Marriage agreement (contract). how to correctly draw up, change or terminate the contract. The procedure for concluding a marriage contract. What conditions can be included in a marriage contract

Only 7% Russian families settled property issues through a marriage contract. Such antipopularity of the marriage contract is caused by the legal illiteracy of the majority of citizens. But if you draw up this document correctly, it will be able to protect not only property interests, but also, possibly, a family. Read more about what can and cannot be written in it, how to conclude it (procedure) and when, read on.

How to conclude a marriage contract (step by step algorithm)

1. Come to an agreement on the subject of the contract

This is the beginning, without which nothing will move forward. Spouses need to come to a consensus on all points and discuss them orally, and only then move on to writing.

Please note that only property issues can be the subject of a marriage contract (for example, whether the acquired property will be their common or separate property, who will pay the mortgage, etc.). Matters of fidelity or fidelity household, obligations to “have” a child and other plans for the future of a non-property nature cannot be included in its content.

Therefore, before drawing up an agreement, check with Article 42 of the RF IC.

2. Draw up a prenuptial agreement

The IC of the Russian Federation puts forward a mandatory requirement for the form of a marriage contract - it must be written, and at the same time notarized.

There are several options for where to get the text of the agreement:

• , and edit according to your requirements;
• take a ready-made template from the bank (applies to cases when a marriage contract for a mortgage apartment);
• contact a law office, where an experienced lawyer will write it to you, or immediately - to a notary who will at the same time certify.

The first two options are free, the last one will cost approximately 5,000 rubles in Moscow.

3. Appear personally to the notary to certify the contract

You must come together, bringing with you:

• passports of each spouse;
• marriage certificate (if any, but more on that later).

It will also be necessary to confirm the ownership of the property that already exists and regarding which the issue will be resolved. This may require the following documents:

1. extract from the USRR (the easiest way to get it);
2. BTI documents - technical and cadastral passports for property;
3. extracts and documents from other state bodies that confirm transactions with property.

Please note that both parties must be present in person. The conclusion of such an agreement on behalf of one of the parties on the basis of a power of attorney is not allowed.

The question immediately arises - which notary to go to? IN this case it doesn't matter - even to the private, even to the state, even in your city or in any other in the Russian Federation.

4. Pay the state duty for certification of the contract

According to the established tariff - this is 500 rubles. However, in addition to this, you will have to pay for the provision of the service itself. What does it include? Notaries in their price lists refer to this service as “legal and technical work” and set prices for it from 5 to 10 thousand rubles. This should be understood as checking the provisions of the contract for compliance with the law, as well as the data provided regarding the identities of the spouses and property.

Please note that it will probably be cheaper to immediately contact a notary who will draw up the text of the contract and immediately certify it. Thus, you will pay once for his service (plus the state fee), since it simply does not make sense to check what he wrote himself. Otherwise, you will have to pay at the beginning to a lawyer, then to a notary - for verification, and if you decide to draw it up yourself, then the consequences can be even more disadvantageous.

5. Get your copy of the contract

This document is drawn up immediately in 3 copies, so no copies need to be made: one of them remains with the notary, the other two are given to each of the spouses.

Who can enter into a marriage contract

The right to conclude it has capable persons who have reached the age of 18, while not even officially married (more on the nuances of this moment later).

However, we will immediately make a reservation: a person can be recognized as capable even at the age of 16 (and in some constituent entities of the Russian Federation even earlier), if he creates a family. Accordingly, from this moment he receives a legal opportunity to conclude a marriage contract.

If a person has reached the age specified above, but was declared legally incompetent by a court decision, it is impossible to conclude a marriage contract on his behalf, even to a legal representative.

When can it be drawn up and when does it become legally binding?

Article 41 of the RF IC gives a clear answer to this question - spouses can do this:

1. before marriage registration;
2. being married at any time.

It is impossible to conclude a marriage contract when the spouses have already divorced. If they want to settle their property disputes voluntarily, then this can be documented using an agreement on the division of property, but not a marriage contract.

The moment this document acquires legal force depends on when it was concluded:

• if before the wedding, then from the moment the marriage is registered in the registry office;
• if married, then from the moment of certification by a notary.

An agreement drawn up before marriage will remain an ordinary piece of paper if its parties do not legitimize their relationship. Its provisions do not apply to the regulation of marital relations, which means that only with the acquisition of the official status of husband and wife by its compilers, this piece of paper will turn into a document that has legal force.

Termination and amendment of the marriage contract

A marriage contract may be terminated in the following cases:

1. divorce;
2. bilateral refusal of the marriage contract, which is drawn up in a separate document and certified by a notary;
3. the onset of the term, which is indicated in the database as the expiration date of its validity;
4. declaring it invalid by the court.

The grounds for recognizing a marriage contract are general, the same as for all civil contracts (Articles 166-180 of the Civil Code of the Russian Federation).

Unilateral refusal of the marriage contract is not allowed. If a husband or wife refuses to follow the rules or comply with the requirements specified in it, they will be held responsible. Usually in the text of the contract there is a special section “Responsibility of the parties”, which details the consequences of its non-compliance.

Making changes to it is permitted by law. However, both parties to the contract must agree to these adjustments and be personally present at their execution. This can be done at any time (before marriage, in marriage) at any notary office by drawing up a new written document with notarization. It will serve as an additional agreement to the main part of the contract.

How is a prenuptial agreement for a mortgage

Since a marriage contract can regulate any property relations between a husband and wife, accordingly, it can determine the procedure for paying a mortgage, that is, a loan taken to purchase property.

A mortgage is a long-term event that stretches over 20 years. During this time, a lot can change, but only one thing will remain unchanged - your joint debt. Therefore, it will be better if you resolve such issues through it:

1. which of you is a borrower, whether the other spouse is a co-borrower;
2. Who owns the apartment?
   • if in general, then in what shares;
   • if separately, will the second spouse receive compensation in the event of a divorce;
3. who will pay regular mortgage payments, and who will pay the down payment, who will repay the body of the loan, and who will pay interest and other additional expenses;
4. from what sources of income the loan will be repaid;
5. what liability will come for the one who refused to fulfill the contract;
6. how will the debt be divided in case of divorce, etc.

Example. The Demyanenko family entered into a marriage contract, as required by the bank, in order to obtain a mortgage. It contained the following provision: 2/3 of the shares of the apartment are in the ownership of the husband, and 1/3 - in the shares of the wife. However, they forgot / did not want to provide for the possibility of divorce, and therefore did not indicate who and to what extent would pay the remaining mortgage debt. But the divorce took place and this issue arose before them.
In such situations, the mortgage debt is distributed between them in the same way as property, that is, the spouse will have to pay 2/3 of the remaining amount, and the wife - 1/3. Then, finally, they will receive ownership of an apartment and will be able to exchange it, sell it, or one of them will agree to give it up in favor of the other for compensation.

Many of the banks now require the conclusion of a marriage contract from their clients, since in the event of a divorce, disagreements may arise regarding the payment of the debt, and it will take a long time to deal with this in court. Therefore, many bank branches even have ready-made templates such contracts, it is up to you to agree to use them or not. It's just that usually banks enter there those provisions that are beneficial in the first place to them. You can take this template and consult with an independent lawyer (not from a bank), and then, together with him, correct it and draw up a new one, taking into account the changes.

If the spouses have already managed to draw up a marriage contract before, then the bank’s requirement can be fulfilled as follows: come to a notary, draw up an additional agreement to the existing contract, specify only the situation with the loan and bring the bank employee the main marriage contract along with a certified agreement.

Favorable terms of the mortgage marriage contract

The purpose of the marriage contract is to achieve justice. By law, all property acquired during marriage is owned by the spouses in equal shares. With a prenuptial agreement, you can change these shares, and this does not always mean that someone is in less favorable conditions. Consider examples.

• One of the spouses takes on a loan and is responsible for its payment only with his property (not joint).

Example. Paramonov took out a loan in April 2012. He and his wife drew up a marriage contract, where they made a clause stating that the mortgage housing belongs only to him, and the wife has no rights to it. In January 2019, he began to have financial problems, his wife left him. Mortgage housing was taken to pay off the debt. If the marriage contract had not been drawn up, then Paramonov's wife would have acted as a co-borrower under the loan agreement, and then the fulfillment of obligations under the loan would have passed to her. In this situation, the wife remained the winner, since she will not pay for her husband’s debt, and besides, her share in their common (non-mortgage) apartment cannot be alienated to pay off the debt, because the bank can repay the debt solely at the expense of a separate Paramonov's property, but not their common property with his wife.

• The loan is taken by the one who is officially employed, and to the one who actually pays it, the contract provides for compensation in the event of a divorce or stipulates that the apartment will be in common shared ownership.

Example. Vakulenko D. wanted to take a mortgage in his name and pay for it on his own, as he is engaged in a “shadow” business and has a high income. The bank refused him on the grounds that there was no documentary evidence of his income. Then the loan was taken over by N. Vakulenko, his officially employed wife. After considering everything, the spouses conclude a marriage contract, according to which mortgage housing is the property of only the wife, and in case of divorce, in case of compensation, the husband will receive a country house.

• Parents give money for an apartment, and the spouses draw up a loan for themselves, defining in the contract the share of the apartment in accordance with the amount of parental funds invested.

Example. The Solomonenko family lived with his wife's parents for a long time. Her parents decided to make a gift to their daughter and help the young family buy an apartment on credit, paying off the mortgage for them. Since banks do not issue loans to persons over 45 years old (and both parents are over 60 years old), the loan was issued to their daughter, and the son-in-law acted as a co-borrower. At the same time, a marriage contract was drawn up between them, which meant that 2/3 of the apartment would belong to the wife, and 1/3 to the husband, since his parents also "took part", but in a much smaller monetary equivalent.

• As a down payment, maternal capital or personal funds of one of the spouses - shares in the apartment are distributed according to the amount of invested funds.

Example. Anokhina A. received maternity capital of 453,026 rubles, and besides, she did not withdraw a scholarship for the entire time of her studies and collected 100,000 rubles. Plus, as a dowry before the wedding, her Godfather gave her 200,000 rubles. Together with her husband, Anokhin M., they decided that this money would become a down payment on a mortgage, and then they would be used to pay regular payments. Anokhina A.’s friend, a lawyer by training, recommended that she draw up a marriage contract, in which she suggested indicating that 2/3 of the apartment would belong to her, since the apartment would be purchased at her expense to a greater extent (total 753,026 rubles at an apartment cost of 1 million R). The contract was concluded on the terms that a friend advised, and very opportunely, since 3 years after the mortgage was issued, the marriage broke up. And if there had not been a marriage contract, then Anokhina A. would have been entitled to only half of the apartment bought practically with her money alone.

How much does a prenuptial agreement cost

This topic has already been touched upon above, but it does not hurt to indicate a more or less specific figure to make it easier to navigate. So, the cost of his conclusion includes:

1. layout preparation - from 5000 rubles;
2. its legal and technical check– from 5000 r. (if you applied for a layout not to a notary);
3. state duty - 500 rubles.

In total, you will spend at least 10,500 rubles. If in the future you want to make changes to it, still prepare 5,000 rubles, then the cost will rise to 15,000 rubles.

But if you want to save money, it is better to immediately contact a notary, bypassing the stage of contacting a lawyer. The notary draws up the layout of the marriage contract in the same way as the lawyer / legal adviser, and therefore will no longer charge such an amount for its verification. In total, the text and certification of the contract by a notary will cost less in the region of 8-9 thousand rubles + 500 rubles of state duty.

It can help in self-compilation of the text and then you will not have to pay for the layout of the contract at all. In this case, the conclusion of a marriage contract can even cost a record low amount - 5,500 rubles.

A marriage contract is an agreement between persons entering into marriage or an agreement between spouses that determines the property rights and obligations of spouses in marriage and (or) in the event of divorce.

According to part 1 of article 92 of the Family Code, a marriage contract can be concluded between:

Spouses;
- persons who have applied for marriage registration (engaged).

The contract can be signed not only after submitting an application to the registry office, but also at any time during married life. The document must be in writing and certified by a notary - only then it has legal force.

When does the prenuptial agreement take effect?

The contract, which was concluded before marriage, comes into force at the time of registration of marriage in the registry office. If the contract was concluded after the registration of the marriage, then it is valid from the moment of notarization. The conclusion of a marriage contract requires the personal presence of both parties.

What can be included in a prenuptial agreement?

A marriage contract can only regulate property relations between spouses, as well as between spouses and children.

The marriage contract allows you to change the statutory regime joint ownership. According to article 34 of the Family Code, property acquired during marriage is recognized as joint property. Therefore, when dividing property, the shares of the spouses are recognized as equal. However, a married couple in a divorce can avoid this by drawing up a marriage contract, which is designed to regulate their rights and obligations.

For example, if the contract says that the apartment belongs to the wife, then during the divorce, the husband will not be able to claim it.

The marriage contract allows you to establish the following modes of ownership of property:

Joint ownership (property of several persons on the same property without determining shares);
- shared ownership (property in which for each participant (co-owner) a specific share in the ownership of common property is determined);
- 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).

A marriage contract cannot put 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 an extremely disadvantageous position in relation to her husband.

Under a marriage contract, real estate and other property, the right to which is subject to state registration, cannot be transferred into the ownership of one of the spouses. If the marriage contract provides for the transfer to the wife of an apartment owned by her spouse, then this clause of the contract will be invalid, since the transfer of ownership is a transaction that requires state registration. In this case, it is necessary to conclude a separate contract (donation contract).

The marriage contract applies only to the sphere property relations spouses. According to Article 93 of the Family Code, personal relationships spouses, living conditions, as well as relations with children, the terms of the marriage contract cannot be negotiated.

In a divorce, the court will not take into account other claims, such as refusing to buy food, clean the house, pay for annual trips to resorts, etc.

A prenuptial agreement cannot reduce the rights of the child established by the Family Code. This applies to the maintenance of the child, ensuring that he receives an education, the rights of the child to real estate, and so on.

The marriage contract can include a tax payment clause. By law, property tax is paid by its formal owner. If a husband bought a dacha for several hundred thousand dollars and registered it on his wife, then the tax will fall on the shoulders of the wife. This can be avoided by including in the marriage contract a clause on who exactly will pay property tax.

Is it possible to change the terms of the contract or cancel it altogether?

You can change the terms of the contract or terminate it at any time until the marriage is dissolved by the court or at the registry office. The contract terminates upon the dissolution of the marriage.

Is it possible to conclude a marriage contract in a civil marriage?

According to Article 21 of the Family Code, marriage can be considered the union of a woman and a man, registered with the state registration of acts of civil status.

The law also states that the residence of a woman and a man by the same family without marriage is not a basis for the emergence of their rights and obligations as spouses. According to the legislation, a marriage contract can be concluded only by persons who have submitted an application for marriage registration, or spouses. That is, a civil marriage cannot be supported by a marriage contract, and in order to protect your property rights, you will have to conclude another contract: donation, sale and purchase, issue powers of attorney, etc.

The essence of marriage

A marriage contract or, as it is also called, a marriage contract is a relatively new phenomenon for our citizens. The conclusion of a marriage contract is provided for by paragraph 1 of Article 256 of the Civil Code of the Russian Federation, and the preparation of a marriage contract is provided for by Chapter 8 of the Family Code of the Russian Federation. On our website you can download a sample marriage contract (sample marriage contract). We can also help you draw up a marriage contract correctly.

This article will discuss what a marriage contract is, what is its role in regulating relations between spouses during marriage and its dissolution (especially when dividing property), the form of the marriage contract, the conclusion of the marriage contract, the termination of the marriage contract. On the site you can find the approximate content of the marriage contract, an example of a marriage contract, advice on drawing up a marriage contract.

What is a prenuptial agreement (contract)?

The concept of a marriage contract is given in Article 40 of the Family Code of the Russian Federation: a marriage contract is an agreement between persons entering into a marriage, or an agreement between spouses that determines the property rights and obligations of spouses in marriage and (or) in the event of divorce. Thus, both persons wishing to marry (from the moment of filing an application with the civil registry office) and legal spouses can conclude a marriage contract. In this case, the marriage contract concluded before the registration of the marriage will be considered concluded only from the moment of the official registration of the marriage. Unlike civil law contracts, a marriage contract (contract) is concluded in the personal presence of both parties and cannot be concluded through a representative.

Form of marriage contract

According to Article 41 of the Family Code of the Russian Federation, a marriage contract is concluded in writing and is subject to mandatory notarization. If, in accordance with the terms of the marriage contract, the determination of shares in real estate is provided, then the right to a share in such property arises only from the moment of its state registration. This must be taken into account when drawing up a marriage contract, since the registration authorities require the mandatory inclusion of certain details in the title documents, which in this case will include the marriage contract.

The approximate content of the marriage contract is given in Article 42 of the Family Code of the Russian Federation, according to which the spouses have the right to change the established regime of joint ownership. This means that the spouses have the right to establish common shared or separate ownership both on all property and on individual things. This is extremely important, because during the dissolution of a marriage, it is quite difficult for spouses to determine to whom and what kind of property will belong, as a result of which divorce proceedings and processes for the division of property drag on for quite a long time. It is almost impossible to conclude an agreement on the division of property in a conflict during a divorce, and in order not to complicate their lives in the future, the spouses can agree on everything in advance by drawing up a marriage contract.

The meaning of the marriage contract is not limited to this. Having established, for example, the regime of common shared ownership of real estate, one spouse will no longer have to obtain a notarized consent of the other spouse to complete the relevant transaction in order to dispose of his share (clause 3, article 35 of the Family Code of the Russian Federation).

The content of the marriage contract may include other conditions. So, the spouses have the right to include in the marriage contract a condition on mutual maintenance, on ways of participating in each other's income and other conditions regulating the property relations of the spouses. The emergence, change and termination of property rights and obligations stipulated by the marriage contract may be made dependent on the occurrence or non-occurrence certain conditions(For example, adultery), as well as limited time limits.

A marriage contract cannot regulate personal non-property relations between spouses, limit their legal and legal capacity, the right to apply to the court, establish rights and obligations in relation to children (you cannot limit the right of a spouse to alimony for the maintenance of children or deprive a disabled spouse of the right to alimony), provide for conditions that put one spouse in an extremely unfavorable position or contradict the basic principles of family law (for example, a condition on the performance of marital duties on a reimbursable basis).

Change and termination of the marriage contract

The marriage contract (contract) can be changed or terminated at any time by agreement of the spouses. In this case, an agreement on changing or terminating a marriage contract must be concluded in writing and notarized. It is possible to change or terminate the marriage contract at the request of one of the spouses in a judicial proceeding. The grounds for changing or terminating a marriage contract in court are contained in Article 450 of the Civil Code of the Russian Federation.

Recognition of invalid marriage agreement (contract)

A marriage contract may be recognized by the court as invalid in whole or in part (in relation to certain conditions of the marriage contract) on the grounds provided for by the Civil Code of the Russian Federation for invalid transactions (Articles 166-181 of the Civil Code of the Russian Federation), as well as when conditions are included in the marriage contract that violate the requirements of paragraph 1 of Art. 3 art. 42 of the Family Code of the Russian Federation.

Conclusion of a marriage contract

Are you or someone from your relatives and friends preparing for a significant event: the birth of a new family!? Then it will be useful for you to know that among the many different things to do in preparation for the wedding, you should pay attention to such important point like a marriage contract. Many consider this an excess or an expression of distrust in the future spouse (or spouse), but, without knowing the whole essence of this matter, you should not make hasty decisions.

Any business, whether it concerns our personal or social life, should begin with the study of all its sides, both good and not so good. Of course, everyone, going to the registry office, is sure that their union will be eternal and happy and nothing in the world can overshadow it. But, alas, in our time the problem of divorce is becoming more and more urgent. As a Japanese proverb says, "Do your best and leave the rest to fate."

According to the family code, a prenuptial agreement is an agreement between spouses or people who are going to become them, about the rights to property and obligations during the period of marriage, as well as in case of its dissolution.

As you can see, a prenuptial agreement is needed not only in case of divorce. It can also provide for some aspects of the relationship. As is known, The best way avoid misunderstandings and conflicts – discuss everything in advance contentious issues. The prenuptial agreement provides just such an opportunity. And, perhaps, by discussing the points of the marriage contract with your soulmate, you will learn a lot of new and useful things about each other, thereby preventing quarrels in the future. In addition to the rights to own any property and obligations in matrimony, the marriage contract can stipulate the costs of maintaining the family, determine the share of wages that the spouses will spend on joint expenses for arranging the family hearth and which they will leave for their own needs. It may also concern issues of paying for the education of one of the spouses or children. A marriage contract can establish the maintenance obligations of the spouses, both for children and for themselves.

Based on my own experience, I want to note that knowing your rights in family relationships and having a marriage contract gives you additional confidence in your spouse and your own future.

When and how to draw up a marriage contract

It is never too late to draw up a prenuptial agreement, even if you have been married for many years. Although for those who are not yet married, it is better to think about it in advance and take into account everything that seems necessary to you. If the pre-wedding commotion completely occupied all your free time, then it can be done after honeymoon.

You can draw up such an agreement yourself, based on samples and supplementing with your own clauses.

You should note that the contract must include the following:

1. Date of its compilation.
2. Your passport details.
3. Your addresses of permanent residence (or registration).
4. Personal signatures.
5. Annexes describing the property and its distribution between the spouses, also certified by signatures indicating in the header their number, date of compilation and reference to the contract to which it refers.
6. The contract and all appendices to it are made in triplicate.

You can contact any law firm that works with individuals to get a professionally drafted prenuptial agreement. Then you will not have to delve into all the intricacies of drawing up a contract, it will not only be done for you, but they will also tell you what needs to be added and what to remove. The cost of such a service is from 10,000 rubles.

Notarization

Why is it necessary to draw up a contract in triplicate? The fact is that the marriage contract is valid only after it is certified by a notary. This is done in order to establish and confirm the existence of the contract itself and the contractual relationship, as well as to exclude the presence of conditions in it that could harm you.

The notary checks the correctness of the drafting of the contract (even if it is drawn up by a specialist), confirms your free will in the contract, makes sure that the agreement is drawn up by you in a sober mind and firm memory, which is a necessary condition for the entry into force of all the stipulated conditions.

Having certified the marriage contract, the notary will return you two copies (one for the husband, the second for the wife), and the third will remain with the notary and will be kept in the archive. For what? Firstly, to confirm the existence of an agreement with state authorities, if necessary, and secondly, if you lose your copy of the contract, you will be able to restore the data.

What can be written in a prenuptial agreement

Let's clarify what exactly can be included in the marriage contract. As mentioned earlier, the marriage contract defines property rights and obligations for the duration of the marriage and after its dissolution. What is meant by this?

First of all, movable and immovable property. This includes apartments, cottages, cars, furniture and everything that can be taken or given away. The marriage contract specifies in what part and what each of the spouses owns. There can be both full (that is, 100% owned by one spouse) and partial (shared) ownership, for example, an apartment. Shares are most often determined from considerations of the costs of acquiring property. For example, my husband and I decided in our contract to prescribe that the apartment in which we live belongs to us in equal shares, that is, to each? shares, since we incurred the acquisition costs in equal shares. And the right to own a car belongs only to me, and in the event of a divorce, the husband will not claim it.

Secondly, you can specify monetary obligations: the cost of maintaining an apartment, car, cottage, for example. We are talking about costs that are always present in our lives. You can also specify the amount of alimony that spouses will pay each other in unforeseen situations (for example, due to illness). If one of you during the marriage is engaged in housekeeping and raising children, then it can also be prescribed that in the event of a divorce, the non-working spouse will receive alimony for his maintenance for certain period time. When drawing up our marriage contract, for example, we decided that the husband would pay alimony for my maintenance for three years if we divorce before the son turns three years old, and for 1.5 years if the son is older than 3, but under 18. Thirdly, you can provide for any other rights and obligations that you want to secure among yourself, if this does not conflict with the interests of one of you. For example, it could be business ownership if one of you is engaged in entrepreneurial activities. Or ownership of copyright in books, if one of you is a writer, the same can be said about paintings and other things created by your own hands.

What can not be written in a prenuptial agreement

Now let's try to figure out what conditions cannot be included in your contract. The family code states that such conditions include any restrictions on the individual's legal capacity and capacity.

Firstly, the clauses prohibiting one of you from working or conducting any other activity related to receiving payment for your work (for example, there are families in which husbands are categorically opposed to the wife working).

Secondly, the paragraphs regarding the duties of raising and maintaining children, since this is contrary to the law. That is, parents cannot agree that one of them will not be engaged in the upbringing or maintenance of children.

Thirdly, a marriage contract cannot establish prohibitions on going to court to protect one's rights. Therefore, if you want to prove and defend your rights through the court, during the period of marriage or after a divorce, your significant other will not be able to interfere with you, and if such conditions are still in your contract, then it will be declared invalid.

And, fourthly, the marriage contract cannot contain conditions establishing the personal relationship of the spouses. You can’t write what your relationship will be like, for example, in terms of spending a joint vacation or in intimate life, in communication or in something else. So it is hardly possible to write about what topics you will communicate, how often you will go to the cinema or cafe, or how much time per day you will devote to each other. You will have to agree on this yourself, because without this it simply does not happen in life, even if there is complete mutual understanding between you.

Contract time

A prenuptial agreement, like any agreement, has a certain period of validity. It can be set by you at the moment of conclusion, for example, for 2-3 years or indefinitely, that is, for life. But in the event of termination of the marriage, the contract loses its force, as it loses its relevance. Only those items that relate to life after divorce remain valid. For example, if you prescribed maintenance obligations for the maintenance of one of the spouses or secured for someone the sole right to own part of the property.

It is possible to conclude an agreement on termination of the contract by common consent of the spouses. It is possible to make changes or additions to your marriage contract, if necessary. It is possible to terminate the contract by going to court, when the contract does not meet the requirements of the law or violates the rights of one of the spouses. You can apply to the court in order to challenge the contract if at the time of signing you were in error (or ignorance) of some important facts, as well as under threat or being in a hopeless situation at the time of signing.

Above, I briefly talked about what constitutes a prenuptial agreement, how to draw it up, how to conclude, what makes sense to take into account and what does not in the terms of the contract. In Russia, the conclusion of a marriage contract is just beginning to develop, and most often it is resorted to by people running their own business, while abroad it is generally accepted norm married life.

The fact is that people who are married are liable for each other's debts, for example, if the husband takes a loan and cannot pay it off, the creditor has the right to go to court and collect the debt through the bailiff service, by seizing property in order to its sale and debt repayment. If you have a marriage contract in which the right to own property is distributed between the spouses, then the property belonging to the wife cannot be subject to seizure and seizure. But this will not help if the conclusion of the agreement was made later than the execution of such a loan.

I hope I was able to briefly explain to the reader that having a prenuptial agreement is not just a way to test your partner’s trust and retain the right to own what belongs to you in case of family discord, but also an additional number of advantages in your life together. And if you have so far been opposed to the conclusion of such agreements, then there is reason to think and possibly reconsider your point of view.

Invalid marriage contract

A marriage contract may be declared invalid if there are conditions provided for in Art. 165, 166–171, 176–180 of the Civil Code of the Russian Federation.

So, it can be invalidated if:

There is no notarization of the contract;
directly violates the law;
imprisoned for immoral purposes;
was concluded feignedly, without the purpose of really regulating property relations in the family (for example, an agreement that the spouses entered into only so that one of them could evade debt collection);
concluded at a time when one of the spouses was recognized as incapable or limited in capacity (if the incapacity was recognized by the court before the conclusion of the marriage, then the marriage may be declared invalid);
concluded at a time when one of the spouses, although he was capable, could not really understand what exactly he was doing (he was in a sick state, was drunk, etc.);
at the conclusion of the contract, one or both spouses were so misled that they would never have agreed to conclude it, knowing all the circumstances;
concluded by force or under threat;
the agreement is enslaving (that is, one of the spouses was in such a difficult life situation that he was forced to make a deal that significantly violated his rights and interests).

A marriage contract may be declared invalid if at least one of the above circumstances is present.

Some features of the invalidity of the marriage contract

Some general grounds for invalidating a transaction do not apply to a marriage contract. For example, is invalid contract, concluded by a person under 14 years of age - but such a person cannot marry. Minors aged 16 to 18 are also limited in their transactions, but marriage makes such persons fully capable.

In addition, it should be remembered that if the conditions listed above do not apply to the entire contract as a whole, but only to part of the obligations under it, then the marriage contract may not be invalidated completely, but only to the extent that it contradicts the law. All other provisions will remain in effect.

How is a marriage contract declared invalid?

A marriage contract may be declared invalid if a corresponding court decision is made. To receive it, one of the spouses whose rights are infringed must apply to the court at the place of residence of the defendant with a statement of claim. The only exceptions are cases where the contract was not certified by a notary: here a court decision is not required, the contract is invalid from the very beginning. And the situation in this case is exactly the opposite: one of the spouses can file a claim for recognition of the marriage contract as valid.

Also, with regard to the recognition of a marriage contract as invalid, compliance with the deadline limitation period.

In relation to the above articles, such a period is:

For void transactions - 3 years;
for voidable transactions - 1 year.

Disputable are those transactions, the invalidity of which must be confirmed by a court decision, void - those that are invalid by virtue of the instructions of the law.

With regard to the grounds for invalidity, all cases where the marriage contract was concluded will be voidable:

Incapacitated or limited capable spouse;
although a capable spouse, but not able at that moment to understand the meaning and significance of their actions;
under the influence of material delusion, violence or threat;
on enslaving terms.

In all other cases, the contract shall be treated as a void transaction.

The limitation period for recognizing a marriage contract as invalid begins to run:

For contracts that are void - from the moment when the performance of the marriage contract began;
for voidable contracts - from the moment when the interested spouse found out or was obliged to find out about the grounds on which the contract can be challenged;
if the contract was concluded under the influence of violence or threats - from the moment the violence or threats ceased.

In itself, the expiration of the term will not prevent the court from accepting the claim for consideration and even making a decision. However, if the defendant's spouse tells the judge that the statute of limitations has been violated, the court will dismiss the claim.

In some cases, the court may decide to restore the statute of limitations if there are good reasons.

The list of reasons that are valid is not fixed in the law, however, based on the legislation, it can be concluded that such reasons, in particular, can be:

Force majeure preventing the filing of a claim;
serious illness of the plaintiff;
illiteracy or lack of command of the Russian language.

In any case, these reasons must influence the plaintiff's actions during the last six months of the limitation period.

State fee for claims for the invalidity of a marriage contract

When filing a claim for the recognition of a marriage contract as invalid, the plaintiff pays a state duty. In the event that we are talking only about the contract itself, and not about the status of family property, the amount of the state duty for the plaintiff will be 300 rubles.

In the same case, if, simultaneously with the recognition of the marriage contract as invalid, the spouse raises the issue of the division of property acquired during the marriage, the state duty will be calculated in the manner prescribed by Art. 333.19 of the Tax Code of the Russian Federation, and will amount to a certain fixed amount, together with a percentage of the price of the property to be divided. At the same time, 300 rubles, which are paid as a fee for a claim for invalidity, are payable regardless of the value of the property and the fee for a claim for division.

In which court is a suit filed to declare a marriage contract invalid?

By general rule statements of claim of this kind are considered by justices of the peace, on the territory of the site of which the defendant lives. They will also consider lawsuits that raise the question of the division of property, the value of which does not exceed 50 thousand rubles. However, in the event that the plaintiff's spouse wishes to divide the property of a greater value, he will have to apply to district court.

The plaintiff must attach to the statement of claim a receipt for payment of the state duty, as well as copies of all documents that are evidence in the case, including the marriage contract itself. The original documents are presented in court.

Conditions of the marriage contract

A marriage contract is an agreement between persons entering into marriage, or an agreement between spouses that determines the property rights and obligations of spouses in marriage and (or) upon its dissolution (Article 40 of the RF IC). The legislation does not contain an exhaustive list of conditions that must be included in a marriage contract. The parties determine them at their own discretion.

The main conditions of the marriage contract include the following conditions:

1. Ownership mode.

With regard to property acquired by spouses during marriage, a joint ownership regime has been established (Article 34 of the RF IC).

The common property of the spouses includes:

Income of each spouse labor activity, entrepreneurial activity and results of intellectual activity, pensions, allowances received by them, as well as other cash payments that do not have a special purpose (amounts financial assistance, amounts paid in compensation for damage in connection with disability due to injury or other damage to health, etc.);
- movable and immovable things acquired at the expense of the joint income of the spouses, securities, shares, deposits, shares in the capital, contributed to credit institutions or other commercial organizations;
- any other property acquired by the spouses during the marriage, regardless of the name of which of the spouses it was acquired or in the name of which or which of the spouses the funds were contributed.

By a marriage contract, the ownership regime can be changed in relation to (Article 42 of the RF IC):

The total property of the spouses;
- certain types of property;
- the property of each spouse.

A prenuptial agreement can establish:

Joint ownership regime (for example, specify that only a car will be considered joint property);
- shared ownership regime (indicate that the spouse will own, for example, only 1/3 of the purchased apartment);
- separate property regime (for example, when property acquired by spouses during marriage will be the property of the spouse who acquired or registered it).

It is also possible to determine the property that will be transferred to each of the spouses in the event of a divorce (paragraph 3, clause 1, article 42 of the RF IC).

A marriage contract can be concluded both in relation to the existing and in relation to the future property of the spouses (clause 1, article 42 of the RF IC).

2. Order common property spouses.

With regard to common property, the spouses have the right to provide in the contract for the types of property, the disposal of which is possible by one spouse only with the prior consent of the other, for example: Jewelry one of the spouses has the right to acquire, sell, pledge only with the prior written consent of the other spouse.

3. Rights and obligations of spouses for mutual maintenance.

The marriage contract can provide for the rights and obligations of the spouses for mutual maintenance both during the period of marriage and after its dissolution (Article 42 of the RF IC). For example: "The husband is obliged to provide his wife with monthly maintenance in the amount of 50,000 rubles per month until the children reach the age of 18."

4. Procedure for incurring family expenses.

There is no exhaustive list of family expenses. In practice, these include, for example, payment for housing and communal services, telephone, Internet services, food, clothing, medicines, travel vouchers.

The prenuptial agreement can provide for the degree of participation of each of the spouses in family expenses, for example:

In equal parts;
- partially;
- payment of certain types of expenses (for example, the husband pays for the maintenance of the car, and the wife pays for vacation and travel expenses).

5. Term of the contract.

A marriage contract can be concluded for a fixed period or indefinitely (Article 42 of the RF IC).

It is possible to specify in the marriage contract that the validity of the contract is terminated from the moment of termination of the marriage, except for the obligations provided for the period after the termination of the marriage (for example, maintenance obligations for the maintenance of one of the spouses).

6. Notifying creditors of the conclusion, amendment or termination of a marriage contract.

If some, including a significant part, of the common property of the spouses under the terms of the marriage contract becomes the property of the spouse who is not a debtor under the contract (for example, a mortgage agreement), the debtor spouse is obliged to notify his creditor of the conclusion, change or the termination of a marriage contract.

If this obligation is not fulfilled, the spouse is liable for his obligations, regardless of the content of the marriage contract (clause 1, article 46 of the RF IC).

Cancellation of the marriage contract

There are two options for terminating a marriage contract:

By agreement of the parties (clause 1, article 43 of the RF IC);
- in a judicial proceeding (clause 2, article 43 of the RF IC).

Termination of the marriage contract by agreement of the parties

Termination of the marriage contract by agreement of the parties is a voluntary procedure, that is, each party must agree to the termination.

An agreement on the termination of a marriage contract is concluded in writing and is subject to notarization (clause 2, article 41, clause 1, article 43 of the RF IC).

To certify the agreement, the parties to the contract must personally contact a notary and submit the following documents:

Passports of the parties to the marriage contract;
- concluded contract;
- Marriage certificate;
- an agreement to terminate the marriage contract.

There is no unified form of an agreement to terminate a marriage contract. You have the right to develop an agreement yourself and present it to a notary. At the reception, the notary must explain to the parties possible consequences conclusion and execution of the agreement. If you agree with the terms, then sign the agreement. Usually, after signing the agreement, each party is given one copy.

For certification of the agreement, the notary charges a state fee (notary fee) in the amount of 200 rubles. (clause 12 clause 1 article 333.24 of the Tax Code of the Russian Federation).

In addition, you will need to pay the notary for services of a legal and technical nature - consulting, drafting documents, technical production of documents in accordance with established tariffs.

Termination of a marriage contract in court

If one of the parties does not agree to terminate the contract, then it can be demanded to terminate it in court.

This is done in the following cases:

In case of a material breach of the contract by one of the parties (clause 1 clause 2 article 450 of the Civil Code of the Russian Federation);
- with a significant change in the circumstances from which the parties proceeded when concluding the contract (Article 451 of the Civil Code of the Russian Federation);
- in other cases provided for by the marriage contract (clause 2 clause 2 article 450 of the Civil Code of the Russian Federation).

A change in circumstances is recognized as significant when they have changed so much that, if the parties could reasonably foresee this, they would not have entered into an agreement at all or would have concluded on significantly different conditions (clause 2 of article 451 of the Civil Code of the Russian Federation). Suppose the prenuptial agreement stipulates that the spouse assumes the obligation to transfer to his wife 60% of his earnings every month. Later, the spouse becomes disabled, loses his job and cannot fulfill his obligations. The court may recognize such circumstances as significant.

A breach of contract by one of the parties must also be material. In particular, it can be recognized that one of the spouses does not provide the other spouse with the opportunity to use the living quarters.

To terminate a marriage contract through a court, it is recommended to adhere to the following algorithm:

Step 1. Invite the other party to terminate the contract in writing.

Before you apply to the court for termination of the marriage contract, send the other party a written proposal to terminate the contract. Such an offer can be drawn up in any form and sent, for example, by registered mail with acknowledgment of receipt.

Wait for a written rejection of your offer.

If you do not receive a response within the time period specified in the offer, then you have the right to apply to the court for termination of the contract. If no deadline for response was provided, then the court can be contacted after 30 days from the date of sending the proposal.

Step 2. Prepare documents for the court.

The legislation does not provide an exhaustive list of documents required for the termination of a marriage contract in court.

Most likely you will need:

Passport;
- marriage certificate;
- marriage contract;
- a document confirming the offer to the other party to terminate the contract, and the refusal of such an offer (if there is such a refusal);
- documents confirming a significant breach of the contract by one of the parties or a significant change in the circumstances from which the parties proceeded when concluding the contract (in relation to your situation);
- receipt of payment of state duty in the amount of 300 rubles. (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation).

Step 3. Prepare statement of claim about the termination of the marriage contract and submit it to the court.

The application must indicate:

The name of the court of first instance to which the application is submitted;
- FULL NAME. the plaintiff, his place of residence, as well as the name of the representative and his address, if the application is submitted by a representative;
- FULL NAME. the defendant, his place of residence;
- what is the violation or threat of violation of your rights, freedoms or legitimate interests, and file a request for termination of the marriage contract;
- the circumstances on which you base your claims and the evidence supporting those circumstances.

In addition, it is necessary to indicate the observance of the pre-trial procedure for addressing the defendant.

Provide a list of documents attached to the application.

The claim for termination of the marriage contract is brought to the justice of the peace at the place of residence of the defendant (clause 4, clause 1, article 23, article 28 of the Code of Civil Procedure of the Russian Federation).

Note. In the event of simultaneous filing of claims for termination of the marriage contract and, for example, claims for the division of property with a claim value of more than 50 thousand rubles. the claim is filed with the district court at the place of residence of the defendant (Articles 24, 28 of the Code of Civil Procedure of the Russian Federation).

Step 4. Participate in court session and get a solution.

If your claim is satisfied, then after the entry into force of the court decision, the marriage contract will be considered terminated, and your obligations under it terminated.

Recognition of a marriage contract

As established by paragraph 1 of Art. 44 of the UK, a marriage contract may be declared invalid by the court in whole or in part on the grounds provided for by civil law for the invalidity of transactions. A marriage contract is a kind of bilateral transaction, which means that the property rights and obligations of the spouses established by the marriage contract arise subject to certain conditions for the validity of the transaction.

In accordance with civil law, a transaction is valid subject to the following conditions:

A) the content of the transaction is legal;
b) the parties to the transaction have the legal capacity necessary to complete this type of transaction;
c) the will of the parties to the transaction corresponds to their actual will;
d) in cases expressly provided by law, the established form of the transaction must be observed. The listed conditions of the validity of transactions apply to the marriage contract. If any of these conditions is not met, the marriage contract is declared invalid. This means that the rights and obligations of the spouses established by the marriage contract do not arise, that is, it does not give rise to the legal consequences to which it was directed, and, as a rule, from the moment it was made (Article 167 of the Civil Code). A marriage contract may be invalid by virtue of its recognition as such by the court (disputable transaction) or regardless of such recognition (void transaction) (Article 166 of the Civil Code). However, in case of disputes between the parties regarding the nullity of the marriage contract, the interested party will need to apply to the court.

The Civil Code establishes an exhaustive list of grounds for the invalidity of transactions and grounds for challenging the transaction in court.

In relation to a marriage contract, the grounds for challenging its validity include the following:

A) the conclusion of a marriage contract with a person who is not able to understand the meaning of his actions or manage them, although he is capable (Article 177 of the Civil Code). A marriage contract may be declared invalid at the claim of a spouse whose rights or legitimate interests have been violated as a result of the conclusion of the contract in such a state (alcohol intoxication, nervous shock, other disease state). If already after the conclusion of the marriage contract the spouse is recognized as legally incompetent, then his guardian may apply to the court with a demand to recognize the marriage contract as invalid. The requirement of the guardian is subject to satisfaction if it is proved that at the time of the conclusion of the marriage contract, his ward was not able to understand the meaning of his actions or manage them (Article 177 of the Civil Code);
b) the conclusion of a marriage contract under the influence of a delusion of significant importance (Article 178 of the Civil Code). Under the misconception of significant importance, the Civil Code understands, in particular, a misconception about the nature of the transaction. A mistake will take place when a party to a marriage contract, against his will and the will of the other party, forms an incorrect opinion or remains unaware of certain circumstances that are of significant importance to him, and under their influence concludes a marriage contract. Misconception about the motives of the transaction is not material. The party acting under the influence of delusion has the right to challenge the marriage contract in court;
c) the conclusion of a marriage contract under the influence of deception, violence, threats or as a result of a combination of difficult circumstances on extremely unfavorable conditions for themselves, which the other party took advantage of (bondage transaction) (Article 179 of the Civil Code). The marriage contract may be declared invalid by the court at the claim of the injured party, since at the conclusion of the marriage contract she was deprived of the opportunity to freely express her will and act in her own interests. The will of the injured party does not correspond to its actual will, since if there were no circumstances specified in Art. 179 of the Civil Code (that is, deceit, threats, violence, a combination of difficult circumstances), then the contract would not have been concluded at all or would have been concluded on other conditions. It should be borne in mind that deceit, threat and violence can come not only from the party in the marriage contract, but also from other persons acting in its interests. At the same time, deceit is understood as the intentional (intentional) misrepresentation of the other party in order to conclude a marriage contract. Fraud can be expressed both in the commission of active actions (reporting false information) and inaction (silence about facts that are important or may affect the conclusion of the contract). Violence is the infliction of physical or mental suffering on the participant in the transaction (or persons close to him) in order to force him to conclude a marriage contract, that is we are talking about unlawful influence on the will of another person. The threat consists in unlawful mental influence on the will of a person through statements about causing significant physical or moral harm to him or his relatives if he does not sign a marriage contract. It must be taken into account that in order to recognize a marriage contract as invalid, as concluded under the influence of a threat, it is required that the threat was not alleged, but had a significant and real character.

To recognize a marriage contract as a bonded transaction and on this basis, respectively, invalid, two interrelated factors must be present:

A) the injured party is forced to make a transaction due to a combination of difficult circumstances;
b) the transaction was made on extremely unfavorable terms for the party. The guilt of the other party lies in the fact that she knew about the difficult circumstances of the person and, taking advantage of this, forced him to make a deal (conclude a marriage contract) for her own benefit;
c) the conclusion of a marriage contract with a citizen, limited by the court in capacity due to the abuse of alcohol or drugs, without the consent of his guardian. In such cases, the marriage contract may be declared invalid by the court at the suit of the trustee (Article 176 of the Civil Code).

The law (clause 2, article 44 of the UK) provides for a special basis for declaring invalid, in whole or in part, a marriage contract at the claim of one of the spouses, if the terms of the contract put this spouse in an extremely unfavorable position. This basis follows from the basic principles of family law, which must be observed by the spouses in the marriage contract. In addition, paragraph 3 of Art. 42 of the Code expressly prohibits the inclusion in the marriage contract of conditions that put one of the spouses in an extremely unfavorable financial situation. It can be assumed that the recognition of a marriage contract as invalid on this basis will be common in judicial practice, especially since here the spouse does not need to prove that the marriage contract was concluded by him due to a combination of difficult circumstances.

In case of violation of the remaining requirements of paragraph 3 of Art. 42 of the UK, taking into account their obviousness, the terms of the marriage contract are void, even regardless of the ascertainment of this fact by the court.

Thus, a marriage contract is invalid as inconsistent in content with the law (Article 168 of the Civil Code) if it:

A) the legal capacity or legal capacity of the spouses is limited;
b) the right of spouses to apply to the court for the protection of their rights is limited;
c) personal non-property relations between spouses are regulated;
d) the rights and obligations of spouses in relation to children are determined;
e) there are provisions restricting the right of a disabled needy spouse to receive maintenance;
f) other conditions are established that contradict the basic principles of family law, enshrined in Art. 1 SC.

In addition, a marriage contract will be void if it is concluded with an incompetent spouse (Article 171 of the Civil Code) or between incapacitated spouses; or if it is concluded only for the sake of appearance (an imaginary transaction) or in order to hide another transaction (a sham transaction) (Article 170 of the Civil Code). A marriage contract concluded for a purpose contrary to the foundations of law and order and morality is null and void (Article 169 of the Civil Code).

It is possible that only certain conditions of the concluded marriage contract contradict the requirements of the law. In this case, if the court comes to the conclusion that the marriage contract could have been concluded without the inclusion of invalid conditions in it, then the marriage contract is invalidated only in the part containing these conditions, and otherwise it remains valid (Article 180 of the Civil Code). The content of a marriage contract (or contract) is regulated by the Russian Family Code, Article 42. By a marriage contract, spouses have the right to change the statutory regime of joint ownership, only for certain types of property or to establish different ownership regimes for everything at once - joint, shared, separate ownership.

It is possible to conclude a marriage agreement (contract) in relation to the already actually existing property and in relation to the missing property, the appearance of which is planned in the future.

The terms of the marriage agreement (contract) may include:

Rights, obligations of mutual maintenance of husband and wife;
the way each participates in the income of the other;
the procedure for incurring family expenses by each of them;
determination of the property that will be transferred to each of the spouses in the event of a divorce;
determination of the regime of joint common ownership of property that is not common by law - owned before marriage, was donated or inherited during marriage;
determination of the regime of separate ownership of the property acquired in marriage;
determination of the mode of shared ownership of common property, which is joint property, and in relation to separate property. In the contract, it would be appropriate to indicate the list of property falling under such a regime;
any other provisions on the property relations of spouses.

The obligations or rights provided for in the marriage contract may be limited to certain periods or be made dependent on the non-occurrence or occurrence of certain conditions.

In a marriage contract, for example, the spouses can provide for a period of the first five years from the date of state registration of the marriage, the property acquired by the spouses will be separate, then, after the specified period, the acquired property falls under the regime of joint common property.

A prenuptial agreement (contract) should never include conditions that contain:

Restriction of legal capacity/capacity of spouses;
prohibition to apply to the court when protecting their rights;
regulation of non-property personal relations between spouses, their duties and rights of parents of common children (for example, it is impossible to indicate the place of residence of the child after a divorce, the amount of future alimony). To regulate these issues, parents have the right to conclude separate agreements in accordance with the articles of the Family Code;
provisions restricting the right of a needy disabled spouse to pay maintenance to him;
other conditions that may put or put one spouse in an extremely disadvantageous and unfavorable position.

Registration of a marriage contract

A marriage contract is an agreement between spouses or persons who wish to enter into marriage, which determines their property rights and obligations in marriage and (or) in the event of its dissolution. The marriage contract is a tool legal regulation property relations of spouses, including relations the subject of which is real estate.

In accordance with Art. 42 of the Family Code of the Russian Federation, by a marriage contract, the spouses have the right to change the statutory regime of joint ownership, to establish the regime of joint, shared or separate ownership of all the property of the spouses, on its separate types or on the property of each of the spouses.

By concluding a marriage contract, a contractual regime of property of the spouses is formed.

The parties may agree that the immovable property acquired by them during the marriage is the common shared property or the personal property of one of them. Moreover, the parties to the marriage contract can agree on a possible procedure for the division of real estate, including in the event of divorce.

It is possible to establish a contractual regime both in relation to immovable property that the spouses or one of them already owns, and in relation to immovable property that the parties intend to acquire in the future.

A marriage contract, in accordance with which the regime of property is changed, is nothing but a transaction aimed at the emergence, change or termination of rights. State registration of such transactions for their conclusion is not required (the marriage contract is concluded in writing and is subject to notarization), but registration of the rights arising from these contracts is mandatory.

According to Art. 131 of the Civil Code of the Russian Federation, the emergence, transfer and termination of ownership of immovable things are subject to state registration in the Unified State Register of Rights to Real Estate and Transactions with it by the bodies that carry out state registration of rights to real estate and transactions with it. The procedure for such registration is determined by Federal Law N 122-FZ "On State Registration of Rights to Real Estate and Transactions with It".

Therefore, in cases where the parties to an agreement providing for the transfer of ownership of real estate on certain conditions wish to achieve the necessary legal consequences, they should take care of fulfilling the requirement for state registration of the transfer of ownership.

For state registration of ownership (transfer of rights) to a real estate object on the basis of a marriage contract, the following documents must be submitted to the registration authority at the location of the property: an application (formed by a specialist who receives documents); an identity document of the applicant; document on payment of the state fee (original and copy); marriage contract (at least two original copies); a cadastral passport of a real estate object (or a technical passport issued in accordance with the established procedure) for a building, structure, premises or an object of construction in progress, if it has not been previously provided and has not been placed in the relevant file of title documents (original and copy); other documents that, in cases prescribed by law, are necessary for state registration.

The marriage contract does not need to be registered in any state structures. It takes effect when the marriage is registered and the document (marriage contract) is officially certified by a notary. A contract is concluded for a period set by the spouses themselves. Details on the timing of the conclusion of a marriage contract in Article 16, paragraph 2 of Article 42, Article 43 of the Family Code of the Russian Federation; Article 170 of the Civil Code of the Russian Federation.

One of the spouses cannot refuse to fulfill the conditions or one specific clause if the contract has already entered into force and has been certified (clause 1, article 43 of the Family Code of the Russian Federation; clause 2, article 15, articles 307, 310, 450, p. .5 article 453 of the Civil Code of the Russian Federation). Some of the conditions may not be fulfilled, but only if they are officially changed.

Form of marriage contract

According to the Family Code, a marriage contract is an agreement concluded by spouses or persons entering into marriage.

If the law were limited to such a wording, any document drawn up and signed by spouses or future spouses could be called a marriage contract. Moreover, even a verbal agreement would be considered a marriage contract. Absolutely any provisions could be included in it - up to the schedule of the order of taking out the garbage or the planning of childbearing.

But the marriage contract is one of the variants of civil law contracts. According to civil law, a contract is an agreement between two (or more) persons who establishes, changes or terminates their civil rights and responsibilities.

At the same time, a marriage contract is a document that regulates family legal relations, or rather, the property side of family legal relations.

Consequently, family and civil law clearly defines the form and content of the document.

Any agreement between a husband and wife, the form and content of which do not meet the requirements of the law, is not a marriage contract. Even if the document bears such a name, but neither in form nor in content does not correspond to the concept of a marriage contract provided for by law, it is invalid and does not entail any legally significant consequences.

So, the main requirements that apply to this document are compliance with the established form, the legality of the content, the legal capacity of the participants, the free will of the participants.

In short, the form of the marriage contract according to the legislation of the Russian Federation should be:

Written;
with notarization.

Let us consider in more detail each of these legal requirements for the form of a document.

So, the marriage contract must be in the form of a written document. The text of the document should be drawn up clearly and understandably - in order to avoid any misunderstandings and discrepancies.

Surnames, first names and patronymics of the husband and wife (bride and groom), names of settlements and addresses - must be indicated in full. Significant dates (terms) and sums of money both in numbers and in words.

The text of the document can be divided into chapters (sections), articles, paragraphs.

The document must be signed by the husband and wife (bride and groom). If one of them cannot sign with his own hand (not because of absence, but because of a physical defect or illness, illiteracy), at his request, the contract can be signed by an outsider. This signature must be certified by a notary, indicating the reason why the direct participant in the agreement could not put it with his own hand.

The next mandatory requirement for the form of a marriage contract is notarization. The notary's mark indicates that he was convinced of the legal capacity and free will of the participants, explained to them the meaning of the document they concluded, checked the correctness and compliance with the law of the text of the document. Without notary certification, the marriage contract is invalid, void.

Marriage contract for an apartment

Mortgages are one of the fastest ways to solve housing problems. The principle is clear: a person moves into an apartment and every month makes a payment of a certain amount.

Everything is so easy when these obligations fall on one person, but if two people who are related by marriage acquire an apartment on a mortgage, the loan obligations will have to be divided.

The contract will help keep the rights of both spouses intact. If such an agreement is not concluded during the purchase of an apartment on a mortgage, it will become common property upon divorce. This means that regardless of who made the down payment and monthly payments, the apartment will most likely be divided equally.

The contract will also help you protect yourself from the dishonesty of your spouse. It may also happen that one of the parties will stop paying the mortgage, but at the same time continue to defend their rights to the apartment. The contract will determine the order of payments.

So let's say the document defines:

What part of the property will belong to each of the spouses after a possible divorce;
How much will each spouse contribute to the mortgage?
What liability threatens one of the spouses if he does not want or is unable to fulfill his obligations and due to what circumstances;
Who from the family and in what amount will make the initial payment;
Who and how much will pay the mortgage every month;
Who will become the owners of the apartment after the loan is repaid;
Will the other party be compensated;
What changes can be made at the birth of a child.

The marriage contract should also contain information about the apartment being purchased: its area, address, in whose name it is registered, etc. It also contains information about the bank that provides a mortgage loan.

Why are banks so favorable to the marriage contracts of their clients? It's simple - this document creates a clear picture of the financial and property relations of the spouses.

Who will make the first installment, who will pay the loan, who is responsible for fulfilling the terms of the loan agreement, who will own the mortgage apartment, how will the property be divided in the event of a divorce?

If the client does not have a contract, the answers to these questions are contained in the legislation. And not always the rules that are provided for by law correspond to the real legal relationship of the spouses. For example, only the husband paid the loan, and in the event of a divorce, the wife claims half of the apartment. Or the apartment was purchased some time before the wedding and registered in the name of the wife, and the husband is left with nothing in the event of a divorce.

In the absence of an agreement, not only each of the spouses risks, but also the bank. For example, in the event of a divorce, a mortgage apartment and a loan debt are divided. And not always two ex-debtor spouses are equally solvent.

Life is varied and unpredictable. However, below are a few typical life circumstances in which a prenuptial agreement is desirable, if not necessary:

1. Social and financial position spouses are unequal.

We are talking about a situation where one of the spouses works, makes efforts to purchase an apartment or house, to quickly and fully repay the loan, and the second spouse does not take on such responsibilities or evades such obligations. Although the marriage contract places the burden of responsibility for paying the loan on one of the spouses, it also provides him with the right to own the property acquired on a mortgage.
2. One of the spouses received a bank refusal to issue a loan.

It happens that one of the spouses has an unreliable biography or credit history. Even if the second spouse is a model of integrity, it is unlikely that the bank will issue a joint loan to a married couple. The marriage contract separates the rights and obligations of the spouses regarding the receipt and repayment of the loan, which “calms” the bank.
3. One of the spouses is against the mortgage.

A similar situation is the refusal of one spouse to receive and repay a loan. The marriage contract serves as a confirmation for the bank that the second spouse has the right to receive a loan and is obliged to pay it independently, despite the refusal of the first spouse.
4. There is no way to confirm the amount of income.

In our time, "black" and "gray" sources of income are not uncommon. It often happens that one of the spouses earns decently, but cannot confirm the amount of his income, and the officially employed spouse does not earn enough to pay off the loan. In this case, to obtain a loan, you can not do without a marriage contract.

A borrower on a loan can be a spouse who has official work and verified income. But since the second spouse will be the real payer of the loan, the prenuptial agreement should protect his rights in the event of a divorce. Indeed, even under the law, he will be able to claim only half of the real estate acquired on credit, and according to the marriage contract, he may be left with nothing at all.

5. Mortgage is issued before marriage.

Property acquired before marriage is the property of the person who purchased it. And if the property is bought during marriage, it is common property, regardless of who bought it. This is by law.

It is good that according to the marriage contract it is possible in a different way.

Even if the mortgage is drawn up before marriage, the bride and groom can already conclude a marriage contract. It will determine who makes the first installment, who will make loan payments, who will own the housing.

6. A mortgage apartment is purchased at the expense of the parents.

Parents often seek to help their children in purchasing a home. And they do not spare money for making the first installment, repaying loan payments. It is good if the parents of the husband and wife do this. And if only the parents of one of the spouses?

Not only that, the elderly are deprived of the right to housing they purchase. After all, only persons up to a certain age (usually up to 45 years) can issue a mortgage. So also the apartment is issued "for children" and belongs to the spouses on the right of joint ownership. Which in the event of a divorce is fraught with the division of real estate into equal parts, without taking into account the contribution of the parents of one of the spouses.

The marriage contract allows you to determine whose contribution to the purchase of an apartment is greater: which of the spouses makes a down payment, pays regular payments (albeit with the help of parents)? One of the spouses has great rights to the acquired apartment.

This allows you to protect the property interests of the family (in particular, parents) in the event of a divorce of "children".

7. After a divorce, the mortgage debt is divided.

According to the law, in the event of a divorce, the debts of the husband and wife are divided equally. This also applies to mortgage debt.

If one of the spouses evades paying the debt, the second will have to "take the rap" for two, and then go to court to recover compensation for the amounts paid from the irresponsible ex-spouse.

The contract allows you to determine in advance who will pay off the mortgage debt in the event of a divorce.

What to look for when apportioning mortgage debt:

If the marriage contract defines shared ownership, the debt and the apartment will be divided according to the shares of the spouses (for example, the husband pays 2/3 of the debt and owns the corresponding shares of the apartment, and the wife claims only 1/3 of the apartment, but also pays a third less debt).
If the marriage contract involves separate property, only the spouse who received the loan will pay the debt. Therefore, the apartment will belong only to him.

8. After the divorce, the mortgage apartment is divided.

The inevitable consequence of divorce is the division of property. Most likely, both spouses will defend their right to real estate, including those purchased on credit. By law, spouses have an equal right to it. But the degree of participation of spouses in obtaining and repaying a loan can be far from equal.

As mentioned above, the marriage contract allows you to establish a mode of shared or separate ownership of all property, including mortgage housing. Depending on the terms of the marriage contract, the division will take place.

When does a prenuptial agreement not guarantee?

It is important to understand that even such a flexible and precise instrument as a prenuptial agreement cannot protect a husband, wife and a banking organization from any adversity.

For example, there is a legal mechanism for challenging and recognizing a marriage contract as invalid. There are certain reasons for this. And if one of the spouses can prove that he entered into a prenuptial agreement, having been deceived or coerced, all the ingenious legal wording of the document will be useless. The norms of the law with all the ensuing consequences will apply to spouses.

Is it possible to conclude a marriage contract after a divorce in order to divide the mortgage?

A marriage contract can be concluded only before marriage or in marriage, but not after a divorce!

If the spouses intend to determine the procedure for dividing the mortgage in the event of a divorce, this must be done in advance. It is necessary to conclude a prenuptial agreement or make changes to an already concluded one - supplement it with a chapter on the division of property and debts during a divorce.

How to draw up a marriage contract for a mortgage apartment?

As discussed above, a standard prenuptial agreement contains provisions on the property and financial rights and obligations of the spouses, but may not contain provisions on credit.

If the spouses have intentions to purchase real estate on credit, when drawing up a marriage contract, it is necessary to include a separate chapter in the document on the procedure for obtaining and paying out a mortgage loan. If the marriage contract has already been concluded, it should be amended accordingly.

What provisions must be contained in a marriage contract for a mortgage:

1. Who will act as a borrower, co-borrower under the terms of the mortgage agreement?
2. Who owns the mortgaged property? If in total, what share will belong to each of the spouses? If separated, is the dispossessed spouse entitled to compensation in the event of a divorce?
3. Who will make the down payment? If both spouses, how much?
4. Who will make regular loan payments? Who will pay the body of the loan, who will pay the interest, who will pay other payments (for example, insurance premiums, communal payments)? If both spouses, how much?
5. What sources of income will serve to fulfill loan obligations ( wage at the place of work, income from entrepreneurial activity, payment for scientific and creative work)? After all, in addition to paying the loan, the spouses bear other family expenses (renting a house, buying groceries, paying for children's education, car maintenance). What part of the income of the spouses goes to repay the loan obligations;
6. What responsibility will be borne by a spouse who ceases to fulfill his obligations or is unable to fulfill them due to objective reasons?
7. How will mortgage debt be divided in the event of a divorce?
8. How will the mortgage apartment be divided in the event of a divorce?
9. What circumstances can serve as a basis for amending the marriage contract and revising the obligations of the spouses?

If a prenuptial agreement is concluded directly in the process of obtaining a mortgage loan, it may contain specific data:

About real estate (apartment or house, address, technical characteristics, total and living area, availability of a land plot, cadastral number and purpose of a land plot, presence of other structures on a land plot);
about the bank (name, legal address);
about mortgage loan(total loan amount, amount of regular loan payments, loan repayment plan);

Prenuptial agreement regimes

The legal regime of property of the spouses may be changed by the spouses by their mutual agreement by concluding a marriage contract. The regime of matrimonial property established by the marriage contract is called the contractual regime of property of the spouses. Its legal regulation is carried out in accordance with Art. 40-44 RF IC.

In the legal literature of the times of the USSR, they wrote about a marriage contract (contract): it is widespread in bourgeois countries, it is not provided for by the legislation of socialist countries. Everything has changed in the last decade. Institute developed in Russia private property who demanded legal guarantees in the field of family relations. Such guarantees were provided to the spouses by the new RF IC in the form of that very “bourgeois” agreement.

The introduction of a marriage contract in Russia, however, does not mean that all persons entering into marriage are obliged to conclude it. The law provides only the opportunity to choose in establishing certain property relationships in the family: on the basis of the law or a marriage contract. When concluding a marriage contract, it is not about mutual distrust, not about greed and not about calculation. It’s just that with the help of such an agreement it is much more convenient to dispose of your property, it is possible to avoid serious conflicts in the event of a divorce.

Of course, someone may well do without a marriage contract. It is hardly advisable, for example, to conclude a marriage contract if the property of the spouses consists mainly of consumer goods, and the income of the spouses is only wages. The conclusion of a marriage contract may be of interest mainly to those people who own an apartment, residential building, cottage, land or other real estate, as well as for persons engaged in entrepreneurial activities, having shares in the capital, shares, etc.

The experience of countries such as France and Germany shows that, as a rule, marriage agreements (contracts), which have been known there for a long time, are entered into by only 5% of persons entering into marriage for the first time, and the majority (up to 60%) of those entering into remarriage .

A marriage contract is an agreement between persons entering into marriage (i.e., future spouses) or spouses (persons already married), which determines the property rights and obligations of spouses in marriage and (or) in the event of its dissolution.

A prenuptial agreement may be entered into before marriage or at any time during marriage.

A marriage contract concluded before marriage becomes effective from the date of registration of the marriage in the registry office. If the marriage is not concluded for any reason, the marriage contract will not have legal force and will not give rise to any legal consequences.

Married persons may enter into a marriage contract at any time during the period of marriage, regardless of length of service. family life.

The form of the marriage contract is determined by law. The marriage contract must be concluded in writing and notarized. Spouses (future spouses) must personally sign the marriage contract and personally be present at its certification by a notary. Certification of a marriage contract through a representative (trustee) is not allowed.

Notarial certification of the marriage contract is carried out by making a notary's certification inscription on the contract. The duty of a notary is also to explain the meaning and meaning of the contract, as well as the legal consequences of its conclusion, so that the legal ignorance of citizens cannot be used to their detriment. When certifying a marriage contract, the notary also checks whether its conditions comply with the law (Articles 15, 16 and 54 of the Fundamentals of the Legislation of the Russian Federation on Notaries).

Failure to comply with the notarial form of the marriage contract entails its invalidity. It is considered void (non-existent) and does not require a court decision to declare it invalid.

In the marriage contract, the spouses have the right to establish the legal regime of their property, different from the lawful regime of property.

The following options for this mode are possible:

- the mode of shared (rather than joint) ownership of property acquired in marriage;
- the regime of separate ownership of all property (or certain types of property) acquired in marriage (at the same time, earned and acquired by each of the spouses will be his personal property);
- a mixed property regime that combines elements of community and separateness of property (for example, an apartment or house is jointly owned, and other property (current income, household items acquired by each of the spouses, etc.) is in the personal property of each of the spouses );
- the regime of joint ownership not only of common property, but also of property belonging to each of the spouses.

A marriage contract can be concluded both in relation to existing property and in relation to property that will be acquired in the future.

The establishment of one or another regime of matrimonial property can be made dependent on various conditions. For example, spouses can set separate mode with the proviso that in the event of the birth of a child, this regime is replaced by the regime of joint ownership of all property acquired during marriage.

The marriage contract may also include provisions related to the rights and obligations of the spouses for mutual maintenance (both in marriage and upon its dissolution); with each of the spouses bearing family expenses (for maintaining a common household, for educating children, etc.); with the participation of spouses in each other's income (i.e. in the income that one of the spouses receives from his personal property - income from shares, securities, bank deposits, etc.), as well as provisions determining which property will go to each of the spouses in the event of dissolution of their marriage.

This list is not exhaustive. The law allows any other provisions to be included in the marriage contract, but only on the condition that they relate to the property rights and obligations of the spouses.

The personal rights and obligations of the spouses cannot be the subject of a marriage contract. It is impossible, for example, to establish the obligation of spouses to keep marital fidelity, determine the range of household duties, etc., since such agreements, in case of their violation, cannot be enforced.

It is also unacceptable to limit in a marriage contract such personal rights of spouses as the right to free movement, to choose a place of residence, occupation, to keep the surname adopted at marriage after its termination, etc. The terms of the contract, which provide for the restriction of the personal rights of spouses, are void, i.e. without legal force.

The terms of a marriage contract that limit the legal capacity and legal capacity of one of the spouses, his right to apply to the court for protection are recognized as null and void. For example, you cannot oblige a spouse not to make a will in the event of his death or change one already made in favor of the other spouse, or forbid him to demand a divorce or division of property.

A marriage contract cannot also establish the rights and obligations of the spouses in relation to their children. Children are independent subjects of law, and all issues affecting their rights must be decided taking into account their opinion and in their interests, which are determined at the time of consideration of a specific issue concerning their life. For example, it is impossible to determine in a marriage contract that in the event of a dissolution of the marriage, the child will remain to live with the father or with the mother. This issue should be resolved by the parents by mutual agreement (and in its absence - by the court), taking into account many circumstances: the age of the child, his individual characteristics, attachment of a child to one or another parent, etc. at the time of divorce.

A marriage contract may also not restrict the right of a disabled needy spouse to receive maintenance. This right is based on the law (articles 89 and 90 of the RF IC) and any conditions that detract from it are void.

A marriage contract cannot put one of the spouses in an extremely unfavorable position (for example, provide for the refusal of one of the spouses from the property acquired in marriage, and thereby deprive him of his livelihood). Otherwise, it can be challenged in court by the spouse whose rights have been violated and declared invalid by the court.

The marriage contract cannot also include conditions that contradict the basic principles of family law, enshrined in Art. 1 RF IC.

A marriage contract may also be declared invalid if it was concluded by one of the spouses under the influence of delusion, deceit, violence, or threat, or which was concluded by a spouse who, at the time of its conclusion, was unable to understand the meaning of his actions and manage them. In these cases, the court will be guided by the norms of the Civil Code of the Russian Federation governing the recognition of transactions as invalid. As a general rule, the marriage contract is valid while the marriage itself exists, however, during the marriage period, it can be changed or terminated by agreement of the spouses. Such an agreement, like the marriage contract itself, must be made in writing and certified by a notary. Unilateral (by the will of one of the spouses) refusal to fulfill the marriage contract is not allowed by law.

If the spouses failed to reach an agreement on changing or terminating the marriage contract, the marriage contract can be changed or terminated in court at the request of the spouse whose interests the terms of the contract no longer meet (for example, in the case of significant change family circumstances).

With the termination of the marriage, the marriage contract (in its original or modified form) loses its force automatically (without a special decision being made), with the exception of only those of its provisions that were provided for in the marriage contract in the event of termination of the marriage (for example, on the division of common property, on payment funds for the maintenance of the former spouse). Since the conclusion, amendment or termination of a marriage contract may adversely affect the property interests of the creditors of each of the spouses, the latter are obliged to notify them of this. If this obligation is not fulfilled, the debtor spouse is liable for his obligations, regardless of the content of the marriage contract (Article 46 of the RF IC).

Drawing up a marriage contract

A marriage contract is an important document that helps to formalize an agreement between spouses without errors. RF IC determines that the subject of the contract may be:

The rights of spouses;
duties of wife and husband;
terms of divorce.

A sample marriage contract can be very useful for citizens who want to correctly fill out the main points of the contract and spend on this procedure. minimal amount time, although one can only adhere to the general requirements for its content.

Property issues

The Family Code of the Russian Federation says that spouses have the right to change or establish in an agreement the regime of joint, shared or separate ownership of all property. A similar regime may be established in relation to individual property objects or things of each of the spouses. Thus, the effect of the contract extends not only to things, property rights and debts that the spouses will acquire after its conclusion, but also to existing ones.

Decree of the Plenum of the Supreme Court of the Russian Federation No. 15 indicates that the court, when resolving issues on the division of property, is guided by the rules that are provided for in the marriage contract, including when the regime of joint property of the spouses is changed to another.

The following property regimes may be established in the marriage contract:

Joint ownership;
shared ownership (both in equal and unequal shares);
separate property.

A marriage contract on separate property (a sample can be found on our website) means that the spouse to whom this property is registered is considered the owner of the property acquired during the marriage. If we are talking about property, the ownership of which is not registered, then its owner is the spouse who paid for its purchase.

With regard to contractual terms, the rule of the RF IC applies, which prohibits the inclusion in the agreement of conditions that create unfavorable circumstances for spouses. An example of an unfavorable circumstance is the case when the spouse is deprived of the right to all property acquired during the marriage.

Rights and obligations

The wife and husband can fix their property rights and obligations in a written agreement. They also have the right to describe the possibility and forms of participation in the general income and stipulate the procedure for incurring expenses. An important point of the marriage contract is the issue of property that is transferred to the parties in the event of a divorce.

The law allows spouses to establish specific dates which will limit their rights and obligations and provide for specific conditions on the occurrence of which these rights and obligations will depend.

Contract type

The marriage contract is drawn up by the parties in writing and requires, according to the RF IC, mandatory notarization. In the process of certification, the person authorized for these actions explains to the parties to the agreement the meaning, meaning and legal implications agreement concluded between them.

As a rule, the contract is drawn up in 3 copies: 2 of them remain with the legal spouses acting as parties to the transaction, and the third is kept by a notary.

Requirements for the text of the contract

First of all, a written prenuptial agreement should not contain conditions that are prohibited in Russian legislation.

The essence of the contract must be fixed clearly and precisely. It is not allowed to have vague expressions that can be ambiguously interpreted by the parties.

Amounts and terms must have both digital and letter designation. Full names, addresses and names of state bodies must be recorded in full, without abbreviations.

The contract must be signed by each of the spouses. If one of the spouses cannot endorse the contract in person (due to handicapped, illness or for any other reason), then his legal representative may sign for him. At the same time, if the signature is put by the spouse not personally, but through a representative, the notary must attest to such a signature and indicate the reason why the party could not sign with his own hand.

The general list of issues considered by the marriage contract is not strictly regulated in the law. The RF IC allows the parties to freely choose the terms of the contract that do not violate the basic norms of Russian law.

A model marriage contract contains clauses relating to:

1. Names of the agreement.
2. Places of conclusion of the agreement.
3. Dates of drawing up and dates of signing the contract.
4. Full name of the spouses.
5. Dates and places of birth of husband and wife.
6. Details of spouses' passports.
7. Places of residence of the spouses.
8. Details of the marriage certificate.
9. Names government agency who issued the certificate.
10. Dates of issue of the certificate.
11. Numbers of the marriage registration record.
12. Features of the legal regime of property, including cash deposits, securities, jewelry, art and antiques, luxury items, wedding and other gifts, real estate, vehicles.
13. List of objects of property included in the joint property of the spouses.
14. List of property objects that are not recognized as joint property.
15. Order of mutual maintenance.
16. Conditions for incurring expenses. Such expenses include pocket expenses, utility bills and child education, car maintenance, as well as vacation and travel expenses.
17. Liability of the parties for obligations.
18. The procedure for amending the agreement.
19. Conditions for termination of the marriage contract.
20. The moment of entry into force of the agreement between the spouses.
21. Validity of the document.
22. Number of copies of the contract.
23. Signatures of the parties to the agreement.

At the same time, the legislator also establishes a ban on the inclusion in the marriage contract of certain issues related to:

With limited legal capacity of spouses;
establishing rules for personal non-property relations;
limiting the legal capacity of the parties to the contract;
limitation of the rights to judicial protection;
establishing rules of conduct in relation to children (although the parties often want to fix with whom the child will live after the divorce, this issue cannot be stipulated by them in the contract);
limiting the rights of a spouse to receive maintenance ( this rule applies to disabled and needy parties);
other conditions that are contrary to family law, which may put one of the parties to the agreement in an unfavorable position.

Conclusion of a contract

A marriage agreement between spouses can be concluded both before the moment of official marriage, and after the registration of marriage (in this case, the conclusion of a marriage contract can occur at any time during the joint life of the spouses).

The validity of a contract drawn up in the proper form, which has been certified by a notary, begins either from the moment the marriage is registered, or immediately if the marriage has already been registered earlier.

An agreement concluded by parties who are already in a marriage relationship acquires legal force after its signing or at the time specified in the agreement.

Change and termination of the contract

The marriage agreement can be changed or terminated by the spouses. These actions can be taken by the parties at any time during the validity of the contract. In order to amend or terminate a contract, the spouses must draw up an agreement to amend or terminate the contract. The form of the agreement corresponds to the form of the marriage contract.

At the same time, the law does not give spouses the opportunity to refuse to comply with the terms of the agreement concluded in unilaterally. The date of termination of the contract, if it was valid throughout the marriage, is the moment of termination marriage union.

In some cases, amendments or termination of the agreement may be carried out not by the will of the parties, but by a court decision. Moreover, the court may invalidate the contract either in whole or in part. Such a marriage agreement is considered invalid if it creates for one of the spouses unfavourable conditions or was concluded in violation of the norms of civil law.

So, both citizens preparing for marriage and those already legally married have the right to draw up a marriage contract. This document, concluded by the spouses for the period of marriage, is intended to regulate the basic property relations between husband and wife.

Changing the marriage contract

In fact, changing the marriage contract depends on the will of the parties who have concluded it. So, with the consent of both parties, the necessary amendments can be made to the text of the agreement, and in the absence of mutual agreement to change anything, such an agreement can be amended only by a court decision. A marriage contract may be canceled or amended in case of violation of the general requirements for civil transactions. Changes to the marriage contract must be made in writing with the notary's certification signature.

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

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

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 hope for when signing marriage agreement.

Arbitrage practice proceeds from the fact that the change and termination of the marriage contract should be made only with a significant change in circumstances and the simultaneous observance of four conditions:

1. at the time of signing this contract, both spouses could not foresee the occurrence of a significant change in circumstances;
2. the circumstances that arose could not be overcome by one of the parties independently;
3. the fulfillment of the existing conditions so upset the balance of the 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;
4. It should not follow from the text or the actual content of the contract that the risks of a potential change in circumstances are borne by the spouse concerned.

The procedure for changing the marriage contract

First you need to try to find a compromise solution that will suit both spouses.

1 option

If the spouses have reached mutual agreement on changing the terms of the marriage contract:

1. it is necessary to submit an additional agreement to the contract to the notary. Its text should list which articles of the marriage contract are subject to change. In any case, the additional agreement is subject to mandatory notarization;
2. in addition to the agreement itself on introducing new conditions into the marriage contract, the notary should present: the marriage contract itself, documents confirming the payment of state duty for the performance of legally significant actions, documents confirming the identity of the spouses, a marriage certificate;
3. The notary will check the completeness of the information and the authenticity of the submitted documents and explain to the spouses the consequences of concluding such an additional agreement. In the presence of a notary, the spouses sign an additional agreement. After that, the notary gives each of them a certified copy.

Option 2

If the spouses themselves could not agree on the terms of a new marriage contract.

1. First, you should notify the spouse of the desire to change the terms of the marriage contract:

Can be handed this letter, against signature, indicating in detail in the letter which conditions you would like to change;
if the spouse evades receiving such notification, it must be sent by registered mail with notification by mail;
need to wait for a response. If a response is not received within the period specified in the letter, you can safely file documents with the court.

2. Preparation of a package of documents for the court. Write a statement of claim, which should be sent to the magistrate with the attachment of documents confirming the facts indicated in the claim.

3. If the claim is satisfied, the amended marriage contract shall enter into force from the date of entry into force of the court decision.

Prenuptial agreement after marriage

In order to draw up a prenuptial agreement after marriage, you need:

1. Decide on the conditions that need to be written in the contract. The marriage contract may contain property clauses on the division of joint property after a divorce, the maintenance of each other, the distribution of family expenses and income.
2. Draw up a marriage agreement. You can do this yourself using a model agreement, but it is better to contact a law firm, as lawyers will be able to take into account all the features and nuances of your agreement.
3. Prepare a package of necessary documents. To conclude a marriage agreement, you must provide:
identity cards from husband and wife;
the right to own movable or immovable property;
marriage registration certificate.
4. Visit a notary. Those wishing to conclude a marriage contract can apply to any notary, it is not necessary to go to a notary office, which is geographically located in the area where they live.

The contract must be executed in writing on notarial forms in three copies, two of which go to each of the spouses, and the third remains with the notary.

Common questions about getting married:

Question: If the spouses have been married for more than 20 years, can they enter into a prenuptial agreement?

Answer: Yes, according to paragraph 1 of Article 41 of the Family Code of the Russian Federation, married citizens can sign a marriage contract at any time. The contract will enter into force immediately, while those who enter into a marriage contract before formalizing the relationship will have to wait for registration at the registry office, since the contract will take effect only after the conclusion of the marriage union.

Question: Is it possible to include in the prenuptial agreement a condition that after the divorce, the children must live with the father?

Answer: No, you can't. According to paragraph 3 of article 42 of the RF IC, a marriage contract cannot concern any issues other than property issues. If there are conditions in the contract that do not comply with the current Family Code, the contract is invalid and can be challenged in court.

What is a marriage contract and why is it needed?

Editorial response

This database will allow notary services to determine legal status property of Russians who are married, and to prevent possible fraud on the part of one of the spouses.

AiF.ru tells about what a marriage contract is.

What is a marriage contract?

A marriage contract is an agreement between persons entering into marriage or an agreement between spouses that determines the property rights and obligations of spouses in marriage and (or) in the event of divorce.

Who can conclude a marriage contract?

According to part 1 of article 92 of the Family Code, a marriage contract can be concluded between:

• spouses;
• persons who have applied for registration of marriage (engaged).

The contract can be signed not only after submitting an application to the registry office, but also at any time during married life. The document must be in writing and certified by a notary - only then it has legal force.

When does the prenuptial agreement take effect?

The contract, which was concluded before marriage, comes into force at the time of registration of marriage in the registry office. If the contract was concluded after the registration of the marriage, then it is valid from the moment of notarization. The conclusion of a marriage contract requires the personal presence of both parties.

What can be included in a prenuptial agreement?

A marriage contract can only regulate property relations between spouses, as well as between spouses and children.

1. A marriage contract allows you to change the statutory regime of joint ownership. According to article 34 of the Family Code, property acquired during marriage is recognized as joint property. Therefore, when dividing property, the shares of the spouses are recognized as equal. However, a married couple in a divorce can avoid this by drawing up a marriage contract, which is designed to regulate their rights and obligations.

For example, if the contract says that the apartment belongs to the wife, then during the divorce, the husband will not be able to claim it.

The marriage contract allows you to establish the following modes of ownership of property:

• joint ownership (property of several persons on the same property without determining shares);
• shared ownership (property in which for each participant (co-owner) a specific share in the ownership of common property is determined);
• 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).

2. A marriage contract cannot place one of the spouses in an extremely unfavorable financial situation. 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 a contract with such conditions has every chance of being declared invalid, since it puts the wife in an extremely disadvantageous position in relation to her husband.

Under a marriage contract, real estate and other property, the right to which is subject to state registration, cannot be transferred into the ownership of one of the spouses. If the marriage contract provides for the transfer to the wife of an apartment owned by her spouse, then this clause of the contract will be invalid, since the transfer of ownership is a transaction that requires state registration. In this case, it is necessary to conclude a separate contract (donation contract).

3. The marriage contract extends only to the sphere of property relations of the spouses. According to Article 93 of the Family Code, the personal relations of the spouses, living conditions, as well as relations with children, cannot be stipulated by the terms of the marriage contract. In a divorce, the court will not take into account other claims, such as refusing to buy food, clean the house, pay for annual trips to resorts, etc.

4. A marriage contract cannot reduce the rights of a child established by the Family Code. This applies to the maintenance of the child, ensuring that he receives an education, the rights of the child to real estate, and so on.

5. The marriage contract can include a tax payment clause. By law, property tax is paid by its formal owner. If a husband bought a dacha for several hundred thousand dollars and registered it on his wife, then the tax will fall on the shoulders of the wife. This can be avoided by including in the marriage contract a clause on who exactly will pay property tax.

Is it possible to change the terms of the contract or cancel it altogether?

You can change the terms of the contract or terminate it at any time until the marriage is dissolved by the court or at the registry office. The contract terminates upon the dissolution of the marriage.

Is it possible to conclude a marriage contract in a civil marriage?

According to Article 21 of the Family Code, marriage can be considered the union of a woman and a man, registered with the state registration of acts of civil status.

The law also states that the residence of a woman and a man by the same family without marriage is not a basis for the emergence of their rights and obligations as spouses. According to the legislation, a marriage contract can be concluded only by persons who have submitted an application for marriage registration, or spouses. That is, a civil marriage cannot be supported by a marriage contract, and in order to protect your property rights, you will have to conclude another contract: donation, sale and purchase, issue powers of attorney, etc.

« How can you get married with thoughts of divorce? Or love and share at the same time?- say the indignant opponents of the marriage contract.

« How can you get married without discussing all the essential aspects of the relationship? Including financial. And having discussed, why not give them a written form? For a mutual sense of security?' It's hard to argue with this argument.

Interest and relevance to the marriage contract is growing both among young married couples and among “experienced” brides and grooms who know how to separate such concepts as “love” and “money”. Modern men and women understand that the institution of the family is far from being as eternal and indestructible as before. That at any moment the “second half” can cease to be such. And everything will have to be divided into two equal "halves". And this is not always fair.

What is a prenuptial agreement?

Article 40 of the Family Code of the Russian Federation defines a marriage contract as a document that sets out an agreement between spouses or those entering into marriage, which determines their property rights and obligations - in marriage and upon dissolution of marriage.

Simply put, a document is concluded between a husband and wife or a bridegroom and a bride, and its subject is exclusively the material, property aspects of living together - current or future.

Legislation of the Russian Federation on the marriage contract

The above definition appeared in Russian legislation relatively recently.

A little more than 10 years ago, the spouses had the opportunity to conclude an agreement and determine the procedure for owning their property. This right was provided for by the Civil Code of the Russian Federation, adopted in 1994. Two years later, in 1996, a separate chapter devoted to the marriage contract appeared in the new Family Code of the Russian Federation.

This is what concerns the consolidation of the provisions on the marriage contract at the level of legislation. As for practical application norms of the law, then for almost ten years the positive experience is small. According to statistics in Russia, no more than 5% couples conclude a marriage contract, and in most cases this document is purely formal, if not fictitious, in order to avoid litigation over the division of property and financial assets.

What gives and regulates the marriage contract

As mentioned above, the document regulates only property issues, and non-property issues of family and interpersonal relationships between husband and wife are not regulated by the contract. That is, the contract cannot oblige the wife to prepare meals every day, and the husband to maintain marital fidelity. But it can determine how the wife can spend her husband's earnings or what property of the wife the husband can claim.

Let us consider in more detail which aspects of property relations can be determined in a contractual manner:

1. The marriage contract regulates one of the possible regimes of joint property and personal property of each of the spouses:

• equity;
• joint;
• separated.

1. The spouses have the right to determine how the existing property and the property that will appear in the future will be divided.
2. The document may provide for what part of the income of the spouses will be common, and what part will be the personal property of each of them.
3. A prenuptial agreement determines how property will be divided in the event of a divorce.
4. Alimony obligations of spouses to each other.
5. Spouses can formulate each other's property rights and obligations.
6. The marriage contract necessarily provides for the responsibility of the spouses for non-compliance with its conditions.

The marriage contract should not contain provisions that:

• restrict or violate the legal rights of one of the spouses (for example, prohibition to work, apply to the court for the protection of their rights);
• regulate the non-property aspects of the relationship of spouses;
• concern parental rights and obligations, maintenance obligations in relation to children (for this, a separate Agreement is concluded - on the payment of alimony, on determining the place of residence of children);
• determine the order of ownership and disposal of property after the death of the spouses (there is a will for this).

The procedure for drawing up and drawing up a marriage contract

The order of conclusion is subject to three main rules:

1. A marriage contract can be concluded both between spouses and between future spouses. The period of its entry into force depends on the stage of the relationship at which the document is concluded;
2. BThe contract must be in writing. Only the written form of the document allows you to provide absolutely all the essential provisions of the agreement and seal them with the signatures of the parties;
3. BThe contract must be certified by a notary. Without notarization, the document will be invalid and will not cause any legal consequences.

When can an agreement be concluded?

The law defines several options. First of all, it concerns the moment of conclusion of the contract - even before marriage or already during the marriage. The moment the marriage contract enters into force also depends on this:

1. If the contract is concluded between a husband and wife, it enters into force at the time of signing, unless otherwise provided in the contract;
2. If the contract is concluded by the bride and groom, the moment of entry into force will be the moment of registration of the marriage. If the parties to the contract do not become legal spouses, the contract will also not enter into force.

Where can I conclude and formalize a marriage contract?

As already mentioned, the marriage contract is subject to mandatory certification by a notary. Therefore, the place of conclusion of the document will be a notary's office - public or private.

By the way, a notary can not only certify a document, but also assist in its preparation - legally correct, lawful, competent.

What is the form of the marriage contract?

A prenuptial agreement is not one of those documents that can be drawn up in free form. It must comply with the rules for compiling business documentation and legislative norms, otherwise it will be invalid.

First of all, this concerns the form of the document - written and notarized. Important is the content of the document, which should not contradict the law.

If the spouses (or future spouses) are sure that they will be able to agree on everything on their own, and then accurately and correctly state their agreements on paper, this is their right. The main thing is that the contract regulates exclusively the property aspects of the relationship, does not violate the rights of the spouses, does not conflict with the norms of civil and family law. Having drawn up a written document, a man and a woman will only have to turn to a notary for certification. The notary will not only certify the finished document, but also check whether it complies with the requirements of the law.

If there are difficulties with documenting, you should contact a professional lawyer or directly to a notary. They will help to correctly draw up the text of the contract, taking into account the agreements reached by the spouses.

Conclusion of a marriage contract through a representative

The law does not contain a direct prohibition to conclude a marriage contract through a representative, as, for example, in the case of state registration of marriage (Article 11 of the Family Code), writing a will (Item 3 of Article 1118 of the Civil Code).

However, paragraph 2 of Article 182 of the Civil Code prohibits the conclusion of personal transactions through a representative. A marriage contract may well be attributed to transactions of a personal nature.

Therefore, even in the absence of a direct prohibition, notaries do not take responsibility for certifying marriage contracts with the participation of representatives of the parties. Although, in exceptional cases it is possible.

Documents required for the execution of the contract

To draw up and certify a marriage contract at a notary, a man and a woman must prepare the following documents:

• draft agreement in 3 copies: two copies - for the parties to the agreement, the third - for storage in the notary's archive;
• passports of the parties to the contract (or other identification documents of the spouses);
• marriage certificate (if the marriage is concluded);
• title documents for real estate that is the subject of the contract;
• documents on other property (bank accounts, shares in authorized capital, shares).

How much does it cost to conclude a prenuptial agreement?

This document is not cheap. This is understandable, because it is concluded mainly by those who have something to share.

The cost of drafting a project depends on the rates of a particular law firm or notary office. A draft marriage contract can cost from 3,000 to 20,000 rubles, depending on the complexity of the document. A lawyer can name a specific price, to whose services a married couple will directly apply.

The cost of notarial services for certification of the marriage contract is determined by paragraph 10 of Article 333.24 of the Tax Code of the Russian Federation and is 500 rubles - at any notary, at any notary's office. This amount includes only the service of entering the number of the marriage contract in the registration book and the notary's mark on the document itself. The service of preparing a draft agreement and amending the agreement is subject to a separate assessment.

How to conclude a prenuptial agreement before marriage

It was mentioned above that a marriage contract can be concluded before a man and a woman enter into marriage. At the same time, it acquires legal force only after the procedure for state registration of marriage in the registry office. If it is concluded, but the marriage has not been registered, the contract remains invalid and does not entail any legal consequences.

If a prenuptial agreement is concluded before marriage, only the property that will be acquired in family life can be its subject. This can be real estate (houses, apartments, summer cottages, land plots), business or shares in a business, cars, Appliances and furniture, etc.

The marriage contract does not determine the fate of the property owned by the future spouses by right of ownership before marriage. This property remains the property of its owner. If he has a desire to transfer property to the ownership of the future spouse, this can be formalized with the help of civil law contracts (purchase and sale, donation, exchange). It is not recommended to include this transaction in the prenuptial agreement.

How to conclude a prenuptial agreement during marriage

Spouses can enter into a marriage contract at any time during family life.

In this case, the spouses already have joint and personal property acquired during marriage. Therefore, the contract must contain a complete list of the available property, indicating the ownership regime (personal, joint) and the owner. In addition, this must be determined in relation to the property that the spouses are expected to have in the future.

By law, all property acquired by spouses during marriage is their joint property (with the exception of gifts, inheritance, personal items, intellectual property). Debts are also common.

In the marriage contract, you can specify that the norms of the law on joint property (legal regime) apply to the property of the spouses, or you can define a fundamentally different procedure for owning, using and disposing of property (contractual regime). For example, a separate procedure, when each of the spouses is the owner of only their property and the debtor for their obligations.

Of course, each option has its own advantages and disadvantages. For example, if one of the spouses is engaged in entrepreneurial activity, then the legal regime can both enrich the second spouse and deprive him of everything, depending on the success of the "second half" in the entrepreneurial field. The contractual procedure involves the division of property. If the spouse is successful in business, the result of labor belongs only to him - nothing will have to be shared with the spouse. But if he fails, he will also have to solve financial problems on his own.

How to get married after a divorce

From the definition of a marriage contract specified in the Family Code, it becomes clear that it can be drawn up either before marriage or in marriage. Therefore, it is impossible to conclude it after the dissolution of the marriage. If former spouses want to resolve their disputes about property, they should conclude another document - an agreement on the division of jointly acquired property.

Sample and form of marriage contract

A marriage contract, like any other official document, consists of several parts:

1. Preamble. This is the first part of the document, which contains ...

• the name of the document is “Marriage Agreement”;
• information about the place and date of the contract;
• personal data of the parties to the contract (full name, date and place of birth, address, passport data), if the marriage between the parties is concluded - the date and place of registration of the marriage, data of the marriage registration certificate;

1. The purpose of the marriage contract. For example, the settlement of property relations of spouses in marriage;

1. The main body of the document. As a rule, the main part is divided into several parts - subsections, each of which regulates a separate area of ​​property relations of spouses, for example:

• Spouses property regime (joint, separate, shared);
• The procedure for incurring debt obligations;
• Rights and obligations of spouses;
• Spouses' income;
• Spouses' expenses;
• The procedure for the division of property in a divorce;
• The procedure for the maintenance of spouses by each other (alimentary obligations);
• Other provisions.

1. Final part
2. Details and signatures of the parties to the contract.

As an example, we offer you a sample:

Until 1994, little thought was given to economic obligations in Russia in the event of a divorce. In the Soviet Union, people got married early, they rarely became fantastically rich, and they received apartments from the state and for the whole family. Market relations changed everything, and in 1994 the mention of a marriage contract for the first time in modern history appeared in Civil Code RF. In 1996, a separate chapter was dedicated to him in the Family Code.

A marriage contract is a voluntary agreement between spouses or those who intend to become spouses. The document prescribes property rights and obligations in marriage and after a divorce.

Why Everyone Needs a Prenuptial Agreement

According to a survey conducted by the Higher School of Economics in 2015 and 2016, 86% 82% of Russians marry for love respondents believe that a marriage contract is not needed. There are several reasons. Some do not want to interfere with feelings and commercialism. Others believe that they still have nothing to share. Even if the spouses enter into life together with one toothbrush and a lot of love, potential risks are best anticipated in advance.

Certainly, from the outside, the proposal to conclude a prenuptial agreement may seem mercantile and unethical. However, often the marriage contract is a deterrent and prevents spouses from acting thoughtlessly, and sometimes even stupidly.

Victoria Aptekina, Leading Associate at the European Legal Service

To avoid manipulation and revenge

Why the marriage contract is not a panacea

The legislation on the marriage contract contains several nuances. The document does not regulate the non-property relations of spouses, cannot determine the rights and obligations in relation to children. And, most importantly, if one of the spouses considers himself infringed, he can challenge the marriage contract. And this often happens during a divorce. In this case, the showdown between yesterday's husband and wife will move to court, where it will turn into a battle of lawyers.

For example, in 2013 in Nizhny Novgorod the court invalidated the contract between the spouses. Under the terms of the contract, the partners received property that was registered to them. After the divorce, his wife got a house and a flower business, since all this was written down on her. The husband said he signed the papers while drunk. This fact was confirmed by witnesses. As a result, the property was divided strictly in half.

Therefore, the marriage contract does not give one hundred percent protection.

How is property divided if there is no marriage contract

If the spouses managed to save face and a sense of justice during the divorce, it is possible to divide property according to the principle “this is yours, and this is mine” without a marriage contract. When it comes to court, all family wealth is distributed strictly in half. There are exceptions when property is not subject to division. What was personal and indivisible remains:

• acquired before marriage;
• bought after divorce;
• received as a gift (if relevant documents or witnesses are available);
• inherited by one of the spouses;
• necessary for professional activities (car - for a taxi driver, musical instrument- for the performer).

Personal items and children's property are also protected from encroachment. The latter category includes not only coloring books and soft toys, but also accounts opened in the name of the child.

The rest will be divided in equal shares. The court will have questions about cars suddenly sold shortly before the divorce, withdrawn from the deposit money. The one who imprudently disposed of the common property may be required to compensate the spouse for half of the real value of the car or the funds spent. Therefore, if something was acquired by the overwork of only one of the spouses, it is better to take this into account in the marriage contract.