Judicial practice of property division. Division of property: who can prove more

Claim Concept of claim

Unfortunately, the most common method of dividing property jointly acquired by spouses today is judicial division. There are many reasons for this. Firstly, the division of property often causes a dispute about the right, and secondly, the requirement for the division of property, as a rule, accompanies the requirement for divorce.

In this chapter we will look at general issues going to court when deciding on the division of jointly acquired property.

Let us remind you that according to Art. 38 of the RF IC, division of property (regardless of the order of such division - judicial or extrajudicial) can be carried out both during the marriage and after its dissolution. In the cases under consideration, the plaintiff will be one of the spouses (ex-spouses). However, the law also provides for other cases when it is necessary to divide property in judicial procedure. These include the division of property at the request of the creditor for further foreclosure on the share of one of the spouses. Another case of filing a claim in court for the division of property is the allocation of the property of a surviving spouse to determine the inherited property.

The substantive and legal basis for resolving disputes regarding the division of property between spouses is, firstly, the norms of family law. It is the Family Code of the Russian Federation, as a special law, that regulates the main provisions applied by the courts when resolving a dispute over the division of property. And only in cases where the norms of family law contain gaps in the regulation of property relations, is it possible to apply the norms of civil law to the extent that does not contradict the essence marriage family relations. Yes, Art. 35 of the RF IC, which regulates the relations of property rights (possession, use and disposal of property), is supplemented by Articles 244, 252, 254, 256 of the RF Civil Code, defining general norms about property.

In addition, Article 46 of the Family Code of the Russian Federation provides that the creditor of the debtor spouse has the right to demand changes in the conditions or termination of the agreement concluded between them in connection with significantly changed circumstances in the manner established by Art. 451 - 453 Civil Code of the Russian Federation. Calculation of deadlines is carried out exclusively according to the rules of civil legislation (Articles 198, 200, 202, 205 of the Civil Code of the Russian Federation).

Despite the significant differences in the grounds for the claim, the preparation and process of considering the case itself have similar features.

Jurisdiction

First of all, when preparing for court proceedings, it is necessary to correctly determine the jurisdiction. Article 47 of the Constitution of the Russian Federation guarantees that no one can be deprived of the right to have his case considered in the court and by the judge to whose jurisdiction it is assigned by law.

Civil proceedings are characterized by two types of jurisdiction - generic and territorial.

Generic jurisdiction distinguishes cases between courts general jurisdiction different levels. In our case, the division of cases occurs between the magistrate and the district courts.

Territorial jurisdiction delimits the competence of courts of one level, i.e. competence to consider cases between magistrates or between district courts.

According to the Civil Procedure Code in the Russian Federation, there are two jurisdictional judicial bodies whose jurisdiction includes the issue of division of property jointly acquired by spouses. These include the magistrate and district courts. According to paragraph 3 of Art. 23 of the Code of Civil Procedure of the Russian Federation, the magistrate considers cases of division between spouses of jointly acquired property if the value of the claim does not exceed fifty thousand rubles (taking into account the amendments made by Federal Law No. 6-FZ of February 11, 2010).

The concept of “price of claim” refers to the value of the claimed property, collected funds or other right that has a value expression. In addition, the price of the claim also includes the amounts of penalties (fine, penalties) and interest indicated in the statement of claim. It must be taken into account that the price of a claim consisting of several independent claims is determined by the sum of all claims. If the statement of claim contains heterogeneous demands, some of which are subject to monetary expression (for example, division of property), and others that do not have monetary expression (for example, for divorce), the price of the claim is the sum of the price of the claim, determined by the claims that have monetary expression. When filing a claim for division of property, the price of the claim will be determined by the value of the property that the plaintiff claims during the division.

If the cost of the claim exceeds fifty thousand rubles, then the case must be considered by the district court. In addition, the district court will have jurisdiction over the case even in the case where the value of the claim is less than the minimum established by law - fifty thousand rubles, but the statement of claim contains other demands within the jurisdiction of the district court. For example, citizen A. files a claim against her spouse for divorce, determination of the place of residence and the order of communication between the father and the child, collection of alimony and division of jointly acquired property in an amount not exceeding fifty thousand rubles. In this case, the case should be considered in the district court, since, although the amount of property to be divided does not exceed the established minimum, the claim states a requirement directly related to the jurisdiction of the district court - determination of the place of residence and the procedure for communication between the father and the child. By general rule, provided for in Part 3 of Art. 23 of the Code of Civil Procedure of the Russian Federation, when combining several related claims, changing the subject of the claim or filing a counterclaim, if new claims become within the jurisdiction of the district court, while others remain within the jurisdiction of the magistrate, all claims are subject to consideration in the district court. In this case, if the jurisdiction of the case has changed during its consideration by the magistrate, the magistrate makes a ruling to transfer the case to the district court and transfers the case for consideration to the district court.

As we have already indicated, in addition to generic jurisdiction, it is important to resolve the issue of territorial jurisdiction, that is, to determine a specific court from the courts of the same level.

Practice shows that disputes often arise regarding the correct establishment of territorial jurisdiction. This is largely due to the demands stated by the plaintiff, as well as the property to be divided.

Civil procedural law distinguishes several types of territorial jurisdiction.

General territorial jurisdiction is the rule according to which a claim is brought to the court at the place of residence or location of the defendant (Article 28 of the Code of Civil Procedure of the Russian Federation). This type of jurisdiction is most applicable. For the category of cases we are considering - the division of joint property of spouses - this is the general rule for determining jurisdiction.

However, in practice there are often cases of changes in the general territorial jurisdiction. Let's consider the possible options.

Jurisdiction at the choice of the plaintiff (alternative jurisdiction) - the rule according to which a claim is filed in one or another court at the discretion of the plaintiff. According to Art. 29 of the Code of Civil Procedure of the Russian Federation, a claim against a defendant whose place of residence is unknown or who does not have a place of residence in the Russian Federation may be brought to court at the location of his property or at his last known place of residence in the Russian Federation.

A claim against an organization arising from the activities of its branch or representative office may also be filed in court at the location of its branch or representative office.

Claims for the collection of alimony and for establishing paternity may also be brought by the plaintiff to the court at his place of residence.

Claims for divorce can also be brought to the court at the place of residence of the plaintiff in cases where there is a minor with him or, for health reasons, it is difficult for the plaintiff to travel to the defendant’s place of residence.

Claims for compensation for damage caused by injury, other damage to health or as a result of the death of the breadwinner may also be brought by the plaintiff to the court at the place of his residence or the place where the harm was caused.

Claims for restoration of labor, pension and housing rights, return of property or its value, related to compensation for losses caused to a citizen by illegal conviction, illegal prosecution, illegal use of detention as a preventive measure, recognizance not to leave, or illegal imposition of administrative punishment in the form of an arrest, may also be presented to the court at the place of residence of the plaintiff.

Claims for the protection of consumer rights can also be brought to the court at the place of residence or place of stay of the plaintiff, or at the place of conclusion or place of execution of the contract.

Claims for compensation for losses caused by collisions of ships, recovery of remuneration for assistance and rescue at sea, may also be brought to the court at the location of the defendant’s ship or the ship’s home port.

Claims arising from agreements that specify the place of their execution may also be brought to the court at the place of execution of such agreement.

Thus, in the case when one statement of claim contains several demands, although related to each other, but attributed to various types territorial jurisdiction, the plaintiff has the right to independently determine the specific court competent to consider his case.

Thus, if the plaintiff files an application containing only a demand for the division of jointly acquired property, this claim must be sent to the court at the defendant’s place of residence. If the statement of claim, in addition to the demand for the division of jointly acquired property, contains a demand for divorce or a demand for the collection of alimony, the plaintiff has the right to independently determine the territorial jurisdiction of this case by sending a statement of claim, for example, to his place of residence.

Contractual jurisdiction is a rule according to which general territorial and alternative jurisdiction can be changed by agreement of the parties (prorogation agreements). In accordance with Art. 32 of the Code of Civil Procedure of the Russian Federation, jurisdiction may be changed before the court accepts the application for its proceedings. At the same time, it is not permitted to change, by agreement of the parties, the exclusive jurisdiction of cases within the competence of the Supreme Court of the Russian Federation, the supreme court of the republic, a regional court, a court of a federal city, a court of an autonomous region and a court of an autonomous district.

Accordingly, spouses have the right to independently determine the jurisdiction of the dispute under consideration. However, such an agreement must be accepted before the relevant court accepts the statement of claim for its proceedings.

Exclusive jurisdiction is a rule according to which a case should be considered only by a court strictly defined in the Code of Civil Procedure of the Russian Federation (Article 30 of the Code of Civil Procedure of the Russian Federation). Exclusive jurisdiction of cases contributes to the rapid and complete collection of necessary evidence, timely and correct resolution of the dispute. Exclusive jurisdiction includes:

1. Claims for rights to land plots, subsoil plots, buildings, including residential and non-residential premises, structures, structures, and other objects firmly connected to the land, as well as for the release of property from seizure, are brought to the court at the location of these objects or seized property .
2. Claims of the testator's creditors brought before the heirs accept the inheritance are subject to the jurisdiction of the court at the place where the inheritance was opened.
3. Claims against carriers arising from contracts of carriage are filed in court at the location of the carrier against whom the claim was filed in the prescribed manner.

The application of the rule on exclusive jurisdiction in cases of division of the common property of spouses, which includes real estate, has some peculiarities, which is caused by the multi-object composition of the common property of spouses subject to division.

From the analysis of judicial practice it follows that when filing a claim in court for recognition of ownership rights and division of only real estate between spouses, the rule of exclusive jurisdiction is observed, disputes are considered at the place of the real estate subject to division.

However, if the subject of the claim is complex property (a complex of movable and immovable property), the practice is not so clear.

Thus, K-va filed a claim against K-vu’s ex-husband for the division of common property acquired during marriage to the Oktyabrsky District Court of Saratov - at the defendant’s place of residence. The plaintiff named a two-room apartment located on the street as the property subject to division. B. Gornaya in Saratov, a two-story dacha located in the Engels district of the Saratov region, and a car.

On April 15, 2008, the Oktyabrsky District Court of Saratov accepted the claim for proceedings. At the court hearing, the representative of the defendant filed a petition to transfer the case for consideration to the Volzhsky District Court of Saratov, justifying the petition by the fact that K-va asks to recognize her ownership of a two-room apartment on B. Gornaya Street, located in the jurisdiction of the Volzhsky District Court , and the case must be considered according to the rules of exclusive jurisdiction. By ruling of the Oktyabrsky District Court of Saratov dated June 2, 2008, the petition was granted. In the reasoning part of the ruling, the court, agreeing with the arguments of the defendant’s representative, indicated that the case should be considered using the requirements for exclusive jurisdiction.

Having considered the case on September 25, 2008 by way of supervisory review, the Presidium of the Saratov Regional Court overturned the ruling of the Oktyabrsky District Court of Saratov.

In the reasoning part of the supervisory decision, the regional court considered the use of exclusive jurisdiction in this case to be a significant violation of the rules of procedural law. At the same time, it was stated that the subject of the claim was the division of property, and exclusive jurisdiction is applicable only in cases of recognition of the right.

Similar arguments were indicated in the ruling of the Kirovsky District Court of Saratov in the lawsuit of Zh-oy against Zh-vu for the division of a four-room apartment acquired jointly during marriage, located in the Leninsky district of Saratov, and for the recognition of her right to a 1/2 share the specified apartment. By a court ruling dated March 18, 2008, the statement of claim was returned on the basis of Art. 28, clause 2, part 1, art. 135 of the Code of Civil Procedure of the Russian Federation due to lack of jurisdiction, and the plaintiff was explained her right to file this claim at the location of the real estate - to the Leninsky District Court of Saratov. The Saratov Regional Court, when reviewing the case in cassation, agreed with the arguments of the Kirov District Court, indicating that the plaintiff asked not only for the division of the apartment, but also for recognition of her right to 1/2 of the said apartment, and claims for rights to residential premises are being brought to the court at the location of the property.

As we see from the position of the judicial authorities, the application of the rules on exclusive jurisdiction is possible not simply when dividing property between spouses, but when the right to this property is claimed.

This position seems to us not entirely correct. In fact, filing a claim for the division of jointly acquired property aims not only to divide such property, but also to determine the procedure for use and other rights to the claimed property. So, part 3 of Art. 38 of the RF IC provides that when dividing the common property of spouses, the court, at the request of the spouses, determines what property is to be transferred to each of the spouses. Thus, in accordance with Art. 38, 39 of the RF IC determine the shares of spouses in property rights. Consequently, when resolving such a claim, the court makes a decision to terminate the right common property and transfer of property into individual ownership or, provided that the property is indivisible (Article 133 of the Civil Code of the Russian Federation), leaves it in the common shared ownership of the parties, which, of course, determines the need to apply the requirement for exclusive jurisdiction.

In accordance with Art. 132 of the Code of Civil Procedure of the Russian Federation, when filing a statement of claim, the plaintiff must mandatory attach a document confirming payment of the state fee. Violation of this requirement will entail leaving the statement of claim without progress, and subsequently, if the document is not submitted within the period specified by the court, the statement of claim will be returned to the applicant.

State duty is a mandatory payment valid throughout Russia, levied for the performance of legally significant actions or the issuance of documents by authorized bodies or officials. In civil proceedings, the state fee pays for statements of claim, other statements and complaints in the manner and in the amounts established by federal law. The procedure for payment and the amount of mandatory payments collected when going to court are regulated by Chapter 25.3 “State Duty” of Part Two of the Tax Code of the Russian Federation.

Payers of the state duty are citizens of the Russian Federation, foreign citizens, stateless persons and legal entities applying for the performance of legally significant actions or the issuance of documents.

State duty is divided into two types - proportional and simple. A proportional state fee is collected depending on the value of the claim, and the amount of a simple fee is fixed by law. The proportional state fee is tied to the price of the claim (statement of claim for division of property). For claims for recognition of rights, including property rights, rights of use, rights of possession, rights of disposal, divorce, etc., the state fee is paid in the amounts established for claims of a non-property nature.

The state fee is paid by the person applying for protection of the right before filing a statement of claim, application or complaint. Its size is independently calculated by the applicant. However, if it is calculated incorrectly, the amount of the state duty is determined by the court itself, since it has the right to check the correctness of the price of the claim. Failure to pay the state fee in the absence of appropriate benefits is grounds for leaving the claim without progress in accordance with Art. 136 Code of Civil Procedure of the Russian Federation.

In practice, there are often cases when a claim for divorce (non-property nature of the claim) is filed together with a claim for division of property (property nature of the claim). In accordance with Art. 333.20 of the Tax Code of the Russian Federation, when filing claims for divorce with the simultaneous division of jointly acquired property of the spouses, the state fee is paid in the amounts established for both claims for divorce and claims of a property nature.

Thus, a claim for division of property, regardless of whether it is presented in divorce proceedings or separately, is paid by the state duty independently.

When calculating the state duty, the plaintiff proceeds from the cost of the claim. The price of a claim for division of property acquired jointly by spouses is determined by the value of the property claimed by the plaintiff. The Civil Procedure Code of the Russian Federation provides for the right of the defendant to file a counterclaim. In this case, the defendant, filing a counterclaim, must also pay a state fee in proportion to his claims. However, the law provides for another option for the defendant’s objection.

In accordance with Art. 35 of the Code of Civil Procedure of the Russian Federation, the defendant has the right to object to the demands presented, and also has the right to file an explanation for the claim. In this case, the defendant actively defends his legal position, however, such procedural documents are not paid with state duty.

Proof

When preparing a statement of claim for the division of property acquired jointly by spouses, the plaintiff must clearly define the subject of proof, since in accordance with Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections.

The subject of judicial evidence can be called the totality of circumstances that must be established for the correct resolution of the case.

Three groups of facts included in the subject of proof can be distinguished.

1. Legal facts of a substantive nature. Their establishment is necessary for correct application the rules of substantive law governing the controversial legal relationship, and the correct resolution of the case on the merits.

Facts of a substantive nature can be divided into three groups:

legal-producing facts;

facts of active and passive legitimation;

facts of the cause of action.

Legal-producing facts include circumstances that determine the legal relationship between the parties (for example, the existence of a contract).

The subject of proof also includes the establishment of circumstances confirming the legal status of the parties, in other words, the presence of active and passive legitimation is determined.

The fact of the cause of action is the circumstances on the basis of which the plaintiff concludes that his rights have been violated (for example, misrepresentation when concluding a transaction).

1. Evidentiary facts are those facts that, when proven, allow one to logically deduce a legal fact.
2. Facts of procedural significance are those kinds of facts that are associated with the emergence of the right to bring a claim (for example, the implementation of a mandatory pre-trial procedure for resolving a dispute), the right to suspend proceedings in the case, its termination, as well as the right to perform other procedural actions (for example , taking measures to secure the claim).

The subject of proof is determined by the parties when filing claims and objections, as well as by the court. According to Part 2 of Art. 56 of the Code of Civil Procedure of the Russian Federation, the court determines what circumstances are important for the case, which party must prove them, and brings the circumstances up for discussion, even if the parties did not refer to any of them.

A procedural feature of this category of cases is the precise definition of the subject of the claim.

The subject of the claim should be understood as a specific substantive legal claim of the plaintiff against the defendant, which the plaintiff must indicate in the statement of claim.

The plaintiff’s demands against the defendant (the subject of the claim) must be stated clearly and specifically. Upon request for the collection of funds in the statement of claim, the plaintiff is obliged to indicate the total amount of money to be collected with a separate definition of the principal debt, losses, penalties (fines, penalties) and interest. The statement of claim for the award of property must indicate the name of the property to be transferred to the plaintiff, its value and location. If a claim is made obliging the defendant to perform certain actions not related to the collection of funds or the transfer of property, in the statement of claim the plaintiff indicates the person obliged to perform these actions, as well as the place and time of their commission. When filing a claim against several defendants, the plaintiff is obliged to indicate in the statement of claim his claims against each of them; if their liability is joint and several, then the plaintiff’s demands are stated accordingly.

In relation to disputes about the division of jointly acquired property of spouses, the subject of the claim will be the specific property for which the plaintiff is asking for division.

There are often situations when, after a decision on the division of property is made, one of the parties again goes to court with an application for the division of jointly acquired property. In both cases, the subject of the claim will be jointly acquired property, however, a procedural feature of this category of cases will be the mandatory specification of the property to be divided. The absence of such specification may lead to an unlawful refusal to accept the application. If in the second statement of claim a demand is made for the division of things, the fate of which has already been determined by an earlier decision that has entered into legal force, then the court should refuse to accept the statement in accordance with clause 2 of part 1 of Art. 134 of the Code of Civil Procedure of the Russian Federation, which prohibits the consideration of identical claims.

However, if the subject of the statement of claim is other property on which the court has not made a decision, refusal to accept this statement with reference to the fact that the issue of dividing the property of the spouses as a whole has already been resolved is unacceptable. If the generic concept of the subject of the claim in cases of division of joint property of spouses coincides, it is necessary to distinguish the specific concept (specific property).

Thus, when preparing to file a claim for the division of property related to the joint property of the spouses, the plaintiff must determine what specific property (items, things, obligations) should be included in the division, what its value is and how it should be divided. The solution to this issue depends on the establishment of a legal regime for joint property of spouses.

When considering cases on disputes related to the division of common property of spouses, it is necessary, first of all, to clarify its legal regime.

When resolving issues related to the joint property of spouses, it is necessary to determine legally significant circumstances. Their circle is indicated by the norms of substantive law regulating issues of joint ownership. Such circumstances will make it possible to correctly establish the legal regime of property, the grounds that allow in a number of cases to deviate from the principle of equality of shares, as well as resolve other issues that are the subject of proof.

Analyzing these norms, we can conclude that these types of circumstances include:

1) the duration of the marriage;

2) the grounds and moment of emergence of common property;

3) composition, type and value of property, its location;

4) grounds for changing the regime;

5) the presence or absence of encumbrances of property with the rights of third parties;

6) deadlines limitation period(if one of the parties filed a motion to apply the statute of limitations);

7) a list of property transferred to each of the spouses (former spouses).

Consideration of the case

When deciding whether to accept an application for proceedings, the judge determines the circle of persons who have the right to file a claim in court. This right belongs to: spouse, former spouse, guardian of the spouse (former spouse), prosecutor, heir, creditor of the spouse, creditor of the testator.

The grounds and moment of emergence of the right of common ownership, composition, type, value of property and its location are also other legally significant circumstances in the case.

In paragraph 2 of Art. 34 of the RF IC lists the types of property that are common joint property:

1) income of each spouse from labor activity, entrepreneurial activity and results of intellectual activity;

2) received pensions, benefits, as well as other monetary payments that do not have a special purpose;

3) movable and immovable property;

4) right of claim expressed in securities, shares, deposits, shares in capital contributed to commercial organizations, including credit;

5) any other property acquired by the spouses during the marriage.

Sometimes spouses believe that some property is not jointly acquired or lay claim to certain things, in such cases everything controversial issues must be reflected in the claim. Therefore, the claim must be accompanied by an inventory of jointly acquired property, a certificate of wages, other income, as well as evidence of the acquisition of property during marriage. If one of the spouses believes that more than half of the property should go to him, then evidence is provided confirming the right of this party (certificates that this party has dependent children, the other spouse spent jointly acquired property to the detriment of the family, did not work long time without good reason, etc.). Here one should take into account the provisions of Part 5 of Art. 38 of the RF IC, which determines the right of minor children to certain items. If the plaintiff believes that some property is subject to exclusion from the jointly acquired property due to the receipt of this property by one of the spouses as a gift or by inheritance, then this is indicated in the claim and evidence is provided. If the parties have debts, this is also indicated in the statement of claim.

The indivisible thing is transferred to one of the spouses (former spouses), another entitled person, and the other is paid compensation equal to the difference in the value of the property and its share in the right of ownership of the property.

The composition and type of property determined on the day of termination of the marriage are also important. Thus, if there is real estate in the common property, it is necessary to find out whether the rights to this property or transactions with it are registered, whether the structure is unauthorized, or whether construction has been completed.

In accordance with the Federal Law “On Joint-Stock Companies,” joint-stock companies are required to maintain a register of shareholders, which indicates information about each registered shareholder, nominee shareholder, number and categories (types) of shares recorded in the name of each registered person. The registry holder, upon request of the court, is obliged to provide all necessary information. If the property subject to division includes shares of an OJSC, then the court decision to recognize the ownership of the shares is the basis for the register holder to make changes to the register of shareholders of the company. This is necessary both to participate in the management of the company’s affairs and to receive dividends on shares. Otherwise, the issue of shares in a closed joint-stock company must be resolved, which, firstly, are distributed only among the founders of the company, and secondly, the number of their holders cannot exceed 50 people. The approach should be the same for all cases where the property acquired by spouses includes shares (contributions) in business companies, partnerships, shares in production cooperatives, as well as shares in closed joint stock companies. These cases are united by the fact that the alienation of a share, share, shares is impossible, as a rule, without the consent of other participants, shareholders, founders, and also that, unlike an OJSC, here there is not only a pooling of capital, but also a pooling of labor and, In addition, there is an element of trust among the signatories of the constituent agreements. From the above, it follows that in appropriate cases, the court obliges the participant’s spouse, based on the data contained in the balance sheet of the enterprise, to pay the other spouse an amount equal to half of the share of the participant-spouse’s value of the enterprise’s property.

In any case, you should find out the value of the property at the time of termination of the marriage relationship. It is determined on the day the dispute is resolved by agreement of the parties, and in the event of a dispute, it is possible to appoint an appropriate examination.

If one of the spouses alienated the common property or spent it at his own discretion, contrary to the will of the other spouse and not in the interests of the family, or hid the property, then during the division this property and its value are taken into account.

When property is encumbered with the rights of third parties, the issue of involving them in the case should be discussed, and if necessary, according to the rules provided for in Art. 128 Code of Civil Procedure of the RSFSR, separate the case into separate proceedings.

The circumstances that influence changes in the property regime and are subject to study include the following:

1) whether there were investments during the marriage that significantly increased the value of the property of each spouse;

2) whether there is property acquired to meet the needs of minor children;

3) whether the property was acquired with the funds of one of the spouses that belonged to him before marriage;

4) whether the property was acquired by one of them through gratuitous transactions;

5) whether the property was acquired after the termination of the marriage relationship.

If during the marriage there were investments that significantly increased the value of the property of each spouse, then this property can be recognized as joint property. When property was acquired to meet the needs of minor children, it is not subject to division and is transferred to the divorced spouse with whom the children live. Property acquired by one of the spouses before marriage is also not subject to division.

Determination of the subject of proof when courts consider cases of division of property, the legal regime of which is determined by law.

The regime of common joint property of spouses can be changed by a marriage contract. For the first time, a marriage contract was provided for in part one of the Civil Code of the Russian Federation, in Art. 256 of the Civil Code of the Russian Federation which states that an agreement between spouses may establish a different regime for matrimonial property.

Article 40 of the RF IC gives the following definition marriage contract. A marriage contract is an agreement between the persons entering into marriage or an agreement between the spouses that defines the property rights and obligations of the spouses in the marriage and (or) in the event of its dissolution. Thus, a marriage contract can be concluded either before the marriage is registered, but it comes into force only after its state registration, or at any time during the marriage.

Since a marriage contract is a type of civil contract, the corresponding norms of civil law are also applied to it, in particular the procedure for concluding a contract, amending it, terminating it, etc.

The form of the marriage contract must be written and notarized. At the same time, a marriage contract should be distinguished from an agreement on the division of property, which requires a simple written form; an agreement on the division of property acquired during marriage can be concluded only after registration of the marriage and only in relation to property that has already been acquired or will be acquired in the future .

Spousal property regime. As a rule, the basis of a marriage contract is to change the regime of common joint property of the spouses and replace it with shared or separate property. The marriage contract may change the regime in relation to certain types of property, for example real estate, or certain income. For example, a marriage contract may indicate that income from business activities<53>will belong to the spouse who exercises it. Thus, in an agreement, spouses can determine that the regime established by the agreement applies to property that will be acquired only during a certain period of time. For example, all property acquired before the birth of a child is their separate property, and after the birth is their common property.

Obligations for mutual maintenance or for the maintenance of one of the spouses by the other. At the same time, the norms should not be violated Family Code RF about alimony. In particular, if the marriage contract stipulates that the spouse has no right to receive financial support under any circumstances, then this provision will contradict Art. 89 of the RF IC and is considered void. The spouse will not lose the right to receive maintenance if she is disabled and in need, as well as during pregnancy and within three years from the date of birth of a common child, as well as in other cases established by law.

Ways to share in each other's income. This condition can be included in the marriage contract in cases where both spouses have independent income, as well as when one of the spouses has no income, but thus acquires ownership of the income received by the other spouse, for example, in the form of a certain percentage of income from entrepreneurial activity.

The procedure for each spouse to bear family expenses. These may include both current expenses, such as rent, utilities, food purchases, etc., and others, such as training, treatment, etc.

The procedure for the distribution of property that will be transferred to each spouse in the event of divorce. Such terms in the contract will allow you to avoid disputes and going to court in the event of divorce.

Other provisions relating to property relations between spouses. Family law does not regulate issues related to the rights of spouses to intellectual property created during marriage. In order to avoid disputes that may arise between spouses when dividing income from the use of intellectual property rights, it is advisable to provide special provisions in this regard in the marriage contract.

The marriage contract can provide for the specifics of transactions with the property of the spouses. For example, the contract can stipulate that before transactions are carried out on a large sum The prior written consent of the other spouse is required. It is especially possible to stipulate conditions regarding income received from transactions with property that belonged to the spouses before marriage.

Thus, the wife of A.Yu. before marriage, she purchased a one-room apartment and during the marriage decided to improve her living conditions by selling it and buying a two-room apartment larger area. A marriage contract was not concluded between the spouses, so a dispute arose in court about the division of property and the spouse A.Yu. was forced to prove that part of the money for the purchase of the apartment was received through the sale of property acquired before marriage and was exclusively her property.

In order to avoid such disputes, it is advisable to indicate in the marriage contract that all expenses received from the sale of property acquired before marriage are the property of the spouse to whom this property belonged.

It should also be noted that the law provides for a number of conditions that should not be in a marriage contract. Otherwise, they are invalid and entail the notary’s refusal to certify the agreement.

These include the following conditions:

1) limiting the legal capacity or capacity of spouses. For example, it is impossible to limit the right of a spouse to draw up a will. Thus, when concluding a marriage contract, most of the property acquired during marriage by the entrepreneur-spouse was recognized as his property. Wife O.L. agreed to enter into an agreement on the condition that the spouse bequeaths this property not to his son from his first marriage, but to their common children - a son and daughter. Spouse O.D. did not object to the inclusion of such a condition in the marriage contract, but the notary refused to certify such a contract, since the above-mentioned provision limits the legal capacity of the spouse. In accordance with Art. 18 of the Civil Code of the Russian Federation, one of the elements of the content of legal capacity is the right of citizens to bequeath property and restrictions on citizens in this right are not allowed in accordance with Art. 22 Civil Code of the Russian Federation;

2) limiting the right to go to court. For example, it is impossible to provide in a marriage contract that spouses, if they do not have minor children, undertake to dissolve the marriage in the civil registry office, and not in court, and not demand division of property;

3) establishing personal non-property relations between spouses. Since the personal non-property rights of spouses are practically not regulated by law and their implementation cannot be ensured by the coercive force of the state, their inclusion in the contract will not be of a legal nature;

4) establishing rights and obligations in relation to children. All acts affecting children's rights must be carried out separately;

5) limiting the right of a disabled, needy spouse to receive maintenance;

6) conditions that place one of the spouses in an extremely unfavorable position. For example, conditions under which all property acquired during the marriage is the property of one of the spouses, and the other spouse is completely deprived of ownership of this property without any compensation.

A marriage contract, like any other civil contract, can be changed or terminated at any time by agreement of the spouses.

Since the law states that such an agreement must be made in the same form as the marriage contract itself, notarization in this case is mandatory (Clause 1 of Article 43 of the RF IC).

At the same time, neither spouse has the right to unilaterally refuse to fulfill the marriage contract. Therefore, in the absence mutual agreement spouses, the marriage contract can be changed or terminated at the request of one of them in court. In this case, the court will be guided by the grounds established by the Civil Code of the Russian Federation for amending and terminating contracts (clause 2 of Article 43 of the RF IC). The main one is a significant violation of the contract by one of the parties (clause 2 of Article 450 of the Civil Code of the Russian Federation). As a general rule, a violation is considered significant if it causes such damage to the other party that it is substantially deprived of what it had the right to count on when concluding the contract. In this case, damage can be understood as any, including moral, harm caused to the other party. In addition, spouses have the right, at their own discretion, to determine in the contract which violations of the contract are considered significant by them and, therefore, are grounds for changing or terminating the marriage contract.

A special basis for changing and terminating the contract is provided for in Art. 451 of the Civil Code of the Russian Federation, a significant change in the circumstances from which the parties proceeded when concluding it. The law determines that a change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen it, the contract would not have been concluded by them at all or would have been concluded on significantly different terms. Thus, a change in financial or marital status, as a rule, indicates a significant change in the circumstances from which the spouses proceeded when concluding a marriage contract.

The obligations of the parties terminate depending on the moment of termination of the agreement. Thus, if there is the consent of both spouses, the marriage contract is terminated from the moment this agreement is reached, duly executed, and when the dispute is resolved by the court - from the moment the court decision enters into legal force.

Features of preparing a case for trial in cases of division of jointly acquired property.

After the statement of claim is accepted for court proceedings, the process moves to a new stage - the stage of preparing the case for trial.

The protection of violated or disputed rights and legitimate interests of legal entities and citizens is carried out primarily during the trial of a specific case. And the faster and, most importantly, correctly the dispute is resolved, the more realistic this protection will be. The solution to this main task of legal proceedings is unthinkable without appropriate preparation of the case for trial, the purpose of which is to create conditions aimed at ensuring the correct and timely resolution of the dispute.

The very preparation of the case for trial in accordance with Chapter 14 of the Code of Civil Procedure of the Russian Federation consists of certain procedural actions of the judge. However, the adversarial model of civil procedure represents the content of the procedural actions being performed, therefore preparing a case for trial is an activity not only of the court, but also of the persons participating in the case, primarily the plaintiff and the defendant. The specific content and sequence of these actions is determined by the general training objectives, which include:

1) clarification of the claims and circumstances relevant for the correct resolution of the case;

2) determining the nature of the legal relations of the parties and the range of regulations that should be followed when resolving the dispute;

3) resolving the issue of the composition of persons participating in the case;

4) determining the evidence that each party must present to support its claims and objections.

This also includes setting the time for the court hearing, which allows for the gathering of the necessary participants in the process with a sufficient set of evidence in order to correctly resolve the dispute in the same first court hearing, as well as notifying interested parties about the time and place of the hearing.

It should be noted that the tasks of preparing a case for trial begin to be solved already during the receipt of received materials. Thus, when deciding the issue of jurisdiction, it is necessary to take into account the nature of the dispute (division of property), from what legal relations it arises (civil, family and marriage), what is the subject composition of the dispute, the rights and interests of which persons it affects (participants in the process can be not only spouses or former spouses, but also other persons claiming the same property) and take into account other documents confirming the circumstances on which the claims are based. All these documents are attached to the statement of claim.

Basically, preparation is carried out before the first court hearing, although the possibility of carrying out preparatory actions during breaks between court hearings is not excluded, as well as if the case was transferred for a new trial to the court of first instance after the court decision was canceled by a higher court.

In the latter case preparatory actions are committed not only on the initiative of the judge, but also in pursuance of the instructions contained in the judicial decision of the higher court that sent the case for a new trial. These instructions are mandatory for the court re-hearing the case.

Civil procedural legislation does not provide for a special period for preparing a case. Therefore, “the judge actually independently determines the period during which the case will be prepared for trial. However, the period of preparation of the case for trial must be within reasonable limits, since this period is included in total term established for consideration of a case and making a decision on it.”

Therefore, the preparation of the case for trial should be carried out as quickly as possible (which, however, should not negatively affect its quality). At the same time, it is unacceptable to carry out specific preparation actions (appointing an examination, requesting documents, sending a letter of request to other courts, etc.) before a ruling is made to accept the statement of claim.

The Supreme Court of the Russian Federation, summarizing the practice of considering cases on the division of property jointly acquired by spouses in guidelines, review letters and other materials, has more than once drawn the attention of court workers to the need to constantly improve the preparation of cases for consideration, emphasizing that a significant part of erroneous decisions made by courts their violation of deadlines for consideration of cases and other shortcomings, as a rule, are a direct consequence of inept or careless preparation of cases for consideration at the hearing.

In order to carry out the tasks facing the stage of preparing the case for trial, the judge carries out certain procedural actions. The Civil Procedure Code “does not aim to define in detail and exhaustively all possible actions on the preparation of the case, but outlines only the general directions of the judge’s actions and the range of issues to be clarified at this stage of the process. Therefore, when starting to prepare a case, in each specific case the judge must himself determine its content, establish what issues need to be clarified and what should be done for this.”

"We should pay attention Special attention on the way to regulate procedural relations at the stage of preparing a case for trial. The behavior of the judge is regulated here by enabling legal norms and is not limited by the will of the persons participating in the case. This allows him to resolve many procedural issues on his own initiative, ensuring high-quality preparation of the case for trial.”

Each specific case has its own specifics, its own individual features, therefore, in the content of preparation even for the same category of cases there are always some peculiarities. Because of this, the choice of preparation actions, their content and focus are determined by the characteristics of each specific case, both of a substantive and procedural nature.

In accordance with the main objectives of preparing a case for consideration and the features inherent in cases involving the division of joint property of spouses, the range of specific procedural actions that must be performed by the judge during its preparation is determined.

The Code of Civil Procedure of the Russian Federation indicates that when preparing a case for trial, a judge:

1) considers the issue of involving another defendant or a third party in the case;

2) notifies interested parties about the proceedings;

3) offers persons participating in the case, other organizations, their officials perform certain actions, including submitting documents and information relevant to resolving the dispute;

4) checks the relevance and admissibility of evidence;

5) calls witnesses;

6) considers the issue of ordering an examination;

8) calls persons participating in the case;

9) takes measures to reconcile the parties;

10) decides on summoning the heads of organizations participating in the case to give explanations;

11) takes measures to secure the claim.

The judge also performs other actions aimed at ensuring the correct and timely resolution of the dispute.

By nature and main focus, all actions performed by a judge at the stage of preparing a case for trial can be divided into four groups:

1) defining and clarifying the subject of proof, identifying the evidence necessary to resolve the case and ensuring its timely submission by the day of the hearing;

2) identifying all persons interested in resolving the dispute and resolving the issue of involving or allowing them to participate in the process in one role or another;

3) taking measures to reconcile the parties;

4) taking measures to secure the claim.

“Defining and clarifying the range of facts to be proven, identifying and requesting evidence necessary to resolve the case are the central issues of preparing the case, and although the Civil Procedure Code does not have a rule obliging the judge in each case to take measures to clarify and determine the subject of evidence in the case, it is possible with good reason to say that there is not a single case, the preparation of which could be done without clarification of this issue. Moreover, it is with this that preparation for any case should begin, since only after this, without much difficulty, can one determine what evidence is important for a given case and successfully resolve all other issues that arise at this stage of the proceedings.”

The actions of the judge to clarify and determine the subject of evidence in a claim for division of property usually come down to clarifying the facts indicated by the parties as the basis for claims and objections, determining their significance for the case and excluding facts that are not important for the case, or supplementing them with new ones, necessary, in the opinion of the judge, facts.

The implementation of this very difficult task is greatly facilitated by the fact that the Code of Civil Procedure of the Russian Federation obliges both the plaintiff and the defendant, already in the statement of claim and response to the claim, not only to clearly state all the circumstances relevant to the case, but also to refer to the legislation. By getting acquainted with these materials and comparing them, you can easily find out the nature of the relations that have developed between the parties and, guided by the norms governing these relations, come to very definite conclusions regarding what circumstances should be clarified when considering this case.

The judge has the right to invite, if necessary in the case, the plaintiff, defendant, or third party making independent claims regarding the subject of the dispute, to clarify the demands and objections, as well as the circumstances justifying them.

The issue of summoning persons participating in the case must be decided by the judge, based on the nature of the particular case, as well as the objections of the defendant and third parties. It seems correct to practice those judges who, when preparing a case, call both parties, if they are in the same place, to clarify their positions. This allows not only to more accurately determine the range of facts sought in the case, but also to distinguish the controversial from the indisputable, and also allows the persons participating in the case to be invited to provide additional evidence confirming the validity of their objections.

In accordance with civil procedural law, the court cannot independently collect evidence in the case. Due to the principle of adversarialism and equality of rights of the parties in civil proceedings, the judge has the right only to invite the persons participating in the case, other organizations, and their officials to perform certain actions, including the submission of documents and information relevant to the resolution of the dispute.

In addition, for the same purpose of obtaining information necessary for the correct resolution of the dispute, the judge calls witnesses, considers the issue of ordering an examination, and sends letters rogatory to other courts.

The current civil procedural law does not say anything about how witnesses should be summoned to testify in a case. Based on the general provisions of the procedural law on notification of persons participating in the case about the place and time of the trial, one should come to the conclusion that witnesses must be called to court by court ruling. In the same way, translators and experts must be notified of the place and time of the trial.

The issue of ordering an expert examination at the stage of preparing a case for trial is decided positively by the judge in all cases where the need for an expert opinion is clear from the circumstances of the case and the evidence presented. When appointing an examination, the requirements of the Code of Civil Procedure of the Russian Federation must be taken into account, and the persons participating in the case must be explained their right to pose questions to the expert on which an opinion should be given, and to propose candidates for experts. The final content of the issues on which expert opinion is required and the candidacies of the experts are determined by the court.

Only those questions that require special knowledge in the field of science, technology or craft can be raised for expert approval. It is unacceptable, for example, to raise questions for expert approval Russian law, the resolution of which falls within the competence of the court.

An examination may be ordered by the court at the request of the persons participating in the case. In cases where the need for an expert opinion is clear from the circumstances of the case and the evidence presented, but none of the persons participating in the case have made such requests, the judge is obliged to explain to these persons the need for an expert opinion to properly resolve the case and their right to submit a corresponding request to the court.

When sending letters rogatory to other courts, the following must be kept in mind:

a) a letter rogatory is an exclusive way of collecting relevant evidence and can only be used in cases where this evidence for some reason cannot be collected by the court considering the dispute;

b) another court may be entrusted with performing only certain procedural actions - interrogation of witnesses, inspection and examination of written and material evidence, questioning of parties and third parties.

The judge may give instructions to carry out procedural actions to secure evidence if the corresponding procedural actions must be performed on the territory of another subject of the Russian Federation;

c) written and material evidence cannot be collected by way of letter of attorney, which the court hearing the case must itself directly request from the organization or citizens;

d) the court does not have the right to give orders to obtain from the plaintiff data confirming the validity of the claims, as well as other information that must be indicated in the statement of claim;

e) the letter of request must be sent in the form of a ruling. Sending letters rogatory in the form of letters, requests, or relations is unacceptable.

Another task facing the judge at the stage of preparing the case for trial is to identify all persons interested in resolving the dispute and decide on the issue of involving or allowing them to participate in the process in one role or another.

In particular, the judge considers the issue of involving another defendant or a third party in the case and decides it taking into account the requirements of civil procedural legislation.

Involving another defendant in the case is also possible at the stage of preparing the case for trial and can only take place with the consent of the plaintiff. Therefore, this issue can be resolved positively only if the plaintiff consents to this. The plaintiff's consent to involve another defendant in the case must be expressed in writing.

Third parties who do not make independent claims regarding the subject of the dispute are invited to participate in the case at the request of the parties or on the initiative of the court. A request to involve them in the case may also be submitted by third parties who make independent demands on the subject of the dispute, as well as by the prosecutor, state bodies, local government bodies and other bodies acting in the process. And this is understandable, since they all enjoy the rights of a plaintiff.

However, the judge cannot involve third parties in the process who make independent claims regarding the subject of the dispute. These persons decide on their own whether or not to intervene in a case, which is explained by the principle of discretion in civil proceedings. Therefore, if necessary, the court has the right only to notify them of the commenced process and explain to them the right to participate in it as third parties making independent claims on the subject of the dispute.

The court notifies interested parties about the proceedings in the case. By interested parties here we mean only those persons who have a legal interest (material, procedural) in the outcome of the case and can take a certain, provided for by law procedural position. These, first of all, should include third parties who declare independent claims on the subject of the dispute, and third parties who do not declare independent claims on the subject of the dispute, as well as defendants involved in the case.

One of the most important innovations in civil procedural legislation at the stage of preparing a case for trial is the introduction into the Code of instructions on the judge taking measures to reconcile the parties already at this stage, according to which the judge must explain to the parties their right to conclude settlement agreement. If the parties intend to end the case with a settlement agreement, then it is necessary to find out on what specific conditions.

Another innovation in the Code of Civil Procedure of the Russian Federation is an instruction for the judge to take measures aimed at securing the claim at the stage of preparing the case for trial.

The institution of securing a claim is a means of guaranteeing the execution of a future court decision. The need for such an institution is obvious. When the defendant becomes aware of a claim being filed against him, he can take measures to ensure that the decision is not enforced: hide funds, sell real estate and other property, both subject to and especially not subject to registration, transfer something for safekeeping to others persons, etc. Securing a claim consists of taking measures to ensure the execution of judicial acts that may be adopted in the future.

Securing a claim is allowed at any stage of civil proceedings, if failure to take such measures may complicate or make impossible the execution of a judicial act. In these cases it is necessary to use urgent measures to seize property and sums of money belonging to the defendant, as well as timely take other measures provided for by the Code of Civil Procedure of the Russian Federation to secure the claim.

Chapter 14 of the Code of Civil Procedure of the Russian Federation implies that the preparation of the case for trial is carried out by the judge, and says nothing about the actions of the parties to prepare for the trial. However, it seems that preparing a case for trial is an activity not only of the court, but also of the persons participating in the case. This follows from the principle of adversarial law, from the rights and obligations of the parties and other persons involved in the case to present evidence or indicate their location, from the obligation to conscientiously use all procedural rights granted to them. The adversarial nature of the civil process places the main burden of proof on the parties, therefore, the final result of the case largely depends on how they prepare for the trial.

The plaintiff, as the person who initiated the legal proceedings, must, of course, be prepared for it even at the stage of preparing the statement of claim. However, additional circumstances that arose after the acceptance of the statement of claim, such as the appearance of the defendant’s objections set out in the response to the statement of claim, the judge’s instructions to present certain evidence, changes in the circumstances that served as the basis for sending the statement of claim to the arbitration court, etc. , necessitate careful preparation of the plaintiff for the process. This equally applies to the defendant, the content of whose preparation is reduced to substantiating, based on the norms of substantive and procedural law, his objections, establishing the range of evidence refuting the plaintiff’s claims, the mechanism and method of presenting them. At the same time, when preparing for the trial, the parties should not forget, despite the certain “help” of the judge, about one of the basic principles of civil procedure - adversarial proceedings, which consists in the fact that each party must independently prove the circumstances to which it refers as the basis for their claims and objections, i.e. convince the court that you are right.

The Civil Procedure Code grants persons participating in the case the right to send to the court a response to the statement of claim with the attachment of documents confirming objections to the claim, within a period that ensures receipt of the response by the day of consideration of the case, and evidence of sending to other persons participating in the case, copies of the response and documents that they do not have. In the response, in the event of complete or partial rejection by the person participating in the case, the plaintiff’s demands shall indicate the reasons for the rejection with reference to laws and other regulatory legal acts, as well as to evidence substantiating the objections.

It seems that the response to the statement of claim is nothing more than one of the actions of the persons participating in the case to prepare for their participation in the process. A response to a statement of claim is a means of protecting the persons participating in the case, and first of all the defendant against the claim, and helps the court clearly determine the essence of the dispute, its factual and legal basis, and therefore, correctly and timely consider and resolve the case, and also helps to strengthen the adversarial started in civil litigation.

The new Code of Civil Procedure of the Russian Federation proceeds from the fact that the basis of adversarial law, its “internal spring” should not be the threat of applying penalties to the parties or third parties, but the presence of their material, procedural interest in the outcome of the case and the desire to achieve the most favorable decision for themselves.

Based on this, sending a response to the statement of claim to the judge is a right, and not an obligation, of the persons participating in the case. Failure to provide a response to the statement of claim or additional evidence that the judge proposed to present to the persons participating in the case is not an obstacle to the consideration of the case based on the materials available in it.

As an action by the defendant to prepare for the trial, one can probably highlight his filing of a counterclaim.

The law states that a counterclaim against the plaintiff may be filed by the defendant before a decision is made in the case. In practice, this means that the right to file a counterclaim can be exercised by the defendant before the court retires to the deliberation room to make a decision. At the same time, it must be borne in mind that filing a counterclaim at the trial stage, and even more so after examining the evidence and before the judges retire to the deliberation room to make a decision, will lead to a postponement of the trial of the case and an unjustified delay in its resolution<62>. Therefore, as a rule, a counterclaim is brought by the defendant just at the stage of preparing the case for trial.

Preparation for trial is carried out not only by the plaintiff and the defendant. Those organizations and citizens who are involved by a court ruling as third parties, both declaring and not declaring independent claims on the subject of the dispute, and have entered or are going to enter into the case in this capacity, must also, first of all, in their own interests, make preparations for judicial proceedings, since the decision in the case may directly affect their rights and obligations. The third parties in cases of division of joint property most often are the creditors of one of the spouses, persons claiming the disputed property.

The first step for third parties in preparing a case is to familiarize themselves with the case materials. Studying and analyzing the case materials will allow you to clarify the essence of the dispute, including the range of legal relations that arose between the parties, obtain information about the presence of certain evidence in the case materials, and determine your position in the dispute in relation to the parties. Ultimately, studying the case materials will help you understand how the possible outcome of the case will affect the rights and obligations of a third party.

Preparing a third party for trial also includes collecting evidence that is missing from the case materials and, possibly, from the parties, presenting it to the arbitration court and preparing a response to the statement of claim outlining one’s position.

Careful preparation for trial of all persons involved in the case is invaluable for the correct and timely resolution of the dispute. It is the lack of such preparation that in most cases is the reason for repeated postponement of the consideration of the case and often leads to judicial errors.

According to paragraph 3 of Art. 38 of the RF IC, in the event of a dispute, the division of the common property of the spouses, as well as the determination of the spouses’ shares in this property, is carried out in court.

When dividing the common property of spouses, the court, at the request of one of the spouses, determines what property is to be transferred to each of them. If one of the spouses is transferred property whose value exceeds his/her share, the other spouse may be awarded appropriate monetary compensation.

As follows from the explanations of clause 15 of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 N 15 “On the application of legislation by courts when considering cases of divorce,” the common joint property of the spouses is subject to division (clauses 1 and 2 of Article 34 of the RF IC), is any movable and immovable property acquired by them during the marriage, which, by virtue of Art. 128, 129, paragraphs 1 and 2 of Art. 213 of the Civil Code of the Russian Federation can be the object of property rights of citizens, regardless of which spouse’s name it was acquired or funds were deposited in, unless the marriage contract between them establishes a different regime for this property. The division of the common property of the spouses is carried out according to the rules established by Art. 38, 39 RF IC and Art. 254 Civil Code of the Russian Federation.

Often the volume and value of the property is determined by the plaintiff independently and is reflected in the statement of claim. Only in the absence of objections from the defendant can this volume and total cost be recognized by the court as established. Therefore, at the stage of preparing the case for trial, the court must invite the parties to determine, firstly, a complete list of property acquired by the spouses during the marriage and subject to division; secondly, jointly determine the value of the property as a whole and each item separately. When determining the cost, the parties must proceed from the actual price on the day the dispute is resolved, taking into account wear and tear. The court should strive to obtain a mutually agreed upon opinion of the parties regarding the volume and value of the property. Only in this case the value of the property can be accepted by the court without conducting an additional examination. Otherwise, a situation may arise when the division of property is carried out in violation of the law. For example, when drawing up a statement of claim for the division of property, the spouse included a one-room apartment, a car, and a garage in the scope of the property. The value of the property was not indicated, and the parties did not raise this issue during the trial. Based on the principle of equality of shares, the court made a decision and divided the property as follows - the apartment was awarded to the spouse, and the car and garage were awarded to the spouse. In this case, the court proceeded from the approximate equality of the value of the divided property. During the subsequent review of the case in the appellate court, it was established that the car was in disrepair. There is a violation by the court of Art. 254 of the Civil Code of the Russian Federation, 38 of the RF IC, since the court has not established the real value of the property subject to division.

In the absence of a mutual agreement between the parties regarding the value of the property to be divided, the parties can use various evidence: checks and other documents confirming the acquisition of the disputed property, copies of title documents on the registration of ownership of real estate, data from the traffic police REO on the registration of vehicles that are in must be included in the case materials. If, in this case, the parties have not reached an agreement on the value of the property, the court may, at the request of a party or on its own initiative, conduct a commodity examination, the resolution of which will raise the issue of determining the value of the property taking into account wear and tear.

In order to avoid violation of the principle of equality of shares, the court, when dividing real estate, must invite the parties to provide data on the inventory value of this property. Since the inventory value most often does not reflect the real value of real estate, the parties may request the appointment of an appraisal examination.

Court decisions and requirements imposed on them.

The activities of the court proceed in a strictly defined form. In the process of considering and resolving disputes within their competence, the courts perform various procedural actions on all issues arising during the civil process at its individual stages, and express judgments on the merits of the dispute under consideration as a whole. The content of the court's activities is set out in writing, in the form of procedural documents called court decisions.

In the theory of civil procedural law and judicial practice the term “judicial ruling” is used as a generic concept for all procedural acts of the court issued within its competence (decisions, rulings, rulings).

A judicial decision is a volitional act of the court, in making which the court is guided by the relevant norms of substantive and procedural law<64>. When considering and resolving any dispute, any issue that arises during the consideration and resolution of the case, as well as during the execution of the decision, the court applies legal norms and expresses its will in the decisions it makes.

The most important ruling of the trial court is the decision. When resolving the dispute between the parties on the merits (satisfying the claim, rejecting the claim in whole or in part), the court makes a decision.

In civil procedural law, definitions court decision not contained. This is done by the science of civil procedural law.

The court decision contains the final conclusion regarding all stated claims. A court decision is the procedural document towards which all proceedings in the case, all procedural actions of the court, the parties and other participants in the process are ultimately aimed.

It is necessary to agree that the decision of the first instance resolves the case on the merits, but the wording of this article does not reflect the essential feature of the court decision, which Professor N.B. Seider put it this way: “A judicial decision is ultimately an order on behalf of the state addressed to the parties.”

The decision is made in the name of the Russian Federation. A judicial decision is an act of the state and as such represents an act of will. The command of the state in the person of its body - the court - is available in any case, in any case and for any nature of the decision.

To a certain extent, a court decision has a property similar to the property of rules of law. It expresses the will of the state and is included in the same group of official acts as regulations. Like a rule of law, it is legally binding and constitutes an active part of legal regulation.

Thus, a judicial decision is an act of expression of the will of a public authority, which is expressed in the application of a rule of law to a specific legal relationship and in an order on a specific occasion addressed to the parties and other individuals and organizations to whom this case concerns.

Revealing the concept of a judicial decision, its essence, one cannot help but say about the meaning of a judicial decision. It manifests itself in various directions:

Firstly, by a court decision in a case arising from a dispute in the field of entrepreneurial and other economic activities, the dispute about the law is terminated due to its resolution by the court on the merits and the legal proceedings in this case are completed in the court of first instance;

Secondly, the legality violated by one of the parties is restored, and the subjective rights of persons in whose favor the decision is made are protected;

Thirdly, the preventive and educational function of justice is performed, i.e. court decision educates Russian citizens in the spirit of respect for the law, teaches them to build their relationships both among themselves and with organizations and the state, and promotes the law.

In other words, the significance of a court decision is determined by the objectives of civil proceedings, which are the correct and timely consideration and resolution of civil cases in order to protect violated or contested rights, freedoms and legitimate interests of citizens, organizations, rights and interests of the Russian Federation, constituent entities of the Russian Federation, municipalities, other persons who are subjects of civil, labor or other legal relations.

It should be noted that a court decision can only fulfill the tasks of civil proceedings when it is lawful. The legality of a court decision ultimately depends on the court fulfilling all the requirements established by law. There are different points of view in the legal literature on the issue of the requirements applied to a court decision and other decisions.

In the theory of civil procedural law, there are several points of view that explain the nature and relationship of all the requirements for a judicial decision.

To the requirements characterizing external form, refers to the requirement of a procedural form for a decision, which, as a requirement for a court decision, can be understood in two aspects: compliance with the procedural form in terms of compliance with the procedure for making a decision and compliance with the procedural form in terms of requirements for the court decision as a document.

Despite the extensive list of requirements for court decisions, in judicial practice and in the theory of civil procedure, in most cases only three are used: legality, validity and motivation. As part of the requirements, legality, validity and motivation are not just the main, basic requirements, but the only legally established ones.

Failure to comply with or comply with any of the other requirements is covered by the concept of legality and validity. Each of the requirements that was previously indicated is independent, but this independence is relative and cannot stand on a par with legality and validity. Legality and validity are generalized concepts that cover all parties, all legal mediations of a court decision. This is confirmed not only by their legislative consolidation, but also by the fact that most judicial errors come down to them, and depend on them legal consequences for a court decision.

An illegal and essentially unfounded decision can only be reviewed by higher courts in the manner prescribed by law.

According to Resolution of the Plenum of the Supreme Court of the RSFSR No. 9 of September 26, 1973 “On the judicial decision”, with amendments and additions made by Resolution of the Plenum of the Supreme Court of the RSFSR No. 11 of December 20, 1983, as amended by Resolution of the Plenum of the Supreme Court of the Russian Federation No. 11 of December 21 1993, as amended and supplemented by Resolutions of the Plenum of the Supreme Court of the Russian Federation No. 9 of December 26, 1996, a decision is legal when it is made in strict compliance with the rules of procedural law and in full compliance with the rules of substantive law that are subject to application to a given legal relationship, or is based on the application, in necessary cases, of a law that implements similar relationships, or is based on the general principles and meaning of the legislation (clause 1).

Thus, from the above definitions we see that the main elements, conditions for the legality of a court decision are the correct application of the rules of substantive law and compliance with the rules of procedural law. Based on this, we can conclude that in order to fully disclose the requirement of legality for a judicial decision, it is necessary to consider each of these conditions.

The correct application of substantive law is one of the main conditions for the legality of an arbitration court decision, since the court makes a decision guided by a specific substantive rule, applying it to the actual circumstances of a particular case. And errors in the application of the substantive rule of law lead to incorrect legal qualification of the legal relations of the parties and, accordingly, to an incorrect resolution of the economic dispute on the merits, and as a consequence, to the court making an illegal decision.

However, the court must apply the rules of substantive law not only when making decisions. The process of appealing to the norms of substantive law begins from the moment the statement of claim is accepted, and the initial data for qualifying the legal relationship and determining the legal norms that should be followed when considering and resolving the final dispute are the circumstances set out in the statement of claim. Without determining the necessary regulatory material, it is impossible to resolve the issue of the right to bring a claim and correctly carry out preliminary preparation of the case for hearing. Without this, it is unthinkable to conduct a thorough and complete trial of the case and make a just decision.

The correct definition of the rules of law governing the disputed relationship allows the court to understand the actual powers and obligations of its subjects, and a prerequisite for the correct application of the rules of law is the establishment of all factual circumstances relevant to the case. Only after clarifying the factual side of the case can we proceed to the legal qualification of the actual relations of the parties.

Correct application of substantive law norms is possible only when the court applies the norm not formally, but taking into account all the specific features of a given case.

While not allowing formalism in the application of the law, the court, at the same time, does not have the right to resolve the dispute based only on expediency, and not on the requirements of the law.

The practice of considering civil and arbitration cases by courts and procedural legislation believe that

Violations of substantive law are:

1. Failure to apply the law applicable in a particular case.
2. Application of a law that is not subject to application.
3. Incorrect interpretation by the court of the applied law.

For the legality of a judicial decision, it is necessary, first of all, for the court to be guided by the law, so that it judges the powers and obligations of the subjects of legal relations not arbitrarily, but on the basis of a legal norm. Without this, a correct resolution of the case is unthinkable. An economic dispute must be resolved through the application of a substantive law, and precisely the one by which this relationship is regulated. Only when applying the appropriate law can one count on the objective truth of the court’s conclusions about the legal relationship.

Failure to apply the law to be applied occurs in cases where the court decides a case in conflict with current legislation. The non-application of a law subject to application can also be said in cases where the court applied a law that does not have legal force.

The legality of court decisions also depends on whether the court was guided by all the legal norms that govern the disputed relationship when resolving the dispute. Also, the legality of a court decision is determined by the application of substantive law, taking into account its effect over time.

Validity is the second most important quality that determines the justice of a judicial decision.

So, a decision is justified if it sets out all the circumstances relevant to the case, clarified at the court hearing, and provides evidence to support the conclusions of the arbitration court about the circumstances of the case established by it, the rights and obligations of the parties. Consequently, if the decision does not meet this requirement, it is considered unfounded and, in accordance with the Arbitration Procedure Code of the Russian Federation, is subject to cancellation.

The recognition of a court decision as unfounded and its cancellation are the result of an error in the process of understanding the factual circumstances of the case, which can manifest themselves in various forms.

1. Incomplete clarification of the circumstances relevant to the case means that the court did not examine all the legal facts provided for by the norm of substantive law, the presence or absence of which affects the outcome of the case.
2. Failure to prove circumstances relevant to the case that the arbitration court considered established. This violation occurs in cases where the facts essential to the case are not confirmed in the decision by the evidence specified in the law or are confirmed by insufficient and contradictory evidence. The reason for the failure to prove circumstances relevant to the case is most often the violation by the arbitration court of the rules for assessing judicial evidence.
3. Inconsistency of the conclusions set out in the decision with the circumstances of the case. This violation will be committed in the case where the court, from the established facts, made an incorrect conclusion about the relationship between the parties. This is possible, firstly, when in the process of studying the circumstances of the dispute, not direct, but indirect evidence in the case is considered, and, secondly, when the rule of substantive law governing these relations only in general terms defines the situation in which certain or other consequences.

It must be pointed out that the above classification is very conditional. In judicial practice, it is not always possible to so strictly distinguish between the types of unreasonableness of court decisions.

This classification of grounds for reversing a court decision is due to the division cognitive activity courts of first instance into stages. At the first stage of cognitive activity, the court determines those circumstances that are important for the case when it is resolved on the merits. At the second stage, the court, using evidence, establishes individual facts that are important in resolving the case. At the third stage, the court is engaged in drawing conclusions from previously established facts about the actual legal relations of the parties. An error at each of the listed stages of the cognitive activity of the arbitration court leads to the unfoundedness of the decision and ultimately falls under one or two points.

Based on the differences in cognitive activity that occurs at all three stages of cognition, judicial errors also differ. Thus, at the first stage of cognition, the error lies in the fact that the court was unable to correctly determine the range of circumstances essential to the case. At the second stage, the court violates the rules defined by law, ensuring the possibility of applying the laws of logical evidence and obtaining by the court the materials necessary to establish the essential circumstances of the case. At the third stage, the error occurs due to violations of the laws of logic.

Thus, in order for a court decision to be justified, it is necessary for the court to fully determine the range of legal facts that are relevant to the case, and express its judgments about the presence or absence of each of them in the decision; the conclusions of the arbitration court about the presence or absence of facts of legal significance must be based on the evidence examined at the court hearing; the evidence on which the court bases its conclusions must be reliable and the court must draw correct conclusions about the relationship of the parties from the established facts.

A necessary condition for the court to make a reasoned decision and thereby correctly resolve a dispute and other issues within the jurisdiction of courts of general jurisdiction is a complete clarification of the circumstances that are important for the correct resolution of the case. Investigating a case fully does not mean, however, that absolutely all facts related to the case under consideration should be the subject of judicial review. Guided by the requirements of relevance, the court is obliged to find out only the necessary circumstances of the case, i.e. those that can in a certain way influence the outcome of the process. Consequently, a complete and comprehensive study of the circumstances that are important for the correct resolution of the case, in turn, depends on the correct definition of the subject of proof, which has two sources of formation: the rules of substantive law, which determine what circumstances should be established to resolve a certain category of cases, the grounds demands and objections of persons participating in the case, which specify the subject of proof in the case.

Among the circumstances relevant to the case, in some cases an important place is occupied not only by facts of a substantive nature, but also by such as:

1) evidentiary facts;

2) facts that have exclusively procedural significance;

3) facts that are important for fulfilling the practical tasks of justice..

Evidentiary facts, having been established in court, allow us to move to the conclusion about the absence or presence of legally significant facts. Thus, in a number of cases, the rule of substantive law is of a general nature, therefore, in order to judge the legal fact provided for by such a rule of law, the court simply needs to establish a number of evidentiary facts of an intermediate nature.

Facts that have exclusively procedural significance are those circumstances that need to be established in order to carry out certain procedural actions (secure a claim, restore deadlines, the presence of circumstances for suspending proceedings, etc.).

Failure by the court to examine all the essential circumstances of the case in a number of cases is the result of the fact that the court does not take into account the statements of the parties regarding the facts they form the basis of their claims or objections to the claim. For example, the fact that the court has not clarified the circumstances used by the defendant as the basis for the objections indicates an incomplete study of the case materials and casts doubt on the correctness of the decision made on the merits.

Consequently, the validity of a court decision depends on the correct determination of the circumstances of the case that are subject to investigation, on the correct establishment of the entire composition of legal facts, the presence or absence of which determines the court’s conclusions on the dispute.

A complete clarification of the circumstances of the case does not guarantee a well-founded decision. An equally mandatory condition for validity is confirmation of the circumstances of the case by evidence.

The task of the court when considering any case is to, using evidence, learn objectively existing facts, draw correct conclusions about all the circumstances of the case and, on this basis, apply the legal norm. The court's conclusions about the legal fact under investigation must be based on evidence.

Instructions on methods for assessing evidence are contained in the procedural law itself (Article 71 of the Arbitration Procedure Code of the Russian Federation), according to which the arbitration court evaluates evidence according to its internal conviction, based on a comprehensive, complete, objective and direct examination of the evidence available in the case. Correct and comprehensive examination and evaluation of evidence is a necessary condition for making an informed decision.

The unfoundedness of a decision in this form suggests that the court either violated the rule on the cumulative assessment of evidence when making a decision, or accepted incomplete, poor-quality, unreliable or unacceptable evidence as a basis.

Most often, the court makes an unfounded decision due to an incorrect assessment of the evidence. Each piece of evidence is evaluated individually and all evidence in conjunction with each other according to the internal conviction of the court. But the internal conviction of the court is not arbitrary, but must come from the law and legal consciousness. In this case, the court can base its decision only on the evidence that was examined during the consideration of the case in court.

The reliability of evidence is of great importance for a court decision. Reliability is the quality of evidence that characterizes the accuracy and correctness of the reflection of the circumstances included in the subject of proof. In this case, the court must check the quality of the source from which the factual data was obtained. If the court comes to the conclusion that the evidence it examines is unreliable, it must motivate this in its decision.

Establishing the reliability of evidence is complicated when a contradiction is established between them. The decision does not correspond to the evidence in cases where, if there are conflicting testimonies in the case about the same facts, the court has not eliminated all the contradictions with the help of other evidence and has not indicated the reasons for which certain testimonies were refuted.

From the above it follows that the validity of the decision of the arbitration court depends on the proof of circumstances relevant to the case, which the court considers established. And in order to establish the truth in the case, the court, having determined the range of facts to be established in the case, must deeply and comprehensively examine and evaluate them.

One of the most important conditions for the validity of a court decision is the compliance of the court’s conclusions set out in the decision with the circumstances of the case. The court may correctly establish all possible facts, but this is not enough for the decision to be justified. The court's conclusions must correspond to reality and must reflect objective truth. To do this, it is necessary for the court to draw a logically correct conclusion about the relationship between the parties from the established facts.

A court decision, like any other court decision, can be considered as justified only if it is based on objectively true conclusions about legal facts. The validity of the court's conclusions about a fact is determined primarily by their construction on the basis of evidence. To learn a fact, the court must examine the evidence - draw a conclusion about a particular fact. Conclusions not based on evidence, made without taking into account the available evidence or in the absence of evidence at all, or with an incorrect assessment of the evidence, entail the cancellation of the court decision as unfounded. The law directly specifies as a basis for reversing a court decision the discrepancy between the court's conclusions set out in the decision and the circumstances of the case.

The inconsistency is based on the incorrect logical conclusion of the court of first instance about the actual relationship of the parties or about the presence or absence of the required legal fact.

When dividing property, the shares of spouses are recognized as equal, but deviations from this rule are possible. The grounds are the presence of common minor children dependent on one of the spouses, alienation by the spouse of common property to the detriment of the interests of the family, failure of one of them to receive income without good reason.

So, the couple had been married for several years. During the entire marriage, the spouse did not work, did not receive any income, although he was able to work, he did not have the opportunity to find a job. He explained these circumstances by the fact that his wife has the opportunity to earn much more than he does, and the family does not need his income. The husband's mother ran the household. The wife filed a lawsuit for divorce. The spouse, in turn, filed a claim for the division of property acquired during the marriage equally. The court recognized that the husband, for unjustifiable reasons, had no income, and also sometimes spent money to the detriment of the interests of the family (played gambling and lost the money earned by his wife). In this regard, in the claim, the spouse was allocated a share in the property acquired during the marriage in an amount less than the spouse’s share.

The grounds for deviation from the beginning of equality of shares of spouses in their common property must be given in the court decision.

It should also be borne in mind that the common obligations of the spouses are repaid from the common property. If it is insufficient, the spouses bear joint liability with the property of each of them. If the common property was acquired using funds obtained by criminal means, the penalty may be applied to the common property of the spouses or to part of it.

During division, the common debts of the spouses are distributed between them in proportion to the awarded shares. When a foreign element participates in the relationship, the legislation of the state in whose territory the spouses had a joint place of residence is applied, and in the absence of such, the law of the state in whose territory they had their last place of residence. If the spouses did not have one at all, Russian legislation applies.

The operative part of the decision should indicate:

1) what specific property is transferred to each of the spouses (former spouses);

2) the value of property (including each item);

3) the amount of compensation (if it is paid);

4) an instruction on the termination of common property rights and other court rulings in accordance with the subject of the claim.

If the property (apartment) is not subject to division in kind and the law does not allow payment of compensation without the consent of the spouse (former spouse), it is necessary to indicate the size of the shares in the ownership of this property. It should be borne in mind that without the consent of the spouse (former spouse), payment of compensation is possible in cases where the share is insignificant, cannot be realistically allocated, and there is no interest or need to use this property.

The property of the spouses may include not only material objects and rights of claim, but also the obligations of the spouses (debts). On practice important has a definition of the nature of the debt: is it general or personal. At the same time, we should not forget that obligations (debts) are part of the property, and, therefore, if the debt arose during the marriage, as a general rule it is joint, regardless of which spouse acquired this debt.

Traditionally, the main criterion for classifying an obligation as personal is that the spouse took on the obligation independently, while general obligations are those taken on by the spouses together. The obligations of spouses can be internal and external. Internal obligations arise within the family, for example, alimony obligations to the other spouse or other family members. External debts arise in relation to third parties, for example in relation to a bank under a loan agreement.

The obligations of spouses can be both personal and general.

Personal obligations include those incurred by each spouse:

1) before marriage registration;

2) after marriage;

3) inextricably linked with the personality of the debtor (from causing harm, copyright agreement), which cannot be transferred either by law or by contract;

4) encumbering the separate property of the spouses, for example, the debts of the testator transferred to the heir-spouse;

5) to other family members, for example, alimony obligations, etc.

Depending on the nature of the debt, the legal consequences are determined. For personal obligations, recovery can be applied only to the personal property of the debtor spouse, and if there is insufficiency, to its share in the common property of the spouses, which is determined by division in accordance with Art. 255, 256 of the Civil Code of the Russian Federation. If property belonging to the other spouse is affected during foreclosure, such property must be returned to its owner. For example, if, when the property of one spouse was seized, the property of the other spouse was included in the inventory, then the latter has the right to file a claim to release the property from seizure.

In practice, quite often creditors of one of the debtor spouses claim property acquired by the spouses during the marriage. Before resolving the issue of foreclosure on such property or the transfer of such property to a creditor, it is necessary to determine its legal regime: whether this property is joint property or belongs to one of the spouses. Sometimes the jurisdiction of the dispute to a particular court depends on this: a court of general jurisdiction or an arbitration court.

As for the general obligations of spouses, these include:

1) obligations for which both spouses became debtors in accordance with the law (for example, in case of joint infliction of harm) or assumed obligations under a contract;

2) obligations for which one of the spouses is the debtor, but everything received was spent on the needs of the family;

3) encumbrances on common property;

4) obligations to compensate for harm caused by common minor children.

Both spouses are responsible for joint obligations. First, the penalty is applied to their common property, and if it is insufficient, to the personal property of both spouses. This responsibility is joint. The creditor has the right to foreclose on the personal property of either spouse, both in full and in part of the debt. If the property of one of the spouses is not enough to satisfy the claims of the creditor, then the creditor has the right to foreclose on the property of the other spouse. When foreclosure on the property of spouses, it is necessary to take into account that the Code of Civil Procedure of the Russian Federation in Art. 446 provides for a list of property that cannot be foreclosed on. So, recovery under enforcement documents cannot be applied to the following property:

1) residential premises (parts thereof), if for the debtor citizen and members of his family living together in the premises owned, it is the only premises suitable for permanent residence, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and on it foreclosure may be made in accordance with mortgage legislation;

2) land plots on which the objects specified in paragraph two of this part are located, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and can be foreclosed on in accordance with the legislation on mortgages;

3) ordinary items home environment and household items, personal items (clothing, shoes and others), with the exception of jewelry and other luxury items;

4) property necessary for the professional activities of the debtor citizen, with the exception of items the cost of which exceeds one hundred minimum wages established by federal law;

5) used for purposes not related to entrepreneurial activity, breeding, dairy and draft cattle, deer, rabbits, poultry, bees, feed necessary for their maintenance before pasture (going to the apiary), as well as outbuildings and structures necessary for their maintenance;

6) seeds necessary for the next sowing;

7) food and money for a total amount not less than the established amount living wage the debtor citizen himself and his dependents;

8) fuel necessary for the family of the debtor citizen to prepare their daily food and heat their living quarters during the heating season;

9) means of transport and other property necessary for the debtor citizen in connection with his disability;

10) prizes, state awards, honorary and memorable signs awarded to the debtor citizen.

The Family Code of the Russian Federation pays special attention to foreclosure on the common property of spouses or part of it, if it was acquired or increased from funds obtained by one of the spouses through criminal means. In accordance with paragraph 2 of Art. 45 of the RF IC, recovery in this case can be directed, respectively, to the common property of the spouses or part of it.

When dividing property, the debts of the spouses are distributed in proportion to the awarded share.

In a marriage contract, spouses can distribute not only property, but also obligations among themselves, they can transform common debts into personal ones and vice versa, which can significantly affect the interests of creditors<98>. Therefore, according to paragraph 1 of Art. 46 of the RF IC, the spouse is obliged to notify his creditors of the conclusion, amendment or termination of the marriage contract. However, the Family Code of the Russian Federation does not talk about the obligation to inform creditors specifically about the content of the marriage contract and changes made to it, which is most important for creditors. If the above obligation is not fulfilled, the spouse is liable for his obligations, regardless of the contents of the marriage contract.

An interesting decision was made by the Judicial Collegium for Civil Cases of the Supreme Court when it reviewed the case on the division of jointly acquired property between former spouses.

The topic - who will have how much left after the family boat breaks into everyday life - is almost eternal. Nevertheless, like any classic, it is always relevant.

Property is divided by oligarchs and their spouses, officials and their girlfriends. Thus, the wife of the former governor of Sakhalin Khoroshavin asked through the court for a part of the seized family goods. Ordinary citizens are not lagging behind either. The other day, a resident of Yakutia burned himself and his house in front of his ex-wife and bailiffs, who came to share the home following a court decision on divorce. The division of family wealth in our time is complicated by the fact that in addition to common property, spouses almost certainly also have common debts. How to divide them? And what is important to consider in such disputes? With your explanations Supreme Court tries to show lower courts what they need to pay attention to when dividing the debts and expenses of a collapsed family.

the story began with a lawsuit filed by an ex-wife against her ex-husband.

The woman asked the district court to divide the housing. Their marriage was dissolved before the suit by a magistrate. And during the time life together In addition to the child, the family now has an apartment in which the ex-husband and child were registered. The right of ownership was with the husband. The plaintiff explained in court that she took out several loans to renovate the apartment, and after the divorce she paid for the apartment from her own funds. The plaintiff asked the court to divide the apartment - half for each and to also halve the remaining loan debts.
The ex-husband was against such arithmetic and filed a counterclaim in which he asked to compensate him for half of his debt that had accumulated on his card during the marriage.

The district court did not agree with all the requirements. He divided the apartment in half and the debt of his spouse according to his credit card. In justifying this decision, the district court referred to the Family Code (Articles 34 and 39), which states that everything acquired during the marriage is divided in half. But the appeal did not agree with this division. More precisely, the division of her husband’s debt suited her, but the division of the apartment did not.

The court of second instance stated that the money used to buy the disputed apartment was given by the husband's parents. They sold their three rubles, and there is a receipt that confirms this. By the way, the plaintiff did not refute it. But the ex-wife did not provide evidence that the family did not have any common money to buy housing, the court noted.

After such a verdict, the case reached the Supreme Court, which did not agree with the arguments of the appeal.

The Supreme Court, with the Family Code in hand, explained to its colleagues what they were doing wrong when dividing the property acquired by spouses. So, Article 34 of the Family Code says that everything that a family has acquired over the years of marriage is considered common. According to another article of the code - 39th, when dividing acquired property, the definition of shares by the spouse is recognized as equal, unless otherwise stated in the marriage contract.

From everything that has been said The Supreme Court concludes that during division everything is divided in half, regardless of whose name the property is recorded in. And here is an important idea that the Supreme Court emphasizes: in the event of a dispute, any of the spouses is not required to prove the fact of community of property if it appeared during the marriage. Because there is such a thing as the presumption of common property. Goods are shared unequally only if there is a marriage contract.

In our case, there was no prenuptial agreement. The disputed apartment was bought during marriage, so the district court divided it in half correctly. But the second instance, in violation of the Civil Procedure Code (Articles 56, 59, 60), placed the burden of evidence on the plaintiff.
The appeal stated that the apartment was bought not with family money, but with the funds of the spouse’s parents, as evidenced by a copy of the receipt for 1,300 thousand rubles. The court called it a gift from the parents, and gifts are not shared. But the Supreme Court saw in the case materials that the apartment in which the husband’s mother lived and where he was registered was sold for one million rubles. But no one paid attention to the fact that the defendant’s parents, having sold the apartment, immediately bought themselves another home, which was much more expensive than the one sold. At the same time, no one presented any evidence to the court that it was with the parents’ money that the disputed housing was purchased. As well as evidence that his relatives presented the money to her husband as a gift.

The Supreme Court emphasized that the receipt for the amount available in the case does not confirm that the husband received the money as a gift from his parents. The defendant did not provide any other evidence. So the decision of the district court to divide the apartment between the former in half was correct - the Supreme Court decided.

Help "RG"

What is the common property of spouses?

Everyone’s income from labor, entrepreneurial and intellectual activities. Pensions, benefits and other payments that do not have a designated purpose ( material aid, compensation for damage due to loss of ability to work due to injury, etc.).

Movable and immovable things, securities, shares, deposits, shares in capital contributed to credit or any other organizations are considered to be common. As well as any other property acquired during the marriage, regardless of whose name it was purchased in and who paid. The right to common property also applies to the spouse who ran the household and did not have an independent income.
Debtors of traffic police fines and alimony workers will have limited access to registry offices
If the relationship doesn't work out, no tax breaks will help. RG
It was proposed to introduce a joint tax return for spouses

The division of marital property is a whole complex of complex actions. Necessary:

• determine which property is subject to division and which is not subject to division, and disputes are possible here;
• estimate the value of property according to certain rules;
• provide the court with indisputable evidence to support your position (this is almost impossible without a lawyer);
• spend a lot of time and effort on examinations that will determine the value of the property, document the results of these examinations and monitor the correctness of their conduct with legal point vision;
• finally, defend your position in the courtroom.

Let's just start with three examples that clearly show how the division of jointly acquired property is a complex, dreary and controversial legal process.

Example 1: A citizen has an apartment, which he inherited before marriage. During the marriage, he sells this apartment and buys another. It would seem that during a divorce, this purchased apartment cannot be divided, because the citizen bought it exclusively with his own money, with money from the sale of the inherited apartment. It seems that this apartment should remain with the person who bought it. But no, this purchased apartment is subject to division. This is what the Family Code states.

Example 2: Before marriage, the citizen paid the cost of an apartment in a building under construction. And he registered ownership of this apartment later, when he was already married. Who has the right to this apartment during a divorce - the one who paid for it or both spouses? Controversial situation? Yes, it's controversial.

Example 3: When dividing an apartment, a friend/brother/acquaintance of one of the spouses comes to court and brings a promissory note. This receipt indicates that the couple borrowed money to buy this apartment, and the debt has not yet been repaid. If the court divides the apartment in half between the spouses, then they will have to pay the balance of the debt equally. The trick is that the receipt is fake. An agreement between one of the spouses and his friend/brother/acquaintance. But it is almost impossible to prove that this is falsification, even with the help of an examination.

So, what do the laws say about the division of property between spouses?

It is important to know: the common property of spouses is property acquired during marriage. And it doesn’t matter in whose name (husband or wife) it is registered.

To understand everything clearly, you need to know several terms.

Property acquired by spouses during marriage = joint property of spouses = common property of spouses.

It so happens that in Article 34 of the Family Code all 3 terms are used as synonyms. In this article, for convenience, the term “common property of spouses” will be used.

So, the common property of the spouses is considered:

• income of each spouse from work and entrepreneurship;
• income from the results of intellectual activity;
• benefits, pensions, cash payments that do not have a special purpose;
• real estate and movable things acquired from general income;
• securities, shares, deposits, shares in capital and the like.

The division of property between spouses can be carried out during a divorce, before a divorce and after a divorce. In this case, the limitation period is 3 years. That is, spouses can divorce and divide property without being husband and wife anymore.

Property between spouses must be divided equally (Part 1 of Article 39 of the Family Code).

However, the court may judge differently. If one of the spouses, for an unjustifiable reason, did not receive income during the marriage, did not raise children and did not manage the household, then the court, when considering the case on the division of property between the spouses, may decide to award this spouse a lesser share of the property than ½.

Example: During the marriage, the husband ran a business, the wife did not work. There is a child for whom the spouse also did not look after, the child was in the care kindergarten and grandmothers. Instead of housekeeping, the wife went to beauty salons and fitness centers. In such a situation, during a divorce, the court has every reason to award the spouse less than ½ of the property, or even nothing at all. But all these facts still need to be proven in court.

The court can also increase or decrease the share of one of the spouses when dividing property, based on the interests of the children (Part 2 of Article 39 of the Family Code).

Example: Family - husband, wife, child. The couple is getting divorced. The wife and child are leaving to join their mother in the province. And there the mother does not have a washing machine. The child needs clean things, they need to be washed. In such a situation, the court, guided by the interests of the child, may award the washing machine from the common property of the spouses to the wife, even if such a decision violates the principle of equality of shares.

What property cannot be divided?

It is important to know: in fact, the division of property between spouses is only one of the issues that the court decides. The court also determines who the children will live with and what the amount of alimony will be. Often these issues are separated into independent litigation.

Not all property is divided. Article 36 of the Family Code establishes a list of what is not divided by the court and unquestionably remains with one of the spouses:

• property that belonged to one of the spouses before marriage (logical, since the other spouse has nothing to do with this property);
• the property that a spouse received during marriage, but through a gratuitous transaction, that is, as a gift or as an inheritance (an apartment that one of the spouses inherited during marriage is not subject to division, it remains to the spouse who inherited it );
• personal items - shoes, clothing, hygiene items. But jewelry and luxury items do not fall into this category and are divided on a general basis;
• exclusive rights to the result of intellectual activity remain with the spouse who created this result (example: the husband wrote a computer program and earned 260,000 rubles by selling it. This money will be divided on a general basis, but the copyright to the program will remain with the husband in full and are not subject to division);
• When dividing property of spouses, bank deposits in the name of common minor children, as well as children's belongings, are not taken into account ( musical instruments for a child, sports supplies, children's books). These items remain without compensation from the parent with whom the children will live.

It is important to know: a situation is possible when things that seem to belong to one of the spouses can be recognized as joint property and subject to division. For example, during a marriage, a spouse inherits a dacha. As mentioned above, inherited property is not subject to division. However, if during marriage the value of the dacha has increased significantly, then the court may recognize the dacha as community property (Article 37 of the Family Code). The cost of the dacha could increase if repairs were carried out - for example, a veranda was added, the porch was changed, the roof was replaced, and so on.

In practice, it is very difficult to prove such things. Therefore, in divorce proceedings it is very important to have the participation of an experienced lawyer who knows what to do, especially at the stage of carrying out activities related to the division of jointly acquired property of the spouses.

What to write in a claim and which court should it be filed in?

Attention: Sometimes people, trying to save money, use templates for claims for division of property between spouses, downloaded from the Internet. It must be said that using templates is a big mistake and a sure way to losing in court in any more or less complex process. And when dividing property, using templates is completely contraindicated, because everyone’s property is different and it must be described correctly from a legal point of view. Below we provide the rules for writing a claim for the division of marital property. If you have any questions, please contact us, we will help you.

The rules for drawing up a claim are regulated by Articles 131, 132 of the Civil Procedure Code. 131 is about what to write in the claim itself, 132 is about what attachments to the claim should be.

In the upper right corner, in the “header” it is written to which court the application is being filed, the address of this court, the full name of the plaintiff and the full name of the defendant, as well as the price of the claim - the estimated value of the disputed property, that is, the one that is subject to division.

Below in the middle is written “Statement of claim for division of jointly acquired property.”

• when the marriage was registered, whether it was dissolved or whether a claim for its dissolution has just been filed;
• add that property was not divided during cohabitation;
• list the property acquired during the marriage;
• describe what property should become the property of the plaintiff. The court makes a decision on the division of jointly acquired property if there are grounds. Therefore, it is necessary to indicate why this or that property should remain with the plaintiff;
• if it turns out that the plaintiff asks the court to leave him property that is worth more than the defendant’s property, then compensation can be offered.

Next comes the pleading part. In the middle of the sheet is written the word “I ask” and the requirements for the court are indicated: to divide the property between the spouses, recognizing the shares as equal, and, if necessary, decide to award compensation to the plaintiff or defendant.

Then a list of attached documents is indicated. Article 132 of the Civil Procedure Code specifies that these must be:

• 1 copy of the claim for the defendant;
• receipt of payment of state duty;
• power of attorney for the plaintiff’s representative, if there is one;
• a copy of the marriage certificate and its dissolution, if the marriage has already been dissolved;
• documents confirming ownership of property - sales contracts, certificates of ownership and others.

It is important to know: the claim is the main document with which you go to court. Requirements can be changed during the trial; this is not prohibited. But if you want to make a good impression on the judge, then the claim for division of property must be drawn up correctly right away. That is, with clear requirements and (most importantly) justification for these requirements. The judge studies the claim before the trial. The judge needs to know what demands the plaintiff is making. Changing requirements during the course of a case because of an incorrectly drafted claim is bad manners and irritates the judge. Experienced lawyers will help you write and legally substantiate your claim - remember that this is one of the most important things in the case.

If the price of the claim, that is, the value of the disputed property, is less than 50,000 rubles, then the claim is filed in the magistrate’s court at the place of residence of the defendant. If the cost of the claim is more than 50,000, then go to the district court.

It is important to know: indicating the price of the claim is one of the most problematic aspects when dividing jointly acquired property. Sometimes the value of property is assessed “by eye”, but if we are talking about a lot of money, then an appraiser is involved.

What state duty should I pay?

Article 333.19 of the Tax Code states that the state duty for the division of jointly acquired property of spouses cannot be less than 400 rubles and more than 60,000 rubles. The specific figure depends on the value of the disputed property:

• if the property costs up to 20,000 rubles - the state duty is 4%, but not less than 400 rubles;
• if the property costs from 20,001 rubles to 100,000, then the state duty will be 800 rubles + 3% of the amount exceeding 20,000 rubles;
• if the property costs from 100,001 to 200,000 rubles, then the state duty is 3,200 rubles + 2% of the amount exceeding 100,000 rubles;
• from 200,000 to 1,000,000 rubles - 5,200 rubles + 1% of the amount exceeding 200,000 rubles;
• the value of the property is more than 1,000,000 - 13,200 rubles + 0.5% of the amount exceeding 1,000,000 rubles, but not more than 60,000 rubles.

Example: The cost of the property is 134,000 rubles. The state duty will be 3,200 rubles + 2% of the amount exceeding 100,000 rubles. The cost is 134,000, which means that 34,000 rubles exceeds 100,000. 2% of 34,000 - 680. 3,200 + 680 = 3,880 rubles. This is the amount of the state duty.

It is important to know: payment of the state duty can be paid in installments or deferred. To do this, you must submit a corresponding petition along with the claim. But in order for the court to allow the installment plan, strong arguments are needed. Our lawyers will be able to find them for you.

How is a mortgaged apartment divided when dividing property?

The difficulty is that the apartment taken on a mortgage is pledged to the bank that issued the loan. And if so, then any actions with this apartment require permission from the bank.

Practice shows that there are the following options:

• The bank agrees to sell the mortgaged apartment. The apartment is sold, the proceeds go to cover the debt to the bank, the remaining money is divided between the spouses by court decision;
• the bank agrees to the division of the apartment, each spouse remains his share, payments - in accordance with the share;
• the bank does not agree to anything; the payer of the loan remains the spouse who took out the loan. Then the spouses will have to come to some kind of decision, for example, one of the spouses will give up their share in the apartment with appropriate compensation.

How is a car divided?

The car cannot be divided into parts. That is, the car must be awarded to one of the spouses.

When dividing marital property, when it comes to a car, the court awards it to one of the spouses, and the other receives compensation in the form of other property or money.

It is important to know: when assessing which spouse should leave the car, the court proceeds from who used it more often and who needs it more. Moreover, the spouse in whose name the car is registered does not receive a preferential right to this car when it is divided.

How are loans divided when dividing property between spouses?

The same as property - equally. Or in accordance with the shares awarded to the spouses. This is stated in Part 3 of Article 39 of the Family Code. And it doesn’t matter in whose name the loan was taken.

Why is it necessary to contact a lawyer?

• Because we are talking about property, and therefore about money. When dividing jointly acquired property, it is not enough to have the right to part of this property. This right must be proven. And not just prove it, but do it competently and professionally.
• Estimate the value of your family's assets. This is the amount at stake. Imagine that you lost this money, part of the apartment, car, things, having decided to save on the services of a lawyer. This results in poor frugality. There is no need to skimp on a representative in court; anyone who has ever had a trial knows this.
• Besides, good lawyer can completely save you from collecting documents, and there are a lot of them when dividing property between spouses. You will also be able not to come to court at all and know for sure that your interests are protected professionally.
• You also need a lawyer so that there are no surprises for you. Surprises in court are an unpleasant thing. Some women have the position: “the child remains with me, which means give all the property to me.” Men have their own: “I worked and earned money, so I have the right to everything.” Both positions are wrong. To be clear about the situation, you need a good lawyer.

Remember that legal consultation, which you can easily sign up for by calling or writing in the form below, is absolutely free and does not oblige you to anything.

The division of jointly acquired property between spouses is like a battle with tactics, with a well-thought-out strategy, everything is serious here. And you need someone who will lead the case and can competently defend your interests in court - a professional lawyer in civil cases. And even if you intend to defend your interests in court on your own, trust our experience - professional free legal advice will definitely not hurt you. Otherwise, there is a very high risk of losing the trial and losing property that legally belongs to you.

Contact us - we will help you.

Divorce in Russian: pitfalls

According to the UN, Russia is among the leading countries in the number of divorces. Moreover, half of marriages break up due to instability living conditions. It is no coincidence that every second divorce in our country ends in irresolvability. property disputes between former spouses.

Subtle point

Divorce in Russia is worse than a fire: in addition to the loss of property, it often brings complete emotional devastation to its participants. A friend of mine recently went through a lot of stress. 10 years ago he came to Moscow at the invitation famous company. He worked for three people, bought a new building in installments on the outskirts of the capital and finally married the woman he loved. But after some time, a black cat ran between the spouses, and they decided to separate. In court, it turned out that since the man paid the developer in full after the wedding, the wife has a legal right to part of the apartment. It’s good that the woman turned out to be from a decent Moscow family and renounced her claims. In general, the guy was lucky.

If an apartment in a new building was purchased in installments by a spouse before marriage, but mutual settlements with the developer were completed after its conclusion, the husband or wife will have the right to a share in the apartment, which is equivalent to the additional funds paid during the marriage. That is, a spouse who initially had nothing to do with the purchase can claim during a divorce the share in the apartment that corresponds to the payment made during the marriage.

“Courts often consider questions about the moment at which spouses have a right to property in new buildings - from the moment of payment of funds for it or from the moment of registration of ownership. Definitely - from the moment of payment for the share participation agreement or assignment of rights. If, after such payment, the shareholder registered the marriage and then formalized the ownership, the spouse cannot lay claim to the apartment,” explained lawyer Oleg Sukhov.

Expensive plaster

Often, one spouse tries to obtain a share in a new building purchased before marriage with the funds of the other spouse, using “inalienable improvements” to the home. The argument most often used is the fact that the second spouse, after major repairs in the apartment, has the same rights to the apartment, even if the ownership of it was registered in the name of the owner before marriage. After all, the walls plastered in the apartment, electrical wiring and other capital improvements are recognized as jointly acquired property.

The repair must be documented, that is, the spouse must have contract agreements for the work. However, resolving this issue is usually not difficult. Even after the fact, construction companies are ready to formalize such an agreement. It is important to note that types of property that are not recognized as jointly acquired property (donation, inheritance or privatization) are transferred to the category of jointly acquired property if major repairs were carried out in this property during the marriage.

However, the chances of winning a case on such grounds are slim. “The requirement to recognize the right to a share of real estate - for example an apartment - in exchange for repairs made to it is a common misconception. The courts usually refuse such requests,” the lawyer said.

Gift of parents

Today, often, especially in young families, the parents of one of the spouses give their children money to buy an apartment. If this property was purchased during marriage, then it is almost impossible to prove in court during a divorce that it was purchased with money not from the family, but from the parents of the husband or wife. This means that the party who did not invest a penny in the purchase will have the right to 50% of the property during a divorce.

“Disputes with the gift of money and the acquisition of property are very specific, but simple. So, if the parents bought property for the spouses, it is considered jointly acquired. And if you donate money to one of the spouses for purchase, then it must be notarized, otherwise the court will refuse to recognize individual property,” says the lawyer.

Large share

Sometimes one of the spouses wants a larger share of the joint property. For example, indicating that a child remains to live with him, or on the basis that he invested more personal funds in its purchase: evidence is collected confirming that at the time of purchasing the apartment they no longer had a family relationship, which means that all investments were their personal.

However, it is extremely difficult to prove in court that the spouse’s personal funds were invested in the apartment. And this rarely happens, even if the second spouse does not work anywhere. The chance arises if it can be proven that personal funds received before marriage were used for the purchase.

Communal trap

When dividing property, the court determines the order of use joint property for spouses, that is, in fact, which room can only be used by one spouse. This practice is especially “interesting” for apartments where there are no two isolated rooms (studios, apartments with an open plan). The advantage of living in an isolated room is given to the spouse who is registered in the apartment and actually lives in it.

If both spouses are registered and live in the apartment, the court, at its discretion, establishes the procedure for use. “In practice, there are cases when one spouse is allocated a room, and the other is given the right to redevelopment with the possibility of allocating a room for himself,” says Est-a-Tet director Alexey Bernadsky. According to him, for one-room apartments, the courts refuse to determine the order of use, that is, the spouses themselves must figure out who will live in the apartment. In any case, joint property for divorced spouses, each of whom wants to live in it, is actually a communal apartment, where each has their own room, “locked with a key.”

“Half of married couples sell such property, and the other half either unsuccessfully sue or endure life in a “communal apartment.” For our country, this situation is literally a scourge, almost all couples fall into this trap, and no one calculates their risks in advance, believing that the marriage will be “eternal” or that everything will be resolved amicably in a divorce,” says Bernadsky.

In his opinion, main question of all property disputes between former spouses is the further use of joint property, since if they fail to agree on the sale, then in fact two people who are already strangers to each other are doomed to live together in the same apartment. “It is almost impossible to sell a share in an apartment; its market price is negligible - about 40% of half the cost of the apartment (that is, if an apartment costs 8 million rubles, then for a 50% share you can get only 1.6 million rubles). Moreover, this transaction can be challenged in court by a co-owner on the basis of improper notification of the sale, because he has a pre-emptive right to purchase. The courts are simply overwhelmed with such cases,” the specialist noted.

Thin world

According to lawyers, in addition to real estate, disputes very often arise between former spouses regarding the repayment of loans, most often mortgages. “The courts determine who took the loan and for what needs it was spent. If it’s for family, then give it to everyone equally. If only for the needs or property of one of the spouses, then give it to him,” Sukhov noted. According to his assessment, the courts often consider compensation to a spouse for half the value of the property sold by the other spouse: “If the spouses have actually stopped living as a family, i.e. together, and at this time one of them, for example, sold a car purchased during the marriage, then half of its value will have to be paid to the second spouse.”

To minimize the risks of property disputes, lawyers advise drawing up a prenuptial agreement before the wedding, which can eliminate in advance all possible disputes during a divorce. “As for alimony, a child support agreement will help here. Although it is very difficult, and sometimes impossible, to agree on its terms,” Sukhov admits. “If you want to save nerves, time and money, during a divorce it is better to divide the property as required by law, or reach an amicable agreement during negotiations.” Another good option is mediation (dispute resolution with the participation of a neutral, impartial mediator-lawyer). A bad peace is better than a good war.

An interesting decision was made by the Judicial Collegium for Civil Cases of the Supreme Court when it reviewed the case on the division of jointly acquired property between former spouses.

The topic - who will have how much left after the family boat breaks into everyday life - is almost eternal. Nevertheless, like any classic, it is always relevant.

Property is divided by oligarchs and their spouses, officials and their girlfriends. Thus, the wife of the former governor of Sakhalin Khoroshavin asked through the court for a part of the seized family goods. Ordinary citizens are not lagging behind either. The other day, a resident of Yakutia burned himself and his house in front of his ex-wife and bailiffs, who came to share the home following a court decision on divorce. The division of family wealth in our time is complicated by the fact that in addition to common property, spouses almost certainly also have common debts. How to divide them? And what is important to consider in such disputes? With its explanations, the Supreme Court is trying to show lower courts what they need to pay attention to when dividing the debts and expenses of a collapsed family.

Our story began with a lawsuit filed by an ex-wife against her ex-husband.

The woman asked the district court to divide the housing. Their marriage was dissolved before the suit by a magistrate. And during their life together, in addition to the child, the family acquired an apartment in which the ex-husband and child were registered. The right of ownership was with the husband. The plaintiff explained in court that she took out several loans to renovate the apartment, and after the divorce she paid for the apartment from her own funds. The plaintiff asked the court to divide the apartment - half for each and to also halve the remaining loan debts.

The ex-husband was against such arithmetic and filed a counterclaim in which he asked to compensate him for half of his debt that had accumulated on his card during the marriage.

The district court did not agree with all the requirements. He divided the apartment in half, and his husband’s debt on his credit card. In justifying this decision, the district court referred to the Family Code (Articles 34 and 39), which states that everything acquired during the marriage is divided in half. But the appeal did not agree with this division. More precisely, the division of her husband’s debt suited her, but the division of the apartment did not.

The court of second instance stated that the money used to buy the disputed apartment was given by the husband's parents. They sold their three rubles, and there is a receipt that confirms this. By the way, the plaintiff did not refute it. But the ex-wife did not provide evidence that the family did not have any common money to buy housing, the court noted.

After such a verdict, the case reached the Supreme Court, which did not agree with the arguments of the appeal.

The Supreme Court, with the Family Code in hand, explained to its colleagues what they were doing wrong when dividing the property acquired by spouses. So, Article 34 of the Family Code says that everything that a family has acquired over the years of marriage is considered common. According to another article of the code - 39th, when dividing acquired property, the definition of shares by the spouse is recognized as equal, unless otherwise stated in the marriage contract.

From all that has been said, the Supreme Court concludes that during division everything is divided in half, regardless of whose name the property is recorded in. And here is an important idea that the Supreme Court emphasizes: in the event of a dispute, any of the spouses is not required to prove the fact of community of property if it appeared during the marriage. Because there is such a thing as the presumption of common property. Goods are shared unequally only if there is a marriage contract.

In our case, there was no prenuptial agreement. The disputed apartment was bought during marriage, so the district court divided it in half correctly. But the second instance, in violation of the Civil Procedure Code (Articles 56, 59, 60), placed the burden of evidence on the plaintiff.

The appeal stated that the apartment was bought not with family money, but with the funds of the spouse’s parents, as evidenced by a copy of the receipt for 1,300 thousand rubles. The court called it a gift from the parents, and gifts are not shared. But the Supreme Court saw in the case materials that the apartment in which the husband’s mother lived and where he was registered was sold for one million rubles. But no one paid attention to the fact that the defendant’s parents, having sold the apartment, immediately bought themselves another home, which was much more expensive than the one sold. At the same time, no one presented any evidence to the court that it was with the parents’ money that the disputed housing was purchased. As well as evidence that his relatives presented the money to her husband as a gift.

The Supreme Court emphasized that the receipt for the amount available in the case does not confirm that the husband received the money as a gift from his parents. The defendant did not provide any other evidence. So the decision of the district court to divide the apartment between the former in half was correct - the Supreme Court decided.

Help "RG"

What is the common property of spouses?

Everyone’s income from labor, entrepreneurial and intellectual activities. Pensions, benefits and other payments that do not have a specific purpose (financial assistance, compensation for damage due to loss of ability to work due to injury, etc.).

Movable and immovable things, securities, shares, deposits, shares in capital contributed to credit or any other organizations are considered to be common. As well as any other property acquired during the marriage, regardless of whose name it was purchased in and who paid. The right to common property also applies to the spouse who ran the household and did not have an independent income.

Natalia Kozlova
Profit and share