Is it possible to conclude a marriage contract before registering a marriage at the registry office?

The purpose of a marriage contract in Russia is to regulate property relations after a divorce. According to the law, all property acquired jointly is divided equally between spouses, although there are some nuances. If spouses wish to divide real estate, vehicles, savings in a different manner, it is more advisable to conclude a prenuptial agreement, in which all wishes are written down.

The document has features not only in its drafting, but also in its conclusion, amendment and termination, which are unknown to most Russian citizens. Even if you hire a lawyer to solve these problems, everyone who plans to protect their property interests with the help of a marriage contract needs to know at least in general terms the procedure and consequences.

Law and law

The main set of laws regulating aspects of a marriage contract is the Family Code of the Russian Federation, namely from Articles 40 to 44. This defines the document and spells out the main provisions relating to the conclusion, modification and termination of the agreement.

In addition, a marriage contract is a civil law contract, and therefore all the basic provisions of the Civil Code of the Russian Federation apply to it. When drawing up a document, you need to focus on the requirements of these legislative acts.

Where and when to draw up a marriage contract

A marriage contract can be drawn up and signed by the parties in any locality of the Russian Federation, regardless of the place of residence of the spouses. But there is one nuance: after signing the document, it must be certified by a notary. To do this, you need to contact the notary office at your place of residence, and in the document itself indicate the locality in which the agreement was drawn up and certified.

You can draw up an agreement when marriage is just being planned or has already been concluded. But the moment it comes into force will be different in these cases. It is important that the parties are legally married or plan to register the relationship: cohabitants cannot enter into such a document.

Do I need to get it certified by a notary?

The need to have a marriage contract certified by a notary office is one of the mandatory conditions for the validity of the document. If this requirement for the form of the contract is not met, the transaction is considered void.

In addition to putting his signature on the document, the notary performs other actions:

• explains to the parties the significance and meaning of the transaction being concluded, its legal consequences;
• checks the compliance of the text of the agreement with the will of the parties;
• establishes that both spouses are fully capable persons;
• helps to draw up a contract correctly from a legal point of view.

Expert opinion

Maria Lokshina

Family law expert since 2010

Marriage agreements concluded from January 1, 1995 to March 1, 1996 are not subject to notarization and are considered valid due to the absence of requirements in civil legislation at that time.

Before, during and after marriage (divorce, wedding)

So, you can conclude a prenuptial agreement both at the stage of preparation for the wedding and after the official marriage. The procedure will be similar: the parties will have to get legal advice, draw up the document correctly, and have it certified by a notary. But its entry into legal force is different here.

If a marriage contract is drawn up before the wedding, it will enter into legal force on the day of registration of the marriage relationship, not earlier. If the document was drawn up and signed by a husband and wife, then it will come into force at the moment it is certified by a notary. The marriage contract is valid in both cases before the divorce, but some of its provisions may be relevant after the divorce. for example, the participation of the parties in the financial support of the child or debt obligations. After marriage, a prenuptial agreement cannot be concluded.

When is a marriage contract concluded: before or after marriage registration?

The legal conclusion of a marriage agreement is possible at any stage of the relationship between a man and a woman: before (if they actually live together) and after the wedding, or on any day of family life.
However, if the agreement is signed before the marriage, it will enter into legal force only from the date of making an entry in the registry office on the registration of the relationship. Otherwise, the agreement will remain invalid.

Concluding a contract simultaneously with the signature on the marriage certificate also does not change the moment it comes into force, and if signed after the wedding, the document will begin to be valid from the date indicated in it.

After the divorce, former spouses do not have the right to enter into a marital contract. However, they can draw up an agreement on the division of jointly acquired property, the content of which is similar to one of the chapters of the marriage contract, devoted to the procedure for disposing of property after a divorce.

Sample and form

There is no official form of the contract; you can draw it up yourself, using any template as a basis and adapting it to your own needs. However, we must not forget that the document must comply with the requirements of the Civil Code of the Russian Federation, and therefore the following information must be included:

• The title of the document is the date and city in which it was drawn up.
• Passport details of husband and wife.
• The main part of the contract
• Details of the parties.
• Signatures of the parties.

The main part of the marriage contract describes in detail the main provisions governing the division of property, financial obligations in the event of divorce, distribution of shares, and property regime. If large property objects are mentioned, then detailed information is given on them - location, address, cadastral number for real estate objects; make, model, year of manufacture, VIN number, if we are talking about a vehicle.

The specifics of personal relationships cannot be specified in a contract. For example, order the husband to maintain marital fidelity, for violation of which he must pay compensation. Such a provision will violate the rules established by law, and therefore the document may be declared invalid by the court.

It is also unacceptable that, under the terms of the agreement, one party receives all the property, while the second is left with nothing or the size of its share is very small. The court finds this situation unfair. The conditions cannot be formulated in such a way that a divorce would benefit one of the spouses. For example, the wording that in the event of a divorce initiative on the part of the wife, she is deprived of the right to all acquired real estate, regardless of the personal funds invested. This provision will also be declared invalid.

If desired, spouses can include in the marriage contract other points that are not directly related to the division of acquired property. For example, the procedure for settlement of debts incurred or loans taken from a bank, obligations to provide financial support for a spouse who has lost the ability to work, obligations on a mortgage. It must be indicated how the property will be divided in the event of a divorce, in what shares and to whom it will belong, and what to do with the indivisible property.

Over the years of family life, spouses make significant purchases, and their material well-being after a few years is higher than it was before marriage. Therefore, the agreement can be supplemented, we will talk about this below.

What issues can it regulate?

Many married couples do not know that a marriage contract can be concluded both before registering a union and after the wedding (for more details, see the article: features of a marriage contract in Russia).
Family law does not define time limits or establish restrictions on the conclusion of such an agreement between spouses. If the need to sign an agreement arose during the marriage, then the husband and wife can conclude it at any time and have it certified by a notary. In addition, spouses have the right to adjust the clauses of the agreement and make additions at any time before the divorce.

According to the law, a prenuptial agreement can be signed before the wedding ceremony. In this case, you need to take into account that it will come into force only when the family union is registered in the registry office. If the agreement is concluded, but the marriage registration does not take place, such a document has no legal force. It is also not allowed to conclude a marriage contract between people whose relationship is defined by law as cohabitation.

The subject of the agreement drawn up before obtaining the marriage certificate is the property that will be purchased during the marriage and will receive the status of joint property under the law. This can be movable property, real estate, household appliances, furniture and other things. The document must be certified by a notary. This requires the presence of both parties.

To draw up a prenuptial agreement while married, the spouses must discuss all the terms they want to include. The law allows you to include in a marriage agreement clauses on the division of movable and immovable property acquired after marriage, on the distribution of financial income and expenses between husband and wife, and on funds for supporting each other. Clauses not relating to material goods do not appear in the agreement.

The agreement is made in writing. You can draw it up yourself or with the participation of a lawyer who will help you correctly formulate all the conditions, rights and obligations of the spouses. After this, the agreement must be certified by a notary office. The cost of notary services will depend on the complexity of the contract. This condition is regulated by Article 222 of the Tax Code of the Russian Federation.

The agreement must be executed in triplicate. One document remains in the notary's office, the other two are given to the husband and wife.

The agreement can be concluded both by people planning to start a family, and after marriage. If a prenuptial agreement is drawn up before marriage, then the date of commencement of mutual obligations is considered to be the wedding day.

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A contract drawn up by spouses during their marital relationship begins to be valid from the date of signing.

The following are not entitled to enter into a contract:

• citizens of the same sex - same-sex weddings are prohibited in Russia;
• close relatives, adoptive parents and adopted children;
• persons who are in a so-called “civil marriage” and do not intend to legalize their relationship;
• persons without legal capacity;
• persons under marriageable age;
• if at least one of the parties to the contract is married to another person.

In other cases, the law permits the transaction.

Subject of the agreement

The subject of the marriage agreement is the property and financial relations of the spouses.

Financial relations - cash income (salaries and pensions, bank deposits, profits from business activities) and family expenses (debts, loans, mortgages, loans). The contract specifies the rules for drawing up a family budget, and the obligation of one spouse to provide for the other.

Property relations include the division of the rights of spouses to movable and immovable property of the family, the determination of the conditions for joint ownership of things purchased during marriage.

The contract specifies all real estate, cars and land plots already available and planned for acquisition. The agreement specifies what property goes to each spouse in the event of a divorce.

The contract will help establish a fundamentally different procedure for the distribution and use of property:

• joint - used when the property was owned by each of the spouses before marriage;
• separate - when everything that is purchased with the wife’s funds is her property. The same applies to the husband's property.
• shared - the percentage share of each spouse is established both in jointly acquired property and in property acquired in the future.

A prenuptial agreement can be concluded solely to regulate the property issues of the spouses after the dissolution of their marriage. However, this document cannot regulate personal relations between spouses that are not related to finances and joint family assets. For example, the agreement is unable to control adultery on both sides or specify how often the wife is required to clean the apartment and cook.

But it has the right to indicate when and for what purposes a representative of the fair sex can spend money from the sale of common property some time after the divorce process. To make it clearer why a marriage contract is concluded, we will give several specific examples. So, what property relations can be mentioned in the contract?

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As we have already said, a prenuptial agreement is a special agreement between spouses. It is regulated by law and comes into force from the moment it is signed. According to the general rules for such documents, an agreement of this type must be described on paper.

It is this written form that has legal force and can be appealed in court. The agreement, like any important document, is concluded in several copies, sealed with signatures and notarized. Without this signature and seal, the agreement will have no legal force. Therefore, even with the signatures of both spouses, it will be invalid. But is it possible to conclude a prenuptial agreement before marriage?

There are several options when it is permissible to legally enter into a prenuptial agreement. For example, a marriage contract can be concluded before registering a marriage. This document is discussed, agreed upon and signed before both parties declare themselves legal spouses.

However, unlike other similar agreements, such an agreement will come into force only after the official registration of the spouses’ relationship. If this does not happen, the marriage contract concluded before the marriage registration will be invalid.

The second option for registering a contract is to sign the contract and the marriage certificate at the same time. In this case, the document also comes into force from the moment of marriage. In the future it may be extended or supplemented.

Finally, a prenuptial agreement can be entered into in a relationship. When both spouses have lived together for a certain time, it is time to think things over and conclude a marriage agreement. This may be a document that has already been prepared previously or drawn up from scratch without dates or signatures.

When concluding a marriage contract before official registration in the registry office, the subject of the agreement usually becomes the property that will be acquired in the future. This includes, for example, real estate, land, vehicles, large and small household appliances, furniture sets, percentage of shares in a business, etc.

Such a marriage contract is drawn up, concluded before registration at the registry office, at a notary office or at a private legal entity. To conclude it, it is necessary not only to correctly compose the text of the document, but also to be personally present by both interested parties.

According to the letter of the law, a marriage agreement can be concluded before official registration or while already married. After the dissolution of a family union, the conclusion of a marriage contract is impossible. However, both spouses can draw up another document related to the division of joint property.

Since the marriage contract is an official document, it cannot be drawn up in any arbitrary or free form. There is a certain order in its compilation. Of course, this does not mean that both parties cannot make their own plan for this document and write down approximate points for this. On the contrary, this is not prohibited.

To formalize a marriage contract, both parties to the transaction must have the following documents with them:

• Internal civil passports (originals).
• Certificate of marriage (if one was concluded).
• Original documents proving ownership, such as real estate.
• Documentation confirming the fact of ownership or share in the business, for example, in the authorized capital of the enterprise.
• Documents indicating an open and active bank account.

In addition to the standard package of documents, the parties to the transaction can propose their own draft agreement. Handwritten or printed presentation is acceptable. At the same time, the further text of the agreement may be repeatedly changed and adjusted. The agreement itself is concluded in double, less often triple, copies.

Somewhat less often, the third copy goes to the notary. But most often the case is limited to two copies, and information about the conclusion of the agreement is entered by the notary into a special accounting book. Moreover, this transaction is assigned its own serial number, by which, if necessary, you can find information about this record.

At the notary

Before going to the notary, it would be useful to show the document to a competent lawyer. Especially if the spouses drew up the document themselves. The fact is that a notary may refuse to provide a service if the document was drawn up with errors or its provisions contradict current legislation.

If there are no complaints about this point, the notary reads the contract, after which he explains to the spouses the legal consequences and obligations that arise for them. If there are no objections, the contract is certified. One copy is received by the wife, the second by the husband. C

Price. Price

The cost of drawing up an agreement is not regulated in any way, and therefore depends on the level of the legal or notary office and the difficulties that arise when drawing up the document. According to various estimates, the cost of drawing up a marriage contract varies between 5-50 thousand rubles, but a larger amount may be requested.

As for the cost of notarization of a document, it is regulated by the notary tariff and amounts to 500 rubles. A notary cannot increase it without permission, but it makes sense to find out the cost before visiting the office: it is possible that the rates will change.

For a mortgage on an apartment

According to the law, even if the apartment was purchased with a mortgage and the husband fully covered the loan with his income, it is jointly acquired property and will be divided equally in the event of a divorce. This situation does not always suit the spouses, and they resort to concluding a prenuptial agreement. This can be done before or after receiving a mortgage loan.

It is recommended that the following points be disclosed in detail in the marriage contract:

• the principle of mortgage loan payments (who pays, in what amount, for how long);
• determining who owns the apartment purchased with a mortgage;
• principle of division in case of divorce (remains with one of the spouses, is sold), the size of shares in the property.

However, these points cannot be based on personal relationships. The wording: “the husband pays mortgage payments only if the wife quits studying at the university” is contrary to the law and will be a reason for invalidating the provision. It is impossible to indicate in a marriage contract who will get the apartment in the event of the death of one of the spouses: property in this case will be divided by the right of inheritance.

How difficult is it to draw up a contract while married?

Article 41 of the RF IC gives a clear answer to this question - spouses can do this:

1. before marriage registration;
2. being married at any time.

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The moment this document acquires legal force depends on when it was concluded:

• if before the wedding, then from the moment the marriage is registered in the registry office;
• if married, then from the moment of certification by a notary.

An agreement drawn up before marriage will remain an ordinary piece of paper if its parties do not legalize their relationship. Its provisions do not apply to the regulation of premarital relations, which means that only with the acquisition of the official status of husband and wife by its drafters, this piece of paper will turn into a document with legal force.

As we mentioned earlier, it is possible to conclude a prenuptial agreement in marriage. According to the law, it is quite possible to conclude such a contract at any time in family life. At the same time, already established spouses have certain property values ​​that they managed to acquire while being married. Consequently, the contract must specify all points relating to the list of common property.

Let us remind you that all property acquired by spouses during marriage is common. The only exceptions may be individual gifts, individual purchases with money from immediate family members, objects and items of inheritance, as well as intellectual property.

A prenuptial agreement drawn up after marriage regulates the property relations of the spouses and comes into force after its signing.

The Family Code allows only the material rights and obligations of spouses to be included in the contract.

The agreement cannot stipulate:

• conditions relating to third parties: with whom the children will remain after the divorce, what property will the parents of the spouses claim;
• non-property relations: who takes out the trash or cooks dinner, and who walks the dog;
• compensation payments in case of betrayal by one of the parties to the contract;

If these conditions are present, the agreement may be invalidated partially or completely.

A contract can be terminated in court if it was concluded under the influence of third parties, through deception and violence on conditions that are extremely unfavorable for one of the parties.

According to Art. 41 of the RF IC, a marriage contract drawn up before the registration of the relationship in the registry office comes into force only after the wedding of the spouses. Until this time, their relations are not regulated by any legal acts.

To execute a contract, you must do the following:

1. Determine exactly what moments will be reflected in it. For example, if the husband or wife has their own business that was started before marriage, you can specify that as a result of joint investments, it will not be subject to division in the event of a divorce.
2. Contact a lawyer to draw up an agreement.
3. Visit a notary with ready-made agreement forms (3 pcs.). At this time, he must check its content for compliance with legal norms, literacy, etc.
4. Sign the contract. It is also signed and stamped by a notary to certify the transaction.
5. Pick up ready agreements. Each party is given one copy. The third remains with the notary for archival storage.

Documentation

To draw up an agreement with a notary, you will need the passports of the parties, a receipt for payment of the state fee, as well as certificates of ownership of the property that will appear in the document.

Payment of the notary fee is made after signing contracts and before issuing certified copies.

The fee is 500 rubles. Additionally, you will have to pay for the services of a notary for legal work, which consists of checking documentation. Here prices vary from 5,000 to 10,000 rubles.

Spouses can sign a prenuptial agreement while married.

Most often this is required when you want to get a mortgage. In this case, the document itself, after contacting a notary, is provided to the bank that is considering the application for a home loan.

According to the law, upon divorce, not only jointly acquired property is divided, but also debt obligations, which include a mortgage. If there is a contract, litigation can be avoided: it can reflect who will get the apartment purchased on credit and who will repay the debt.

The procedure for concluding a contract in marriage is similar to that presented above. The only difference is that here it comes into force at the time of signing or on the date specified by the parties. If the document is drawn up before visiting the registry office, it will have legal effect only after receiving the marriage registration certificate.

Marriage agreement with a foreigner

The specifics of concluding a marriage contract with a foreign citizen are regulated by Art. 161 IC RF. According to this legislative act, a husband and wife who do not have a common citizenship or common place of residence can independently choose the legislation of any country, and not just the country of their citizenship or place of residence.

If the spouses do not choose legislation, Art. 161 clause 1 of the RF IC, according to which their personal and property rights and obligations are regulated by the laws of the country in whose territory they live together or last had joint residence. if there was none, then all aspects of the marriage contract are regulated by the legislation of the Russian Federation.

In a situation where spouses have different citizenships, the norms of international law also apply. Therefore, in this case, the help of a lawyer is especially important, who will help draw up a marriage contract that suits both parties and does not violate the laws.

Procedure for terminating a marriage contract

In addition to where to sign, spouses are often interested in the possibility and specifics of terminating the contract. There are two options here:

• At the notary. The parties voluntarily draw up an agreement to invalidate the contract and have it certified by a notary office. The contract loses its relevance from the date specified in the document or from the date of signing.
• Judicially. Here you will have to prove the existence of grounds for termination. The process takes about two months. Based on the results, a court decision is issued, on the basis of which the notary must cancel the document after it enters into legal force.

To terminate the contract through the court, a state fee must be paid in advance.

Additionally, you will have to pay for the services of a lawyer, because This is a labor-intensive process that requires legal knowledge; in addition, judicial practice under Art. 44 of the RF IC shows that it is possible to recognize this document as invalid, but this will require a lot of documents and the ability to justify your legal requirements.

A visit to a notary when concluding a contract is a mandatory procedure. Without notarization, the document will not be considered valid.

The exact list of documents will be provided by the notary completing the transaction. To conclude an agreement, spouses will have to pay a state fee of 550 rubles and technical work provided by a notary.

Marriage contract through a representative by proxy

If we talk about concluding a marriage contract through a representative, then in Russian legislation there is no law that would clearly regulate this point. Therefore, there are two opinions. This option is possible, since the marriage contract is a civil law one. But on the other hand, the document relates to other transactions, and therefore representatives cannot sign the document.

If for some reason it is not possible to sign a marriage contract in person, it is better to hire an experienced lawyer who will help you choose the most correct position. You can also consult a notary, who will be present when the contract is signed and will be able to provide up-to-date information on the issue.

Features of a marriage contract

Through a marriage contract, you can change the regime of joint ownership defined by default by law, establish a regime of joint or shared ownership of the entire property or its individual types, and provide for other provisions regarding property relations in marriage.

Also, a marriage contract allows you to determine the order of division of family expenses and provide for regulation of the maintenance of each spouse in the marriage after its dissolution.

Peculiarities:

• this agreement cannot regulate non-property relations;
• the form of the agreement is written;
• notarization is required;
• can be concluded before marriage, during marriage;
• the contract can always be terminated by mutual agreement of the spouses;
• A marriage contract is not subject to state registration.

Changing the marriage contract

Life does not stand still and a lot changes in a few years. Spouses acquire new property, accumulate savings, engage in entrepreneurial activities, and lose their ability to work. therefore, over time, the need arises to change or supplement the marriage contract. Moreover, you can not only add to the property acquired over the years of your life, but also change some conditions, albeit with the mutual consent of the parties.

Most often, the need to amend a marriage contract arises when circumstances change so dramatically that the existence of an agreement in this form becomes meaningless. For example, the property included in the document was sold or was taken by the bank as collateral, after which the family moved to a rented apartment. In this case, the provision on ownership and size of shares will be meaningless and subject to change.

A significant change in the financial condition of one of the spouses is also grounds for changing the marriage contract. For example, when concluding a contract, it was stated that in the event of a divorce, the husband would retain income from business activities, and the wife would have an apartment. However, a year later, the husband went broke and now fulfilling the marriage contract becomes impossible. In this case, you need to change the terms or terminate the agreement.

After marriage/divorce

According to the RF IC, a marriage contract is valid only until the marriage is dissolved. You cannot make changes to the document after a divorce. Therefore, it is important to carefully consider all the terms of the document, the procedure for dividing property, and also check with the notary what rights and obligations the parties will have after concluding the transaction.

This is especially true with regard to provisions that will remain in effect after a divorce, for example, financial support for children or the procedure for repaying a loan. In doubtful cases, you should seek legal assistance.

Sample

The agreement to amend the marriage contract is written in any form; there are no requirements in this matter. However, like the contract itself, the additional agreement must be certified by a notary. There may be several such additions; some spouses make them with each new expensive purchase. The same applies if changes to the document are necessary.

The marriage contract concluded before March 1, 1996, when notarization was not required, deserves special attention. It is possible to exclude certain provisions of a document without notarization. However, if any addition is required, notarization is required. The parties should be aware of this.

What article

The main article regulating the procedure for changing a marriage contract on the territory of the Russian Federation is Art. 43 RF IC. In addition, some points are regulated by the civil code. If one of the spouses is a citizen of another country, international law may apply.

In order not to make a mistake with the choice of the legislative framework, you need to contact a lawyer. He will tell you which law is applicable to a particular situation and help you choose a line of further action.

Through the court

If you need to change the marriage contract unilaterally, you will have to go through the court. This usually happens when one of the parties to the agreement grossly violates any condition and does not compromise. Another option is for the husband or wife to discover a condition that infringes on their rights and change the situation, including in material terms.

Actions in such cases will be as follows:

• Send the other party a notice of the need to make changes to the document.
• In case of refusal, draw up a statement of claim in accordance with the norms of the Code of Civil Procedure of the Russian Federation.
• Attach to it a copy for the defendant, the original receipt for payment of the state fee, evidence of violation of the plaintiff’s rights.
• Take the package of documents to the court office. You can send them by mail.
• Attend court hearings and be prepared to provide the necessary documents and evidence.

After considering the case materials, the court may make a decision to change the provisions of the marriage contract or to make additions. In this matter, it is better not to rely on your own strengths, but to hire a good lawyer who will help you take the right legal position and increase your chances of winning the case.

Price. Cost of marriage contract

If the spouses themselves have drawn up an agreement to amend or supplement the marriage contract, then the procedure will cost them relatively inexpensively - as of 2021, 500 rubles. This is the cost of notarization, without which the changes are invalid. It is determined by the notary tariff and cannot be changed arbitrarily.

If you need an annex to the contract to be prepared by a lawyer, and the appendix itself consists of several points, you need to be prepared to pay a higher price. In the capital, lawyers can charge from 5,000 rubles for such a service; in the regions, prices will be noticeably lower. The cost is influenced by the complexity of document preparation.

What conditions may be contained in a marriage contract?

A marriage contract is concluded in order to increase the responsibility of spouses to each other. Such an agreement can be concluded before marriage, as well as at any time during the marriage. A prenuptial agreement may define the rights and obligations of spouses during marriage, as well as after divorce. The content and scope of these rights and obligations may vary. Let's look at them in more detail.[∗] Article 13 of the Code of the Republic of Belarus on Marriage and Family

Rights and obligations of spouses regarding mutual maintenance

As a general rule, spouses are obliged to financially support each other. Spouse in need of financial assistance Spouses in need of financial assistance are considered to be: – wife during pregnancy; – a spouse caring for a common child until he reaches 3 years of age; – a spouse caring for a common disabled child until he reaches 18 years of age; – a spouse caring for a common disabled adult child; – disabled spouse. has the right to demand maintenance from the other spouse who has the necessary means for this.[∗] Article 29 of the Code of the Republic of Belarus on Marriage and Family

At the same time, the marriage contract can provide for other cases in which the spouse becomes obligated to provide financial assistance to the other spouse. For example, payment of one-time, temporary or permanent financial assistance to one of the spouses in the event of the occurrence of certain circumstances (disability or incapacity for work, divorce, etc.).

The procedure for dividing jointly acquired property of spouses

As a general rule, in the case of division of property that is the common joint property of spouses, their shares are recognized as equal.[∗] Part 1 of Article 24 of the Code of the Republic of Belarus on Marriage and Family

At the same time, the marriage contract can provide for a different procedure for dividing joint property. For example, a marriage contract may stipulate that after divorce, one spouse will own 1/3 of the joint property, and the other 2/3.

Community property that will be transferred to each spouse after divorce

Spouses can determine which of them, in the event of divorce, will own real estate, vehicles, bank deposits, furniture, household appliances, household furnishings and household items, jewelry and other luxury items, etc. In this case, the procedure for dividing this property can be made dependent on the occurrence or non-occurrence of any events (for example, the birth of a child), the guilt of one of the parties in the breakdown of the family, etc. The marriage contract may also determine the conditions and procedure for the return of common debts and other joint obligations of the spouses.

A marriage contract can be an independent document establishing new rights of each spouse to their property after divorce. In this case, the division of property will occur automatically after the divorce. However, this does not apply to real estate, which will become the sole property of one or another spouse only after registering the transfer of ownership with the state registration agency BTI.

In a prenuptial agreement, spouses can agree on how exactly, in the event of a divorce, they will divide the joint property between themselves. However, the existence of a prenuptial agreement will not mean that after a divorce their joint property is automatically divided between them. If the marriage is dissolved, the spouses must independently divide this property according to the terms of the marriage contract. For this purpose, a separate agreement on the division of jointly acquired property is concluded. If for any reason one of the spouses refuses to enter into such an agreement, then the division of joint property is carried out by the court based on the terms of the marriage contract.

Refusal of common joint property of spouses in favor of separate property of each spouse or shared property

As a general rule, property acquired by spouses during marriage is their common joint property.[∗] Article 23 of the Code of the Republic of Belarus on Marriage and Family

At the same time, this rule can be changed in the marriage contract. Thus, spouses can establish that property acquired during the marriage:

• will be the property of the spouse in whose name it was acquired or to whom or by whom the funds were contributed;
• becomes the property of only one spouse, who, in the event of a divorce, pays a certain monetary compensation to the second spouse;
• becomes the property of one or another spouse depending on the type of this property. For example, that the wife will own all household appliances and furniture, and the husband will own all vehicles.

In this case, the following rule can be provided:

• in relation to both existing property and those that will be acquired in the future;
• valid both from the moment the marriage contract comes into force and from the moment of the occurrence of a certain event. For example, that after both spouses reach retirement age, the apartment becomes the property of the wife, and the land plot with the house located on it becomes the property of the husband;

Impossibility of recognizing joint ownership of property in the case of investments in this property that significantly increase its value

As a general rule, the property of each spouse can be recognized as their common 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, etc.). p.).[∗] Part 3 of Article 26 of the Code of the Republic of Belarus on Marriage and Family

At the same time, this rule can be changed in a marriage contract, indicating that property owned by each of the spouses can under no circumstances be recognized as their joint property.

Family relationship issues

A prenuptial agreement may define the relationship between husband and wife, as well as between parents and children. So the following issues can be settled by a marriage contract:

• about the forms, methods and means of raising children, their place of residence,
• size For example, that alimony will be larger than provided by law: - for one child 35% of earnings, not 25%; – for two children 50% of earnings, not 33%; – for three or more children 65% of earnings, not 50%. child support and the conditions for its payment. For example, if a child enters a university, child support will be paid until graduation, and not only until the child reaches adulthood;
• the procedure for distributing expenses between parents for the needs of the child. For example, that if a child is admitted to a paid department of an educational institution, the father pays 70% of the tuition, and the mother - 30%, including unforeseen ones. For example, that in the event of a child’s illness, the father fully pays for his treatment;
• about the procedure for communication with them by a parent living separately. You can stipulate: – frequency of meetings (for example, every Sunday); – the duration of these meetings in time (for example, no less than 5 and no more than 8 hours); – possible places for meetings (for example, the meeting can take place at the choice of the parent meeting the child within the locality at the place of residence of this parent or in a certain park); – a condition on whether the parent meeting the child should independently return him home after the meeting, or whether the other parent should take the child, as well as other issues of maintaining and raising children in the event of divorce.

In a marriage contract, spouses may provide for other issues of the relationship between them, if this does not violate the rights and legitimate interests of other persons. For example, it is impossible to refuse to collect child support, as well as to provide it in an amount less than that established by law. and does not contradict the law. Also, a marriage contract cannot contain the following conditions: [∗] paragraph 11 of the resolution of the plenum of the Supreme Court of the Republic of Belarus dated June 22, 2000 No. 5 “On the practice of courts applying legislation when considering cases of divorce”

• limiting the legal capacity or capacity of spouses For example, one of the spouses cannot be prohibited from making transactions for the alienation or acquisition of property, or prohibited from getting a job;
• limiting the right of spouses to go to court to protect their rights;
• changing the limitation periods and the procedure for their calculation;
• putting one of the spouses in an extremely unfavorable position;
• contradicting the basic principles of family law.

Unilateral refusal to execute a marriage contract is not allowed, but it is worth noting that if a husband or wife refuses to fulfill the terms of a marriage contract, then due to the specificity of some of its conditions, in practice it is quite difficult or even impossible to force the husband or wife to fulfill them. In this case, sometimes a good option would be to indicate in the marriage contract the responsibility of the spouses for failure to fulfill their obligations, for example, payment of a penalty.

Termination of the marriage contract

Usually, a well-drafted marriage contract does not require termination and suits both parties. However, there are often situations when it turns out that the husband or wife was misled by forged documents or the provisions of the marriage contract put the party in a deliberately disadvantageous position. Such problems are rarely resolved voluntarily and the injured party has to go to court.

The most common ground for dissolution of a marriage contract is a violation of its provisions by one of the parties, in which case the injured spouse must suffer a loss many times greater than the amount of the share in the property. For example, a marriage contract can be terminated if one of the spouses deprives the other spouse of his place of residence, completely deprives him of material resources, sells property, or violates a number of terms of the agreement.

In some cases, termination of a contract is necessary when one of the parties indicated in the document property that does not belong to it. For example, a condition may be drawn up according to which the car remains with the wife, but in fact this vehicle does not exist and never has existed. Such confusion arises when the contract was concluded without a lawyer and the existence of ownership rights to the specified property was not checked.

Article, law

The main legislative act regulating the process of dissolution of a marriage contract concluded on the territory of the Russian Federation is Art. 43 RF IC. It tells you when and how the document can be terminated.

Also, some aspects of the process of terminating a marriage contract are regulated by the Civil Code. They are prescribed the procedure for filing and the content of the statement of claim in the event of unilateral termination of the contract, as well as a number of other points. In some cases, the court may be guided by other regulations.

Conditions and grounds

According to the RF IC, a marriage contract can be terminated at any time, both before marriage and throughout their entire life together until divorce. Any situation may be grounds for termination:

• detection of inaccurate information;
• incorrectly drawn up document;
• change of circumstances;
• impossibility of fulfilling certain provisions of the document;
• one or more provisions are contrary to law.

By law, a contract can be terminated by the consent of both parties or unilaterally. In the first case, a corresponding agreement is drawn up, which is certified by a notary. In the second case, you will need to go to court with a statement of claim, otherwise the marriage contract cannot be terminated.

Termination Agreement

If both parties agree that there is no point in having a prenuptial agreement, there is no problem. In this case, a written agreement to terminate the contract is drawn up, which indicates the following information:

• name of the document, date and place of its conclusion;
• passport details and residential addresses of the parties;
• details of the marriage contract - when, where and by whom it was concluded, who certified it;
• reasons for termination of the contract;
• signatures of the parties.

Like a marriage contract, the agreement is certified by a notary. Without this moment, termination will not occur and the contract will be considered valid.

Notary

The notary must be provided with a completed agreement on the termination of the marriage contract and the document itself. After reviewing the documents provided, the notary will explain the legal consequences of this action. If the parties have no objections, they sign, after which the notary certifies the agreement. From this moment the marriage contract is considered terminated.

Unilaterally

If one of the parties does not want to terminate the agreement, then they will have to go to court; there is no other option provided by law. In this case, you will need to try to prove that the provisions of the contract violate the rights of the party, put it in a disadvantageous position, or the fact that the document was signed under pressure. You need to prepare well for the upcoming trial - hire a lawyer, try to come to an agreement with your second spouse, collect the necessary documents and evidence

Termination of a marriage contract through court

First, you need to send your spouse a written proposal to terminate the marriage contract. This is necessary to provide the court with evidence of the impossibility of pre-trial resolution of the controversial issue. It is drawn up in any form and sent by registered mail with acknowledgment of receipt.

If the spouse refuses to resolve the issue pre-trial, then you need to proceed in the following order:

• collect the necessary documents;
• draw up a statement of claim and send it to the court by mail (you can bring it in person to the office);
• do not miss a court hearing, be prepared to answer some questions;

If the court upheld the claim, the marriage contract will be considered terminated from the moment the court decision enters into legal force.

The claim must be drawn up in strict accordance with the requirements of the Code of Civil Procedure of the Russian Federation; if its form or content is violated, the trial may be refused. Therefore, it is better not to rely on your own strengths, but to hire an experienced lawyer. He will tell you what documents are best to collect, what to prepare as evidence of the validity of the claims, and will draw up the statement of claim correctly. This will greatly increase the chances of a favorable outcome of the trial.

If you just need to dissolve the marriage contract, you can send a statement of claim to the magistrates' court. If, along with the termination of the document, it is necessary to divide joint property, the value of which exceeds 50,000 rubles, a statement of claim should be filed in the district courts at the place of residence of the defendant.

After marriage (divorce)

Divorce is the basis for termination of the marriage contract. Therefore, it will not be possible to terminate a marriage contract in court or by bilateral agreement. That is why, to draw up a document, you need to involve an experienced lawyer who will draw up the document taking into account the interests of each party.

After a divorce, some provisions of the marriage contract may continue to apply - the procedure for paying debts, financial support for the child. If one of the parties believes that its rights are infringed by these provisions, it is necessary to contact a lawyer who will tell you how best to act in such a situation.

If you have a mortgage on your apartment

Typically, the provisions of the marriage contract also regulate the issue of purchasing an apartment with a mortgage. At the same time, the document states who will own the property after the divorce, who will repay the loan debt and in what amount and other important points. Therefore, terminating the marriage contract if there is a mortgage on the apartment is not the best decision. It is better to try to solve the problem in a different way. For example, change or supplement the contract.

If the parties still decide to terminate the marriage contract, they must be prepared for difficulties. The fact is that when dividing an apartment taken on a mortgage, a third party - the bank - will also declare its claims. According to the law, until the loan amount is fully repaid, the property is pledged and cannot be sold, exchanged, donated, etc. In this case, it is also unlikely that it will be possible to divide the property in a pre-trial manner. Of course, the bank will comply with the court order, but this scenario is expensive and time-consuming. You definitely can’t do this without legal help.

Through a third party by proxy

Russian laws do not provide a clear solution to the problem of terminating a marriage contract with the help of a third party for whom a power of attorney has been issued. Logically, a marriage contract refers to civil contracts, in relation to which certain rules apply, including those allowing actions through a representative, if he has a power of attorney certified by a notary. On the other hand, a marriage contract is classified among other transactions, which means that all issues will have to be resolved personally, but it will not be possible to involve an intermediary.

On issues of divorce through a third party acting by proxy, it is better to consult with a practicing lawyer who knows exactly what to do in this situation.

Price. Price

If the contract is terminated by mutual consent of the parties, you will only need to pay 500 rubles - the amount that the notary will charge for certifying the document. No further costs are expected in this matter.

If the contract is terminated unilaterally, through the court, it will be difficult to announce the cost. The fee for filing a claim in a property dispute as of 2021 is 300 rubles. But the services of a lawyer will be significantly more expensive. Depending on the region, the procedure can cost tens of thousands of rubles. Much depends on how complex the process is predicted to be.

The prenuptial agreement is intended to regulate property relations in the family and after its breakup. Therefore, the drafting of a document must be approached responsibly: incorrect wording, violations of personal rights and freedoms, and contradictions with current legislation will lead to the document being declared invalid. The marriage contract can be changed or supplemented at any time, but it is better to do this with the help of a lawyer rather than on your own. With this approach, it will be difficult to challenge the contract, and the interests of each party will be protected.

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How is an agreement drawn up between spouses?

A marriage contract can exclusively regulate the property relations of the spouses.

Also, when concluding a contract, other rules should be taken into account:

• written form and mandatory notarization;
• Only married couples and citizens planning to get married have the right to sign;
• the ability to make changes to the text of the document only by agreement between the spouses;
• termination can be initiated by one or both parties on the grounds specified in the contract;
• 3 copies of the agreement must be signed (for the husband, wife and notary).

A marriage contract cannot include provisions that rely on limiting the rights of the parties, regulating non-property aspects of the relationship (for example, on infidelity, respect, etc.) or relating to the upbringing of children.

What to consider when concluding a contract: mandatory clauses

Since the scope of property legal relations in marriage is quite broad, the contract, as a rule, consists of several sections, divided into more detailed clauses, they relate to:

• the procedure for acquiring, using and disposing of property;
• ownership rights to things;
• income and expenses;
• obtaining and paying off loans;
• division of property and debts in case of divorce, etc.

In more detail, the structure of the text of the marriage contract is as follows. The introductory part contains the name of the document (“Marriage Agreement”), the place of its conclusion (city, region, country), the date of signing is the day when the contract is certified by a notary.

Also in the first part the full name is indicated. and passport details of the spouses, as well as the purpose and legal basis for concluding the agreement. The main part is the most extensive block of the document, because it has several sections, which contain articles and clauses regulating certain types of material relations.

The agreement must include such chapters as “Regime of property” (joint, separate or combined) - for movable and other things, “Rights and obligations of the parties to the agreement for mutual maintenance” (including in the event of the husband or wife becoming incapacitated).

You should not ignore the income of the spouses (how they are distributed in the family, whether they are common property, etc.) and the procedure for incurring expenses (for example, on expensive purchases), devoting separate chapters of the document to them.

The convenience of a marital agreement is that it can provide for the following clauses: “Procedure for repayment of debts” (depending on the mode of ownership of property, obligations can be divided between spouses in a certain ratio or each of them will be responsible only for loans taken on) and “Matrimonial contract and mortgage”, which is devoted to the nuances of its repayment by the parties.

An equally important part of the main block of the contract is the list of property that is transferred to each spouse after a divorce. It is advisable to determine it in advance in order to avoid lengthy litigation when dividing property.

The final part provides for liability for violation of the terms of the marriage contract, the rules for amending it, the basis for one- and two-sided termination of the contract, the validity period of the entire contract and its individual provisions, and the date of entry into legal force. At the end of the contract there are details and signatures of the spouses.

Document preparation form and sample

The agreement must only be in written form, officially certified. A standard agreement form can be found on the Internet.

When drawing up a contract, the following documents may be required:

• passports of spouses (originals and copies);
• marriage certificate;
• documents confirming the rights to things specified in the text of the agreement;
• loan agreement, if the family has a mortgage;
• birth certificates of children (if available);
• certificates of income of both parties;
• papers on the health status of the spouses (to confirm legal capacity).

A specific list will be provided by the notary who will certify the marriage contract.

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