Marriage agreement: pros, cons and position of the Supreme Court

What is a marriage contract

From the point of view of the Family Code, a marriage contract is an agreement between persons entering into marriage or spouses, which determines their property rights and obligations during marriage and after its dissolution. That is, this is an agreement between you and your other half, in which only you decide what belongs to whom during and after marriage. Moreover, you can agree on the ownership of property that does not yet exist. For example, about an apartment you are going to buy in the future.

Important. By law, former spouses must divide property equally. A prenuptial agreement allows you to deviate from this rule and divide property in a different ratio.

Why does an entrepreneur need a marriage contract?

An entrepreneur, when concluding a marriage contract, first of all seeks to separate family relationships and business. Therefore, the main task of a business owner when concluding a marriage contract is to choose the best ownership regime for the assets of his company so that his other half cannot interfere with his business activities.

Vladimir Yarovenko, lawyer of legal

It is important for an entrepreneur to indicate in the marriage contract that current business assets and future acquisitions, such as real estate, vehicles, equipment, shares in the authorized capital of an organization or shares, belong to the person to whom they are already registered or will be registered, and income from business activities belong to the entrepreneur himself. The average individual most often does not need to mention this. This is the fundamental difference between a marriage agreement for an entrepreneur and a marriage agreement for a person without his own business.

A prenuptial agreement helps an entrepreneur solve three main problems: to separate company property from family property, gain the right to dispose of company property without the consent of the other half, and protect your family from creditors.

Separates company property from joint property

By law, property acquired by spouses during marriage is their joint property. For example, if during the marriage the individual entrepreneur purchased equipment for baking buns, it will be considered joint property. And it doesn’t matter which spouse bought this equipment and for what purposes.

In this case, a prenuptial agreement will help establish ownership of the equipment. At the request of the entrepreneur, it can belong only to him, and the partner will not be able to appropriate the property after a divorce.

Allows you to dispose of company property without the consent of a partner

The second problem that married entrepreneurs often face is the need to obtain the notarized consent of the other spouse for some common transactions and operations with company property. For example, when selling a share in the authorized capital of a company, selling real estate, or concluding a long-term lease agreement for an office or warehouse.

A prenuptial agreement, which states that this company property belongs to the entrepreneur, will immediately resolve all questions and allow the transaction to be completed faster. Therefore, when concluding a marriage contract, it is important to individualize the property in question as much as possible. For example, if there is a land plot on the company’s balance sheet, it is necessary to indicate its cadastral number, address, and area.

Example. An individual entrepreneur from Porkhov entered into a marriage contract, in which he determined the fate of various types of property: bank deposits, jewelry, land, household appliances, cars. But the entrepreneur forgot to mention in the contract several trailers that he used to transport goods. After the divorce, the wife filed a claim to have the marriage contract declared invalid. The court refused her request, but recognized the trailers as the common joint property of the spouses - and ordered them to be divided equally between the spouses.

Helps protect the entrepreneur's family from creditors

A prenuptial agreement also allows the business owner to protect the family from claims by creditors in the event of bankruptcy. This is especially true for individual entrepreneurs, since according to the law, creditors have the right to demand repayment of the entrepreneur’s debts from the share in the common property of the spouses. But it is important not to overdo it when transferring property to a spouse, because the court may declare such transactions invalid at the request of creditors. In a marriage contract, certain proportions must be observed when distributing property - the document must take into account the interests of both spouses

Important. A prenuptial agreement can work not only in favor of the spouse who owns the business, but also in favor of other family members. The document helps protect the rights of a spouse who is not involved in the business if the company has fallen into debt and is unable to meet its obligations.

Marriage contract and family budget

As we indicated above, a marriage contract can determine the ownership of the income received by the spouses and the procedure for them to bear family expenses.

Income includes wages, pensions, benefits, other cash payments, business income, dividends and other income from securities, royalties, rental income, income in kind, and other income. Expenses may include payment for housing and communal services, electricity, communications, repairs, purchase of food, clothing, vacations and tourist trips, treatment and medicines, loan obligations, personal and property insurance, payment for school, kindergarten, sections, courses, etc.

For example, a prenuptial agreement may provide that each spouse becomes the sole owner of the income that he or she receives. It is possible to establish the degree of participation of each spouse in expenses for the needs of the family (for example, in equal shares, or in relation to certain categories of expenses, etc.). Likewise, it can be established that each spouse is independently responsible for repaying the loans he has taken.

Who needs to sign a prenuptial agreement?

Typically, a prenuptial agreement is necessary for individual entrepreneurs, LLC participants, and those who plan to scale their business.

IP. Such an entrepreneur does not have the concept of “personal property” and “company property.” Everything that belongs to an individual entrepreneur can be used to conduct business - these are his assets. If, while married, an individual entrepreneur once again purchased dough for his bakery, his significant other has the same right of ownership to this dough as the owner of the business.

LLC participant. By law, the other spouse can claim a share in the authorized capital of the company if it was acquired after marriage. It is important to separate the nominal value of the share and the market value. Nominal is the standard 10 thousand rubles, which are usually prescribed in the charter. And the market value is the real value, calculated on the basis of the company’s income and assets. Usually this is tens and hundreds of thousands of rubles. If a marriage contract is not concluded, the second spouse has the right to receive half of the share in the authorized capital. In this case, the spouse claims precisely the market value of the share, and not the nominal value.

Example. After the divorce, the wife wanted to appropriate part of the share in her ex-husband’s LLC. The Nizhny Novgorod court satisfied the wife’s request and ordered the entrepreneur to pay her the market value of the share in the amount of 73,350 rubles.

Important. In addition to the prenuptial agreement, there are other ways to limit the rights of the second spouse to a share in the company.

Vladimir Yarovenko, lawyer of legal

LLC members often use corporate instruments to prevent the owners' spouses from managing the business. For example, the charter stipulates a ban on the alienation of shares in the authorized capital to third parties without the written consent of the remaining participants in the company. Thus, other participants do not allow their partner’s spouse to take advantage of the corporate rights that the share gives him. For example, the ability to vote at a general meeting of participants against concluding a major transaction.

An entrepreneur who plans to expand. If you are planning to scale your business in the near future, for example, to attract money from investors, then a prenuptial agreement must be concluded in order to minimize the risks of both parties in terms of the potential division of property and determine the rights to future business income.

What to consider in a marriage contract

The marriage contract must establish a regime of joint, shared or separate ownership of all property of the spouses, its individual types, or the property of each spouse, both acquired before marriage and during marriage. In this case, a marriage contract can be concluded in relation to existing property, for example an apartment purchased five years ago, and in relation to future property, for example a dacha, which the spouses are just planning to acquire.

In a marriage contract, spouses have the right to determine the following:

• their rights and obligations regarding the mutual maintenance of property, for example, payment of interest on a mortgage;
• ways to share in each other's income. For example, a wife is entitled to 30% of her husband’s income, which he receives from running a business;
• the procedure for each spouse to bear family expenses. For example, a husband who runs a business fully pays for the education of their common child;
• Property that is transferred to each spouse upon divorce.

When drawing up a marriage contract, it is important to remember what conditions cannot be included in it. Their list is determined by the Family Code. A marriage contract cannot:

• limit the legal capacity or capacity of spouses. For example, it cannot be stated that only the wife can make any transactions with the joint property of the spouses - this will limit the husband’s legal capacity. Or that the husband has the right to oblige his wife to leave work and take care of the household for the fact that he provides her with maintenance;
• limit the rights of spouses to go to court to protect their rights;
• regulate personal non-property relations between spouses. For example, a wife cannot oblige her husband to maintain marital fidelity. But he can be deprived of his property if the fact of treason is proven;
• regulate the rights and obligations of spouses in relation to children;
• limit the right of a disabled, needy spouse to receive maintenance;
• place one of the spouses in an extremely unfavorable position or contain conditions that are contrary to the Family Code. For example, it is impossible to indicate in a marriage contract that everything acquired during the marriage in the event of a divorce will belong to only one spouse, and the other will be left with nothing.

Important. There is no need to indicate a validity period in the marriage contract. By law, the document expires upon the termination of the marriage.

Marriage agreement with separate property of spouses

According to the general rule (clause 1 of Article 34 of the RF IC), almost everything acquired by spouses during marriage goes into their joint

own. This means that any transaction by one spouse to dispose of such property (for example, the sale of a summer house) will require the consent of the other spouse. Moreover, the other spouse is also responsible for the debts of one spouse.

Separate mode

property means that the property acquired by each spouse during the marriage will be his (her) personal property, which he (she) will have the right to own, use and dispose of entirely at his own discretion and without taking into account the opinion of the other spouse.

This regime, with the help of a marriage contract, can be extended either to all the property of the spouses, or to certain categories of it (for example, real estate, vehicles, etc.), or to some specific (named) property.

A prenuptial agreement can be concluded both in relation to existing and future property of the spouses. Here are examples of types of property, the regime and fate of which can be regulated by a marriage contract:

• apartment/house;
• land plot;
• car and other vehicles;
• furniture, household and computer equipment;
• bank deposits and accounts;
• securities, shares in the authorized capital;
• jewelry and art objects;
• animals, sports equipment, books and other types of property.

Family assets not covered by the prenuptial agreement will remain joint property of the spouses by operation of law.

IMPORTANT:

The property of the spouses includes not only things and property rights, but also the obligations (debts) of the spouses.

How to conclude a marriage contract

To conclude a marriage contract, you need to prepare the necessary documents and contact a notary or lawyer.

Documentation. Typically, the following documents are needed to conclude a marriage contract:

• documents proving the identity of each spouse, for example a passport of a citizen of the Russian Federation;
• marriage certificate;
• documents confirming ownership of property: purchase and sale agreement for office space, equipment and other assets of the company, constituent documents of the company, extract from the register of securities owners, and so on.

However, the list of documents in each individual case is different, since it largely depends on the property, the rights to which will be regulated in the contract.

Vladimir Yarovenko, lawyer of legal

For example, if you want to regulate rights to a land plot, you will need an extract from the Unified State Register of Real Estate. If you plan to include a car in the contract, you need to prepare a vehicle passport. And if the marriage contract defines the rights of the spouses to a share in the authorized capital of a legal entity, at least an extract from the Unified State Register of Legal Entities will be needed.

Deadlines. Usually, a marriage contract can be concluded directly on the day of contacting a notary or lawyer, having previously made an appointment with him by telephone. In more complex cases it will take several days.

A marriage contract concluded before marriage comes into force on the date of state registration of marriage. A prenuptial agreement concluded during marriage is valid from the moment of signing.

Price. The cost of preparing a prenuptial agreement depends on who you contact. If this is a notary, then the prices are set by the notary chamber of the corresponding subject of the Russian Federation. You can find out the cost on the website of the notary chamber in your region. For example, in Moscow the fee for preparing a marriage contract is 10 thousand rubles, and in St. Petersburg - from 6.5 to 10.4 thousand rubles, depending on the complexity.

Lawyers' fees are approximately the same as notaries'.

In addition, you must pay a state fee. It is the same throughout the country and amounts to 500 rubles.

Here is a template for the simplest marriage contract that you can download and adapt to your needs.

Change and termination of the marriage contract

The prenuptial agreement may be amended or terminated at any time before the dissolution of the marriage by agreement of the spouses

. Such an agreement is concluded, like the contract itself, in writing and certified by a notary.

At the request of one of the spouses, the marriage contract can be changed or terminated through the court

on the grounds provided for by the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), for example:

• in the event of a significant violation of the contract by one of the spouses (clause 1, clause 2, article 450 of the Civil Code of the Russian Federation);
• due to a significant change in circumstances (Article 451 of the Civil Code of the Russian Federation);
• on other grounds provided for in the marriage contract itself (clause 2, clause 2, article 450 of the Civil Code of the Russian Federation).

The marriage contract is terminated (in the part regulating the property relations of the spouses during the marriage) from the moment of state registration of the divorce in the civil registry office or from the moment the court decision on divorce comes into force.

At the same time, certain obligations provided for by the marriage contract for the period after the termination of the marriage (if any) will remain in force, for example, the procedure for dividing property between former spouses, obligations for mutual maintenance, etc.