How to conclude a prenuptial agreement before marriage?

○ Contents of the marriage contract.

When concluding a marriage contract, the spouses change the regime of joint property of the spouses established by Art. 34 RF IC.

The traditional 50/50 division of common property can be revised and enshrined in the contract by agreement of the parties. A husband and wife, in addition to joint ownership, can establish both shared and separate ownership regimes in relation not only to their existing property, but also to future property and obligations. The latter is relevant if the spouses have a mortgage or another large purchase on credit.

The rights and obligations established by the parties can be limited to a fixed term or period (for example, maintenance by a husband of a spouse during pregnancy), and can also be established depending on possible events - for example, the transfer of all property to one of the spouses, in the event of an established and confirmed fact of adultery to others.

In addition to the procedure for dividing acquired property and its distribution in the event of divorce (I have already written in detail about divorce ), in the marriage contract, at the request of the parties, the following conditions can be defined:

• Rights and obligations of the parties to support each other (alimony). You can provide both fixed amounts (even with indexation!) and percentages of earnings;
• The size and procedure for the distribution of family expenses for each spouse. To avoid disputes about who allocates money for household needs and mortgage payments and in what amount, these conditions can be fixed in the contract;
• The procedure for the distribution of income of each spouse and participation in it;

Any other provisions regarding financial and property relations , but in no case can the constitutional and civil rights and freedoms of the parties be violated in this document.

A man cannot, for example, be prohibited from communicating with children after a divorce, and a woman cannot be restricted from attending entertainment events and bachelorette parties during marriage.

Basic concept

The legislator devoted an entire chapter in the Family Code of the Russian Federation to resolving the issue of the contractual regime of spouses' property.

A prenuptial agreement is an agreement regarding property rights and obligations between future spouses or husband and wife.

The agreement is used to fix ownership rights to the acquired:

• before the wedding;
• married;
• after divorce.

This method guarantees the parties respect for their rights to property in accordance with the basic provisions of the Constitution of the Russian Federation (Article 35, possession, use, disposal).

In simple terms, such a tool provides for and controls situations related to property. It is determined in advance what exactly, in what amounts and which party will be owed.

○ Termination of the marriage contract and changing its terms.

The parties at any time, by mutual consent, have the right to agree on the early termination of the marriage contract by formalizing this decision in writing and certified by a notary (Part 1 of Article 43 of the RF IC).

Similarly, changes can be made to the document - if there is a signed expression of will of the spouses in the form of an additional agreement to the contract .

As a general rule, the contract terminates after the divorce, but not with regard to those rights and obligations that relate to the life of the spouses after the divorce - division of property , payment of alimony for children , etc.

The law does not make it possible to unilaterally refuse to fulfill a contract, but it does allow you to challenge it in court:

1. It is permissible to invalidate a marriage contract by a court decision if it knowingly puts one of the parties in an extremely negative position.
2. If, under the terms of the agreement, the spouse loses all property upon divorce, but her participation in expenses and income is not specified at all, which actually implies a ban on work and receiving income, the court may recognize such an agreement as void, as limiting the rights of one of the parties.
3. Similarly, a marriage contract can be declared invalid on any of the grounds specified in the Civil Code for declaring transactions invalid.

Conditions

After the relationship is formalized, all property acquired in the family passes into the regime of common joint ownership. The powers of ownership, use and disposal are distributed equally in relation to everything acquired during family life.

By agreement, the general joint regime can be changed to:

• separate property, that is, personal for each party;
• shared, when one object has several owners, and the shares are determined specifically for each;
• joint, when there are several owners whose shares are not determined in advance.

These regimes may apply to property that:

• each side already had;
• already exists at the time of conclusion;
• will be acquired in the future;
• applies to various types, aggregates and groups of property.

This opportunity gives the parties confidence that in the event of divorce, their personal property will be protected from division or, on the contrary, will be transferred to the spouses within a predetermined time frame or in specific shares. For example, this happened with citizen Ivanov, who stipulated in the marriage contract that the apartment he bought before the wedding remains his personal. Thus, he retained ownership of the property after the divorce:

Citizen Ivanov entered into an agreement for equity participation in construction before marriage, which was secured by a bank credit line. The bank transferred the entire amount of the cost of the apartment to the developer. Ivanov, after transferring the entire amount of funds, registered ownership of himself. He began to pay the cost of the purchased apartment to the bank that issued a loan for the purchase of the above-mentioned housing. Having paid off most of the loan, citizen Ivanov met his future wife. After the wedding, she moved to live in her husband’s apartment and further loan repayments were made from joint funds. Ivanov, in order to secure his right, simultaneously with the marriage, signed a contract with his wife stating that the apartment he acquired as an equity participation in the construction was his personal property.

A few years later, the relationship between the Ivanov couple deteriorated. The wife filed for divorce and division of property. The joint property did not include the apartment in which they lived, thanks to the contract concluded by the spouses. The funds contributed by them jointly to repay the loan were subject to division. The wife's claim was satisfied by the court and she was reimbursed for her part of the expenses contributed to repay the housing loan. The apartment remained with Ivanov.

What issues can it regulate?

When drawing up an agreement, spouses must know what conditions can be included in such a document and what is prohibited. First of all, the marriage contract should regulate only the property relations of the spouses. In accordance with the law, the marriage agreement does not include:

• conditions relating to the personal relations of spouses;
• rights and obligations of the parties in relation to children;
• conditions that limit one of the spouses in the exercise of their civil rights, for example the right to go to court, draw up a will, engage in entrepreneurial activity, etc.

Let's assume that the spouses have entered into a prenuptial agreement. What rights does this agreement give them? Let's start with the fact that this document offers several options for further division of property. Thus, a divorced couple has the right to choose one of the following options:

• Divide the values ​​in half.
• Continue using them together.
• Distribute them in a shared proportion (for example, two cars go to the husband, and one to the wife).

Further, a marriage contract concluded between spouses can describe options for dividing existing property, as well as what will appear in the future. In this case, the agreement is concluded during the wedding ceremony. Here it is possible to indicate whether the family budget will be common or whether both spouses will be able to use the funds earned independently of each other. Or you can mention amounts for general and personal use.

Moreover, a prenuptial agreement may be concluded describing the amount of alimony that the spouse is obligated to pay for the maintenance of his children or his ex-wife. This item is especially loved by the wives of public figures. Based on such an agreement, wealthy husbands undertake to pay a fairly large sum for the maintenance of their ex-wife.

We invite you to read: Can the court change the terms of a settlement agreement?

pros

When deciding to sign a marriage contract, you should take into account its advantages:

1. If you already have real estate or other property, including a business, then before marriage you can register all the assets for yourself;
2. During a divorce, both parties will clearly understand who will get what part of the property;
3. You can register the shares due to everyone after a divorce or the occurrence of a certain event;
4. A real opportunity to protect yourself from creditors’ claims for the debts of one of the spouses.

Each couple proceeds from their own needs and decides whether it makes sense for them to sign a prenuptial agreement. Obviously, this is a universal tool for settling property relations in a family, protecting your assets or business. People who do not want to risk what they already have will consider this option to protect their rights and make the right choice.

Restrictions

When drafting a document, it is important to keep in mind some restrictions:

• legal capacity or legal capacity must not be infringed upon or limited;
• it is prohibited to deprive the parties of the right to protect their interests in court;
• personal non-property relations cannot be specified;
• limit the right of a disabled spouse to receive maintenance;
• the text should not contain provisions that put one of the parties in unfavorable conditions;
• provisions must not contradict the principles of family law.

If one of these points is violated, grounds arise for going to court and declaring the document or part thereof invalid.

Making changes and corrections to the marriage contract

The marriage contract may be subject to adjustments or terminated. There are two ways to make changes or terminate the contract:

1. Voluntarily

If the parties manage to reach an agreement, they can make adjustments to the contract or terminate it by drawing up an appropriate agreement. The agreement, as well as the contract, is subject to notarization.

1. Through the court

If the parties fail to reach an agreement, then adjustments to the contract or its termination can be carried out in court, but provided that there are compelling reasons for this. To do this, the interested person must apply to the court with a corresponding statement of claim, which will be considered in the manner prescribed by law.

Read: How property is divided in a divorce if there are children

Points for and against"

Arguments indicating the need to conclude an agreement include the following:

• the parties are clearly aware of their financial situation after the divorce;
• the contract clearly defines the list of joint property;
• after divorce there is a greater chance of maintaining a good relationship;
• makes it possible to protect yourself from marriage scammers.

The disadvantages of the agreement are the following:

• No matter how carefully the documents are prepared, circumstances may arise that are not regulated by the contract. We can eliminate this drawback, because the contract can be subject to numerous adjustments.
• It is possible that one of the spouses signs the document under pressure, even though this is illegal. Subsequently, proving in court that a person was forced to enter into an agreement is very difficult.
• The provisions of the agreement may no longer comply with the law, because regulations in Russia change frequently. It is worth constantly monitoring legislative amendments and checking whether the terms of the contract are legal.
• There is a risk of deterioration in the relationship between husband and wife, since in the Russian mentality this transaction is equated with the spouses’ distrust of each other.

Form

There are two main requirements for the form:

1. Written form. Any oral agreements will not have legal force until they are recorded in writing.
2. Notarization. The contract is subject to a requirement for notarization, confirming the will of both parties, who must be present in person. Concluding a contract with one of the spouses on the basis of a power of attorney from the other is unacceptable. What does a notary do when accepting documents: checks the text for its compliance with the law;
3. checks documents for what is already owned and specified in the text (extracts from government bodies, cadastral passport, technical passport, etc.)
4. explains to the parties the consequences of signing the document, their basic rights, obligations and draws attention to the essential points.

How to conclude an agreement before registering a marriage?

So, you need to make sure that all the conditions established by law for drawing up a marriage contract are met.

Participants

As we have already discussed above, a marriage contract can be concluded by both persons who are already married and those who are just planning to become spouses. Please note that in the second case, execution of the contract is possible after submitting an application to the registry office.

Only persons with the status of a citizen of the country can enter into an agreement. Moreover, since marriage is concluded by a man and a woman (Clause 1 of Article 12 of the RF IC), then a marriage contract can only be concluded by persons of different sexes.

The age of the contract participants deserves special attention. Thus, as a general rule, an agreement can be concluded by citizens who have reached the age of marriage, i.e. 18 years old (clause 1 of article 12, clause 1 of article 13 of the RF IC).

Persons whose marriage is not permitted by law cannot be parties to a marriage contract. This group includes:

• citizens who are already married (to other persons);
• close relatives (parents and children, grandparents and grandchildren, brothers and sisters);
• adoptive parents and adopted children;
• persons recognized by the court as incompetent due to a mental disorder (Article 14 of the RF IC).

Form and design

The rules for drawing up a marriage contract are regulated by Chapter 8 of the Family Code of the Russian Federation. Since the document is a bilateral transaction, the provisions of Chapter 9 of the Civil Code apply to it.

As we noted above, concluding a marriage contract requires adherence to certain principles. Including:

• The document must be drawn up in writing;
• certification of the contract by a notary (Article 40, paragraph 2 of Article 41 of the RF IC).

The notary's competence also includes drafting the text of the agreement. However, such a service is paid separately and is not included in the notary fee. Before certifying the marriage contract, the notary explains to the parties their rights and obligations, the meaning and meaning of the contract they are entering into, and the legal consequences of its conclusion.

To certify the text of the document, the notary will need the agreement itself and the passports of the parties to the transaction.

Recognizing a contract as illegal due to duress

The marriage contract can be changed by mutual consent of the parties. It may also stop working. This can happen due to natural reasons:

• after the death of one of the spouses;
• upon expiration of the contract, if one is specified in the document;
• after the official annulment of the marriage relationship.

It is also possible to terminate the marriage agreement in court. Such cases include:

• termination of the contract at the initiative of one of the parties in court;
• invalidation of the marriage contract.

In order for a contract to be void, valid reasons must be provided. The list of reasons recognized by the court as significant for terminating the contract and declaring it illegal:

• the contract does not comply with the norms of current legislation (Article 168 of the Civil Code of the Russian Federation);
• the document contains provisions that cannot be the subject of an agreement (everything that does not affect property relations);
• lack of notarization of the document (Article 165 of the Civil Code of the Russian Federation);
• confirmation of the fact that the contract was concluded under duress, threats or deception (Article 179 of the Civil Code of the Russian Federation).

Please note that on the last ground (registration by deception, under duress), the marriage contract can not only be declared invalid, but also entail criminal liability.

To invalidate a contract, you will need to go to court.

Standard procedure:

• determining the legal grounds for invalidating a contract, collecting evidence;
• checking the statute of limitations;
• preparing a claim;
• preparation of a package of documents (photocopies of the statement of claim - for each party and the notary, marriage certificate, other documents relevant to the case, receipt of payment of the state fee);
• sending the claim to the court at the defendant’s place of residence.

Contract time

As mentioned above, even if the marriage contract was concluded before the registration of the family union, it comes into force no earlier than the registration of the relationship in the registry office.
It is also important to know that citizens who have officially broken off a relationship cannot draw up an agreement, since it begins to take effect only in marriage. If we talk about the termination of the contract, it occurs in the event of:

• If there is a death of one of the parties (spouses).
• When one of the parties (no matter the husband or wife) committed significant violations of the terms.
• If the spouses have formalized the separation of the family union.
• When one of the canceling conditions occurs.