor activity;
• Pensions, benefits;
• Movable and immovable property purchased with money received during marriage;
• Shares, deposits, securities;
• Income from business and labor activities;
• Any other property acquired during the marriage.

An apartment purchased after marriage registration will be in joint ownership. Formally, the spouses each own ½, but according to the documents, shares are not allocated. Determination of shares is possible during the division of joint property or by agreement of the parties.

It is important to take into account that property registered in the name of children does not belong to the property of the parents (Clause 4 of Article 60 of the RF IC). The legislation differentiates the property rights of parents and the child, therefore, having registered real estate in his name, it can be re-registered as property in the future only with the consent of the guardianship authorities, subject to the provision of more comfortable housing to the minor.

Note! Even if one does not work and does not receive income, the earnings of the other are considered joint property.

Example:

A man and a woman got married and a child was born. My mother went on maternity leave, my father was working at the time. All money he earns is common property. Despite the distinction between the property rights of parents and children, the legislation establishes the obligation to support minors (Article 80 of the RF IC). In the event of separation, the parent living with the child has the right to recover child support from the spouse.

Moment of emergence of joint ownership

The legal regime begins to operate from the moment the marriage is registered. Things purchased before remain the property of the original owner, and the second spouse cannot lay claim to it. Even if the husband lives in his wife’s apartment or vice versa, in the event of separation, the owner has the right to demand to leave the premises.

Another thing is the disposal of valuables purchased since the establishment of joint ownership. In this case, even in the event of a divorce, both spouses can use the real estate acquired during marriage with equal rights. If they wish, they can divide everything by drawing up a division agreement or going to court.

Briefly: the legal regime gives spouses equal rights to property purchased after marriage. Common property is considered to be any real estate, valuables, shares, pensions, compensation payments, benefits, wages and money in general acquired from this moment on.

When is the contractual regime of property replaced by the legal one?

From the previous section it becomes clear that a marriage contract can be canceled in certain cases. Indeed, this is just one type of transaction, and all the rules of civil law regarding invalidation of a contract are applicable to it.

And the fact that when conditions are included in a contract that put one of the spouses in an extremely unfavorable position, it is possible to challenge the entire contract or a separate part of it, once again confirms the limitation of the principle of freedom of contract.

the legal regime for the property of the spouses , comes into force .

After marriage, everything that the spouses earn becomes their joint property. They must manage their finances together, the same applies to property. Therefore, all major transactions occur with the consent of both spouses. And in some cases, such consent must be provided in writing. All basic rules of ownership, use, disposal and division of joint property are enshrined in family and civil legislation.

How to manage joint property?

The disposal of common property occurs by mutual agreement. A husband and wife can own and use it by agreement, but sales and other transactions will require the notarized consent of the husband or wife (Article 35 of the RF IC). If you sell or donate a car purchased during marriage without the permission of your spouse, he has the right to challenge the transaction in court within 1 year from the moment he became aware of it.

Example:

A married couple bought a car with common money. The title indicates a man as the owner, and the car is registered in his name. However, this does not cancel his wife's rights to the vehicle. If she has a driver's license, she can drive a car on the same basis as her husband, acting by agreement.

Treaty

The concept of a contractual regime carries the following features :

• It gains legal force after the spouses enter into a marriage contract during family relationships or before their registration. The terms of such an agreement may determine the range of property to which it will apply, namely, things and real estate owned by the husband and wife at the time of drawing up the document or in relation to property that may appear in the future.
• The contractual regime provides the opportunity to transform joint property into individual property if the spouses mutually come to such a decision. Also, a marriage contract involves the transition of individual property to the category of joint property. This transaction may determine shared or separate ownership of the property, as well as part of it.
• The marriage contract is drawn up in writing and must be notarized. Otherwise, the document will not be able to gain legal force.
• The duration of a contract may be indefinite, concluded for a specified period, or until the occurrence of certain events. This agreement cannot significantly worsen the welfare of one of the parties who entered into it.

Marriage contract

The concept of a marriage contract means a type of agreement that is concluded between a husband and wife or potential spouses, regulating their property rights and obligations during the marriage, as well as in the event of its dissolution.

Conclusion

The conclusion of a marriage contract can occur not only at any period of the couple’s family life, but also before the official registration of the marriage relationship. However, even if this transaction is drawn up before the wedding, such a document gains legal force only after its state registration.

The agreement provides for a simple written form and requires mandatory notarization.

What can be included in it?

According to practice, a marriage contract may contain the following provisions :

• The procedure for regulating the property rights and obligations of spouses;
• Determining all the nuances relating to the income and expenses of a married couple;
• Methods and procedure for making alimony payments;
• Establishing conditions of a non-property nature, such as deadlines or the occurrence of certain circumstances that may entail specific consequences provided for in the contract.
• Determination of the regime of common ownership (joint, shared or separate), both for all property and for part of it.

Procedure for amendment and termination

According to Art. 43 of the RF IC, spouses can change the terms of the contract or terminate it at any time after signing the document , in particular until the marriage relationship is formalized. To carry out this procedure, the mutual approval of the spouses is necessary, as well as the drawing up of an appropriate agreement in the same form as the contract itself.

A deal that does not provide for any deadlines will lose legal force after the divorce process is completed. It is possible to terminate a marriage contract unilaterally only by a court decision.

Invalidation

Article 44 of the Family Code provides that the grounds for recognizing the invalidity of a contract or part thereof correspond to similar reasons that are relevant for other types of transactions.

Actual problems

The list of the most pressing problems includes disagreements between spouses and psychological discomfort in the family.

For example:

• One earns much more than the other, things are bought with his money. In case of divorce, everything will be divided equally. The same applies when the husband or wife does not work;
• Having actually purchased a valuable item with his own money (and by law it is considered common), the spouse does not have the right to dispose of it at his own discretion. He cannot purchase real estate with them and then donate or sell them to another person without the consent of the other party.

The most pressing problem at the moment is debt obligations. According to Art. 45 of the RF IC, loans issued by one spouse in a marriage are recognized as common. If the debtor stops paying the bank, creditors have the right to seize common property to pay off the debt. Often, one spouse does not even know that the other is taking out loans from financial institutions. It is believed that the borrower, when applying for a loan, acts with the consent of the second, and the courts usually take the side of the banks in debt proceedings.

It is almost impossible for a wife or husband who does not know that their spouse took out a loan from a bank to prove that the money was not spent on family needs and that the borrower acted without their consent.

Example:

After the wedding, the woman wanted to build a house, and her husband supported her in this. Funds from maternity capital received for the second child in a previous marriage were spent on laying the foundation. Later there was not enough money for construction, and she decided to take out a large loan from the bank. The bank approved 1 million rubles for her, because... the salary level was enough for a large sum. She told her husband that the money was inherited, i.e. actually deceived him.

After the divorce, the man decided to divide everything, not knowing about the loan. The ex-wife, in a counterclaim, asked the court to divide the debt obligations, which came as a big shock to him. As a result, the court satisfied the demands of both parties, obliging the man to answer for the debts and dividing the remaining portion of the loan in half.

Briefly: you need to dispose of common property with the consent of the second spouse. If a husband or wife does not work, and values ​​are purchased with the earnings of the other party, they are recognized as common and, when divided, are divided in equal shares.

What property does each spouse own?

In the legal regime, sole property is recognized as property purchased before marriage, as well as acquired during marriage by gift or inheritance (Article 36 of the RF IC).

Other things are not shared:

• Personal hygiene items;
• Clothing and footwear;
• Other personal items, except luxury items;
• Exclusive right to the result of intellectual activity.

People often ask what will happen to real estate acquired during marriage, but with money set aside by the person before registering the relationship. The housing is registered as joint property, but during division the spouse can prove that it was purchased with premarital funds. The likelihood that the court will side with him is high.

Note! Even if the husband gives his wife real estate as a gift, she will not participate in the division, because the owner is only a woman.

Example:

During marriage, a woman received an apartment as a gift from her mother. Then she decided to divorce her husband; they lived together in the donated housing. The total estate for division includes the house purchased by the parties and other valuable items, except for the donated apartment - the court considered the woman to be the sole property.

When are a spouse's belongings considered joint property?

In addition to debts, the property of one of the spouses can be recognized as common property if, during the marriage, investments were made at the expense of the family budget that significantly increased its value (Article 37 of the RF IC).

Example:

A man inherited a private house in the village from his grandmother. Together with his wife, they decided to carry out reconstruction. As a result, housing with an area of ​​50 sq.m. expanded to 100 sq.m. Major repairs have been made, the roof has been replaced. This significantly increases the cost of housing.

A few years later, the wife and husband decided to divorce and divide their property. The man believed that the house would not participate in the division, but the court did not agree with his opinion and, based on the woman’s counterclaim, recognized it as joint property, and also allocated ½ to the parties. At the meeting, the ex-wife provided all the evidence indicating that during the marriage, the cost of housing had increased significantly due to reconstruction and repairs.

Division of property acquired during marriage

In a situation where a married couple decides to end their relationship and dissolve their marriage, the right of common joint property of the spouses comes into force in relation to their property interests, which provides that all material assets received during the marriage must be distributed equally between the spouses parts.

The key provisions of the Civil Code and the Insurance Code establish that the total property mass is divided equally, but in some cases it may not be distributed in equal parts. For example, this will happen in a situation where one of the spouses did not make any contribution to the family budget and lived off the income of the second spouse.

Experts say that the division of marital property is a complex category that requires special attention and a good nervous system.

In order to distribute property as efficiently as possible, it is necessary to draw up a general list of it, as well as determine the shares of contributions of each spouse in it, if there are conditions under which an equal division would be unfair.

It is also worth noting that this issue can be resolved either peacefully or in court. However, in the vast majority of cases, it is the courts that are forced to make final decisions.

How does the legal regime work: until the marriage is terminated, or until the property is divided?

The legal regime begins to operate from the moment of marriage registration and ends after divorce. According to Art. 25 of the RF IC, the date of termination of marriage is considered to be the day the information is entered into the book of registration of acts in the registry office. If the parties divorce through the court, from the moment the court decision enters into legal force.

All things purchased from the date of marriage registration until the moment of divorce are considered joint property. Even if before the divorce the parties began to live separately and bought valuable things, they are considered common. They can be recognized as the individual property of each person through the court on the basis of clause 4 of Art. Art. 38 RF IC. An alternative option is a division by agreement, where the parties have the right to independently determine what and who will get it.

Legal advice: if you are planning to get a divorce and want to buy something expensive without already living with your spouse, it is better to postpone the purchase until the official divorce. This way, you don’t have to prove that at the time of purchase you were no longer living with your ex-husband or wife, and the purchase was made with personal money.

Briefly: sole property is property received during marriage by gift, inheritance or other gratuitous transaction. The legal regime is valid from the date of state registration of marriage until the moment of divorce.

How does the division happen?

The division is made in accordance with the norms of Art. 38 SK and ch. 16 of the Civil Code of the Russian Federation. The standard allocation is ½ share in the common property. Total debts are awarded in proportion to the shares awarded.

Based on clause 2 of Art. 39 of the RF IC, the court has the right not to take into account the principle of equality of parties and to allocate a larger share to one of the spouses if the second did not work during the marriage for unjustified reasons or spent common valuables and money without taking into account the interests of the family.

Note! Leaving a child with one of the parents is not a basis for increasing his share in the court. As a standard, courts adhere to the rule of equality and divide everything in half.

Is it possible to divide without court?

The division of common property without litigation is allowed when the parties reach a mutual agreement. They can draw up a written agreement and have it certified by a notary, and then re-register ownership of what they have divided into themselves.

Legal advice: peaceful division is an excellent solution. It’s easier to save on legal costs and pay only the notary’s fee than to attend court hearings for several months. And even then, there is no guarantee that the court’s opinion will suit both parties.

How is real estate divided?

If a legal regime was in effect in the family and real estate was purchased, during division it will not be possible to divide it in kind.

There are two options here:

• Transfer of housing to one of the spouses, who undertakes to compensate the cost of the share to the second;
• Selling real estate and dividing the proceeds in half.

It is important to consider that privatized apartments do not participate in the division. If the housing is registered in the name of one and the other refuses to privatize, he will not be able to claim monetary compensation in the event of division.

Arbitrage practice

When going to court, it is important to reflect in the statement of claim the demand for the division of common property and termination of the defendant’s property rights, because Based on the results of the proceedings, if the decision is positive, the other party ceases to own the shared values.

Along with the application, the plaintiffs provide evidence confirming the acquisition of valuables during the marriage: checks, receipts, and other documents. Witnesses may be involved.

With a competent approach, the courts usually satisfy the requirements, this is confirmed by real decisions in division cases:

• Decision No. 2-2303/2018 2-247/2019 2-247/2019(2-2303/2018;)~M-2303/2018 M-2303/2018 dated June 25, 2020 in case No. 2-2303/2018 ;
• Decision No. 2-1791/2019 2-1791/2019~M-955/2019 M-955/2019 dated June 27, 2020 in case No. 2-1791/2019;
• Decision No. 2-2252/2019 2-2252/2019~M-2087/2019 M-2087/2019 dated June 28, 2020 in case No. 2-2252/2019.

Example from judicial practice:

The man decided to divorce his wife; the divorce petition simultaneously included a demand for separation. They have an apartment in common ownership worth 5 million rubles. and a car for 2 million rubles. When filing a lawsuit, he did not take into account that along with valuables, debts are also divided. The woman filed a counterclaim, demanding that the total debt be divided into an amount of 500,000 rubles.

As a result of the proceedings, the court left the property behind the woman, obliging her to pay compensation for her share in the amount of 2.5 million rubles. the second side. The man got the car, but for it he must transfer his share to his ex-wife - 1 million rubles. The debt was divided in half.

Briefly: division of common property is possible by agreement or through the court. All values ​​are divided in equal shares. Deviation from the principle of equality is possible if one did not work without good reason, or spent the common without taking into account the interests of the family. The presence of children is not a basis for allocating a larger share.

Chapter

Article 38 of the RF IC states that the division of the common property of spouses can be made not only at the time of dissolution of the family union, but also during the marriage.

The division of joint property is permissible if the creditor makes appropriate demands. The part of the property that was not affected by the division after the debt obligations to the borrower are repaid will continue to remain part of the joint property.

The legislation provides for the division of acquired property by drawing up an appropriate agreement by the spouses. This document is drawn up in simple written form and does not require mandatory notarization. If a compromise has not been reached, the issue will be resolved in court.

If undivided property is transferred to one of the spouses, the other may receive compensation in cash or a portion of the individual property of the husband or wife. Monetary compensation related to the financial condition of the payer requires the preparation of an appropriate payment schedule.

Property owned by a minor is not subject to compensation, but is transferred to the spouse with whom the child will live.

Definition of shares

According to Art. 39 of the Family Code of the Russian Federation, property acquired by a husband and wife during marriage is divided in equal shares . However, the law provides for cases that allow deviation from this principle, for example:

• Completion of military service;
• Serving a criminal sentence in prison;
• The presence of minor children who will eventually live with one of the parents;
• Other cases provided by law.

The division of residential property is based on the principle of equality. However, with this division, the area of ​​the housing, its purpose and general condition are taken into account. As a result, it is rarely possible to divide such property in equal shares. If situations arise where the allocation of part of the residential premises is impossible due to its small size, the property may go to one of the spouses, while the second will receive monetary compensation commensurate with its share.

Bank deposits opened in credit institutions during marriage are also divided equally between husband and wife. At the same time, it will not matter in whose name such an account was issued or who deposited funds into it. A deposit opened before the official marriage, but replenished during family life, is subject to division, taking into account the period of its existence before and after the registration of the marriage.

Pros and cons of the legal regime

Let's consider the advantages and disadvantages of the legal regime in the family:

Legal regime of marital property and marriage contract

If a marriage contract is drawn up, instead of a legal one, a contractual regime operates in the family. The agreement regulates only property relations between the parties. It can be concluded before registration or during marriage. In the first case, it will begin to operate from the moment of state registration.

The contract must be certified by a notary.

It has several pros and cons:

Legal advice: if both parties agree, it is better to conclude a prenuptial agreement. It will allow you to avoid disputes over property and determine in advance who gets what. If there is a contract, in the event of separation there will be no need to go to court for division: everything is divided according to its provisions.

Useful video

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Thus, the legal regime of the property of the husband and wife can only take place due to the absence of a marriage contract, which regulates the procedure for disposing of property, both during marriage and after its dissolution. All things acquired after the official registration of the marriage, with the exception of items for individual use, belong to the spouses on the basis of joint ownership.

To carry out transactions with the specified property, the written consent of the second spouse is not required, however, if transactions with common property were carried out without the knowledge or despite the actual refusal of one of the members of the couple, then the legality of such a transaction can be appealed in court.

Lawyer's answers to popular questions

Which is better: a separation agreement or a prenuptial agreement?

Legally, these are completely different documents. The agreement is drawn up after the divorce, while the contract is concluded before. By law, an agreement applies for partition.

I want to divide common property through the court. How much to pay in state fees?

The amount of the state duty is established by Art. 333.19 of the Tax Code of the Russian Federation and depends on the value of the dividend:

• Up to 20 thousand rubles. – 4%, minimum 400;
• From 20 to 100 thousand rubles. – 3%+800 rub.;
• From 100 to 200 thousand rubles. – 2%+3 200;
• From 200 thousand rubles. up to 1 million – 1%+5,200;
• Over 1 million – 0.5%+13,200.

The maximum amount does not exceed 60,000 rubles.

Who will own the money donated for the wedding?

Here everything depends on the will of the donors. To donate money, it is not necessary to formalize the deed of gift in writing. If the funds were transferred to both, then they belong to them in equal shares.

What to do if a house was built with common money, but it was not completed at the time of division? How to divide everything?

You can demand compensation for half of the money spent, or vice versa - keep the house for yourself, but pay the money to the other party.

I want to draw up a contract with my wife and indicate that all the property will go to me if a divorce occurs due to her infidelity?

No. A prenuptial agreement regulates property, not personal relationships, which include adultery. In addition, such a situation will put the wife at a disadvantage, and the notary will most likely refuse to certify the document.