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The rights to the inheritance of a common-law wife. Relations with an ex-husband: how to understand him

It is not uncommon for spouses to divide common property during the divorce process. In the future, one of the spouses sells this property without the consent of the other spouse. Consider whether it is possible to sell real estate without the consent of the other spouse and what to do in this case.

common property

Paragraph 2 of Art. 244 of the Civil Code of the Russian Federation establishes two types of common property: common shared and common joint. Wherein common property on property is shared, except for cases where the law expressly provides for the formation of joint ownership of this property. Such cases, in particular, include the formation of common joint property of the spouses in accordance with Art. 256 of the Civil Code of the Russian Federation and Art. 34 RF IC.

The regime of common ownership implies a special procedure for making transactions in relation to property.

If the property is in common shared ownership, the disposal of such property is carried out by agreement of all its participants (Article 246 of the Civil Code of the Russian Federation). At the same time, it is necessary to observe the pre-emptive right to purchase other participants.

However, if the property is in common joint ownership, then, as a general rule, the disposal of such property does not require the special consent of other co-owners, such consent is assumed (Article 253 of the Civil Code of the Russian Federation). Moreover, if any of the co-owners was still against making such a transaction, then the transaction, at his request, may be declared invalid by the court (clause 3 of article 253 of the Civil Code of the Russian Federation), if he proves that the other party to the transaction knew or obviously must was aware of the lack of authority.

The disposal of the common property of the spouses is regulated by Art. 35 RF IC. Real estate (property, the rights to which are subject to state registration) is subject to a special regime. In particular, it is possible to dispose of such property only subject to the notarized consent of the other spouse. At the same time, if such consent is not obtained, the transaction may be declared invalid by the spouse within a year from the day when he knew or should have known about the completion of this transaction (clause 3, article 35 of the RF IC).

What happens to the common property of the spouses after the dissolution of the marriage from the position of the courts and what rules are applicable in the case of transactions for the disposal of such property? For the purposes of this article, we will consider these issues using the example of real estate.

In practice, there are often cases when spouses in the process of divorce, for one reason or another, did not divide common property(in particular, immovable), acquired during the marriage. However, neither Family code, nor Civil Code do not determine the regime of property acquired during marriage, after the spouses have dissolved the marriage. Subsequently, one of the former spouses (for convenience, the ex-husband) disposes of this property without obtaining the consent of the other ex-spouse(ex-wife).

In case of sale ex-husband such immovable property acquired during the marriage, is it necessary to obtain the consent of the ex-wife or her consent is expected? What rules should be applied: the Family Code or the Civil Code?

Notarization required...

Over the past few years, the courts have dealt with such disputes in different ways, and it is difficult to predict the outcome of the process. In some cases, the courts believe that the norms of the RF IC are also applicable when the marriage has been dissolved, and, therefore, it is necessary to obtain the consent of the former spouse to alienate real estate acquired during the marriage.

Thus, the Supreme Court of the Republic of Bashkortostan noted that neither the Civil Code of the Russian Federation nor the Investigative Committee of the Russian Federation connect a change in the regime of the common joint property of the spouses with the fact of the termination of a marriage. Therefore, after the dissolution of the marriage, the regime of common joint property of the spouses is preserved. In this regard, the execution of transactions for the disposal of real estate requires obtaining a notarized consent of the ex-wife, and, accordingly, ex-wife, whose notarized consent to the transaction has not been received, by virtue of paragraph 3 of Art. 35 of the RF IC has the right to demand recognition of the transaction as invalid in judicial order within a year from the date when she knew or should have known about the completion of this transaction (Appeal ruling of the Supreme Court of the Republic of Bashkortostan dated November 22, 2012 in case No. 33-12578/12).

This position is not uncommon in jurisprudence. The concept of maintaining the regime of the common property of the spouses, despite the dissolution of the marriage, and the need to obtain a notarized consent of the former spouse for the alienation of real estate are reflected in the decisions not only of the courts of first and second instances (Appeal rulings of the Kemerovo Regional Court dated January 21, 2014 in case N 33- 12881, of the Vologda Regional Court dated 08/01/2014 N 33-3598 / 2014, the definition of the Primorsky Regional Court dated 07/09/2014 in case N 33-5797), but also Supreme Court RF (Determinations of the Armed Forces of the Russian Federation of 13.08.2013 N 4-KG13-19; of 02.06.2015 N 5-KG15-47).

On the one hand, it is very difficult to agree with such an approach of the courts. After all, the norms of the Family Code of the Russian Federation (in particular, the provisions of Article 35 of the RF IC) regulate relations exclusively between persons who have a special legal status, that is, the status of spouses. And in case of loss of such legal status application to them of the provisions of Art. 35 of the RF IC from a formal point of view is unacceptable.

On the other hand, the extension of the regime of the common property of spouses to former spouses ensures a balance of interests of the former spouses, prevents abuse by the spouse who manages the common property, being its registered owner.

...or consent is assumed?

In judicial practice, another point of view is also common. The courts believe that the provisions of paragraph 3 of Art. 253 of the Civil Code of the Russian Federation, that is, when real estate is alienated by an ex-husband, the consent of the ex-wife is presumed.

In particular, the RF Armed Forces noted back in 2005 that the provisions of Art. 35 of the Family Code of the Russian Federation apply to legal relations that have arisen between spouses and do not regulate relations that have arisen between other participants in civil circulation (Determination of the RF Armed Forces dated 14.01.2005 N 12-В04-8). Paragraph 3 of Art. 253 of the Civil Code of the Russian Federation. A similar position is expressed in more late decisions Armed Forces of the Russian Federation (Determinations of the Armed Forces of the Russian Federation of July 5, 2016 N 5-KG16-64, of August 30, 2016 N 5-KG16-119).

This approach is also found in the decisions of lower courts (Determination of the Ryazan Regional Court of October 12, 2011 N 33-2054, Appellate rulings of the Moscow City Court of April 20, 2012 in case N 11-5021, Moscow City Court of July 14, 2014 in case N 33- 22390/2014, Pskov Regional Court dated April 26, 2016 in case N 33-647/2016). At the same time, the courts note that neither the RF IC nor other laws provide for the need to obtain a notarized consent of the former spouse for the transaction to be made by the other former spouse in relation to real estate jointly acquired during the marriage.

However, this approach of the courts is highly controversial. As noted above, according to Art. 244 of the Civil Code of the Russian Federation, joint ownership of property is shared, except in cases where the law provides for the formation of joint ownership of this property. At the same time, there is currently no law that would define the regime of the property of former spouses as a common joint property. In this regard, it seems that the property of the former spouses should be subject to the regime of common shared ownership.

Thus, in judicial practice there is no single approach to the question of whether the norms of the RF IC or the RF Civil Code are applied to the disposal of the common property of former spouses (acquired during marriage), and a separate clarification of the Supreme Court of the RF on this issue. Meanwhile, the question of the application of Art. 35 of the RF IC or art. 253 of the Civil Code of the Russian Federation has importance from the point of view of contesting a transaction for the alienation of common property (real estate) by a former spouse.

To challenge the transaction on the disposal of property, committed by the former spouse, to another in accordance with paragraph 3 of Art. 253 of the Civil Code of the Russian Federation, it is necessary to prove that the other party to the transaction knew or obviously should have known about the lack of authority to dispose of the common property of the former spouses, which is very problematic in practice. Whereas, according to Art. 35 of the RF IC, the absence of a notarized consent is in itself a ground for contestation, and it is not required to prove that the other party to the transaction knew or obviously should have known about the disagreement of the former spouse.

As noted by the Constitutional Court of the Russian Federation, the provisions of paragraph 3 of Art. 35 of the RF IC are aimed at ensuring a balance of the property interests of the spouses in relation to joint property (Determination of the Constitutional Court of the Russian Federation of December 9, 2014 N 2747-O). If the presumption of the consent of the other spouse does not apply to certain transactions (including the disposal of real estate), then it would be quite logical if this presumption did not apply in the case of transactions for the disposal of real estate by the former spouse.

What should the other ex-spouse do?

Given the lack of a unified approach in judicial practice, in each case it is necessary to carefully work out the strategy, including depending on what kind of transaction was made by the spouse (purchase and sale, donation), with whom the transaction was concluded (for example, with a close relative or other person ), in which court the dispute will be resolved, and other circumstances.

For example, if the ex-husband donated real estate to a close relative, the transaction may be sham and ex-wife it is necessary to consider the possibility of demanding in court the recognition of the transaction as invalid and the division of property (Appeal ruling of the Murmansk Regional Court dated March 10, 2016 N 33-8312016).

If the ex-husband sold real estate to a third party, the ex-wife may try to recover the amount of unjust enrichment in the amount of / from the amount received by the ex-husband (Determination of the RF Armed Forces dated 02.06.2015 N 5-KG15-47). Alternatively, you can try to demand the recognition of the transaction as invalid on the basis of paragraph 3 of Art. 35 of the RF IC (but, as we see, not all courts support this approach in relation to former spouses), restitution and division of property between former spouses.

It is necessary to take into account the timing limitation period. The limitation period for invalidating a voidable transaction is one year. The limitation period for claiming the division of property, in accordance with paragraph 7 of Art. 38 of the RF IC, is three years. At the same time, according to the clarification of the Supreme Court of the Russian Federation, the three-year limitation period for claims for the division of property, which is a common joint property spouses whose marriage is dissolved should not be calculated from the time of termination of the marriage (the day of state registration of the dissolution of marriage in the civil status register when the marriage is dissolved in the civil registry offices, and when the marriage is dissolved in court - the day the decision enters into legal force), and from the day when the person found out or should have found out about the violation of his right (for example, at the moment when the former spouse found out about the sale of common property) (paragraph 19 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated 05.11.1998 N 15).

As we can see, in the case of alienation by the ex-husband of property acquired during the marriage, the position of the ex-wife in terms of planning further action complicated as a lack of uniformity judicial practice on this issue, as well as a reduced limitation period for challenging such alienation. Of course, it is easier to avoid these difficulties by dividing the common property of the spouses in the process of divorce. However, if this did not happen, then the former spouse needs to quickly develop a strategy and take measures to protect their rights.

Surely there is not a single man who does not know that during a divorce, if the child remains with his ex-wife, he will be obliged to pay alimony to him until he comes of age. But the fact that in some cases he will have to pay alimony for the maintenance of his wife, not everyone knows.

So, in what cases is a man obliged to pay alimony for the maintenance of his wife?

Firstly, if at the time of the divorce a woman is on maternity leave, as well as in It is no secret that a woman is paid for a child only up to one and a half years. At the same time, not everyone has the opportunity to send the baby to kindergarten after this period. Therefore, during a divorce, the ex-spouse can apply for the appointment of alimony for her maintenance and the maintenance of the child. If desired, she and her husband can conclude a voluntary agreement that will regulate the amount of payments.

Otherwise, the amount of alimony will be determined by the court. In doing so, the court takes into account many factors - Family status ex-spouses, presence additional age, state of health, etc. The main thing is that when paying alimony for the maintenance of his wife, a man should not become needy himself. In other words, the court can appoint payments only if the income of the ex-husband allows it. The calculation, as a rule, is carried out from the established in the region living wage.

It should be noted that the above calculations are relevant only for official marriage concluded in the state registry office. In the case of a religious, civil or any other type of marriage that is not recognized by the state, it will be impossible to collect alimony.

Secondly, if the spouse during the marriage or within a year after its dissolution turned out to be disabled (for example, received a non-working disability group) and was recognized as needy.

However, under certain circumstances, the court may refuse to pay child support. For example, if disability occurred as a result of the abuse of alcoholic or narcotic substances, or was obtained during the commission of an intentional crime. Also, the husband is not obliged to pay alimony to his wife in case of misbehavior of the latter, or in the case of a short-term marriage.

If the marriage was declared invalid by the court, the spouse also cannot claim alimony for its maintenance. True, if she was recognized as a conscientious spouse, and the conclusion violated her rights, the court can meet halfway and assign payments.

Thirdly, the court may appoint alimony for the maintenance of the wife (including the former one) if she is caring for a minor child with a disability or a common child who was assigned from birth. In this case, the spouse must be recognized as needy.

A person in need can be recognized as a person who does not work, does not have a permanent income, does not receive a pension and other sources of income, or has, but the income received does not provide

In addition, the court may order alimony for the maintenance of a wife who has reached retirement age with whom the husband for a long time lived in legal marriage and then divorced. In this case, the needy ex-spouse must apply no later than 5 years after the dissolution of the marriage.

In some cases, it is possible to collect maintenance for the maintenance of a spouse if she was recognized as in need of assistance and at the same time her income exceeds the minimum subsistence level - for example, in the case of a protracted illness, when expensive treatment is required.

The above provisions apply both to spouses who are married and to spouses who have lived together after a divorce. long time.

Article 31 of the Housing Code regulates the housing relations of former spouses. After a divorce, the right of use of the spouse who is not the homeowner ceases. But evicting an ex-spouse is not as easy as it seems.

Eviction if the former spouse is not registered in the apartment

Eviction in such a situation is the easiest, since with the lack of registration on a permanent basis, living in non-living space is prohibited. This circumstance is regulated by article 19.15 of the Code of Administrative Offenses, residence without registration for more than than ninety days forbidden. But there are 2 articles of the Constitution for this article Russian Federation 40, as well as 25, on the basis of which it is forbidden to deprive any citizen of housing.

Eviction can be if the former spouse has his own living space or is registered with his parents. But here, too, one should take into account the fact that the eviction should include:

  1. The presence of the fact that the former spouse is a co-owner of the living space of the former spouse.
  2. Was the housing privatization procedure carried out in the case when the family lived in the premises under a social tenancy agreement.
  3. Whether the living space was acquired at the moment when the spouses were together. Or maybe the apartment was the property of the spouse before marriage, or the apartment is a gift, or property transferred by will.

In the case of buying a home during the marriage, and also if both spouses are co-owners, then forced eviction is not possible. This may allow the sale of housing to a third party, as well as the redemption of one of the parties of the share of the other.

In the case of public housing, in this case, one person is the responsible tenant. And eviction is possible only if the spouse is registered in the residential premises. This means that he has no right to reside without the consent of his wife.

If a property is purchased ex-wife before marriage, or was donated, inherited, then the right to evict, as well as move in, remains only at the discretion of the owner. But even here a court decision is necessary.

Evicting an ex-husband registered in a residential building

In this matter, it plays a big role, that is, whether the ex-husband has the right to own housing or not. It is on this factor that the possibility of implementing the eviction procedure depends. The presence of permanent or temporary registration is not yet a declaration of ownership of a dwelling. But if there is registration, then eviction will be much more difficult.

For this, the ex-wife must file a lawsuit in court. But the ex-spouse will need to provide irrefutable evidence of the presence of all the grounds that are good reasons for eviction. The court takes into account the fact that the defendant has or does not have other housing. In the absence of other residential premises, the court gives time to the defendant to resolve the issue of housing within one year. But for this, the defendant must prove to the court that the grounds for postponing the discharge for a year are compelling.

Eviction of non-owner ex-spouse

In this matter, the main factor is the type of dwelling from which the ex-spouse wants to evict her ex-husband.

If the property is privatized, then important aspect is the time when it was privatized.

If the spouse did not participate in privatization, then it is possible to write him out of the housing through the court. If the ex-spouse had all the rights to privatize the property, but for a number of reasons did not do so, and the statute of limitations (three years) has not expired, then the ex-spouse has the legal right to privatize the property, challenged through the court the earlier privatization and having achieved a new procedure for the privatization of housing.

Acquired living space by the former spouse before marriage, as well as inherited or donated, is only her property. The spouse is not entitled apply for this property. If both live in an apartment, under a contract of employment, then the former spouse has the same rights as the spouse. So, divorce is not the reason for evicting the ex-spouse from the premises. You can only exchange housing so that everyone has their own space.

Eviction from housing in which the former spouse is the owner

This is one of the most difficult procedures. Indeed, in such a case both spouses are co-owners of the living space. But ownership of an apartment can be different. The acquired property in marriage is the property of both and is divided into equal shares. But if there is marriage contract, That certain conditions contracts for the sale of housing, ownership of residential premises can be distributed in unequal proportions. In order to file a claim within three years from the date of the conclusion of the contract for the sale of housing.

As a rule, allocating the shares of each of the former spouses through the court is a rather long process. After all, one of the former spouses may be against the sale of housing. In court, the ex-spouse can be forcibly forced to sell housing, with the aim of each acquiring a separate one. In order for the case to unfold more quickly, and each of the spouses be satisfied, you should seek the help of a lawyer who will find a way out of the current controversial situation.

The fact that a woman can demand from her husband the allocation of a certain part of his income for her maintenance while they are married is well known, but that she has the right to this even after the official break in relations is news to many. Regardless of whether spouses are present or former, alimony is paid to a wife who needs them if she takes care of a joint disabled child (either before he turns 18, or if group I since childhood).

After the dissolution of a marriage, a woman whose income is insufficient may receive material support from former second half in cases:

  • if she became disabled during marriage or within 1 year after its dissolution;
  • if she became a pensioner no later than 5 years after the divorce (only in the case of a long-term marriage - that is, lasting at least 10 years);
  • until the common child is 3 years old;
  • for the period of pregnancy.

The minimum amount of alimony

Unfortunately, the minimum amount of alimony is not defined by law. If at least a percentage of income is set for child support to be paid, then in the case of an ex-wife, this is not prescribed either.

For reference: We examined in detail and. Check out these materials.

In each lawsuit, the amount is determined individually, based on the income of the former spouses. As a rule, if the husband is already obligated to pay child support, or pays off a loan taken in marriage, or bears the burden of other expenses incurred while the spouses were running a common household, this is taken into account by the court.

If alimony for the ex-wife is appointed - they must be monthly.

Alimony indexation

In most cases, the ex-spouse will have to pay alimony long years and the prices of essential commodities rise regularly. So that the wife to whom these alimony is paid does not end up in a deliberately disadvantageous position, they are subject to indexation.

To facilitate this process, the amount of alimony is indicated by the court in an amount that is a multiple of the subsistence minimum, or as a share of it. Thus, with an increase in the amount of the subsistence minimum, the amount of alimony will automatically increase.

The procedure for submitting documents

It is possible to demand payment of alimony in court, regardless of the time that has passed since the divorce, disability, or other circumstances that give the right to receive assistance from the former spouse. But alimony can be collected for no more than a 3-year period before filing an application with the court, if the plaintiff can prove that she tried to receive money from her ex-husband for her maintenance, but to no avail.

If a woman does not make demands for the payment of money for the previous period, the obligation to pay alimony begins from the moment a positive decision is made in court.


The statement of claim is submitted to the Magistrate's Court, a package of documents must be attached to it. Sample statement of claim can be found on the Internet. At the end of the application, as a rule, the most full list documents to be attached.

If some are not required in your case, or you simply cannot provide them, correct the list manually. But remember that the more documentary evidence you bring in court, the more likely your claims will be satisfied in full.

The following papers will need to be attached to the application:

  1. Marriage certificate;
  2. court decision on divorce;
  3. wife's income certificate;
  4. certificate of income of the husband;
  5. documents proving that the defendant has additional income;
  6. in case of wife's pregnancy - a certificate from a gynecologist about pregnancy;
  7. if there is a child under 3 years old - his birth certificate;
  8. if alimony is collected due to the wife's incapacity for work - the conclusion of a medical and social examination confirming this fact;
  9. if a woman needs alimony because she is caring for a disabled child:
  • form 9 or an extract from the house book, confirming that the woman lives with the child;
  • documents confirming the assignment of a disability to a child, medical certificates stating that he needs constant care.

In addition, it will be a big plus to provide checks confirming the amount of expenses for yourself and the child (if any). After all, alimony is assigned only if the ex-wife is in need, and it is established by comparing income and needs. Checks will be needed to confirm needs.

Since the alimony this case paid only in hard currency sum of money, then payment of state duty, according to the law, is not required.

Very often, a woman has a question about how to get a certificate of income of her ex-husband, usually it is not realistic to get it on her own. In such a case, the court will require required documents myself. This will somewhat delay the process, since at least one more additional court session will be required, but it will help solve the problem.

As a rule, 3 copies of documents are required - one for the court, others - according to the number of participants in the process. If one plaintiff and one defendant are involved, 3 copies are sufficient.

When does a husband not have to pay child support?

The judge may find that the former spouse is not required to pay child support in the following cases:

  • the marriage was short-lived;
  • the wife was distinguished by unworthy behavior in the family (for example, she cheated);
  • if the wife’s disability was caused by alcohol abuse, drugs or a deliberate crime committed by her (for example, the wife, while drunk, crashed in a car, or was injured when attacking someone).

Over time financial position any person can change. If the ex-spouse ceases to need alimony, or the ex-spouse is unable to pay them, he can file a lawsuit with the court, indicating the claims consistent with the new circumstances. If his demands are legitimate, the amount of alimony may be reduced, or payments may be stopped altogether.

Also, a claim for refusal to pay alimony can be filed if the spouse hid her true income - for example, not working, or receiving a small salary, she has a good profit from renting an apartment, which she kept silent about in court.

So, if you have the right to receive alimony, you do not need to delay filing a lawsuit, often more than one meeting will be required to make a final decision, the process may drag on for long months. From financial assistance you should not refuse a husband because of fear of contacting a leisurely judicial system or fear of doing something wrong - to speed up and simplify the process, it would be better to contact a specialist who will competently draw up a claim, help collect the necessary documents and represent you in court.

In any case, being in a difficult life situation you need to use every opportunity to alleviate it, especially if it concerns not only you, but also the child.

Article 90. The right of the former spouse to receive alimony after divorce

1. Right to receive financial assistance not only spouses, but also former spouses. The Family Code of the Russian Federation contains an exhaustive list of circumstances under which the former spouse has the right to demand the provision of maintenance after the dissolution of the marriage.

First of all, the law establishes a circle of persons who have the right to demand the provision of alimony in court from their former spouses. The first two grounds that give the right to receive alimony from a former spouse coincide with similar grounds on which spouses who are in a registered marriage are required to provide material support to each other. These include:

1) ex-wife during pregnancy and within three years after birth common child. A prerequisite for the recovery of alimony is the origin of the child from the defendant. The ex-wife has the right to receive alimony from the ex-husband only if the pregnancy occurred in marriage, and the common child was born no later than 300 days from the date of termination of the marriage (for the moment of termination of the marriage upon its dissolution, see the commentary to Article 25 of the RF IC ). Termination of actual marital relations, no matter how long they may be, does not give a woman the right to demand payment of alimony for her maintenance from her former actual spouse during pregnancy and within three years from the birth of a common child * (278);

2) a needy ex-spouse caring for a common disabled child under the age of 18 or a common child disabled from childhood of group I. Legally significant facts for the emergence of the ex-spouse's right to alimony in this case are: the onset of disability of a common child under the age of 18 or the recognition of a child as a disabled person from childhood of group I after reaching the age of majority, as well as the need of the former spouse-claimer. The reasons and the moment of the onset of the child's disability (before or after the dissolution of the marriage by his parents) do not affect the emergence of the right to alimony.

The law states that only the spouse who cares for a disabled child has the right to receive alimony from a former spouse. In this regard, it must be assumed that in order to acquire the right to receive funds for their maintenance from the former spouse, the creditor must take care of the child himself. When a child is placed in a boarding school for the disabled, the ex-spouse's right to receive alimony does not arise, and the payment of alimony already collected is terminated if the child does not need additional expenses. Additional expenses associated with the treatment of such a child, paying for outside care, etc., must be covered by the funds for his maintenance, which both parents are obliged to provide. However, the placement of a child in a hospital for inpatient treatment should not be grounds for terminating the payment of alimony * (279);

3) a disabled needy ex-spouse who became disabled before the dissolution of the marriage or within one year from the date of the dissolution of the marriage. This refers to disability that has arisen in connection with the achievement of retirement age or in connection with disability. The reasons for the disability of the former spouse (and hence the occurrence of disability) as a general rule do not matter. The exception is the reasons indicated in Art. 92 RF IC.

One of the conditions for exercising the right to receive alimony by the former spouse is the presence of his disability that occurred before the dissolution of the marriage or within a year from the date of its dissolution. This rule should be interpreted broadly, recognizing the right of the former spouse to receive alimony even if the disability occurred before marriage. Thus, in the Ruling in Case No. 84-B08-4, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized the conclusions of the Presidium of the Regional Court as based on an incorrect interpretation and application of substantive law, stating the following. The law binds the payment of alimony former needy spouse, in particular, with the fact that he had a disability at the time of the dissolution of the marriage. The disability of the former spouse, whose disability was established even before the conclusion of the marriage, is a legally significant circumstance in resolving the issue of his right to demand maintenance from the other former spouse after the dissolution of the marriage. Under such circumstances, the reference of the court of the supervisory instance to the fact that the inclusion in the period of time giving the right to receive alimony to the former spouse, the time preceding the registration of the marriage is unlawful, does not comply with the provision of paragraph 1 of Art. 90 RF IC*(280);

4) a needy spouse who has reached retirement age not later than five years after the dissolution of the marriage, if the spouses have been married for a long time. This norm on the maintenance rights of a former spouse is an exception to general rule that the former spouse is entitled to receive maintenance from the other former spouse only if his disability occurred before the dissolution of the marriage or no later than one year from the date of the dissolution of the marriage. It is designed to protect the interests of the spouse, who during the marriage was engaged in maintaining household, raising children and for this reason has a small seniority affecting the size labor pension, or has none at all, receiving only social pension, the size of which is small * (281).

The right of the former spouse to alimony arises when he reaches retirement age no later than five years after the dissolution of the marriage, provided that the spouses have been married for a long time. This refers to the achievement of the retirement age, from which a person acquires the right to receive an old-age labor pension on a general basis (men - at 60 years old, women - at 55 years old), regardless of his right to receive a pension on other grounds for more than early age including entitlement to a disability pension.

The law does not disclose the concept of "marriage for a long time." This issue is decided by the court independently, taking into account the age of the spouses and other specific circumstances of the case. According to established practice, a marriage that lasted at least 10 years is considered long-term.

For a maintenance obligation to arise between former spouses, it is necessary that the recipient spouse needs financial assistance. The exception is the ex-wife during pregnancy and within three years after the birth of a common child. The need of the former spouse is established by the court by comparing his income and necessary needs. A former spouse can be recognized as needy as total absence he has means of subsistence, and if they are insufficient. The question of the ex-spouse's need must be resolved taking into account the specific circumstances of the case.

The court has the right to satisfy the claim of the former spouse for the recovery of alimony only on the condition that the defendant has necessary funds. The former spouse may be recognized by the court as possessing the necessary means ( wage, other income, availability of property) for the payment of alimony, if after the payment of alimony to both the former spouse and other persons whom he is obliged to support by law, he will have funds for his own existence.

2. In accordance with paragraph 2 of the commented article, the maintenance obligations of the former spouses may be regulated by an agreement on the payment of alimony. Conditions on the amount and procedure for paying alimony to the former spouse in case of dissolution of marriage may be included in the marriage contract. However, it must be remembered that a marriage contract can be concluded either before the state registration of marriage, or during marriage. In other words, ex-spouses can settle the rights and obligations for maintenance only in an agreement on the payment of alimony.

In the absence of an alimony agreement, the issue of paying alimony to a spouse can be resolved in court both directly upon dissolution of the marriage, and subsequently at the request of the former spouse who has the right to receive alimony. The terms for applying for alimony are regulated by the provisions of Art. 107 RF IC.