Is it possible to change or terminate a marriage contract unilaterally?

Many married couples resort to concluding a prenuptial agreement in order to insure their property interests in case the marriage suddenly breaks up. A marriage contract can be concluded by both young people before entering into an official marriage, and after its registration. In both cases, the agreement guarantees the spouses the preservation of their property in the shares determined by them. Spouses retain the right to amend and terminate the marriage contract if life circumstances change and they reach agreement on such an action.

The main purpose of a marriage contract is to establish a special regime for joint property of spouses. But what to do if one of the spouses does not agree with the termination of the contract or its modification when such a need arises?

Is it possible to terminate a marriage contract?

Like any other civil contract, a marriage contract can be changed or terminated. The legislator has provided such an opportunity for spouses by directly indicating this provision in the law. The procedure for changing and terminating a marriage contract is prescribed in Article 43 of the Family Code.

The agreement may be changed or terminated:

unilaterally;
by agreement of the parties.

Depending on the circumstances of the situation, the agreement of the spouses can be changed or terminated:

by signing an additional document to the main agreement - a new version of the agreement or an additional agreement;
in court by filing a claim.

Accordingly, if the parties mutually came to the decision to change or terminate the agreement, then they can do this by concluding an additional agreement to the marriage contract. If only one spouse has such a desire, then you will have to go to court.

Grounds and conditions for termination of a marriage contract

Article 43 of the Family Code states that spouses can change the terms of the contract or terminate it at any time. The grounds for change or termination are provided for in Article 450 of the Civil Code.

These are:

desire and consent of the parties;
material violation of the terms of the agreement;
other cases prescribed by law;
a sign of the nullity or invalidity of a contract as a transaction.

Signs of invalidity will be:

Limitation of the legal capacity of spouses. For example, a ban on divorce or loss of the right to property after a divorce on one’s own initiative, or a ban on going to court.
Division of responsibilities of spouses in relation to minor children.
Limitation of the spouse's rights to receive maintenance.
Other violations of family or civil law that may lead to the invalidity of the transaction.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The desire of the spouses to change the contract may be caused by a change in the agreements between them regarding the ownership of property in the event of a divorce.

For example, initially the spouses could agree that the joint apartment would remain with the wife and the car with the husband. After a while, people could change their minds and reconsider their decision so that all the property goes to the spouse.

The grounds for judicial termination of the contract will be the following:

conclusion of a marriage agreement by a person who was in a state of confusion or could not understand the actions being taken (for example, was in a state of intoxication, alcohol addiction, etc.);
concluding an agreement under the influence of threats, mental or physical violence, blackmail or another form of coercion, which resulted in extremely unfavorable terms of the contract for the coerced party;
concluding an agreement with a person with limited legal capacity.

In addition, there are cases when in the course of family life some other valuable property is acquired. It is advisable to supplement the terms of the contract by indicating in it additional objects that the spouses want to divide among themselves.

Important! A prenuptial agreement is concluded so that in the future, if you have to get a divorce, you do not have to go through lengthy litigation and divide property.

As for termination of a contract by consent of citizens, the reasons for this may be various circumstances. Most often, this is the sale of joint property that was the subject of a marriage agreement.

If the spouses have sold all their joint property, then the marriage contract loses its meaning. Of course, its legal effect does not cease. However, if there is no property, then there is nothing to divide according to the marriage contract. A reasonable solution is to terminate the contract by agreement of the parties, because this procedure is very simple.

Arbitrage practice

The practice of courts on the issue of dissolution of a marriage contract mainly concerns the application of the statute of limitations. Since the marital agreement is subject to civil law, a general statute of limitations of 3 years may apply to it.

But some courts insist that a marriage contract is governed by the fundamentals of family law, and therefore point to the effect of Article 9 of the RF IC on the non-application of the statute of limitations in matrimonial matters. Ambivalent interpretation of the law is not permitted by a higher court, so it is unclear whether the three-year period applies when filing a claim for unilateral termination or invalidation of a contract.

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As an example, consider the following situation. The wife demands partial annulment of the marriage contract due to the fact that the husband, who on its basis is the owner of their common apartment, intended to conclude an alienation transaction. The contract was signed 10 years ago, but the plaintiff wanted to invalidate it, since after the sale of the home she and her children would be left without a “roof over their heads.” As a result of considering the claim, the court satisfied the woman’s demands and recognized her ownership of half of the apartment. When making a decision, the government agency took into account the interests of minor children and the fact that the spouse signed an agreement that was obviously unfavorable for herself.

Regarding the expiration of the limitation period, there is also an opposite example from practice.

The couple received maternity capital and spent it on purchasing housing. To simplify the paperwork procedure, the husband suggested concluding an agreement under which the apartment became his property. He also notarized that within 6 months he would distribute the shares between the spouses, 1/2 each. But, after six months, the man did not make the promised division, and the apartment continued to be in his possession. After some time, the couple divorced. Then the wife filed an application to the court to declare the contract invalid. She justified the claim by the fact that the document contained a condition that placed her and the children in an extremely disadvantageous position. The court did not satisfy the stated demand due to the expiration of the statute of limitations, and the plaintiff did not provide evidence of valid reasons for the omission.

Termination of a marriage contract by agreement of the parties is not a difficult procedure. But, if the case comes to court, the interested person is advised to carefully prepare a statement and then his speech at the hearing in order to obtain a decision in his favor. Often you cannot do without the services of a professional lawyer.

How to unilaterally terminate a marriage contract

According to the law, there are two mechanisms for terminating a spouses’ agreement:

unilaterally;
bilaterally.

The first option is much more difficult and longer, since it requires applying to the judicial authorities. Only the court has the right to resolve a controversial situation.

At the same time, the second option involves a faster termination procedure. But there is one condition here - both parties must agree to terminate the legal relationship under the marriage contract.

The disagreement of one of the parties to terminate the marriage contract entails the other party being forced to go to court to resolve the conflict.

Although this is not clearly stated in the law, it follows from the essence of the situation when one person is against termination of the contract that pre-trial settlement is a mandatory stage. If it is not possible to reach an agreement, a unilateral procedure for terminating the contract is activated.

Also, a unilateral termination procedure is relevant when a party has significantly violated the terms of the transaction.

Important! A material violation is a violation that resulted in the impossibility of obtaining what the party had the right to count on if the terms of the transaction were fully fulfilled.

Order and process

Consideration of claims for amendment and termination of a marriage contract is carried out by district courts according to the rules of jurisdiction. Magistrate judges, contrary to misconceptions, do not hear cases challenging transactions.

You should go to court at the place of residence of the defendant, that is, the second spouse who does not agree with the change or termination of the contract.

It will take at least two months to consider a case challenging a marriage contract, but in practice it will take an order of magnitude longer:

2 months – time frame for consideration of the case as a whole;
1 month – entry into force of the decision;
from 1 to 3 months additionally - carrying out any examination if the question arises about the authenticity of the signature or other circumstances.

Sample statement of claim for termination of a marriage contract

The statement of claim to the court is drawn up in any form, since there is no single form for this document.

When writing a claim, you still need to adhere to some rules:

The header of the application indicates the name of the court, the plaintiff’s details (full name, address, telephone number), and the defendant’s data (full name, address, telephone number).
The main part of the claim describes the circumstances of the situation (when the marriage was concluded, the marriage contract, what is included in the list of property under the contract, what conditions were violated, the reasons for termination, pre-trial settlement of the dispute with the defendant, etc.).
The petition part indicates the debtor’s demands (to make changes, to terminate the agreement) with references to the provisions of the law.
Documents related to the case must be attached to the claim.
At the end of the statement of claim, the applicant's signature and date are placed.

If the above rules are not followed, the statement of claim may be returned to the applicant to correct the deficiencies.

The sample claim below for invalidation of a marriage contract and its termination is just an example of one of hundreds of possible situations. To competently draw up a claim, it is better to contact an experienced lawyer in advance or consult our specialists for free on the website.

Documentation

An appeal to the court begins with the filing of a statement of claim by the interested party (one of the spouses).

The claim must be accompanied by:

a copy of the plaintiff's passport;
a copy of the marriage certificate;
a copy of the marriage contract;
a copy of the annexes to the marriage contract (if changes were made);
a copy of the children's birth certificate (in some cases may be required);
a copy of the letter to the defendant with a proposal to terminate the contract;
receipt of payment of duty.

I would like to draw your attention to such a document as a letter proposing to terminate the agreement. Before going to court, the interested party must propose to the other party to terminate the agreement.

You can’t put words into action, so it’s better to send this proposal in writing. It is better if it is a registered letter with acknowledgment of delivery.

Compliance with the pre-trial procedure for resolving the dispute will mean that the spouse has received an offer to break the deal. If the letter is not answered, then you will have to file a claim after waiting at least 30 days. But a copy of the letter will need to be saved and attached to the statement of claim.

Before filing a claim, it is strictly necessary to pay the state fee. Its amount is 300 rubles for citizens for filing a non-property claim. The receipt of payment must be attached to the application “in the original”.

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When does this most often happen:

The agreement states that the parties invest all their income into the family budget, but in fact only the husband/wife does this.
According to the clauses of the agreement, the husband must pay the loans and mortgage, and the wife earns money for living expenses, but in practice one of the requirements is not met.

The main condition is the presence of significant violations of the contract requirements, if this entails a deterioration in the financial or property situation of the plaintiff.

How to terminate a marriage contract by agreement of the spouses

If there is mutual consent to terminate the marriage contract, the husband and wife can agree among themselves to terminate the contract. This will avoid legal costs and time spent attending court.

The procedure for terminating a marriage contract by agreement is as follows:

The spouses agree on all the conditions and reasons for termination of the contract.
Draw up a draft termination agreement.
Visit a notary to certify the agreement.

After the notary verifies their legal capacity and the terms of the divorce agreement, the marriage contract will be terminated voluntarily without trial. When checking the agreement, the notary explains to the spouses the consequences of terminating the agreement and advises on possible nuances, if any.

A similar procedure is relevant for changing a marriage contract on a voluntary basis.

Remember that the resolution of any legal situation will be much faster if both participants find a compromise. The same applies to the termination of a marriage agreement.

With the mutual consent of the spouses, the agreement can be terminated. This does not necessarily have to be for good reasons, as in the case of unilateral termination (failure to fulfill conditions, causing significant damage). Spouses may simply no longer need a prenuptial agreement.

It is important to know that:

Firstly, the agreement is concluded strictly in notarial form, otherwise it will not be valid. Therefore, it makes no sense to draw up a document yourself. In any case, you will have to visit a notary who will certify the transaction.
Secondly, amendments or termination of a transaction are also carried out through a notary. That's how it's supposed to be by law.

Agreement to terminate the marriage contract

In the agreement to terminate the marriage contract, the spouses must reflect the following mandatory details, without which the notary will not be able to certify the document:

title of the document, place (city) of its preparation and date;
full information about the parties to the agreement: full name, passport details, residential and registration addresses;
information about the details of the marriage contract: when it was concluded, where, by whom it was certified;
justification for termination of the contract: unforeseen circumstances. mutual desire, other reasons;
a brief reference to the provisions of the contract, if they are relevant for termination or regulate the procedure for such;
information about the date of signing, personal signatures of the spouses;
notarial record of certification.

There are no strict requirements for the content of an agreement on the voluntary termination of a marriage contract in the law.

Order and procedure

If there is no longer a need for a prenuptial agreement or it is necessary to make changes to any of its terms, the spouses draw up an additional agreement to the main agreement, which specifies new conditions, and in case of termination, indicates the date from which the agreement becomes invalid. The document is signed in the same form as the original contract.

Important! In accordance with Article 41 of the RF IC, a marriage contract is concluded in notarial form. Any changes are made in a similar form, including the condition of termination of the transaction.

Sample agreement to terminate a marriage contract

Having drawn up an agreement, the spouses can independently contact a notary. You can entrust the preparation of the document to a lawyer or try to prepare it yourself using the sample below.

Also, a number of notary offices can prepare an agreement on tariffs for “legal and technical services”. The cost of drawing up is usually very high, but the choice in any case remains with the spouses.

Documentation

When contacting a notary office, do not forget to take with you:

passport of each spouse;
a draft agreement, if it was drawn up by you personally;
original marriage certificate;
marriage contract.

The draft agreement is drawn up in three copies, one for each spouse and one for the notary.

Expenses

Spouses will have to bear the costs of notary services, as well as paying a fee. It is impossible to predict the amount of notary services; each notary sets his own prices. This information must be clarified before making a transaction.

The fee for certifying changes in the terms of the contract or its termination will be 200 rubles (according to Article 333.24 of the Tax Code of the Russian Federation).

Methods and grounds for changing a marriage contract

Changing the marriage contract is regulated by the norms of the Civil Code of the Russian Federation and the Family Code of the Russian Federation. The parties to the agreement can be legal spouses or a couple getting married. The grounds for changing the marriage contract depend on the method of making the changes.

The legislation provides two options:

Voluntary	Forced
By agreement of the parties to the contract	In court on the basis of a statement of claim by one of the parties

Ways to change a marriage contract

Voluntary (by mutual agreement between spouses).

So, let's say the husband and wife realize that the prenuptial agreement needs to be changed. What is the procedure for making these changes?

Changes are made according to the same strict rules as the initial conclusion of the marriage contract:

First, the changes must be set out in writing - in the form of an agreement that contains the new provisions of the marriage contract and the signatures of the spouses;
Secondly, the agreement to amend the marriage contract must be notarized.

Failure to comply with these rules entails the invalidity of the changes made.

Judicial (at the request of one of the spouses if there are grounds provided for by law).

If only one of the spouses insists on making changes, and the other refuses to enter into an agreement, you will have to resort to the second method - judicial.

A spouse interested in changing the marriage contract must prepare and file a lawsuit in court. The claim must be accompanied by documents confirming the existence of grounds for making changes.

If the court considers the grounds to be compelling and grants the claim, the marriage contract may be changed. True, the court will not be able to force the defendant to sign a new version of the marriage contract, but the plaintiff will not be held liable for failure to comply with the old version of the contract.

Grounds for changing the marriage contract

Russian legislation lists only two grounds for changing a marriage contract :

violation of essential conditions specified in the marriage contract;
the situation changes so much that further implementation of the concluded agreement loses all common sense.

Important!

A violation of essential conditions should be understood as such a violation, as a result of which one of the spouses lost to a greater extent what he could have hoped for when signing the marriage agreement.

Judicial practice proceeds from the fact that changes and termination of a marriage contract should be made only if there is a significant change in circumstances and simultaneous compliance with four conditions ( Articles 450, 451 of the Civil Code of the Russian Federation ):

at the time of signing this agreement, both spouses could not foresee the occurrence of a significant change in circumstances;
the circumstances that arose could not be overcome by one of the parties independently;
the fulfillment of the existing conditions would so upset the balance of rights and obligations of both parties that one of the parties would lose most of the rights that it hoped for when signing the contract;
it should not follow from the text or factual content of the contract that the risks of a potential change in circumstances are borne by the interested spouse.

Read: Marriage agreement in case of bankruptcy of a spouse: features of the procedure, terms, which transactions can be nullified by creditors

Before going to court, the applicant must send a proposal to the second party to the contract to voluntarily change the terms. This procedure is provided for by the Civil Code and is mandatory. Violation of the terms of the document is verified by the court on the basis of the evidence provided by the parties.

A notary has the right to make changes to the marriage contract, and then certify it with his signature, if the following grounds exist:

the presence of a court decision according to which the request of one of the parties to the transaction to amend the text of the document has been satisfied;
the presence of consent of the husband and wife to perform this action.

As a rule, the court satisfies the applicant’s demands in the following cases:

if the conditions specified in the contract have been/are repeatedly violated;
circumstances have changed so much that the terms of the agreement are no longer relevant.

Consequences of termination of a marriage contract

The consequence of termination of the contract is the complete termination of the document. All rights and obligations of the spouses under the contract expire from the moment of termination. The marriage contract loses force from the date of signing the bilateral agreement at the notary or from the moment the court decision enters into legal force.

In the future, if a divorce occurs, the spouses will no longer be able to refer to the marriage contract. In the absence of a valid marriage agreement, the division of property will take place according to the general procedure: by concluding an agreement on the division of property or through the court.

If, under the terms of the agreement and while it was in force, any property was transferred from one spouse to the other, then it:

remains unchanged by the owner upon voluntary termination of the contract or termination through the court without signs of invalidity of the document;
returns to original possession upon termination of the contract on grounds of invalidity of the transaction.

Moment of termination of the marriage contract

Depending on the method and grounds for termination of the marriage contract, the moment when its terms become invalid will differ:

in case of voluntary termination by agreement - from the day the agreement is certified by a notary, unless it specifies special dates for the entry into force of the document.
if the contract is terminated by the court - from the date of entry into force of the court decision or appeal ruling in case of appeal of the judicial act;
if the contract is declared invalid - from the moment the document is signed.