If the family is strong and married life is going well, then the troubles are divided in half. And if there are quarrels at home, then there is no desire to work. Many families separate quickly; according to statistics, 18% of marriages break up within the first years after marriage registration. But there are also those who wait and hope until the last. But years pass and things don’t get any better. This story has the same ending - divorce.
Only, if a couple has lived together for only a short time, then they are unlikely to have anything to share. But long-term relationships are accompanied by the accumulation of unique assets: a house, apartment, land, car, possibly shares, capital, gifts received by the family, prizes won. If both spouses saved for a house and bought it jointly, it would be at least unfair if everything was left to one of them.
From the position of legislation, Article 256 of the Civil Code of the Russian Federation speaks about jointly acquired property. It clearly and clearly outlines the position of the Civil Code of the Russian Federation regarding property, which is considered common for spouses and individual for each of them. This article explains what property will be joint for the family and what will be personal.
Art. 256 of the Civil Code of the Russian Federation and the norms of the UK
Interpret Art. 256 of the Civil Code takes into account the norms and rules established by the Family Code of the Russian Federation. Particular attention to the chapters:
- Chapter 7, which examines the “Legal regime of marital property”;
- Chapter 8, on the contractual regime of family property;
- Chapter 9, where the responsibility of both spouses for their obligations is spelled out.
Namely, in these chapters there is specificity, accuracy of all legal provisions of the Civil Code regarding the property of spouses.
Chapter 7 consists of seven articles, each of which concerns the property of spouses, based on the legal regime of joint property of spouses. It also establishes the rules for the use, ownership and disposal of property, which is common to spouses.
Chapter 8 contains 5 articles, the contents of which relate to the contractual regime of property. Its use involves drawing up a marriage contract between spouses. The articles describe how an agreement is drawn up, how it is concluded, what rules apply regarding its content, how the transaction will be amended or terminated, as well as the conditions under which it may be invalidated.
Chapter 9 contains only two articles:
- Foreclosure of property of spouses.
- A marriage contract is a guarantee of the rights of creditors upon its termination, conclusion or change of conditions.
As can be seen from historical data, previously there was no provision for a transition from the property regime established by law to one agreed upon between the spouses through an agreement. Now the couple can choose: either a legal regime or a negotiated one. Through an agreement, you can prescribe your own rules for the division of property, the main thing is that the spouses agree on all points.
Civil Code of the Russian Federation
Chapter 16. Common property
Article 244. Concept and grounds for the emergence of common property
1. Property owned by two or more persons belongs to them under the right of common ownership. 2. Property may be in common ownership with the determination of the share of each owner in the right of ownership (shared ownership) or without determination of such shares (joint ownership). 3. Common ownership of property is shared, except for cases where the law provides for the formation of joint ownership of this property. 4. Common property arises when two or more persons acquire property that cannot be divided without changing its purpose (indivisible things) or is not subject to division by force of law. Common ownership of divisible property arises in cases provided for by law or contract. 5. By agreement of the participants in joint ownership, and if no agreement is reached, by a court decision, shared ownership of these persons may be established on the common property.
Article 245. Determination of shares in the right of shared ownership
1. If the shares of participants in shared ownership cannot be determined on the basis of law and are not established by agreement of all its participants, the shares are considered equal. 2. By agreement of all participants in shared ownership, a procedure for determining and changing their shares may be established depending on the contribution of each of them to the formation and growth of common property. 3. A participant in shared ownership, who has carried out inseparable improvements to this property at his own expense in compliance with the established procedure for the use of common property, has the right to a corresponding increase in his share in the right to common property. Separable improvements to common property, unless otherwise provided by agreement of the participants in shared ownership, become the property of the participant who made them.
Article 246. Disposal of property in shared ownership
1. The disposal of property in shared ownership is carried out by agreement of all its participants. 2. A participant in shared ownership has the right, at his own discretion, to sell, donate, bequeath, pledge his share or dispose of it in any other way, subject to the rules provided for in Article 250 of this Code during its alienation for compensation.
Article 247. Possession and use of property in shared ownership
1. Possession and use of property in shared ownership is carried out by agreement of all its participants, and if no agreement is reached, in the manner established by the court. 2. A participant in shared ownership has the right to be given for his possession and use a part of the common property commensurate with his share, and if this is not possible, he has the right to demand appropriate compensation from other participants who own and use the property falling on his share.
Article 248. Fruits, products and income from the use of property in shared ownership
Fruits, products and income from the use of property in shared ownership enter the common property and are distributed among the participants in shared ownership in proportion to their shares, unless otherwise provided by an agreement between them.
Article 249. Expenses for the maintenance of property in shared ownership
Each participant in shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on the common property, as well as in the costs of its maintenance and preservation.
Article 250. Pre-emptive right to purchase
1. When selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership have the preemptive right to purchase the share being sold at the price for which it is sold, and on other equal conditions, except in the case of a sale at public auction, as well as cases of sale of a share in the right of common ownership of a land plot by the owner of a part of a building or structure located on such a land plot or by the owner of premises in the specified building or structure. (as amended by Federal Law No. 171-FZ dated June 23, 2014) Public auctions for the sale of a share in the right of common ownership in the absence of the consent of all participants in shared ownership may be held in the cases provided for in part two of Article 255 of this Code, and in other cases provided by law. 2. The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it. If the remaining participants in shared ownership do not acquire the sold share in the right of ownership of real estate within a month, and in the right of ownership of movable property within ten days from the date of notification, the seller has the right to sell his share to any person. If all other participants in shared ownership refuse in writing to exercise the pre-emptive right to purchase the share being sold, such share may be sold to an outsider earlier than the specified deadlines. The specifics of notifying participants in shared ownership of the intention of the seller of a share in the right of common ownership to sell his share to an outsider may be established by federal law. (Clause 2 as amended by Federal Law No. 315-FZ dated July 3, 2016) 3. When selling a share in violation of the pre-emptive right to purchase, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him . 4. Assignment of the pre-emptive right to purchase a share is not permitted. 5. The rules of this article also apply when alienating a share under an exchange agreement.
Article 251. Moment of transfer of a share in the right of common ownership to the acquirer under an agreement
The share in the right of common ownership passes to the acquirer under the agreement from the moment the agreement is concluded, unless otherwise provided by agreement of the parties. The moment of transfer of a share in the right of common ownership under an agreement subject to state registration is determined in accordance with paragraph 2 of Article 223 of this Code.
Article 252. Division of property in shared ownership and allocation of a share from it
1. Property in shared ownership may be divided between its participants by agreement between them. 2. A participant in shared ownership has the right to demand the allocation of his share from the common property. 3. If the participants in shared ownership fail to reach an agreement on the method and conditions for the division of common property or the allocation of the share of one of them, the participant in shared ownership has the right to legally demand the allocation in kind of his share from the common property. If the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property in common ownership, the allocated owner has the right to have the value of his share paid to him by other participants in shared ownership. 4. The disproportion between the property allocated in kind to a participant in shared ownership on the basis of this article and his share in the right of ownership shall be eliminated by payment of the appropriate amount of money or other compensation. Payment of compensation to a participant in shared ownership by the remaining owners instead of allocating his share in kind is permitted with his consent. In cases where the owner’s share is insignificant, cannot be realistically allocated and he does not have a significant interest in the use of the common property, the court may, even in the absence of the consent of this owner, oblige the remaining participants in the shared ownership to pay him compensation. 5. Upon receipt of compensation in accordance with this article, the owner loses the right to a share in the common property.
Article 253. Possession, use and disposal of jointly owned property
1. Participants in joint ownership, unless otherwise provided by agreement between them, jointly own and use common property. 2. The disposal of jointly owned property is carried out by the consent of all participants, which is assumed regardless of which of the participants makes the transaction to dispose of the property. 3. Each of the participants in joint ownership has the right to enter into transactions for the disposal of common property, unless otherwise follows from the agreement of all participants. A transaction related to the disposal of common property made by one of the participants in joint ownership may be declared invalid at the request of the remaining participants on the grounds that the participant who made the transaction did not have the necessary powers only if it is proven that the other party to the transaction knew or obviously should have know about it. 4. The rules of this article apply to the extent that this Code or other laws do not establish otherwise for certain types of joint ownership.
Article 254. Division of jointly owned property and allocation of a share from it
1. The division of common property between the participants in joint ownership, as well as the allocation of the share of one of them, can be carried out after the preliminary determination of the share of each of the participants in the right to the common property. 2. When dividing common property and separating a share from it, unless otherwise provided by law or agreement of the participants, their shares are recognized as equal. 3. The grounds and procedure for the division of common property and the allocation of a share from it are determined according to the rules of Article 252 of this Code insofar as otherwise for certain types of joint property is not established by this Code, other laws and does not follow from the essence of the relations of the participants in joint property.
Article 255. Foreclosure of a share in common property
The creditor of a participant in shared or joint ownership, if the owner of other property is insufficient, has the right to make a demand for the allocation of the debtor's share in the common property for foreclosure on it. If in such cases the allocation of a share in kind is impossible or the remaining participants in shared or joint ownership object to this, the creditor has the right to demand that the debtor sell his share to the remaining participants in the common property at a price commensurate with the market value of this share, with the proceeds from the sale being used to repay the debt. If the remaining participants in the common property refuse to acquire the debtor's share, the creditor has the right to demand in court the foreclosure of the debtor's share in the common property right by selling this share at public auction.
Note: For the legal regime of marital property, see the Family Code of the Russian Federation.
Article 256. Common property of spouses
Note: The regime of common joint property of spouses does not apply to property acquired during marriage, but to funds that belonged to one of the spouses personally (Review of judicial practice of the Supreme Court of the Russian Federation No. 2 (2017)).
1. Property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property. 2. Property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift or by inheritance, is his property. Items for personal use (clothing, shoes, etc.), with the exception of jewelry and other luxury items, although acquired during marriage at the expense of the spouses’ common funds, are recognized as the property of the spouse who used them. The property of each spouse may be recognized by the court as their joint property if it is established that during the marriage, investments were made from the common property of the spouses or the personal property of the other spouse that significantly increased the value of this property (major repairs, reconstruction, re-equipment, etc. .). This rule does not apply if the agreement between the spouses provides otherwise. (as amended by Federal Law No. 457-FZ of December 30, 2015) The exclusive right to the result of intellectual activity belonging to the author of such a result (Article 1228) is not included in the common property of the spouses. However, income received from the use of such a result is the joint property of the spouses, unless otherwise provided by an agreement between them. (paragraph introduced by Federal Law No. 231-FZ of December 18, 2006) 3. For the obligations of one of the spouses, recovery can only be made on property owned by him, as well as on his share in the common property of the spouses, which would be due to him upon division this property. 4. The rules for determining the shares of spouses in common property during its division and the procedure for such division are established by family law. (as amended by Federal Law No. 49-FZ dated April 24, 2008)
Article 257. Property of a peasant (farm) enterprise
1. The property of a peasant (farm) enterprise belongs to its members on the right of joint ownership, unless otherwise established by law or an agreement between them. 2. The joint ownership of members of a peasant (farm) enterprise includes the land plot granted to this farm or acquired, outbuildings and other buildings, reclamation and other structures, productive and working livestock, poultry, agricultural and other machinery and equipment, vehicles, inventory and other property acquired for the farm using the common funds of its members. (as amended by Federal Law No. 201-FZ of December 4, 2006) 3. Fruits, products and income received as a result of the activities of a peasant (farm) enterprise are the common property of the members of the peasant (farm) enterprise and are used by agreement between them.
Article 258. Division of property of a peasant (farm) enterprise
1. When a peasant (farm) enterprise is terminated due to the withdrawal of all its members or for other reasons, the common property is subject to division according to the rules provided for in Articles 252 and 254 of this Code. In such cases, the land plot is divided according to the rules established by this Code and land legislation. 2. A plot of land and means of production belonging to a peasant (farm) enterprise are not subject to division when one of its members leaves the enterprise. Those who leave the farm have the right to receive monetary compensation commensurate with their share in the common ownership of this property. 3. In the cases provided for by this article, the shares of members of a peasant (farm) enterprise in the right of joint ownership of the property of the enterprise are recognized as equal, unless otherwise established by agreement between them.
Article 259. Property of a business partnership or cooperative formed on the basis of the property of a peasant (farm) enterprise
1. Members of a peasant (farm) enterprise may create a business partnership or production cooperative on the basis of the property of the farm. Such a business partnership or cooperative, as a legal entity, has the right of ownership to property transferred to it in the form of contributions and other contributions by members of the farm, as well as to property received as a result of its activities and acquired on other grounds permitted by law. 2. The amount of contributions of participants in a partnership or members of a cooperative created on the basis of the property of a peasant (farm) farm is established based on their shares in the right of common ownership of the property of the farm, determined in accordance with paragraph 3 of Article 258 of this Code.
Conclusions and advice
In the Civil Code of the Russian Federation, Art. 256 acts as a regulator of the common property of the spouses, and provides explanations on this matter: what of the property acquired during the marriage will be common, and what of the property will remain only for one of them. Here are all the justifications for such a section.
When interpreting this article, it is worth remembering that it talks about the property of spouses in general. How the gifts will be divided is not described here. Also, the rules for drawing up marriage contracts and other nuances are indicated here only in general terms. You can find answers to these questions using the civil and family code of the Russian Federation.
A competent, experienced lawyer will suggest solutions in certain situations. He sees everything that concerns a particular case as a whole, and knows the nuances prescribed by law. Moreover, he is a really good specialist, always aware of changes in the legislative framework, and will be able to protect your interests. Naturally, if these interests and requirements do not contradict the laws of the Russian Federation.
Common property
In accordance with part 1 of this article, property acquired by spouses during marriage is their joint property, unless otherwise established by an agreement between them.
The contract means a so-called marriage contract concluded between a man and a woman and defining their property rights and obligations in marriage and (or) in the event of its dissolution. The marriage contract is in writing and must be notarized. It can be concluded before marriage, during registration and at any time in family life.
Part 2 of this article establishes that property belongs exclusively to one of the spouses if it was acquired before the official registration of the relationship, received during marriage as a gift or by inheritance. Items for individual use (clothing, shoes, etc.), except for jewelry and other luxury items, although acquired during marriage at the expense of the common funds of the husband and wife, are recognized as the property of the person who used them.
What should the other ex-spouse do?
Taking into account the lack of a unified approach in judicial practice, in each case it is necessary to carefully develop a strategy, including depending on what kind of transaction was made by the spouse (purchase and sale, gift), with whom the transaction was concluded (for example, with a close relative or other person ), in which court the dispute will be resolved, and other circumstances.
For example, if the ex-husband gave real estate to a close relative, perhaps the transaction is imaginary, and the ex-wife should consider the possibility of demanding in court that the transaction be declared invalid and the property divided (Appeal ruling of the Murmansk Regional Court dated March 10, 2016 N 33-8312016).
If the ex-husband sold real estate to a third party, the ex-wife may try to recover the amount of unjust enrichment in the amount of / from the amount received by the ex-husband (Determination of the Armed Forces of the Russian Federation dated June 2, 2015 N 5-KG15-47). As an alternative, you can try to demand that the transaction be declared invalid on the basis of clause 3 of Art. 35 of the RF IC (but, as we see, not all courts support this approach in relation to former spouses), restitution and division of property between former spouses.
In this case, it is necessary to take into account the statute of limitations. The statute of limitations for declaring a contestable transaction invalid is one year. The limitation period for a claim for division of property, in accordance with paragraph 7 of Art. 38 of the RF IC, is three years. At the same time, according to the clarification of the Armed Forces of the Russian Federation, the three-year limitation period for claims for the division of property that is the common joint property of spouses whose marriage is dissolved should not be calculated from the time of dissolution of the marriage (the day of state registration of the dissolution of the marriage in the civil registration book upon dissolution of the marriage in civil registry authorities, and in case of divorce in court - the day the decision entered into legal force), and from the day when the person learned or should have learned about the violation of his right (for example, at the moment when the ex-spouse learned about the sale of common property ) (clause 19 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 5, 1998 N 15).
As we see, in the case of alienation by the ex-husband of property acquired during the marriage, the position of the ex-wife from the point of view of planning further actions is complicated both by the lack of uniformity of judicial practice on this issue and by the shortened statute of limitations for challenging such alienation. Of course, it is easier to avoid these difficulties by dividing the common property of the spouses during the divorce process. However, if this does not happen, then the ex-wife needs to quickly develop a strategy and take measures to protect her rights.
Article 253. Possession, use and disposal of jointly owned property
Each of the participants in joint ownership has the right to enter into transactions for the disposal of common property, unless otherwise follows from the agreement of all participants. A transaction related to the disposal of common property made by one of the participants in joint ownership may be declared invalid at the request of the remaining participants on the grounds that the participant who made the transaction did not have the necessary powers only if it is proven that the other party to the transaction knew or obviously should have know about it.
4. The rules of this article apply to the extent that this Code or other laws do not establish otherwise for certain types of joint ownership.
Alienation (sale, donation) of common property of spouses before divorce
This article from the “Encyclopedia of complex cases in the division of property” series is devoted to the situation when one of the spouses alienates (usually sells or donates) jointly acquired property to another person.
Having already written the article, I realized that it is more of an overview nature, because it is impossible to reveal all the nuances of even the majority of situations that arise. Each situation is individual and requires the same individual consideration. Plus, you need to take into account that different lawyers and different judges may have different opinions about the same situation. The same factual circumstances may receive different assessments from different judges.
This is important to know: Wheelchair in an apartment building: who can use it
Such sales and donations can be made with either “good” or “evil” intent.
We can talk about “good” intentions when the spouses jointly came to the idea that they need to sell some of their jointly acquired property in order to buy something new. For example, a car was purchased during marriage and the spouses decided to buy a new car or improve their living conditions.
We are talking about “evil” intent when one of the spouses alienates (sells, donates, changes, etc.) common property in order to eliminate it from division during a divorce. For example, a spouse gives a car or an apartment to his relative, so that later, during a divorce, the spouse does not divide the apartment and does not recognize the ownership of 1/2 shares in the ownership of the apartment. Or the property is sold and the money “disappears.”
This article will talk about what conditions exist for the legal alienation of the common property of spouses before divorce and what ways there are for the injured spouse to protect his property rights.
Everything written in this article is true for the following situation. A marriage was concluded between the spouses in the civil registry office; the marriage was not dissolved or declared invalid. The disputed property is acquired during the marriage and is joint property. Separately, we will talk about the situation when property is alienated after the termination of family relationships.
