How to divide foreign property during a divorce: opinion of the Supreme Court

Filing a claim

If it is not possible to reach an agreement among themselves, then the spouses should go to court. The claim is filed in person or done with the help of a lawyer. In the first case, you should write an application according to the established template and attach to it copies of all documents confirming the identity of the plaintiff, the fact of marriage, the birth of children, the purchase of real estate, payment of court fees, and the like. Sets of documents and an application in two copies (for the court and for the defendant) are submitted and registered in the court office at the place of residence of the defendant or plaintiff.

The statement of claim must contain:

• name of the court to which the application is filed;
• the name and passport details of the plaintiff indicating his contacts;
• name and passport details of the defendant;
• statement of the essence of the case;
• circumstances confirming the plaintiff’s claims;
• statement of requirements;
• information on compliance with the procedure for filing claims;
• list of documents attached to the application.

It is important to remember that a lawsuit can be avoided if the spouses are ready to divide the property peacefully by agreeing among themselves. In this case, the division occurs by agreement of both parties and is recorded by a notary.

When the court decides to open a civil case, the parties will be sent subpoenas and they will have to appear at the court hearing at the appointed time.

Such a claim can be filed not only after the divorce, but also while the spouses are still in a legal relationship. Moreover, this process can begin not only at the request of one of the spouses; a creditor can also demand this in order to collect the outstanding debt from one of the spouses in connection with a loan or other legal relationship.

The court considered a civil case on the claim of B to B for divorce and on the counterclaim for division of property.

In the statement, the plaintiff indicated that in 1999 he married the defendant. There are no children from the marriage. Family relations between them have been terminated due to their separation for almost four years. Further preservation of the family is impossible. He asked to dissolve the marriage concluded between him and the defendant.

In the counterclaim, B indicated that during the period of cohabitation (during marriage), they purchased an Audi-100 car worth 10,000,000 rubles. She asked to divide the jointly acquired property - the Audi 100 car - and to recover monetary compensation in the amount of 5,000,000 rubles from B. for her due share in the disputed property.

When making its decision, the court relied on the following. According to Part 3 of Art. 36 of the Code of the Republic of Belarus on Marriage and Family (hereinafter referred to as the Code of the Republic of Belarus) after a three-month period, the marriage is dissolved if the court determines that further life together of the spouses and the preservation of the family have become impossible.

The court found that the parties got married in 1999. There are no children from the marriage. They do not live together for a long time and do not maintain marital relations. The plaintiff and defendant insist on divorce. The court also found that the plaintiff currently has another woman.

Under the above circumstances, the court considered that family B had broken up, and further life together and the preservation of the family became impossible. And therefore their marriage is subject to dissolution.

In accordance with Art. 23 and 24 CoBS, property acquired by spouses during marriage, regardless of which of the spouses it was acquired for or which of the spouses contributed funds, is their common joint property.

In the case of division of property that is the common joint property of spouses, their shares are recognized as equal, unless otherwise provided by the Marriage Agreement. The court has the right to deviate from recognizing the shares as equal, taking into account the interests of minor children or the noteworthy interests of one of the spouses.

The court found that during 1999–2004. the parties had a common budget, ate together, and supported the plaintiff’s son from his first marriage. During this period of time, they purchased an Audi 100 car, which was registered in the name of the spouse, worth 10,000,000 rubles. The cost of the car was not disputed by the parties. At the time the case was considered in court, according to the owner, the car was sold to him. At the same time, he did not deny the fact that his wife went with him to buy this car and took part in the choice.

During the consideration of the case, the plaintiff in the counterclaim did not deny the fact that the defendant had a personal car purchased at his expense, which was re-registered in her name and then sold, and this money (USD 1,500) was used to purchase the disputed cars. Therefore, the court indicated that RUB 3,000,000. subject to exclusion from the section, because this amount is the personal funds of the defendant.

By virtue of paragraph 20 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 the courts applying legislation when considering divorce cases,” property acquired during the marriage with the personal funds of one of them, which belonged to each of them, is not the common property of the spouses of which before marriage, or received as a gift or by inheritance, with the exception of jewelry and other luxury items.

As for the defendant’s arguments that he sold part of his apartment and also invested this money in the purchase of the disputed car, they are unfounded and have not been confirmed in court. The plaintiff claimed that she was not aware of the fact that the defendant used the proceeds from the sale of the apartment to purchase the disputed car. Therefore, the amount subject to division is 10,000,000 – 3,000,000 = 7,000,000 rubles, where the shares of each spouse are 3,500,000 rubles.

Since the defendant claimed that he had already sold the car, and the plaintiff asked to recover monetary compensation in her favor, the court considered that the claims for division of property were subject to partial satisfaction, namely in the amount of 3,500,000 rubles.

The court decided: to dissolve the marriage between spouses B. When registering the divorce, the defendant is given the surname S. To divide the property jointly acquired by the spouses and allocate the ownership of the Audi-100 car, produced in 1992, worth 10,000,000 rubles, and in favor of the former spouses to recover monetary compensation for their share of property in the amount of RUB 3,500,000. The rest of the claim is denied.

In the cassation appeal, the plaintiff asked for the cancellation of the decision regarding the division of property and the dismissal of the claim, believing that the court's decision in this part was illegal and unfounded, since during the period of their marriage he did not acquire the property subject to division, but an Audi-100 car he acquired in May 2004 from the funds received from the sale of 26/100 shares of the apartment and the Hyundai Lantra car, i.e. at the expense of the property belonging to him before the marriage was registered.

After checking the case materials and discussing the arguments of the cassation appeal, the judicial panel pointed to the following. The court correctly came to the conclusion that the family had broken up, the further life of the spouses and the preservation of the family had become impossible, and it justifiably dissolved the marriage.

In accordance with Part 1 of Art. 26 KoBS property that belonged to spouses before marriage, as well as received by them during marriage as a gift or by inheritance, is the property of each of them.

The court found that the parties during 1999–2004. had a common budget, shared meals, and supported the plaintiff’s son from his first marriage. During the marriage in 2004, they purchased an Audi-100 car worth 10,000,000 rubles, which was registered in the name of the plaintiff. The cost of the car was not disputed by the parties at the court hearing.

In court, the plaintiff explained that he purchased the car using funds received from the sale of property that belonged to him personally and acquired before marriage - a Hyundai Lantra car and 26/100 shares in the ownership of the apartment. At the same time, he did not deny the fact that his wife went with him to buy a car and took part in its selection. Currently, the Audi 100 car has been sold to them.

According to the purchase and sale agreement dated May 2, 2003, B sold the Hyundai Lantra car for RUB 3,000,000.

In court, the defendant did not deny that B had a personal Hyundai Lantra car, which he purchased before registering his marriage. This car was re-registered in her name in May 2003, and subsequently sold. The money from the sale of the car - $1,500 - was transferred to the plaintiff. Thus, the court correctly came to the conclusion that the amount of 3,000,000 rubles received from the sale of the Hyundai Lantra car is B’s personal funds and is subject to exclusion from the section.

From the purchase and sale agreement dated January 28, 2003, it was clear that B sold the 26/100 shares of the apartment owned by him for RUB 7,500,000. The court correctly recognized plaintiff B’s arguments that the money in the amount of 7,500,000 rubles, received from the sale of 26/100 shares of the apartment, were used by him to purchase an Audi-100 car, since the plaintiff did not provide evidence confirming these arguments .

The defendant denied the fact that B used the money received from the sale of the apartment to purchase an Audi 100 car.

Under such circumstances, the court correctly came to the conclusion that the disputed Audi 100 car was acquired by the plaintiff and defendant during the marriage, is their common joint property, and therefore is subject to division.

Since the money in the amount of 3,000,000 rubles invested by B in the purchase of the Audi-100 car was his personal funds, the court’s conclusion that the amount of 7,000,000 rubles is subject to division was recognized as correct. (10,000,000 rubles – 3,000,000 rubles = 7,000,000 rubles), where the share of each spouse is 3,500,000 rubles. Considering that the Audi 100 car has now been sold, the court reasonably recovered from B in favor of his ex-wife monetary compensation for a share of the property in the amount of 3,500,000 rubles.

Arguments That the court did not take into account that money was spent on the purchase of an Audi-100 car from the sale of 26/100 shares of the apartment that belonged to him by right of ownership before registering the marriage with the defendant, the judicial panel did not take into account, since these arguments were the subject of legal proceedings and were given a proper assessment by the court. In addition, the plaintiff did not present evidence to the court confirming that the money in the amount of 7,500,000 rubles received from the sale of the apartment was used by him to purchase an Audi-100 car.

The contract of sale and purchase of an Audi-100 car for 2,000,000 rubles was presented to the cassation court by the plaintiff. the panel of judges also did not take it into account, since in the court of cassation B explained that he sold the car for a larger amount than indicated in the contract.

Read about other legal disputes in the printed version of the magazine

Division of property

The court proceedings determine what items will be transferred to the party to the dispute. At the same time, the spouses express their opinions and demand that this or that object of dispute be transferred to them, justifying their words with facts. But property cannot always be divided exactly equally; one party to the dispute may receive an object whose value significantly exceeds the value of the property transferred to the other party. In this case, the party who received less can count on monetary compensation in order to ultimately compare the value of the property of each spouse.

After the division of property has occurred, the spouses may still have that part of the property to which this process did not apply. And if this happened during the marriage, then those things or real estate that will be acquired in the future will have the status of jointly acquired property.

If this process took place after the divorce, then the statute of limitations applies to it. The duration of this period is three years.

If the process between spouses was started after their divorce, then this process has certain features:

• They can sell property that belongs to each of the spouses without the written consent of the other party.
• Only by filing a lawsuit can a ban be imposed on the alienation process.
• The trial can take a long time, so everything should be done quickly, since it will be impossible to speed up the process even if there are serious reasons for this.

General provisions for the division of property

In order to understand how claims for division of property are considered in court, what is important for making a verdict, and what the judge will not pay attention to and will not accept as evidence, let’s consider the basic provisions and rules from which any judge starts when making a verdict.

The concept of jointly acquired property of spouses

All property acquired during marriage using joint funds is considered joint property. This is an axiom that does not require proof. Even if only one of the spouses worked and brought in income in the family, and the second was engaged only in housework.

It does not matter whether the non-working spouse consciously made such a decision, or whether this step was forced (due to lack of work, young children, or other reasons forcing him to remain unemployed).

The principle of division

All jointly acquired property is divided equally between the spouses, in other words, both husband and wife have equal rights to it.

For example, a vehicle was purchased during marriage, the husband’s income was used to pay for the purchase, the documents for the car were also issued in his name, moreover, only the husband used the car, but in case of divorce and separation, the wife will have the same right to the car as the husband .

The only exceptions can be those situations where the non-working spouse led an antisocial lifestyle, spent common family funds on his personal needs, for example, lost money or bought drugs. In such cases, if it is proven that the misconduct was malicious (not one-time, but constantly repeated), the court may transfer all joint property to the second spouse.

But not only assets, but also liabilities are subject to division. A loan taken for family needs, but not repaid before division, should also be divided equally, as well as a mortgage for an apartment or a cash loan taken against a receipt from friends.

Property inherited and received as a gift is not divided

A separate rule applies when dividing property that appeared in the family during marriage, but, in fact, is personal. This is movable and immovable property inherited by one of the spouses or received as a gift. Such property is considered personal and is not subject to division, even if it was used by the other spouse during the marriage.

For example, a husband used a car that his wife received from her father under a gift agreement, or a wife wore jewelry that her husband inherited from her grandmother.

What arguments of the parties will the court not accept as evidence?

If, during the division process, the husband motivates the court to transfer all the property to him due to the fact that his wife never worked, did housework and looked after the children, and therefore has no right to a share in the joint property, the court will ignore such an argument.

Also, the court will not take into account the wife’s demands to transfer to her, for example, the entire apartment, because the child remains with her. The maximum that she can count on in this case is an increase in her share in the residential premises. But the court does not always make such a decision.

Property not subject to division

If during the marriage the spouse received things or real estate or acquired them in such a way that, according to the law, they are their personal property, then the court may recognize this. Such real estate or other things are not subject to division; they remain with their owner.

The following property cannot be divided:

• children's clothing and footwear;
• children's supplies for school and sports;
• books purchased for children;
• musical instruments purchased for children;
• other items purchased to meet the needs of a child under 18 years of age;
• bank accounts made in the name of children under the age of majority.

Items from this list remain the property of the children and will be located at the place of residence of the spouse with whom the child remains to live.

Every legal process has its own nuances; it is rare that everything ends peacefully and the spouses reach an agreement among themselves. This suggests that division of property can only begin with a sober assessment of the situation, when the parties have taken into account all the risks and nuances of the case.

Author of the article

Kuznetsov Fedor Nikolaevich

More than 15 years of experience in the legal field; Specialization - resolution of family disputes, inheritance, property transactions, disputes over consumer rights, criminal cases, arbitration processes.