Common property
In accordance with part 1 of this article, property acquired by spouses during marriage is their joint property, unless otherwise established by an agreement between them.
The contract means a so-called marriage contract concluded between a man and a woman and defining their property rights and obligations in marriage and (or) in the event of its dissolution. The marriage contract is in writing and must be notarized. It can be concluded before marriage, during registration and at any time in family life.
Part 2 of this article establishes that property belongs exclusively to one of the spouses if it was acquired before the official registration of the relationship, received during marriage as a gift or by inheritance. Items for individual use (clothing, shoes, etc.), except for jewelry and other luxury items, although acquired during marriage at the expense of the common funds of the husband and wife, are recognized as the property of the person who used them.
Article 256 of the Civil Code of the Russian Federation. Common property of spouses
1. Property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property.
2. Property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift or by inheritance, is his property.
Items for personal use (clothing, shoes, etc.), with the exception of jewelry and other luxury items, although acquired during marriage at the expense of the spouses’ common funds, are recognized as the property of the spouse who used them.
The property of each spouse may be recognized by the court as their 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, re-equipment, etc. .). This rule does not apply if the agreement between the spouses provides otherwise.
The exclusive right to the result of intellectual activity belonging to the author of such result (Article 1228) is not included in the common property of the spouses. However, income received from the use of such a result is the joint property of the spouses, unless otherwise provided by an agreement between them.
3. For the obligations of one of the spouses, recovery may be made only on the property owned by him, as well as on his share in the common property of the spouses, which would be due to him upon division of this property.
4. The rules for determining the shares of spouses in common property during its division and the procedure for such division are established by family law.
Judicial practice under Article 256 of the Civil Code of the Russian Federation
Court practice under Article 256 of the Civil Code of the Russian Federation
The decision of the Aviastroitelny District Court of the city of Kazan in case No. 2-1198/2018 - to refuse to satisfy the claim of the full name against the full name and full name for the allocation of the debtor's share from jointly acquired property and foreclosure.
Decision of the Vakhitovsky District Court of Kazan in case No. 2-5987/2018 + Satisfy the claim. To foreclose on property owned by the full name and full name on the right of common shared ownership by selling at public auction.
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Grounds for the emergence of common and joint property
The grounds for the emergence of common property are given in the Family Code of the Russian Federation (FC RF). According to Art. 34 of the RF IC, this is the income of each of them from labor, entrepreneurial and intellectual activity, pensions, benefits, and other monetary payments that do not have a special purpose (amounts of financial assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, and others). The common property of the couple is movable and immovable things acquired at the expense of their common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired during the marriage, regardless of whether it is in the name which of them purchased it or in the name of whom or by which of them the funds were deposited.
Property may be recognized as joint property if it is established that during the marriage, general or personal investments were made by one of the spouses that significantly increased its value. This rule does not apply if the contract provides otherwise.
Thus, the Civil Code of the Russian Federation protects property acquired before marriage, with the exception of cases where manipulations are carried out with the participation of the second spouse, increasing the value of the property, with the unconditional consent of the first. This could be a major renovation of an apartment, reconstruction and refurbishment of a house, etc. The issue of increasing the cost is resolved in court. In practice, courts only consider significant technical changes and significant increases in cost.
The last paragraph of Part 2 of Article 256 of the Civil Code of the Russian Federation determined that the exclusive right to the result of intellectual activity belonging to the author of such a result is not included in the common property of the husband and wife. However, income received from the use of such a result is their joint property, unless otherwise provided by an agreement between them. This paragraph appeals to Article 1228 of the Civil Code of the Russian Federation, according to which the author of the result of intellectual activity is the citizen whose creative work created such a result.
At the same time, citizens who have not made a personal creative contribution to its creation, including those who provided its author only with technical, consulting, organizational or material assistance or assistance, or who only contributed to the registration of rights to such a result or its use, are not recognized as the authors of the result of intellectual activity.
Based on Part 3 of Article 256 of the Civil Code of the Russian Federation, for the obligations of one of the spouses, recovery can only be made on his property, as well as on his share in the common property, which would have been due to him upon division. In other words, if one spouse has insufficient solvency to creditors, the law protects the welfare of the second spouse.
What is considered common property?
Property received by a couple during the period of time when they were in a marriage union through joint efforts (earnings) is considered common.
According to the comments to Art. 256 of the Civil Code of the Russian Federation and the practice of making decisions in various instances upon consideration of these issues, property acquired through the efforts of both will also be recognized as that which was acquired when one husband or wife earned material resources, and the second was engaged in domestic problems and raising children.
Joint property, therefore, includes all movable and immovable property, as well as various contributions, shares in capital, any financial income, including those received through the intellectual work of one of the couple.
In this case, it does not matter which of the partners will have the documents registered for things, objects, buildings, etc. When people are married, property acquired through joint efforts is divided equally. Only that which is registered (registered) in the name of children is not subject to division. Neither husband nor wife has the right to claim this property.
Also, property acquired before marriage, but significantly improved, as a result of which the value of the thing has increased many times, can be considered community property. Such property can also be recognized as acquired jointly and divided in half upon dissolution of the marriage.
But it should be noted that, guided by paragraph 1. Art. 256 of the Civil Code of the Russian Federation there is an exception to this rule. If the spouses draw up an agreement (marriage contract), then the rules of this article do not apply to them, and the division of property will take place according to a written and certified agreement.
However, in practice there are cases when some point in the marriage contract is not discussed, then the general rules of division provided for by Russian legislation may be applied to specific property.
Determination of shares when dividing property
The last paragraph of Article 256 of the Civil Code of the Russian Federation contains a reference norm, determining that the procedure and rules for determining shares in common property during its division are established by family law. So, for example, Art. 38 of the Family Code of the Russian Federation contains the main provisions on the division of property of spouses and determines that it can be carried out both during the marriage and after dissolution at the request of any of them, as well as in the event of a creditor making a corresponding demand for foreclosure on the share of the husband or wife . In addition, a three-year limitation period is established for such claims.
Based on Art. 39 of the Family Code of the Russian Federation, when dividing common property, the shares of a man and a woman are recognized as equal, unless otherwise provided by the marriage contract. This provision gives the Court the right to deviate from the beginning of equality of shares between husband and wife, based on the interests of minor children and (or) based on the noteworthy interest of one of them, in particular, in cases where the other spouse did not receive income for unjustified reasons or spent common property to the detriment of the interests of the family. During division, common debts are distributed between spouses in proportion to the shares awarded to them. Thus, the norms of Article 256 of the Civil Code of the Russian Federation should be applied in conjunction with other articles of the Civil Code of the Russian Federation, the Family Code of the Russian Federation and other legislative acts.
Commentary on Article 256 of the Civil Code of the Russian Federation
Article 256. Common property of spouses
Commentary to Art. 256 Civil Code of the Russian Federation:
1. Property owned by spouses may be subject to different legal regimes: common joint, common shared and individual property. In this case, the legal regime of the property of the spouses is considered to be the regime of joint ownership.
A prerequisite for the emergence of the right of common joint property of spouses is their state in a marriage registered in the prescribed manner. Persons living together without registering a marriage do not have the right to common joint ownership of property acquired during this time. The use of analogy in this case is unacceptable.
Any property acquired by spouses during marriage is assumed to be their joint property, unless an agreement between them establishes a different regime for this property. In this case, it does not matter the circumstance in the name of which of the spouses the property was acquired or which of the spouses contributed funds for the acquisition of property (Clause 2 of Article 34 of the Family Code).
By right of joint ownership, property also belongs to spouses who, during the marriage, for good reasons, did not have their own income, for example, they were busy running a household or caring for children (clause 3 of Article 34 of the Family Code).
2. In addition to common joint property, each of the spouses may own property related to his individual private property and in relation to which the spouse exercises all the powers of the owner independently.
The Civil and Family Codes include property belonging to each spouse before marriage as separate property of spouses. The same legal regime will apply to property acquired, although during marriage, but with the funds of one of the spouses that belonged to him before marriage; property received by one of the spouses during marriage as a gift or by inheritance. The Family Code of the Russian Federation also adds here property received through other gratuitous transactions (Clause 1, Article 36). Among other gratuitous transactions, judicial practice includes transactions for the gratuitous transfer of apartments into the ownership of citizens in the manner of privatization. In addition, personal items (clothing, shoes, fishing gear, etc.), with the exception of jewelry and other luxury items, although acquired during marriage at the expense of the spouses’ common funds, are also objects of ownership of each spouse.
Interpretation of paragraph 2 of Art. 34 of the RF IC allows us to come to the conclusion that the separate property of spouses are monetary payments that have a special purpose, for example, amounts of financial assistance, amounts paid in compensation for damage in connection with loss of ability to work due to injury or other damage to health.
The law establishes a presumption of common joint ownership in relation to property acquired by spouses during marriage. Therefore, the spouse who challenges this presumption and believes that certain types of property belong to him on the right of individual private property is obliged to provide appropriate evidence confirming this (see: Kosova O.Yu. Family and inheritance law of Russia: Textbook. M., 2001. P. 89).
The property of each spouse may be recognized as their 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, re-equipment, etc. ).
The legal regime of the spouses' property can be changed by a marriage contract. Spouses have the right to establish a regime of joint, shared or separate ownership of all the property of the spouses, of its individual types or of the property of each of them. A marriage contract can be concluded in relation to both existing and future property of the spouses. Spouses, by agreement between themselves, have the right to change or terminate the marriage contract at any time.
3. Paragraph 3 of the commented article establishes the procedure for foreclosure on the property of a spouse for his obligations. Execution can only be made on property owned by him, as well as on his share in the common property of the spouses, which would be due to him upon division of this property.
For the common obligations of the spouses, as well as for the obligations of each of them, if the court determines that everything received under the obligations by one of the spouses was used for the needs of the family, the penalty is applied to the common property of the spouses. If it is insufficient, the spouses are jointly and severally liable with their personal property.
The rights of creditors of each spouse under civil law obligations are guaranteed by the provisions of Art. 46 SK. In accordance with them, the spouse is obliged to notify his creditor (creditors) of the conclusion, amendment or termination of the marriage contract. In case of failure to fulfill this obligation, the spouse is liable for his obligations regardless of the content of the marriage contract.
4. Paragraph 4 of the commented article is of a reference nature. It provides that the rules for determining the shares of spouses in common property during its division and the procedure for such division are established by the legislation on marriage and family. Art. is dedicated to these relations. Art. 38 and 39 SK.
