Who certifies the marriage contract in 2021: marriage contract

Do you need a prenuptial agreement when buying an apartment?

According to statistics, today in Russia, out of 1 million families, about 600 thousand break up - that is, more than half. In view of this, problems with the division of jointly acquired property are not uncommon. This question arises with particular urgency when a house or apartment taken on a mortgage is subject to division.

According to the family law of the Russian Federation, property acquired during marriage, with some exceptions, is considered community property (Article 34 of the Family Code of the Russian Federation). In case of divorce, it is divided equally. But nothing prevents a husband and wife from considering other options in the event of their separation.

It is in such cases that a well-drafted marriage contract for an apartment can help. It is recommended to sign it when housing is purchased either with accumulated money or through a mortgage. This will help by avoiding squabbles and lengthy legal proceedings:

change the requirement of the law on joint property, making it shared or separate;
clearly define the shares;
reflect what part of the money was or will be contributed by each spouse when purchasing an apartment;
indicate how housing will be divided after a divorce;
determine who will be responsible for paying mortgage debts.
take into account the shares of minors.

What is stated in a marriage contract?

The marriage contract can stipulate a property regime that applies to all or part of the property. Property is divided into: joint, shared or separate.

In the joint property regime, the spouses do not determine each person’s share, that is, upon divorce, the property will be divided between the husband and wife in equal shares.

With shared ownership, the parties themselves determine who gets what and how much during the marriage and after it. With separate ownership, each spouse is entitled to their own ownership of the property.

In a notarized family agreement, you have the right to determine the amount of money that each spouse contributes to the common treasury. You can register the share of one of the spouses in the profits.

For example, according to the contract, the spouse must give 50% of his income, and 10% in case of divorce or a specific amount of compensation.

Also, the agreement can even stipulate financial compensation for moral damage, for example in the case of betrayal, assault or alcoholism of one of the spouses.

Expensive gifts (jewelry, fur coats) that a husband and wife give to each other must, by law, belong to the giver. It may be noted in the agreement that the donated items will remain with the recipient.

The division of small property, such as household appliances (usually left to the wife) or a garage (to the husband), is also described in advance.

The contract may describe responsibilities for supporting elderly parents, children, or each other. The document indicates the ownership of the property in favor of the spouse with whom the child remains after the divorce, for example, in the form of 2/3 of an apartment.

After signing the document, additions or changes can be made to it, but only by mutual agreement, and only with a certified notary’s mark.

A marriage contract is concluded by a lawyer with a certain period of validity or indefinitely at the choice of the spouses. A contract concluded for a specific period ends at the end of this period.

An open-ended agreement ends when the marriage is dissolved. The contract can be changed ahead of schedule or terminated only if the two parties mutually agree. Unilateral refusal has no legal force!

What conditions are not included in the marriage contract?

The marriage contract stipulates only property relations:

A husband and wife cannot be forced to be faithful or to love each other.
The right to education and freedom of movement cannot be limited.
It is unacceptable to limit the legal capacity and capacity of one of the spouses. For example, you cannot prohibit your wife from working or choosing a profession.
It is impossible to include clauses in the contract that infringe on the interests of minor children.
It is not allowed to limit rights in relation to children by indicating with whom the child will remain in the event of a divorce.
You cannot specify conditions that put one of the parties at a disadvantage, for example, when all acquired property during a divorce becomes the property of only one of the spouses.

Is it possible to have a marriage contract without a notary?

No, the marriage agreement between the newlyweds and spouses must be drawn up in writing and must be done by a notary.

A simple form of agreement without notarization will not give it legal force, although recently it was still possible to conclude an agreement on the division of property and divide it without a notary.

Often people have no particular desire to contact a notary for several reasons. For example, due to reluctance to talk about the contents of the agreement or when they do not want to overpay for notary services.

And, nevertheless, in 2021, amendments were made to the Insurance Code, and now this agreement is subject to notarization.

What documents are needed to draw up a contract?

In accordance with Art. 38 and 40 of the RF IC, a marriage contract is always drawn up in writing and must be certified by a notary office.

At the same time, the notary not only certifies this document, but also studies it for compliance with the laws, so it is necessary to provide him with documents to cover the full picture of the property relations of the spouses. The agreement is drawn up in three copies, one for the spouses, one for the notary.

Depending on whether the apartment has been purchased or the spouses are just planning to purchase it, it will depend on what package of documents needs to be prepared.

If the apartment is already owned, you will need:

Spouses' passports.
Marriage certificate.
Confirmation of ownership rights - a purchase and sale agreement and a certificate of ownership or an extract from Rosreestr;

If you have yet to purchase an apartment, then instead of documents establishing the rights to the existing housing, you need to attach the following:

Preliminary agreement for the purchase of real estate;
If you are taking out a mortgage, you will need a loan agreement;
When purchasing an apartment in a new building - an agreement for participation in shared construction.

To certify a marriage contract, you need to pay a fee (the rate for a private notary is about 500 rubles) and pay a service fee, which varies from 5 to 10 thousand rubles. It depends on whether the services include only contract certification or also drawing up a draft contract, as well as technical work.

Drawing up a marriage contract

Before drawing up a document, spouses need to discuss in advance what exactly will be stipulated in the contract. The lawyer signs the contract in three copies, each of which must be kept by the husband, wife and the notary's office.

The text of the document should regulate the procedure for dividing property in each of these categories:

real estate – land plots, houses, apartments and other structures;
vehicles – cars, motorcycles, special equipment;
cash and bank deposits;
bonds, blocks of shares, bills, shares and other securities;
loan obligations;
household appliances, furniture, interior items, electronics;
other valuable movable property;
cash;
things of little value.

A legally competent contract must fully indicate:

Passport details of the married couple: series, number, place of residence, by whom and when the document was issued.
Details of the marriage certificate: place and date of conclusion.
The property is described in detail, where the characteristics are indicated in detail. If the property is movable, then the degree of its wear and cost is indicated.
Real estate. Area and address of the property, details of the certificate of ownership: number, in whose name it was issued, by whom and when.

This kind of detail is very important and is of paramount importance. It is also important in the document to indicate the mechanism for transferring things to each other, specifying how, when and where the transfer will take place.

If the agreement is drawn up on several sheets, then the husband and wife must sign each sheet, indicate their full name with a full transcript.

Discuss and write down the issue of dividing the loans taken between a married couple. Usually it is resolved with the involvement of the bank where the loan was issued.

If this is not a mortgage, but a small loan, then the parties can independently decide which of them will repay the balance of the debt.

But the contract still needs to indicate the balance of the debt, as well as to whom the loan was issued at the time of drawing up the contract (date of loan, number, amount).

What documents are needed for a marriage contract with a notary?

To draw up a contract, the notary needs the original documents:

passports of spouses or newlyweds;
Marriage certificate.

Originals and copies:

property documents confirming ownership (technical passports for an apartment, car, shares, shares in an LLC);
extracts from the Unified State Register, contracts, receipts, checks - everything that you consider necessary to protect in the event of a divorce.

If one of the spouses is a minor and the marriage has not yet been concluded, you should also take a notarized consent from your parents or guardians.

Features of a contract related to a mortgage

You can contact a lawyer to draw up a model of a marriage contract, or you can draw it up yourself. Most often, an apartment is purchased through mortgage lending, so it would be advisable to consider reflecting this option in the marriage contract.

In a marriage contract for the purchase of an apartment with a mortgage, spouses have the right to include the following clauses:

Who is the borrower and who is the co-borrower.
Who pays the first installment? If both participate, then how exactly the shares are distributed (the amount or percentage is indicated).
Who makes principal and interest payments?
Who pays for insurance, if any?
Who is responsible for penalties when they are assessed?
What is the source of payment for mortgage payments. If maternity capital is used, this fact must be reflected.
How mortgage debts will be distributed upon divorce.
Who is assigned ownership after repayment of the loan, in what shares.
How children's rights are taken into account.
What will everyone receive in a divorce - money or square meters and in what part?
What is the responsibility of the parties in case of violation of the terms of the agreement.
When can a marriage contract be changed?

It is unacceptable to indicate in a marriage contract conditions that place one of the parties in a situation that infringes on its interests. Otherwise, the contract is disputed in court.

The terms of the contract can be changed, and the contract itself can be terminated:

by agreement between the spouses;
at the request of one of them on the basis of a court decision.

It is unacceptable to refuse to fulfill obligations unilaterally.

Cost of registration of a marriage contract in 2021

The more detailed and carefully the contract is drawn up, the fewer disagreements and disputes the married couple will have in the future.

The cost of compilation depends on the following factors:

volume of documentation;
complexity of the contract;
urgency of work.

The price for a lawyer’s services increases if he provides additional services other than drawing up the project itself. This includes collecting the necessary documentation and conducting an expert assessment of the property.

The final cost of services may also depend on the qualifications and prestige of the law firm. On average, prices for drawing up a marriage contract in Moscow can range from 5 to 50 thousand rubles.

How much does it cost to draw up a prenuptial agreement?

Mandatory expenses for a notary will be:

state duty – 500 rubles;
notarization of the contract - within 5-6 thousand rubles;
legal and technical services – 5-10 thousand rubles.

These services include:

checking information about the husband and wife in accordance with their identity documents;
checking the draft contract for compliance with legal requirements;
verification of property data included in the contract in accordance with the documentation provided;
Explaining to spouses the meaning of concluding an agreement and legal norms.

The cost of the procedure may increase:

depending on whether property rights need to be registered;
if you ordered the drafting of the text and execution of the document by a lawyer;
if other registration actions are performed.

How much does it cost to notarize additional notary services?

Amendments to the family agreement. Spouses can make changes to their contract at any time by mutual consent. A separate document with a detailed description of the changes must also be certified by a notary with a fee of up to 5 thousand rubles.
Termination of the marriage contract. Spouses have the right to terminate the marriage contract by mutual consent. Termination of the agreement is also formalized by a notary and will cost about 5 thousand rubles.

Important! Unilateral termination of a contract is impossible even with a notary!

Of course, the cost of drawing up a prenuptial agreement is not small, especially if you approach this process thoroughly.

Choosing a trusted legal organization that will provide assistance in collecting documents and also drawing up a detailed draft of a marriage contract can take a lot of money.

But after concluding a marriage contract, a married couple can be completely calm about the fate of their property.

Video: How to draw up a marriage contract correctly

Comments on the article “Do I need to have a marriage contract certified by a notary?”

Nobody has written anything yet. Be the first!

What is the liability for a mortgage?

In the marriage contract, you can indicate that one of the spouses or both at the same time enters into an agreement and repays the loan for the apartment with a mortgage. If the husband and wife are co-borrowers, then their liability will be joint and several. This means that the bank has the opportunity to demand the return of funds from everyone, regardless of whether they continue to live together or decide to divorce.

When one of the spouses takes out a loan for an apartment, the other often appears as a guarantor. With this option, liability will also be joint and several. But the marriage contract can also provide for the subsidiary liability of the guarantor, that is, additional (Article 363 of the Civil Code of the Russian Federation). It assumes that the creditor bank can collect debts from the guarantor if the main debtor does not have sufficient funds to repay them.

For example, when the wife, who is the main borrower, does not receive a salary and has no personal savings, the debt is collected from the guarantor husband from the assets he has.

Why and what is necessary to negotiate with banks

If the marriage contract concerns a mortgage that has not yet been repaid, the opinion of the creditor bank must be taken into account when drawing it up (this is stated in Article 450 of the Civil Code of the Russian Federation). It is not allowed to change the terms of the mortgage agreement without the consent of the bank. For example, if previously a husband and wife were co-borrowers, and now they have decided that the husband will pay the mortgage, then this must be justified.

To convince bank employees of the advisability of the changes, you need to submit documents indicating the partner’s ability to close the loan with his own funds. Such documents may be:

a copy of the work record book certified by the employer;
salary certificate from the place of service in form 2-NDFL;
an extract from a current account (for individual entrepreneurs) or from a personal account in financial institutions.

The bank decides on its own what kind of documentation the bank will arrange, so its list is clarified with the specific lender.

How to divide real estate?

The most common options for dividing real estate are the following:

Leaving living space to one side.
Division into shares.
Sale.
Exchange.

Let's consider these options taking into account the specifics of the mortgage.

In the first case, the party that becomes the sole owner must give the former “other half” ½ of the amount of funds that have already been deposited into the bank. Compensation may occur at the expense of common property.

In the second option, during a divorce, spouses can agree that each of them receives their share and pays the creditor bank for it. The contract can include a condition on the allocation of a share in kind. Such a division is not possible if there is extensive damage to the housing or if a separate entrance cannot be allocated.

In the third option, the sale of residential space encumbered by a mortgage will be legally formalized as a transfer of debt obligations. Here the parties are:

creditor – financial structure;
debtors - wife and husband;
the new debtor is the purchaser of the mortgaged property.

The new debtor will take the place of the wife and husband in the debt obligation. The debt will be transferred to him, and he will transfer to the spouses the funds they contributed to pay for the mortgage. After selling the living space, part of the funds received must be returned to the bank as debt, and the rest can be divided. The size of each person’s share is also specified in the marriage contract.

The option of exchanging mortgage real estate can only be implemented if the existing home is sold and a new one is purchased. In this case, the consent of the bankers will also be required.