What is a marriage contract
The marriage contract itself is an agreement of the persons entering into marriage, or an agreement of the spouses, defining their property rights and obligations in the marriage and (or) in the event of divorce. This formulation was given by the legislator in Article 40 of the Family Code of the Russian Federation.
Since July 1, 2014, a unified database of marriage contracts has been in force in the country. It is closed to the general public, and access to it is possible only through a notary.
In Russia, 40 thousand marriage contracts are concluded every year. This figure is growing by an average of 5-10% annually, and the growth will continue. The popularization is explained by the economic situation in the country, which also affected ordinary citizens who want to protect their capital from unforeseen divorce proceedings.
Statistics also show that in most cases the initiator of a marriage contract is a man.
According to surveys among young people, 55% of respondents consider concluding a contract to be the right step and are going to enter into one in the future or are at least thinking about it.
Who can enter into a marriage contract?
A prenuptial agreement is concluded both between spouses and between persons about to get married. This action is certified by an application submitted by the spouses to the civil registry office.
If the marriage was dissolved or an application for its dissolution was submitted to the relevant service or court, then it will not be possible to conclude a marriage contract in this case. Cohabitants will also not be able to formalize a marriage contract, since a woman and a man living in the same family without marriage is not a valid reason for them to have the rights and responsibilities of spouses.
Now let’s figure out from what point the marriage contract applies. If the agreement was concluded before marriage, it comes into force at the time of registration of the marriage in the registry office.
If the newlyweds entered into an agreement after the marriage was registered, then it can only be activated by a notary. An important condition for notarization is the personal presence of each party at the conclusion of the contract, which prohibits the conclusion of a marriage contract through an intermediary.
Contents of the marriage contract
Regarding the contents of this agreement. A contract can only regulate property relations between spouses, as well as between spouses and children.
With the help of a marriage contract, you can not only regulate the rights of spouses, but also change the regime of joint ownership established by law. According to Article 34 of the Family Code, joint property is property acquired during marriage. Therefore, when dividing property, the shares of the spouses are recognized as equal. However, this can be avoided by drawing up a marriage contract that regulates their responsibilities in relation to both the property they have already acquired and joint capital in the future.
For example, if the contract states that the apartment and car belong to the wife, then in the event of a divorce the husband will not be able to claim it.
A marriage contract allows you to establish the following modes of property ownership:
• joint ownership (ownership of several persons on the same property without determining shares); • shared ownership (property in which each participant (co-owner) has a specific share in the ownership of common property); • separate property (property in which the income of each of the spouses, other property acquired by each of the spouses during the marriage, becomes not their common property, but the individual property of one of the spouses).
Rights and responsibilities of spouses
Property that belonged to the husband or wife before the wedding is not subject to division
This section of the contract is one of the main ones in the document. According to this paragraph:
- Husband and wife must treat property with care, regardless of who owns it.
- A husband and wife may also have common property, which they can use on a common basis.
- They have every right to enter into transactions as long as they do not contradict the views of the other party.
- At the same time, you cannot carry out transactions with common property that may be considered risky.
- The law allows the right to use property owned by one of the parties.
- Husband and wife can use property that belongs to them. If they wish, they can sell it, but the proceeds from the sale will be considered joint property. At the same time, each party is obliged to notify the other of its desire to change the clauses of the contract.
What does a prenuptial agreement exclude?
A prenuptial agreement cannot place one of the spouses in an extremely disadvantageous financial position. For example, if in the event of a divorce, a house, a dacha, a car and a garage are transferred to the husband, and a one-room apartment is transferred to the wife, then an agreement with such conditions has every chance of being declared invalid, since it puts the wife in a disadvantageous position in relation to the husband.
There is also one important nuance: real estate and property, the right to which is subject to state registration, cannot become the property of one of the spouses under a marriage contract.
If the contract provides for the transfer to the wife of an apartment, the owner of which is her husband, then this clause will be invalid, since the transfer of ownership is a transaction for which state registration is required.
In this case, it is necessary to conclude a separate agreement (donation agreement). And stipulate in the marriage contract that the transferred property is the property of the spouse and is not subject to the legal regime of marital property.
The legislator also allows the agreement to determine the degree of participation of spouses in each other’s income and the procedure for each of them to bear family expenses.
For example, you can include a tax payment clause in the marriage contract. According to the law, property taxes are paid by its formal owner. If a husband bought a dacha for several million rubles and registered it in his wife’s name, then the tax will fall on the shoulders of the wife. This can be avoided by including in the marriage contract a clause stating who exactly will pay the real estate tax.
Rights of spouses
The list of rights established by the family code is small, since interpersonal relationships are regulated by moral norms rather than legal ones. The law cannot directly influence the behavior of spouses.
The non-property rights of spouses include the choice of surname, profession, occupation, place of residence and stay. Let's take a closer look at them.
Choosing a surname
According to Article 32 of the RF IC, when registering a marriage, spouses have the right:
- take the common surname of one of the spouses;
- leave your premarital surname;
- take a double surname by adding the surname of your spouse. This is only possible in the case of both single surnames.
A change of surname by one of the married spouses does not oblige the other to change his surname. Upon divorce, the spouse who changed his surname can return his premarital name or keep his common surname.
Choosing a profession and occupation
Each spouse has the right to independently choose their occupation. What educational institution to study at, what profession to choose, where and who to get a job - these issues can be decided based on personal preferences.
Choosing a place to live
The law says that each spouse is free to decide on their place of residence or temporary stay. Even if they live apart, they still retain the legal status of a family. If one of them leaves for a long time for work, the second decides for himself whether to move with his spouse.
Disagreement between husband and wife regarding the choice of field of activity can lead to conflict between them. And the freedom to determine the place of residence and stay gives everyone the opportunity to live where they want, regardless of the disagreement of their spouse. Therefore, to avoid disputes and divorce, it is advisable to discuss these issues together before marriage.
Read: Family income and expenses under a marriage contract
Scope of the marriage contract
A contract is sometimes concluded for a specific period, but it can also be indefinite. It can create a dependence for the emergence of certain legal relations on certain family circumstances, for example, on the birth of children.
The terms of a marriage contract may relate not only to existing property rights, but also to future items and rights that may be acquired during the marriage relationship.
According to Article 42 of the Family Code, the personal relationships of spouses, living conditions, as well as relationships with children cannot be specified in the terms of a marriage contract.
A marriage contract does not prohibit a spouse from going to court to protect his rights, or limiting the right of a disabled, needy spouse to receive maintenance. During a divorce, the court will not take into account other claims, for example, refusal to buy groceries, clean the house, pay for annual trips to resorts, etc.
It is important that a marriage contract cannot in any way reduce the rights of the child established by the Family Code of the Russian Federation. This concerns issues of maintaining the child, ensuring that he receives an education, and the child’s rights to real estate.
Law, theory and concept of law
the right independently determine the content of their property relations ( contractual regime ). The basis for the contractual regime of the property of the spouses is a marriage contract - an agreement of the persons entering into marriage, or an agreement of the spouses, defining the property rights and obligations of the spouses in the marriage and (or) in the event of its dissolution. Representing one of the types of civil law contracts, a marriage contract has certain specifics. Its features are: a special subject composition; form; content.
2. The subjects of a marriage contract can be persons entering into marriage (i.e., a marriage contract is usually concluded before the state registration of marriage). Moreover, it is considered as a contract with a suspensive condition, since it comes into force from the moment of marriage. If the marriage is not concluded, the contract is canceled. There are no time restrictions on the moment of state registration of marriage. To conclude a marriage contract by a spouse whose legal capacity has been limited by the court, the consent of the trustee is required. If a person under marriageable age has legally received permission from the guardianship and trusteeship authority to marry, he has the right to enter into a marriage contract with the written consent of: parents; trustees. After marriage, the minor spouse acquires full legal capacity and has the right to enter into a marriage contract independently. Right to independent conclusion
agreement is recognized for minors emancipated in accordance with the established procedure. 3. The form of a marriage contract has two features: it is concluded in writing by drawing up one document; subject to mandatory notarization. Thus, a marriage contract is concluded in a notary’s office with the obligatory presence of both spouses. Failure to comply with the form required by law entails the invalidity of the marriage contract. The content of a marriage contract is the conditions by which its subjects determine the appropriate legal regime for the property of the spouses. When drawing up and concluding a marriage contract, spouses have the right to: change the property regime established by law to the contractual regime of property of the spouses; establish a regime for all property of the spouses: joint ownership (this regime is already regulated by family law, and the marriage contract can only stipulate the specifics of using this regime); shared ownership (this regime takes into account to a greater extent the size of the contribution of each spouse to their property); separate property (this regime establishes that property acquired during marriage by each spouse will be his personal property); establish a regime of joint, shared or separate ownership of certain types of property; set the mode of joint, shared or separate ownership
ownership of the property of each spouse. A special feature of a marriage contract is that its terms may relate not only to existing property rights, but also to future objects and rights that may be acquired by the spouses during the marriage. In addition, the content of a marriage contract may include: rights and obligations for mutual maintenance; ways to share in the spouses' income; the procedure for each spouse to bear family expenses, regardless of the level of financial security of the family.
A marriage contract cannot: limit the legal capacity or capacity of the spouses; limit the right of spouses to go to court to protect their rights; regulate personal non-property relations between spouses; regulate the rights and obligations of spouses in relation to children; limit the right of a disabled, needy spouse to receive maintenance from the other spouse; contain conditions that place one of the spouses in an extremely unfavorable position or are contrary to the principles of family law. If the regime of any property (including that acquired in the future) is not taken into account in the marriage contract, then the legal regime applies to this property.
