Cohabitation means getting married: they want to equate civil marriage with official marriage

What is a civil marriage

According to international law, a civil marriage is considered to be a family union that was registered by government agencies without the participation of the church. In Russia, such structures include registry offices.

In common parlance, a civil marriage is usually called the cohabitation of a man and a woman who have not registered their relationship, but live in the same territory and run a joint household.

The Family Code does not regulate this type of relationship in any way. A marriage registered in the registry office in accordance with all the rules is recognized as civil.

This procedure primarily affects the property insecurity of the parties. The fact of cohabitation does not give the right to claim jointly acquired property.

Further in the article, cohabitation without proper registration will be referred to as civil marriage.

Changes in the law

In 2021, a bill was submitted to the State Duma for discussion, which, if adopted, would equalize between persons living in an official and civil marriage. But the Committee on Family and Motherhood Affairs did not support the innovation, and the new law was rejected. At the moment, all property disputes between cohabitants are resolved based on Art. 254 of the Civil Code of the Russian Federation and Art. 38 RF IC.

Will attitudes towards civil marriages change?

What do people think about civil marriages?
Image: KP Will projects like the one proposed by Senator Belyakov be able to change attitudes towards civil marriages in society? The member of the Federation Council himself says that his project affects only property legal relations. Everything else is rather philosophy, unrelated to jurisprudence. For example, the Russian Orthodox Church has a strict attitude towards unregistered unions, and the new law will not force priests to change their minds:

“The Church treats civil marriage as an adulterous cohabitation. We know that we, as a people and a state, are flying into hell, such initiatives are an example of a broad step in this direction,” Archpriest Dmitry Smirnov told EG.RU.

However, the laity is more than tolerant of the idea. There are no exact statistics in the country, but every Russian probably has a lot of acquaintances who are in no hurry to turn cohabitation into a stamp in their passport.

Moryleva Anastasia

alimony civil marriage expert opinion division of property exclusive

Property acquired in a civil marriage

And although officially property acquired in a civil marriage in 2021 is not equal to property acquired jointly in an official marriage, there are ways to resolve this issue. The process of resolving controversial issues will simply be based on laws that regulate property relations between strangers.

All material assets that are in the possession of common-law spouses can fall into two categories of property:

• separate;
• joint share.

Let's look at both types in more detail.

Separate property of cohabitants

Property in a common-law marriage usually falls under the category of separate property. According to the Civil Code of the Russian Federation, this means that it will belong to the person for whom it is registered.

If during division in court the question arises of the need to make a decision on the transfer of one or another material value, then the presence of the following facts will be taken into account as evidence:

• witness statements;
• payment documents for the purchase, indicating the date of purchase, names of owners, etc.;
• certificates of inheritance.

If the necessary papers are not completed properly, then subsequently it will be difficult to prove the fact of involvement in the acquisition of any item. Then the court decision will depend on many related factors.

How to divide property acquired in a civil marriage between cohabitants.

Shared ownership

To avoid misunderstandings when dividing property acquired in a civil marriage, the parties can draw up an agreement on common shared ownership. We are primarily talking about real estate. According to this document, property can be divided between persons in strictly established shares.

A sample agreement on determining shares in shared ownership can be downloaded on our website.

It is advisable to draw up this document separately for each object.

How to recognize property as common

If the question of recognizing property acquired in a civil marriage as common property had arisen 10 years ago, the answer would have been unequivocal - it is not feasible. At present, there are enough similar precedents. It should be noted that the property will be recognized only as shared property.

To make such a decision, the parties must go to court, where they will need to prove the presence of the following factors:

1. The existence of a long-term serious relationship that was perceived by others as a family.
2. Maintaining a joint household and having a common family budget. As evidence, documents will be accepted here that confirm that the property registered in the name of one of the spouses was purchased using the money of the other party (a receipt for receipt of finance or a check with a non-cash payment by card).
3. The presence of property that both parties recognized as common. Here, the evidence will be bank loans, for which the second party acts as a guarantor or provides his personal property as collateral to obtain a loan.
4. Funds for the purchase of the disputed property were provided by both parties.

Should property be divided if the marriage is not registered?

Not really

If you approach the issue correctly and keep the main payment receipts, checks, etc. during your life together, then there is a real chance to get recognition through the court that property acquired in a civil marriage is common property.

Question about real estate

The severance of a de facto marital relationship is not a guarantee that a couple will divide property without conflict situations and will not go to court. In this matter, former lovers will be helped not by the Family Code, but by the Civil Code. All things acquired by citizens during cohabitation are considered the common property of the cohabitants.

If the man did not invest money in the purchase of the apartment, and the woman purchased it at her own expense, then she will have all the rights to the living space. If the couple invested money equally, then the court will consider the case so that each of the cohabitants receives the share that they claim based on the investments.

Property

What to do with common valuables if a man and woman decide to end their informal relationship and break up? This question is asked by many people who find themselves in a similar situation. After all, an unofficial union of two people is an actual marriage. The division of property in this case will be carried out in accordance with the norms of civil law, and not family law. In addition, each spouse will have to prove their right to the thing and the fact of its acquisition. If property purchased during a legal marriage is considered the joint property of the husband and wife, then during the period of cohabitation it belongs only to the person to whom it is registered.

Example

The young people met and after some time decided to live together. They were in no hurry to formalize the relationship. However, during the actual cohabitation, the man purchased a new car with the money of his common-law wife, which he registered in his name. Two years later, the couple separated, and the ex-wife decided that she had every right to return half the cost of the car. The man was against it. She could not prove the fact that the woman gave him money, because she did not have any evidence (receipts, etc.). Accordingly, the car remained with the former common-law husband, since according to the documents he is its owner.

Is property acquired in a civil marriage divided?

If common-law spouses cannot come to a common agreement regarding the division of property, then they have only one option left - to file a claim in court.

An example of a sample claim for recognition of shared ownership and for your reference.

The decision made will depend on the quality of the evidence presented. Therefore, before going to court, you need to collect the maximum number of documents that can testify in favor of the plaintiff’s case.

How to divide property in a civil marriage

So, the civil marriage breaks up, and the spouses cannot agree on jointly acquired property. One of the parties draws up a claim and files it in court. If a professional lawyer is not involved in the writing, then the plaintiff himself must indicate that, at his request, non-joint property should be divided, because by law it is not considered as such. The claim is drawn up not according to the rules of the RF IC, but according to the norms of the Civil Code of the Russian Federation. There are two types of these:

• claim for recognition of ownership of a share in property;
• claim of unjust enrichment.

Before filing a claim, we recommend that you consult with a lawyer who specializes in such cases.

To collect a good evidence base and correctly prioritize the future process. In this case, the judge will be able to form an objective picture of the parties involved.

Claim for recognition of ownership of property

As a rule, property acquired in a civil marriage, due to the inexperience of the parties or their trust in each other, is registered only in the name of one person. But at the same time, funds that were earned by the other party are used for the purchase.

To achieve the division of such property, the other party files a claim in court indicating the following information:

• how and with whose funds the purchase process was carried out;
• what does the plaintiff see as an infringement of his property rights;
• What evidence does he have to confirm the right to the acquired property?

The application is submitted to a court of general jurisdiction. Such cases are subject to the standard statute of limitations under the Civil Code of the Russian Federation, which is 3 years.

The countdown begins from the moment the plaintiff learned of the violation of his rights.

Claim for recovery of unjust enrichment

If a party cannot prove its right to property acquired in a civil marriage, then it is worth trying to return the personal savings spent on its purchase. To do this, you should present to the court a receipt for the money or checks, which show that the money went from the wife’s personal account to pay for property registered, for example, in the name of the husband.

What is the difference between cohabitation and civil marriage?

The difference between cohabitation and civil marriage lies in the presence or absence of official registration of the couple’s relationship with the registry office. This is on paper, let’s look at how this difference manifests itself in life.

Important! In the case of an official marriage, relations between spouses regarding the management of a common household, inheritance, and child support are regulated not only by the Civil Code of the Russian Federation, but also by the Family Code. In the case of cohabitation, only the Civil Code applies. This means that the main difference lies in the rights and responsibilities of spouses and cohabitants.

The property of spouses acquired in an official civil marriage is their joint property, regardless of the title owner (the spouse in whose name it is recorded). The property of cohabitants is the property exclusively of the person to whom it belongs according to documents, even if it was purchased with common funds. Upon termination of a marriage or cohabitation, the division of property will be carried out according to completely different rules:

• Option 1. The Ivanovs purchased a car, a refrigerator and an apartment during their marriage. The apartment was registered in the name of the wife, and the car in the name of the husband. After divorce, all property must be divided in half as jointly acquired property in accordance with Article 38 of the RF IC, unless a marriage contract or a notarial agreement on the division of jointly acquired property has been concluded.
• Option 2. If the marriage was not registered in the registry office and Ivanov cohabited with Petrova for some time. During their cohabitation, the same property was acquired with common money as in option 1. Let us assume that after the end of their cohabitation, the cohabitants were unable to voluntarily agree on the division of property. In this case, Ivanov will not be able to claim the apartment, and Petrova will not be able to claim the car. In the case of a refrigerator, it will go to the person who has the documents for it. If this is Ivanov, then only in court by filing a civil lawsuit will he be able to prove that he purchased the refrigerator and temporarily lent it to Petrova. Of course, a knowledgeable lawyer will try to find other options for dividing property, but there must be grounds for this, time to do this and money to pay legal costs.

Note! In the event of a divorce, the Family Code protects the spouse who did not work, but was engaged in housekeeping or raising children (and this is not necessarily a woman); in the case of cohabitation, such protection is absent.

The position of children in an official civil marriage is transparent from the moment of birth, i.e. a born child has a mother and a father, who, in turn, have rights and responsibilities towards the child. In an unregistered free union, the father’s official consent is required for the father to be included in the child’s birth certificate. Without recognition as the child’s father, the mother will be assigned the status of a single mother, and there will be a dash in the “father” column on the child’s certificate.

As an example, consider the following situation. You are happy in your life together, but your marriage is not registered. Your couple has a lovely child, you love him very much, but for some reason he is not recorded as the father on the birth certificate (maybe you just had no time or you don’t see the need for this, any other reason is possible, it’s important the very fact of the absence of your last name in the father column). You take care of the child and invest money in his education, development, and upbringing. For everyone around you, you are one family, however, in the event of your death, the child will not be able to claim your inheritance. Also, you will not be able to claim child support if one day you find yourself unable to work and lose the ability to support yourself. In an official marriage, the rights of both parents and children are protected at the legislative level.

Inheritance disputes can be quite complex in the event of the death of one of the cohabitants, if the couple has chosen the option of living in a union without registering with the registry office and has joint property. Losing a loved one is usually a difficult experience, and without a will, things become even more difficult.

Children from other unions, parents, and other relatives can claim the property of a deceased cohabitant.

If jointly acquired property was registered in the name of a deceased cohabitant, the surviving partner, in exceptional cases and with great difficulty, manages to prove his right to a share in the remaining property. Unfortunately, few cohabiting couples discuss such issues during their lifetime, but failure to resolve such property issues can lead to tragedy.

Remember! When choosing a civil marriage or cohabitation, you must remember that one of the most important factors is the factor of commitment. The law protects the rights of each spouse, and also imposes obligations on him in relation to the other. In cohabitation there are no such obligations; it is solely a matter of personal trust and the desire of everyone to bear responsibility for the decisions made.

Expert recommendations

When making a choice between registering a civil marriage and cohabitation, everyone must decide for themselves how seriously they consider the relationship with their partner, whether they are confident in their desire to spend most of their life with the chosen person, and how willing they are to sacrifice their personal interests for the sake of a comfortable life together.

If your couple has chosen cohabitation for any reason, be sure to discuss the following issues among themselves:

• recognition of children born in the future;
• joint acquisition of property, including with the use of credit money;
• subsequent status and registration of rights to jointly acquired property;
• When making a large purchase and registering it in the name of one of your partners, be sure to resolve the issue of a will, so that your loved one, who has lived with you for decades and has eaten more than a pound of salt, would not end up on the street after your death, but your joint “nest” would not have passed by inheritance to your relatives from a distant seaside town, whom you saw no more than three times in your life.

The decision to get married is one of the major life decisions that imposes obligations on the couple towards each other. It must be taken consciously and carefully. If you are unsure or in doubt about something, perhaps you should wait to go to the registry office. But if there is love, mutual understanding and a desire to hold hands all your life between partners, the choice is obvious.

Division of property in the presence of children

The presence of joint children does not directly affect the process of dividing property. We should start with the fact that children born in a civil marriage must be recognized by their father. If this does not happen, then the fact of paternity will again have to be proven in court.

If there are children, the division of property after a civil marriage in 2021 is carried out according to the standard scheme. That is, if the second party is able to provide evidence of the fact that it invested personal funds in the purchase, then the property can be divided into shares or the plaintiff will be paid monetary compensation.

How is property divided in a civil marriage if there are children?

In some cases, the court may oblige the parent who owns the apartment to grant his child the right to live in it, and his mother along with him. But this is only provided that the child is recognized by the father in compliance with legal norms and his mother does not have her own satisfactory housing into which they could move after the end of the marriage.

Can a common-law wife get an apartment from her common-law husband?

If the apartment was registered in the name of a man, then his cohabitant will not have any claim to the property in the event of a breakup. It will not be possible to achieve justice even if the housing was purchased with joint money.

There are several situations when a woman can claim real estate purchased in a civil marriage:

1. The object was registered to two owners. If cohabitants officially bought housing as joint property, then each of them owns the share specified in the purchase and sale agreement.
2. The woman invested personal funds in improving the property. By proving the fact of investment in court, the second spouse will be able to receive a share in the apartment commensurate with the expenses incurred. The court may also oblige the homeowner to compensate the common-law spouse’s costs.
3. The couple has a child together, officially recognized by both parents. If paternity is not established, an examination may be ordered. If the biological parents separate, the child may be allocated a share in the apartment with the right to reside until the age of 18. If a minor remains with his mother, then she automatically acquires the right to use the living space, provided that she does not have personal housing.

Credit and financial circumstances section

Items acquired with borrowed funds in a civil marriage are not considered jointly acquired property. The person for whom it was issued must be responsible for the loan. Except in cases where the other party provides documentary evidence that it participated in the payment of the loan debt.

Legal exceptions are provided only in the following situations:

1. The loan was issued during the existence of a civil marriage, and payments were made after the couple entered into an official marriage. In such a scenario, one of the parties can count on monetary compensation.
2. The loan of one of the spouses was repaid using a loan issued to the second spouse.

When dividing any loan, it is important to provide evidence that the funds received under it went to the joint needs of the spouses. Otherwise, all responsibility for the loan lies solely with the person in whose name it was issued.

Cohabitation cannot be equated to legal marriage

On March 20, 2021, the State Duma rejected a bill that proposed to equate cohabitation with legal marriage.

Olga Okuneva, First Deputy Chairman of the State Duma Committee on Family, Women and Children, noted that living together is not a sufficient basis for considering people spouses.

Today, de facto marital relations are not protected by law.

The Family Code of the Russian Federation recognizes marriages concluded only in civil registry offices. Neither a long period of cohabitation nor the presence of common children equates cohabitation with an official marriage.

The draft law proposed de facto marital relations (cohabitation) to be considered “a union of a man and a woman living together and leading a common household not registered in the established manner” for five years, or living for two years and having a joint child, and to extend the provisions to such relationships laws applicable to officially registered marriage. But during the State Duma meeting, the bill was rejected.

According to official data, in 2021 the minimum number of marriages in 20 years was registered. Many Russians, as well as citizens of other countries, do not consider it necessary to officially register a marriage and have a stamp in their passport. Official surveys in our country have shown that many people do not see the difference between a civil marriage (cohabitation) and an official one.

Analyzing the provisions of the current family legislation, we can briefly highlight the main differences in the legal status of a couple during the official registration of marriage in the registry office and during actual marital relations (cohabitation).

After the marriage is registered, all property acquired by the spouses is subject to the regime of common joint property and in the event of divorce, all property is subject to division between the spouses in half, and under certain circumstances it is possible to deviate from the equality of shares in favor of the less protected spouse in case of divorce.

The law does not recognize property acquired in a de facto marriage relationship (during cohabitation) as jointly acquired property; such property is the sole property of the person in whose name it was acquired.

Only when spouses are in a registered marriage can they determine their rights and obligations in marriage - through a prenuptial agreement.

The provisions of the Family Code of the Russian Federation, in the case of spouses having young children, give the right, upon divorce, to the spouse for the period of caring for a minor child to collect alimony not only for the maintenance of the child, but also for the maintenance of the spouse. In a de facto marital relationship, spousal support cannot be collected.

In the case of a registered marriage, the spouse inherits the property remaining after the death of the second spouse as a first-degree heir. In a de facto marital relationship, the cohabitant is not the heir.

In a similar way, judicial practice is developing, which stands guard over spouses who have legalized their relationship in the registry office.

If you have questions regarding family legal relations, including divorce, division of property, disputes about children, we are ready to help and answer your questions by phone or in the office.

Can an apartment be subject to division?

Residential property purchased during the existence of a civil marriage can be divided in only two cases in 2021. The first assumes that the spouses have drawn up an agreement on the division of shares. Then the court will focus on him.

The second provides that one of the parties will be able to provide documentary evidence of the fact that her personal savings were used for the purchase. This could be a receipt for receiving money or a check for transferring funds from an account.

The presence of children does not affect the division of the apartment. It is also worth considering the fact that maternity capital is prohibited from investing in the purchase of real estate if the parents are not officially married.

Arbitrage practice

The nature of decisions in court cases related to the division of property of common-law spouses has changed significantly over the past 5 years.

Currently, the percentage of lawsuits after which the property of the spouses was divided into shares has increased significantly. But this is only possible if there is a good evidence base.

Without being officially husband and wife, you should not count on significant protection of your material interests. Although both parties can use property in a civil marriage, the property right to it is assigned only to one person, with the exception of a number of cases.