Prenuptial agreement after marriage: pros and cons

What types of matrimonial property regimes exist?

A marriage officially registered with the registry office presupposes the establishment of property relations between husband and wife. The RF IC has determined that such relations are regulated by special legal standards - legal or contractual regime. The effect of the legal regime is discretionary and depends on the will of the persons entering into or already in a marriage union.

Under the legal regime, joint ownership, use and disposal of all property acquired during marriage is established; under the contractual regime, an agreement concluded by the spouses determines special rights to use such property. To the question of whether the legal regime of the property of spouses can be changed by a marriage contract, the legislator gives a positive answer, defining in Art. 33 of the RF IC, that the legal regime is valid only if the marriage contract does not provide otherwise.

Execution and registration of a marriage contract

Many situations of specific families are unique, and therefore it is impossible to consider all options for drawing up a marriage contract within the framework of one article. It is very important to avoid the use of incorrect or ambiguous wording of the provisions of the document, and it is also impossible to violate the law. Therefore, it is ideal if the transaction is accompanied at every stage by an experienced lawyer or family lawyer.

Obtaining an initial consultation with a specialist is usually free of charge. As part of the provision of this service, a lawyer will study your situation, analyze the feasibility of drawing up a marriage contract, familiarize you with legal information and tell you how best to act in your case. All situations are individual, so do not neglect the help of a family law lawyer.

Legal preparation for concluding a marriage contract

When it comes to property relations, spouses are not always frank enough with each other. Sometimes a marriage contract uses erroneous or deliberately false information, mentions real estate to which there is no ownership rights, and carefully conceals other property. In addition, there are a number of points that may prevent the conclusion of a marriage contract or subsequently cause it to be declared invalid.

Therefore, legal support in preparation for concluding a marriage contract plays an important role. Depending on the client’s wishes and the current situation, it may consist of the following points:

• checking the existence of ownership rights to the property that the spouses are going to mention in the marriage contract;
• checking the property for restrictions imposed - prohibition on re-registration, pledge, etc.;
• checking the parties to the transaction for the property they are hiding;
• identifying obstacles that may prevent the conclusion of a marriage contract;
• assistance in collecting the necessary documents.

An experienced lawyer already at the stage of verification before concluding a contract sees what difficulties may arise. For example, if the parties to the agreement are not yet married to each other, then it makes sense to check each of them for the presence of other marital relationships. It is important to check that the parties are not acting under pressure, are aware of their actions, and are of marriageable age. Also at the preparation stage, the presence of debt obligations of each party is checked.

An ignorant person may forget or not think about some points. Therefore, it is better to entrust all preparations for drawing up a marriage contract to a lawyer - this will protect you from misunderstandings and problematic situations in the future, many of which can only be resolved in court.

Legal registration of a marriage contract

A marriage contract, although it does not have forms approved at the legislative level, must comply with the basic provisions of civil and family law. In addition, the provisions themselves should not in any way contradict other legal acts or in any way oppress one of the parties. Therefore, at the stage of drawing up and executing a marriage contract, you also cannot do without a lawyer who will help you get around the pitfalls.

Legal assistance is required in the following cases:

• checking the provisions of the contract for compliance with legal norms;
• formulation of conditions in such a way that no double interpretation is allowed;
• checking whether the rights of each party are violated by the contract.

The lawyer will also help you draw up the contract correctly - the document will contain a preamble, a detailed main part and a conclusion. If any additions are needed. The lawyer will also draw them up as competently as possible. There are often cases when a notary refuses to certify an agreement that is drawn up incorrectly or with errors. Therefore, if you entrust this task to a specialist, you can save personal time and nerves, which is also important.

Registration of marriage contract

In most cases, registration of a marriage contract with Rosreestr is not required - the transaction is considered personal. However, there are exceptions to this as well. For example, the spouses decided to indicate a change in ownership after signing the contract. The apartment, which previously belonged to the wife, becomes the property of the husband, and the dacha belonging to him is transferred to the wife. In this case, registration will be required - the basis for changing ownership is the marriage contract.

To register ownership of real estate, you will need to contact a branch of Rosreestr or the MFC. It is necessary to write an application, to which is attached a civil passport and a document that became the basis for the transfer of property rights. In this case, such a document is a marriage contract.

In addition, a receipt for payment of the state fee is attached to the application. In 2021, registering property rights to real estate will cost 2,000 rubles. You can pay at any bank.

A Rosreestr or MFC specialist will collect the documents and issue a receipt indicating the preliminary date of readiness. On the specified day you will need to appear and pick up the original documents. The specialist will also issue a current extract from the Unified State Register of Real Estate, in which the new owner will be registered.

In all other cases, registration of the marriage contract in Rosreestr or other registers is not required. For this document to enter into legal force, notarization is sufficient.

Notarization of a marriage contract

Notarization is one of the stages at which there is no special need for legal support. The only exception is that the contract was drawn up by the spouses independently, and therefore requires verification for compliance with the requirements of civil law and other provisions. If the document is executed incorrectly, the notary will not certify it.

By contacting a notary office, you can count on the assistance of a specialist in drawing up a correct marriage contract. However, it is recommended to use the services of a professional lawyer.

Why is it better to contact a family law lawyer to draw up a marriage contract? There are several reasons for this:

• A family law lawyer is a highly specialized specialist. The notary, in turn, solves many problems in various industries.
• The lawyer has more time to delve into your issue, study the documents and draw up a competent document.
• A lawyer will answer honestly if drawing up a marriage contract is not advisable. Perhaps in your situation you need to wait or draw up an agreement on the division of property instead of a marriage contract.
• If third parties are involved (for example, a bank or children), it is better to contact a lawyer, because he follows judicial practice and is active. This means his data is always relevant from a practical point of view.
• The services of a family lawyer will most likely cost less.

If the choice is to contact a lawyer, after drawing up the marriage contract, the parties still need to contact a notary to certify the document. Otherwise, it will not enter into legal force.

Marriage agreement for mortgage

If spouses have an apartment purchased on credit, or they plan to purchase housing in this way, it is best to protect themselves with the help of a prenuptial agreement. The fact is that, according to current legislation, an apartment purchased with a mortgage is jointly acquired property, which will be divided in equal shares. This statement is also relevant in cases where loan payments were repaid by one party.

With the help of a prenuptial agreement, you can not only indicate who makes the payments, but also who will own the apartment after a divorce. This option is so convenient that one of the requirements of some banks is to draw up a prenuptial agreement before applying for a mortgage.

The presence of a mortgage complicates the procedure in that, in addition to the husband and wife, a third party appears - the bank. The financial institution is an interested party, as it acts as a mortgagee.

If the prenuptial agreement is drawn up after the mortgage has been issued, the borrower must notify the bank within five days. The provisions of the marriage contract should not violate the terms of the transaction made with the bank.

The conclusion of a marriage contract by the borrower entails the following negative aspects for the lender:

• Borrowers do not bear any responsibility for concealing information about the fact of concluding a marriage contract.
• If the mortgage has already been issued, and after some time the borrower notifies about the conclusion of the marriage contract, the bank will not be able to influence the content of the document.

If recovery of the required amount is impossible due to the borrower’s lack of funds and other property, the creditor, since he is an interested party, may apply to a judicial authority to declare the marriage contract invalid in whole or in part. In court, it will be necessary to prove that the transaction between the spouses was imaginary and aimed at evading the fulfillment of debt obligations.

When going to court, you must take into account the statute of limitations. The banking organization has three years to announce its demands. The period is calculated from the date of termination of fulfillment of obligations by the debtor.

The essence of the marriage contract

An agreement on the delimitation of property rights and responsibilities during marriage and after its termination is rarely concluded between spouses. The text of the agreement contains postulates that explain what property regime and in relation to what property the husband and wife wish to establish.

Find out in more detail what a marriage contract is.

Legislation on marriage contracts

Article 42 of the RF IC contains comprehensive data on what provisions must be included in the marriage contract and how the legal regulation of property relations between spouses is carried out. The law determines the possibility of establishing a regime of separate property, joint or shared, and regulates what exactly the agreement may concern - existing or future property.

The agreement may deal with all property in its entirety, or certain types of it, as well as specific units of property owned by each spouse.

By whom and when is a marriage contract drawn up?

A marriage contract can be concluded both by people intending to get married and by spouses at any time during their marriage. In the first case, until the official registration of the relationship, the agreement does not have legal force.

Find out more about how to draw up a marriage contract.

When is a prenuptial agreement invalid?

The invalidity of a marriage contract is recognized only in court and at the request of one of the spouses, if certain conditions put him in an extremely disadvantageous position (Clause 1 of Article 44 of the RF IC).

In what other cases is a contract invalidated?

• It contains clauses that contradict the law.
• One of the spouses is declared incompetent.
• The agreement was concluded by misleading one party or by using force.
• The document was not certified by a notary, or was drawn up to cover up another transaction (Article 170 of the Civil Code of the Russian Federation).
• It was found that at the time of signing the party could not adequately assess its actions.

The limitation period for declaring a contract void is 3 years, and is calculated from the day when the execution of the void transaction began. The period is reduced to 1 year if the party wants to invalidate the contract. If the time to go to court is missed, you will have to restore the statute of limitations, and only after that – challenge the agreement.

The amount of state duty in court proceedings of a property nature is established by Art. 33.19 of the Tax Code of the Russian Federation and depends on the value of the claim.

What is the form of a prenuptial agreement for an apartment purchased during marriage?

When concluding a contract for purchased real estate, in order for it to be legitimate and legal, two conditions must be met:

• the document must be in writing;
• Mandatory notarization of the contract is required.

You can conclude a marriage contract after purchasing an apartment or before completing a transaction to purchase it. It may contain an explanation of all situations that are in one way or another related to the acquired real estate and are not prohibited by law, and also do not violate the legal rights and interests of each spouse. Otherwise, the contract will be declared invalid.

Despite the fact that the document is drawn up according to general rules, it is important to correctly indicate the subject of the agreement, as well as the obligations and rights of the parties both during marriage and after its dissolution.

Features of the sale of an apartment that was purchased under the terms of a marriage contract

A marriage contract between spouses greatly facilitates the mechanism for using their right to dispose of property.
In the absence of a signed marriage contract, spouses cannot resort to alienation of real estate without the written consent of either of them. In this case, the goal of the legislator was to achieve the maximum level of protection of the rights and interests of the second spouse, nominally, i.e. according to documents not being the owner. If there is a marriage contract concluded in a regulated manner, the spouses can fully dispose of their part of the apartment, house, etc. In this case, the consent of the second spouse is not a mandatory condition for the alienation of their share, unless otherwise specified in the terms of the current marriage contract.

Drawing up a prenuptial agreement for real estate purchased during marriage

The standard procedure for spouses to draw up a housing contract assumes that after determining the subject of the contract and preparing the necessary documents, a visit to a notary follows. The latter will prepare the text, after which the document will be signed and certified.

The agreement specifies the location, address, cadastral number, area and other significant characteristics of the housing. The main issues reflected in the contract are the division of housing after a divorce and its principles: in what shares and who will own the apartment if it is decided that it remains for one of the spouses, etc.

It is important to know how to correctly draw up a prenuptial agreement for a mortgaged apartment. If a mortgage loan is used to purchase real estate, the agreement must include a section containing a definition of the conditions and to whom the loans will be issued, and how the loan debt will be repaid.

Assistance from a lawyer and lawyer in drawing up a marriage contract

Lawyers unanimously believe that drawing up a marriage contract is not at all a manifestation of self-interest or mistrust on the part of the husband and wife. On the contrary, this step shows the seriousness and correctness of the relationship between the spouses. The conclusion of a marriage contract is a consolidation of the respect of the husband and wife for each other, since the document provides guarantees regarding the property of each family member. If suddenly a couple ever wants to divorce, none of them will face any unpleasant surprises when dividing property.

A lawyer specializing in family law can provide competent advice in drawing up a marriage contract. He will help to correctly assess the existing situation, conduct an analysis and predict the further development of property relations, and secure the distribution of property between husband and wife. When consulting and drawing up a marriage contract, lawyers also evaluate and take into account your credit obligations, since they are also subject to division.

Family law includes clear provisions that define the concept of a marriage contract, the conditions for its conclusion, content, conditions and procedure for amending and terminating a marriage contract, as well as the grounds on which a marriage contract can be declared invalid. The lawyer takes into account all legal norms and requirements, so you do not have to worry that the contract will be declared void or invalid in the future.

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How much does it cost to draw up a marriage contract for an apartment?

The legal nihilism of modern society and the reluctance to provide for various options for the development of events after marriage and the purchase of living space often do not even bring spouses (future or existing) closer to asking themselves the very important question of whether a marriage contract is needed when buying an apartment.

Responsible and rational couples today are increasingly inclined to enter into a property agreement, and they are faced with a natural question about the cost of registration services. It may be different for each notary, since pricing is not limited by anything.

The cost of drawing up a contract, as a rule, includes consultation with specialists, the use of technical means, answers to questions and clarification of points that are unclear to the client, and adjustments to previously agreed upon clauses in the contract for real estate purchased during marriage.

The price of notarization of a document is legally regulated by the uniform amount of the state duty valid throughout the country, which for certification of this type of contract is 500 rubles (Tax Code of the Russian Federation, Article 333.24).

Cost of a marriage contract with a notary

According to paragraph 10 of Art. 333.24 of the Tax Code of the Russian Federation, the amount of the state duty for certification of a marriage contract by a notary is 500 rubles. Compilation services are paid separately, and specialists can set their own prices.

Art. 333.38 of the Tax Code of the Russian Federation establishes a circle of persons who are partially or completely exempt from paying state fees for notarial acts:

• Disabled people of groups 1 and 2: a 50% discount is provided.
• Local government bodies.
• Persons who bequeathed their property to a municipality or state.

Important! A receipt for payment of the state fee must be provided to the notary before certification of the contract.

Is it possible to terminate a marriage contract?

In the vast majority of cases, a prenuptial agreement can be dissolved. However, if the subject of such a contract is housing purchased with a mortgage loan, and the spouses have obligations to repay it, termination of the contract can become very problematic. In other cases, termination of the contract is provided in the following ways:

• by mutual agreement of the parties;
• based on a court decision that has entered into force.

In the first case, the procedure is quite simple - the document ceases to be valid after registration of its termination and notarization of this fact, which is carried out on the basis of an agreement signed by the parties. The latter is compiled indicating the necessary data in any order, since its form is not fixed by law.

To make a court decision, compelling reasons will be required (gross repeated violation of the terms of the contract by one of the spouses, etc.).

Find out more about terminating a marriage contract.

Does a marriage contract cancel an agreement on the division of property?

Upon divorce, former spouses seek to divide the property acquired during their cohabitation. They can decide who will own what after the divorce by agreeing among themselves and without involving official bodies in resolving property issues.

However, if the spouses concluded a marriage contract and determined the property regime both in the marriage relationship and after its termination, then in the event of discrepancies regarding certain types of property, it is possible to cancel the agreement on the division of property by the marriage contract.

In the case when this type of document establishes the procedure for the disposal, possession and use of property not only during the marriage, but also after its end, often no additional agreements are required regulating the rights and obligations of spouses who have dissolved their marriage.

Why do you need a prenuptial agreement for a mortgage?

In Russia, few people know what a prenuptial agreement for a mortgage looks like. Citizens of the country lack minimal knowledge in the field of jurisprudence. In most Western countries, this document is mandatory. It regulates the financial and material obligations of spouses to each other.

Current legislation provides that spouses are jointly obliged to pay the bank for the received mortgage loan ( and ). Who is the title borrower and who is the co-borrower does not matter. There are two exceptions:

• the husband or wife are not citizens of Russia;
• there is a valid marriage contract that provides for a special procedure for owning real estate or other property.

It is important to note that spouses can sign the agreement before submitting an application to the registry office and after, but before the divorce. The document must be endorsed by a notary.

There are many reasons to enter into a prenuptial agreement before taking out a mortgage. Let's pay attention to the main ones:

• the husband or wife does not want to either buy real estate or go to the bank. A prenuptial agreement for a mortgage for one spouse allows you to purchase an apartment and protect it from the claims of the other half;
• money to pay the down payment is taken from pre-marital savings or donated (borrowed) by parents. And this spouse expects that he will own more square meters;
• The credit history of the husband or wife is not impeccable, or there is a criminal record. Without delineation of responsibilities, the bank will refuse to issue money. Credit institutions prefer not to deal with such clients;
• the spouses decided in advance who would receive what property in the event of a divorce;
• an apartment is purchased for parents, children from a previous marriage, office location, etc. The buyer becomes the sole owner and cannot require the other half to bear the costs associated with servicing the loan.

For what reason the marriage contract was signed when applying for a mortgage does not matter. It must be presented to the bank manager when submitting an application. Then the income of the spouse who does not claim ownership of the purchased real estate will not be taken into account as part of the total income.

Banks treat prenuptial agreements differently. The situation is being clarified regarding who will pay and from whom the penalty will be collected in case of delays. There is an understanding that spouses take finances seriously and are not inclined to make hasty decisions.

At the same time, if there is no solvent co-borrower, the bank has the right to refuse to issue a mortgage loan. A spouse who wants to purchase an apartment will have to look for another co-borrower, which is quite difficult to do. Few people want to take on other people's responsibilities. In addition, a credit institution can significantly reduce the loan amount if it calculates it based on the income of only one person.

It is impossible to cancel or change the marriage contract after receiving a mortgage without the knowledge of the bank. This will be considered a violation of the loan agreement. The inevitable consequence is a requirement to return the entire amount ahead of schedule.

Recommended article: Is the credit history of a mortgage co-borrower important?