Menu
homeFor a birthday

What is better, a prenuptial agreement or a property division agreement? Select the appropriate document. Publications

Divorce is not uncommon these days. Husband and wife, in order to protect themselves during the division of property and protect their interests, draw up a marriage contract or agreement. The two documents have both similarities and differences. Both documents need to be in writing and notarized. We will talk about the features of a marriage contract and a simple agreement in more detail in the article.

Rules for drawing up a marriage contract

One of the ways to settle property rights between spouses is to draw up a marriage contract. This document covers the procedure for the division of property, the rights and obligations of the parties, the distribution and management of income and costs, the process of canceling the agreement and other important issues.

The terms of the agreement include:

  • simple writing paper. The subjects are able-bodied and adult persons;
  • notarial certificate;
  • a document that will be used in the future for the division of property is drawn up in three copies, where two remain with the husband and wife, and the third is placed in the notary's archive;
  • if the textual content of the marriage contract fits on several pages, then the certifying signatures of both spouses must be on each of them;
  • indication of various amounts and dates is carried out simultaneously by digital and alphabetic designation;
  • if, due to circumstances, one of the spouses cannot personally sign, then he can act through his legal representative. In e that case the notary is obliged to confirm the legitimacy of the signature and substantiate the reason for using the services of a trustee.

A marriage contract on the division of property is concluded between the spouses either before the official confirmation of the marriage, or at any time during the marriage. The main condition for its entry into force is the painting of the newlyweds in the registry office. The duration of the marriage contract is determined by the duration of the marriage. However, it is possible to include in the content a condition on the termination of some or all of the clauses before the dissolution of the marriage union, or, conversely, some provisions will continue to operate after the divorce proceedings.

You can download a sample marriage agreement on the division of property.

How to draw up a property division agreement?

Another way to carry out the division of property is to draw up a peace agreement. The document has significant differences from the marriage contract.

An agreement on the division of property is drawn up by the spouses on a voluntary basis and is concluded:

  • throughout the marriage;
  • during the divorce proceedings;
  • after divorce.

There is no possibility to conclude an agreement on the division of property only before the official registration of the marital union, which is the main difference from the marriage contract. Former spouses draw up a document, adhering to certain rules:

  • writing;
  • mandatory notarial certification to achieve legal validity;
  • the document is written in the amount of 3 pieces, as in the case of drawing up a marriage contract.

A model agreement on the division of property must contain the following information:

  • time and place of signing the contract;
  • information about husband and wife - full name without abbreviations, date of birth, address, passport data;
  • indication of the status of the spouses - married or divorced, a link with fixing the details of the registration document;
  • transfer of all property that is subject to division;
  • the procedure for the distribution of material assets between spouses - a detailed description of each thing;
  • the event, the occurrence of which determines the entry into force of the treaty;
  • the parties sign and put down their initials.

As in the case of a marriage contract, if there are several sheets in the agreement, signatures are required on each of them. Interested parties can download the form of an agreement on the division of property.

Differences

A married couple, faced with a choice of how to distribute property rights, needs to know the differences between a marriage contract and a property division agreement. Depending on the needs of the couple, one of the methods is chosen:

  • the contract cannot be drawn up after the dissolution of the family union, and the agreement - before state registration in the registry office;
  • under a marriage contract, the division of property is carried out from material values ​​that already exist or will arise in the future. With an agreement, only the distribution of existing property is possible;
  • a written contract is legalized from the moment of marriage, and a written agreement - from signing;
  • the matrimonial document describes the emergence or cancellation of any rights and obligations upon the occurrence of certain circumstances, while the agreement simply makes the division of property;
  • through a marriage contract, personal property can be transferred to the category of joint property, in contrast to the second type of document;
  • the contract allows the use of generalized concepts in the division of property - for example, movable, immovable property. A written agreement requires specifics and the establishment of key characteristics of the transferred items;
  • financial debts under a prenuptial agreement may also be subject to division. In the agreement, only property is subject to distribution.

The similarity between a marriage contract and an agreement on the division of property of the spouses lies in the written execution and mandatory certification by a notary.

Which contract is best?

To understand which document is better to issue, the spouses should decide on their needs. For example, if the situation has reached a critical point and the couple is in the process of divorce or is already divorced, then it will no longer be possible to draw up a prenuptial agreement for the division of property. The time of its registration is available only either before marriage or during family life. . In this case, an agreement is selected from all available options.

A prenuptial agreement is beneficial for spouses who want to settle, in addition to property rights, to the property already available, as well as to the one that will appear in the future. The agreement in this case will carry out the division of property already present in the family.

Do not forget that both documents require legal certification by a notary, which requires the payment of a notary fee. If the amount of monetary remuneration for technical work on the preparation of title papers may vary, then the amount for certification of the marriage contract is unchanged - 500 rubles . For additional services, payment can reach up to 10,000 rubles. The amount of 10,500 rubles is the minimum, but the total amount of monetary remuneration for all work can reach 30 - 40 thousand rubles.

Posted by: Inyusta / Updated: 03/02/2017 / Viewed: 7947

The intention to enter into an agreement or is typical for the following situations:

  • the parties are legally married, but the relationship is in question, and one has to think about how to voluntarily, by mutual agreement and without trial, officially divide what was acquired in marriage as they see fit;
  • the parties divorced, all that unites them is the fruits of joint work in marriage, which they agree to share without much dispute;
  • the spouse is going to make a deal with personal property (change an apartment bought before marriage, a land plot received by inheritance for another real estate, just sell it) and does not want the common and personal property to be mixed as a result;
  • citizens are preparing for marriage and want to eliminate the very possibility of conflict over what they will gain in marriage or divorce;
  • the citizen is married (married) and everything goes on as usual, but circumstances (risk business activities, possible claims of creditors) make it necessary to change the regime of joint ownership to shared or personal.
Transaction options: contract and agreement

Each of these situations requires the spouses to draw up either a marriage contract, or an agreement on the division of property, or some other transaction.

A variant of such legal interaction is the preparation of a document that combines both a marriage contract and an agreement.

These transactions may include an element of any other transaction. After all, spouses (present, former, future) are also participants in civil transactions and have the right to conclude any contract between themselves - both formulated by law (purchase and sale, exchange, donation, loan, etc.), and not provided for by any rules of law (do not confuse the latter with an invalid, i.e. illegal transaction). And since, by virtue of the provisions of civil law on freedom of contract, any transaction is concluded at will and at the discretion of the parties, the agreement of the spouses, the marriage contract may include elements of any other contracts and, as a result, be a mixed contract. When dividing the acquired property, this provision helps to solve a lot of problems, for example, when the division comes up against the impossibility or inexpediency of dividing things strictly into two halves or shares.

For now, we will focus on the most common transactions - marriage contracts and agreements on the division of property of spouses - and the tasks that lawyers have to solve when accompanying their conclusion.

What is a marriage contract

Drawing up a marriage contract (or, in the Anglo-Saxon manner, a contract) assumes that its parties have some idea of ​​the property relationship between husband and wife in marriage or upon its dissolution. Moreover, these relations do not fit into the framework of the regulation established for spouses by default, or they want more certainty than the code established. In this case, the parties enter into a specific contract, by which property rights and obligations are mutually determined at the current moment or in the future (Article 40,).

What is an agreement

And here is what family law says, pointing to the agreement of the spouses: such a transaction can be drawn up at any time both between husband and wife, and between ex-husband and wife and determine the fate of the marriage acquired during the marriage (Article 38 of the RF IC). The parties are free to agree on the division in any way they like.

Differences and similarities between an agreement and a contract

From what has been said, it can be seen that the contract and the agreement differ both in their legal nature and in content.

We see that the drafting of a marriage contract can take place before its parties enter into a marriage (however, it will enter into force no earlier than the date of marriage), but before the parties dissolve their marriage. An agreement can only be drawn up after marriage, and divorce is not an obstacle to drawing up an agreement.

Documents (both the contract and the agreement) must be drawn up in writing: a contract - always, an agreement - if the transaction amount is more than 10 minimum wages. In addition, the marriage contract must be certified by a notary, and the code makes the validity of the contract dependent on compliance with this requirement. The agreement does not need to be notarized.

Now let's touch on the most important thing - the content of both transactions. An agreement on the division of property has a purely pragmatic goal: to divide the property acquired in marriage. The marriage contract is intended to determine the principles of property relations between spouses. It is not necessary to indicate a list of property in it, it is enough to determine its type: movable, immovable, rights of claim. The contract can be extended (conversely, excluded from extension) for a certain period of time. In addition, the very concept of property relations is, of course, wider than that of spouses, that is, it is permissible to talk about the rights (use, disposal, possession) of the parties regarding things in the contract.

In the contract, it is permissible to condition the emergence (termination) of the rights of the parties regarding property by the occurrence (non-occurrence) of a certain event, for example, a divorce. Having drawn up an agreement, you can determine the fate of only the things indicated in it.

The marriage contract also allows the disposal of the personal property of one of the parties, for example, transferring an apartment from the personal property of a spouse to the common joint or shared property of both parties. When the Family Code refers to an agreement, this possibility is not mentioned.

The division of the property of the spouses and the marriage contract contain a different approach to the question of the fate of the acquired property. For example, a contract might state that in a divorce the majority is transferred to one of the parties, or it may be stated that movable property is transferred to one and real estate to the other, or that an apartment is transferred to one, but subject to prior payment to the other spouse of part of its price.

The agreement requires the individualization of what is transferred, and if we are talking about an apartment, then there should be no doubt that this apartment is meant, and not another.

It should be noted that when drawing up both documents, one should not forget about the total debts that arose during the period of living together. The law does not require a mandatory indication of the division of debts in the agreement, that is, it will be valid even in the absence of such information. But in the event of disputes, this topic will arise and will be resolved by the court on the merits, in whatever form the agreement was previously drawn up - in a notarial or simple written form, whether the transfer of rights to real estate was registered on it or not, etc.

In both options for formalizing property relations, documents must be drawn up in strict accordance with the requirements of family and civil law. But sometimes the provisions of the law do not reveal the full meaning of this or that aspect of regulation. In this case, you have to turn to judicial practice, and sometimes create precedents yourself.

The law recognizes as null and void the terms of a marriage contract that place one of the parties in an extremely unfavorable position. When it comes to an agreement, the law is silent about it.

  • 7947 views

The property relations of the spouses are subject to regulation with the help of such civil law agreements as a marriage contract and. Both the first and the second normative legal act can be drawn up of the good will of the spouses and in the event that each party agrees to the contract with its terms.

The article provides information on the conditions for drawing up a marriage agreement on the division of property, the procedure for concluding a transaction and its legal features. You can also find out what are the advantages of this agreement, and what rules for drawing up such contracts are provided for by law.

Features of the agreement on the division of property

In accordance with family law, property acquired by the spouses during their marriage, or the so-called common joint property, is subject to division between husband and wife in equal shares in the event of divorce. As a rule, the issue of partition is resolved in court. In rare cases, spouses independently find ways to resolve the dispute by signing an agreement, the main purpose of which is to establish the conditions for the implementation of the property rights of the husband and wife. An additional option that allows you to fix the property rights of spouses after marriage is an agreement on the division of property.

Document Features:

  1. spouses have the right to draw up a contract on the division of property both during their stay in marriage and immediately after its dissolution. The performance of this action, which is of a legal nature, is in no way connected with the termination of marital relations. However, as judicial practice shows, the use of a marriage contract on the division of property is resorted to immediately before the dissolution of the marriage or immediately after it;
  2. the contract does not require notarization, which significantly differs from other legal acts regulating civil law relations. If the spouses nevertheless decide to certify the agreement with a notarial signature, there are no obstacles to this;
  3. if the subject of the contract is real estate, the right to which is subject to state registration, the agreement will also have to be registered. The procedure should be carried out at the Registration Chamber. Only if this rule is observed, the ownership of the property specified in the contract will pass precisely to those of its participants who are determined by the agreement. On the basis of a document issued as a result of registration of an agreement on the division of property, in the future there will be a fixation of the transfer of ownership;
  4. in order for the agreement to be registered at the Registration Chamber, it is necessary to pay a state duty. Please note that if the contract stipulates property rights to vehicles or other types of movable property, no payments, including the payment of state duty, should be made.

Benefits of a property division agreement

The contract specifies key points regarding the ownership, disposal and use of property acquired by spouses during marriage, so there is no need for an additional division of property and vehicles after a divorce. Moreover, in the contract, the husband and wife can describe in detail what and to whom will belong after the dissolution of the marriage. For example, a soft corner after a divorce will be given to a spouse, and a kitchen set - to a spouse.

Additional benefits of the agreement include:

  • due to the possibility of drawing up an agreement both during the marriage and after its dissolution, the spouses can stipulate in the text of the agreement property rights to all types of property belonging to them on the basis of common joint ownership;
  • there are no restrictions on the content of the agreement, that is, the spouses are free to determine the points of the document;
  • the law does not require notarization of the agreement, which saves not only time, but also money for the spouses. After all, a notary provides services for certification of documents not at all free of charge, even if the text of the agreement is ready and not subject to adjustment.

In order for the agreement to subsequently have legal force and fulfill the functions assigned to it, it must meet the following requirements:

  1. the presence of gross grammatical errors in the text of the document is not allowed;
  2. the contract may contain only reliable information that corresponds to reality;
  3. the contract must contain the personal data of its parties, in particular the full names of the husband and wife, information about their place of registration, contact information;
  4. mandatory details are the passport data of the parties to the contract (number, series, date of issue, authority that issued the certificate);
  5. the presence in the agreement of the main details of the Certificate of marriage, in the event of a transaction during the period of marriage, or the Certificate of its termination, if the contract is drawn up after a divorce;
  6. a list of types of property with a detailed description of each item. It is advisable to indicate the approximate cost of things, their characteristics, the degree of wear. This rule usually applies to property from the category of movable;
  7. the presence of a section containing information about what property which of the spouses will get after the divorce;
  8. information about the date and method of transfer of property is also specified in the contract.
  9. the agreement cannot contain provisions regarding the property rights of third parties, for example, children or creditors, if any;
  10. the contract is signed by the parties. If the document consists of several sheets, signatures must be affixed to each individual page.

Compliance with the above rules will help to correctly draw up an agreement and avoid possible difficulties in the future.

Almost every spouse thinks in advance about the division of property in the future. After all, no one is immune from divorce, and, accordingly, from the division of jointly acquired property.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

It's fast and FOR FREE!

But in order to do this not through the court, it is necessary to take care of the creation of a marriage contract in advance.

What it is?

A marriage contract is a document that allows you to determine in advance the division of property between spouses in the event of a divorce. It can be created before marriage or during marriage. Both cases must be notarized.

A marriage agreement on the division of property in 2019 is a concept that has long entered the life of spouses.

Many on their own try to resolve the conflict after a divorce, by concluding a peace agreement. Many also confuse the two. So what is the difference and peculiarity of the marriage contract?

The marriage contract has the form of pre-trial and pre-divorce proceedings. That is, documentary evidence of the division of property occurs before a possible divorce.

Moreover, it is possible to conclude an agreement before marriage on the property that is planned to be acquired during the marriage period.

That is, if the spouses wish to purchase real estate and a car in marriage, then these objects are prescribed in the marriage contract.

and the marriage contract are considered actions to resolve relations in a pre-trial order.

Naturally, the agreement and the marriage contract can be directed to jointly acquired property or acquisitions in the future (contract). Common property is everything acquired during the marriage.

An exception to this rule are objects given as a gift, or goods purchased for money received from an inheritance.

Under a marriage contract, you can not go to court. The notary will distribute the property between the spouses. The idea of ​​concluding a marriage contract came to our country from abroad, thus this action made it possible to avoid going to court and pay a state fee.

The marriage contract is aimed at resolving a property dispute. If we talk about what is in the fact that in another document there is a transfer of property rights to one spouse.

There are several distinguishing features between these documents:

  1. Compilation deadline. The marriage document is drawn up before the marriage or during. A peace agreement can be drawn up,.
  2. Compilation form. The marriage contract must be registered by a notary. Accordingly, the spouses bear the financial costs of paying for the services of a notary. But this allows you to correctly fill out the document and present it to the court in the event of a conflict between the parties.

The advantages of a marriage contract often include the preparation of a document by specialists.

The disadvantages include the difficulty in determining the property.
There are specific rules for such documents:

  • it is impossible to introduce a clause where the rights and freedom of the spouse will be limited;
  • obligations of spouses in relation to children are not stipulated;
  • only property rights.

Legislation

This issue is regulated by several legal acts. Basically, these are the Family Code, the Civil Code and the Civil Procedure Code.

Article 91 of the Code of Civil Procedure becomes the main article regulating the marriage contract.

Marriage agreement on the division of property of the spouses

A prenuptial agreement is an opportunity to resolve a conflict before it occurs. That is why it is now becoming a trend.

Every second union is accompanied by such a document. And it is possible to conclude it in different situations.

When is it?

A marriage agreement can be concluded before marriage, during marriage. Perhaps this is even at the time of filing an application for registration of marriage.

Differences from the marriage contract

The difference from the marriage contract is:

  • Time limit. A marriage document is concluded before marriage, and an agreement can be concluded at the time of marriage, after a divorce or during divorce proceedings.
  • Certification is obligatory in a marriage contract, but not in an agreement.
  • Time of action. The contract may be valid for a specific period of time.
  • Legal distribution. A marriage contract involves the emergence and termination of legal relations subject to the conditions or the occurrence of an event specified in the document.
  • Property management. A marriage contract involves the transfer of property from one person to another.
  • Property. The marriage document indicates the generalized name of the property. But the agreement already has specific information.
  • Debt obligations are prescribed in the marriage contract, but there is no such clause in the agreement.

Nuances

Each document has its own nuances. And that is why, before concluding a contract, you need to familiarize yourself with this.

Division of joint property

A prenuptial agreement does not imply the registration of property equally.

It is necessary to independently register the shares of the spouses in the document. In this case, it is necessary to indicate the reason why such a separation occurred. At the same time, unequal division in a marriage agreement is not a mistake.

If the spouses decide on an equivalent division, then an assessment must also be made here.

It is possible to determine the property of one of the parties, but if the other party is not against such an action. If against, then the first party pays for an independent assessment of experts.

The examination should be carried out by a highly qualified employee working in a company where there is an appropriate license. Only after getting acquainted with it, you can transfer the property for evaluation.

The market price of the property on the day of the conclusion of the agreement is determined. At the same time, the depreciation of property that the property has acquired over the years is additionally calculated.

The document specifies the date of division of the property. Then the document is certified in accordance with applicable law.

Debts and loans

Debt obligations are also prescribed in the document. At the same time, they are divided equally between the spouses, unless otherwise provided by the document.

If the spouse proves that the borrowed funds were spent on the spouse’s own needs, then he will not be liable for loan obligations.

If the loan was taken before marriage, and the second spouse paid for it, then he has the right to demand through the court the amount paid for someone else's debt.

Mortgage apartment

Also spelled out in the marriage contract. The debt on it remains with the borrower and co-borrower.

That is, the spouses are jointly and severally liable for credit obligations. And the apartment can be distributed between the spouses equally or remain with one.

Compensation

There is mandatory compensation. That is, if there is a division of indivisible property, such as a car, then the second spouse is obliged to reimburse a share of this property.

Compilation rules

There are certain rules for drafting a prenuptial agreement. This is specified in the current Civil Code and is additionally regulated by the Family Code.

Do I need to contact a notary?

With a marriage agreement, there is a mandatory need to contact a notary. It is this person who will certify the document, which will give additional legal force to the submitted contract.

Already with this document it will be possible to apply to the court.

Sample

There is a certain form of marriage agreement on the division of property. Using a sample, you can not get confused with the filling form and quickly resolve the conflict.

Grounds for invalidation

It is possible to invalidate a document if the following reasons are present:

  • one of the signatures is missing;
  • the document was not certified by a notary;
  • one of the spouses was incompetent at the time of signing the document.

Contestation and termination

You can challenge the document, and then terminate it either independently, through peaceful negotiations or through the courts.

As a rule, the second method is used. To do this, a statement of claim is filed with the district court at the place of residence of the defendant, and a full package of documents confirming the grounds for terminating the contract is additionally attached.

On the video about the conclusion of the document

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

In order to divide the property of the spouses, an agreement on the division of jointly acquired property or a marriage contract may be concluded. The difference between a marriage contract and an agreement on the division of property is as follows.

moment of imprisonment
A marriage contract can be concluded before the state registration of marriage (in this case, it takes effect from the moment the marriage is concluded) or at any time during the marriage (clause 1, article 41 of the RF IC).
An agreement on the division of property of the spouses may be concluded during the marriage or after its dissolution.
Based on this, a marriage contract can be concluded by persons entering into marriage, or spouses, and an agreement on the division of property - by spouses or former spouses.

Form and need for notarization
A marriage contract is an agreement of persons entering into marriage, or an agreement of spouses, which determines the property rights and obligations of spouses in marriage and (or) in the event of its dissolution. The marriage contract is concluded in writing and must be notarized (Article 40, paragraph 2 of Article 41 of the RF IC).
An agreement on the division of the common property of the spouses acquired during the marriage is also concluded in writing and must be notarized. At the same time, non-observance of the notarial form of the transaction entails its nullity (clause 2, article 38 of the RF IC; clause 3, article 163 of the Civil Code of the Russian Federation).

Note!
For notarization of an agreement on the division of common property acquired by the spouses during the marriage, a state duty (notary fee) in the amount of 500 rubles is paid. as for certification of transactions, the subject of which is not subject to assessment (clause 6, clause 1, article 333.24Tax Code of the Russian Federation; Art. 22 Fundamentals of the legislation of the Russian Federation on notaries).

Settable Ownership Modes
In the marriage contract, it is possible to establish the mode of common joint, common shared or separate ownership.
In an agreement on the division of property, only the regime of common shared or separate ownership can be established.

Property in respect of which an agreement or contract is concluded
A prenuptial agreement may regulate the regime of property that will be acquired in the future. For example, a prenuptial agreement may provide that all immovable property acquired during the marriage will be considered the property of the spouse in whose name it is acquired. Also, the marriage contract can also change the regime of personal property of spouses - in terms of property that was acquired by them before marriage (clause 1, article 42 of the RF IC).
An agreement on the division of property defines the property rights and obligations of the spouses in relation to the property they already have.

Other differences
In terms of content, a marriage contract may be wider than an agreement on the division of property. In the marriage contract, the spouses have the right to determine their rights and obligations for mutual maintenance, ways of participating in each other's income, the procedure for each of them to bear family expenses, determine the property that will be transferred to each of the spouses in the event of divorce, and also include in the marriage contract any other provisions relating to the property relations of the spouses (clause 1, article 42 of the RF IC).

Note. The issues of the maintenance and upbringing of children cannot be contained in any of these agreements (paragraph 3 of article 42RF SC).