Marriage contract: pros and cons. Marriage agreement (contract). how to correctly draw up, change or terminate a contract

No family is immune from disintegration and the associated hassles and problems. Is it possible to challenge marriage contract after a divorce - this is a question that is often addressed to lawyers.

To minimize the time of separation, many couples try to resolve the property issue on their own and draw up.

However, this is not a solution to all problems, since in some situations the contract may be unfair. You will learn from this article whether it is possible to seize a contract after a divorce.

Composition of the document

Like any document, a contract between spouses has a number of features:

1. It must be concluded by mutual consent and without harm to the couple. If the injured party proves that the agreement was signed by him under duress, the agreement will be considered invalid.
2. It is necessary to notarize the written version, and also ensure that the text does not have double meaning and is not misinterpreted. To prevent this from happening, you should discuss all the nuances with the notary before signing.
3. The contract can only relate to property relations: it cannot include personal relations, for example, prohibiting one of the family members from drinking alcohol, going to work, obliging them to give birth to a son or cook. However, it is possible to prescribe certain conditions, for failure to fulfill which the guilty spouse will lose his share: for example, it should be noted that in cases of adultery, the wife or husband will be deprived of the entire share of the property.
4. The contract should not in any way limit the rights, freedoms and obligations of the spouses. You can't control your choice of work educational institution, place of residence, choice of friends, etc.
5. It is impossible to forcibly limit the financial support of a disabled family member. For example, a husband cannot deprive his wife of financial support if she becomes pregnant, but can limit assistance if she is able to work and can support herself.
6. The document can be changed or terminated only by mutual consent of both parties, however, in some cases, the agreement can be canceled in unilaterally: for example, if the financial situation in the family has changed greatly or someone has violated the terms of the contract, depriving another member of many benefits.
7. A prenuptial agreement may be entered into before or during marriage. In the first case, the document comes into force immediately after registration.

It is important to know: the contract loses legal force at the moment of its termination - from this moment, upon divorce, the spouses have equal rights on the property, no matter what the conditions were initially.

How to change

Like any document, a contract can be changed or canceled.

This can be done in two ways:

1. Voluntary: if the spouses were able to come to a common decision and agree to change the conditions, they must contact a notary and make the necessary changes.
2. Forced: the victim can go to court and get the terms renegotiated, even if the other spouse does not agree with it.

It is worth considering the situation of divorce separately. During a divorce, the agreement helps the spouses divide the property independently, in accordance with their wishes.

This is especially useful for those who would like to speed up the process, as well as for couples who do not want to “pull” the property solely for their benefit. The court will not challenge the parties' decision, and the annulment will be completed much faster.

Please note: the agreement can be changed or annulled not only during the marriage, but also during the divorce process if it is drawn up unfairly and harms one of the parties.

You can change the text if:

• one of the couple significantly violated some of the terms of the document;
• the financial situation of the family has changed and previous conditions have become unacceptable;
• the agreement was concluded on unfavorable terms for one party;
• the document was signed under pressure or threats.

For example, according to documents, in the event of a divorce, the husband, whose money was used to purchase the property, receives it as his own, and the wife, who was caring for the children, is left without everything.

During a divorce, the wife can prove that the agreement significantly infringes on her rights, and, therefore, it was concluded incorrectly and should be annulled. Then the spouse can claim half of the property.

Challenging a divorce

During a divorce, the injured party must file a claim to invalidate the document and attach the evidence it has.

(Sample statement of claim about declaring the contract invalid you can download).

Then the bailiffs will be able to seize the property until a final decision is made.

During the consideration of the case, the court will listen to both spouses and take into account their arguments regarding the terms of the contract.

Please note: in some cases, the plaintiff cannot do without the help of an experienced lawyer who will help find convincing evidence and wording.

The agreement is of great benefit in divorce, helping couples quickly reach a common agreement on the division of property.

However, if the contract was initially drawn up incorrectly, the injured party will have to prove this in court and only then expect justice.

Watch the video in which a lawyer explains whether a marriage contract can be challenged:

A marriage contract is not exotic, but primarily a transaction in the interests of the property status of the spouses.

Like any other transaction, it can be declared void in court, in whole or in part, but you need to anticipate possible consequences such actions.

There was an interesting case in my divorce practice.

The couple were getting a good divorce, and it was expected that there would be no dispute over property, since they had a prenuptial agreement. In this contract, the spouses provided for the conditions for the division of certain property - everything that is registered as the property of each spouse remains with them after the divorce. That is, the husband cannot claim a country house that was registered in the name of his wife, and she, in turn, cannot claim her husband’s apartment, etc.

After the divorce, the wife remained a quite wealthy lady with country house, car and other material assets. The husband got an apartment and a share in the company.

However, the ex-wife considered that the marriage contract violated her rights, and she has the right to claim the share of the apartment left to her husband. With this demand, she went to court and declared the marriage contract invalid.

And here the most interesting thing began: since the marriage contract was no longer valid, all the property of the spouses automatically began to be considered “commonly acquired” and was subject to division equally.

During the new judicial trial regarding the division of property, an interesting fact was revealed - it turned out that the ex-wife, while married, acquired enterprise X, the cost of which was equal to hundreds of such apartments, for which she claimed a share.

Ex-husband In turn, he demanded that his wife’s enterprise be included in joint ownership and that his share in it be allocated.

As a result, the former spouses no longer shared an apartment, but a profitable production facility. The ex-husband sued for his share in the enterprise, but the wife, interestingly, did not receive a share in the ex-husband’s apartment, since the market price of half the apartment was not much higher than the cost of half the house and the husband simply paid her the difference.

Another practical example:

The wife filed for divorce and demanded that her husband be deprived of all jointly acquired property.

When asked why the wife makes such demands, the client explained: “Under the terms of the marriage contract, I undertook not to cheat on my wife, and in the event of cheating, all jointly acquired property during the marriage will go to her. What naivety! “Indeed, during the divorce, the conditions about love and fidelity to the wife did not help. The property was divided in accordance with the provisions Family Code.

Such requirements in a marriage contract are not acceptable, since according to Russian legislation Limitation of the legal capacity and capacity of citizens by other citizens is prohibited.

So, when drawing up and contesting a marriage contract, it is important to consider the following:

1. Marriage contract regulates only property relations between spouses and cannot contain conditions that would relate to personal relationships spouses. Thus, spouses cannot set conditions, for example, that the husband must quit smoking, not attend football matches, and the wife must be slim, love her husband dearly and not look at other men, etc. As mentioned above, such conditions are considered void, and when considering a case on the division of property, marriage contracts with such conditions will be declared invalid.

In accordance with current legislation, a marriage contract cannot deprive a citizen of the right to:

Going to court to protect your rights. Otherwise, this condition will contradict the right to judicial protection of his rights and freedoms guaranteed by the Constitution of the Russian Federation.

Regulation of personal non-property relations between spouses;

Receiving maintenance from the other spouse if the first one is disabled. According to Article 89 of the RF IC, spouses are obliged to financially support each other. In case of refusal of such support in case of incapacity, the needy spouse has the right to forced collection of alimony;

Other opportunities that the law provided him.

2. Marriage contract must not contain conditions relating to the rights and obligations of spouses in relation to their children.

3. It is prohibited by the terms of the marriage contract to place one or another spouse in an extremely unfavorable position, even if he signed his signature under this condition. This provision makes it possible to challenge many of the conditions adopted in the marriage contract, if only the court considers that one of the spouses is in an extremely unfavorable position for itself. In this part, we can say that a marriage contract aimed at protecting the property interests of married spouses has a drawback.

The concept of “extremely unfavorable situation” is an evaluative category and is not disclosed by law, which means that in judicial practice a broad interpretation of this concept and, accordingly, “judicial discretion” is allowed.

Arbitrage practice certainly recognizes as such an agreement under which one of the spouses is completely deprived of the right of ownership of property acquired by the spouses during the marriage (clause 15 of the Resolution of the Plenum Supreme Court RF dated November 5, 1998 N 15 “On the application of legislation by courts when considering divorce cases”).

In all other cases, it is possible to judge an extremely unfavorable situation only by taking into account all the circumstances of a particular dispute.

4. The spouses themselves decide for how long they will enter into a marriage contract. They can determine specific date(for example, 20 years), or they can make it indefinite.

5. The marriage contract, according to legal requirements, is drawn up in writing. This means that such a document must be in text form and must be signed by those persons who make the transaction, that is, the spouses.

The marriage contract is registered by a notary. If this condition is violated, the marriage contract will be declared invalid by the court.

6. The legal status of the spouses’ property under a marriage contract can be:

In joint shared ownership;

In separate ownership (shares);

In separate ownership of certain things.

It all depends on the wishes of the spouses themselves. Only they decide how and who will manage and use the property they have.

A prenuptial agreement can be concluded both in relation to property that the spouses already have, and in relation to property that will appear in the future.

So, for example, in a marriage contract, spouses can determine that:

The car they bought with their shared money will belong to both of them. That's right joint ownership on existing property;

The apartment they intend to buy will be 2/3 owned by the husband and 1/3 owned by the wife. This is shared ownership of property that is acquired in the future;

The dacha, which they are also going to buy, will be the property of the husband - separate property for property that will be acquired in the future.

7. Change or termination of the marriage contract, as well as its preparation, occurs by agreement of the parties, at any time chosen by the spouses. Both the change and termination of the marriage contract are made in the same form as its conclusion, that is, in writing and notarially.

Changing or terminating a marriage contract by one of the spouses without the consent of the other is not allowed.

8. The decision to change and terminate the marriage contract can be made by the court.

The court grants this claim only in case of significant violation of the marriage contract by the other spouse. Such a significant violation may be considered the infliction of damage by the defendant to the plaintiff, which significantly deprives the latter of what he could count on when concluding a marriage contract. The court may recognize both material and moral damage caused to the plaintiff as damage.

A change or termination of a marriage contract is also possible in cases where the circumstances that guided the spouses when concluding the marriage contract change significantly. A change in circumstances is considered “significant” for spouses in the case when such circumstances change so much that even the spouses themselves could not have foreseen this when concluding a marriage contract. For example, a marriage contract states that the husband undertakes to sell his dacha and use the proceeds, to which other jointly accumulated funds will be added, to buy an apartment, but this condition impossible to implement, since the dacha burned down, i.e. The circumstances that existed at the time of concluding the marriage contract have changed.

Changing the marriage contract does not entail the termination of the rights and obligations of the parties under the contract, as in cases of termination of the contract.

9. Termination of a marriage contract may occur:

During the existence of the marriage: by agreement of the parties or by a court decision that has entered into legal force;

Upon divorce (which happens most often). The exception when a marriage contract is valid after divorce is in cases where the spouses provide otherwise in the marriage contract. An example is the duty of mutual maintenance. When ending a marriage, a written dissolution of the marriage contract is not required, because it ceases to operate automatically;

With the expiration of the period for which the marriage contract was concluded. So, for example, if a marriage contract was concluded for 5 years and these five years have passed since the marriage was concluded, then the marriage contract terminates without a written statement to this effect.

Termination or amendment of a marriage contract does not entail any obligations on the part of the parties to such a contract to return or perform actions that were not performed under the marriage contract.

10. Invalidity of the marriage contract. A marriage contract can only be declared invalid by a court decision. Both the marriage contract as a whole and its separate part. If a marriage contract is declared invalid in any one part, the rest of it will be considered valid.

The grounds on which a marriage contract can be declared invalid include all the same grounds that apply when terminating any other contract, since a marriage contract is, first of all, a transaction that is concluded, amended and terminated in accordance with the Civil Code of the Russian Federation.

The court itself invalidates a marriage contract when:

The contract is concluded by an incapacitated citizen.

The conditions contained in it contradict the legislation of the Russian Federation (Article 168 of the Civil Code of the Russian Federation);

Such a transaction is contrary to the fundamentals of law and order or morality (an imaginary or feigned transaction) (Article 170 of the Civil Code of the Russian Federation);

The agreement is not notarized;

The agreement was concluded for the purpose of “covering up” another transaction;

The above agreements will be void transactions. In addition to the above, there are other transactions that are recognized by the court as invalid. These are voidable transactions. For example:

The contract is concluded by a citizen with limited legal capacity;

The contract is concluded by a citizen in a state of passion;

The contract is concluded by a person who has been misled;

An agreement is concluded through deception, violence, or threat;

The terms contained in the contract place one of the spouses at an extreme disadvantage;

The terms contained in the contract limit the legal capacity or capacity of the other spouse.

For insignificant transactions, the deadline limitation period, that is, the period when one of the parties can go to court is 10 years, and for voidable transactions - 1 year. In the latter case, the limitation period begins from the day when the citizen learned or should have learned about the circumstances that are the basis for invalidating the contract, or from the moment the violence or threats ceased.

It is understood as an agreement drawn up by subjects who are married or entering into it, by means of which property relations are regulated, which arise between subjects, both during marriage and upon its dissolution.

The marriage contract is concluded personally by the subjects themselves, in writing and, as prescribed by law, notarized. If not certified in this way, it is considered invalid and has no legal force.

The agreement may provide certain conditions, depending on whether they occur or not, accordingly, any rights and obligations of the subjects will arise or terminate. In addition, the agreement should not conflict with the fundamental principles of current family law, otherwise the said marriage contract, after marriage, as well as during it, can be challenged and declared invalid.

Advantages of a prenuptial agreement in case of divorce

The undoubted advantage of the agreement in question is that it is sufficiently effective protection property rights. So in particular, a prenuptial agreement in case of divorce allows you to properly regulate questions arising regarding the rights to premarital property of each of the subjects. In addition, the contract can provide for the mechanics of using living space or a vehicle. It is also possible to regulate rights to jewelry, income, household appliances etc.

Another advantage is the fact that the prenuptial agreement after divorce allows you to provide quite adequate relations between the parties. As a rule, it entails certain moral costs associated, in particular, with.

The presence of a contract allows you to determine in advance how the relationship will actually proceed and, thus, the marriage contract, after marriage allows you to remove most of the issues that arise as soon as divorce proceedings are initiated.

A little about the contents of the marriage contract

As already mentioned, a marriage contract is concluded in relation to the property of the subjects, or existing in currently, or acquired in the future. Since the current civil legislation provides for three main property regimes, any of them or a combination of them can be freely established. So, in particular:

• joint ownership regime- all property acquired by subjects before or during marriage is assumed to be common. Thus, the subjects are equal and full owners of all property;
• shared ownership regime- property, at the discretion of the parties, can be divided into shares, either the whole thing or a specific part of it. The size of the shares is determined by the parties independently;
• separate property regime- each of the subjects owns specific property or things. This regime can be established both for the entire property and for parts of it.

If none of the mentioned regimes is installed on the property, then it is considered general by default. Also, the agreement may establish the rights and obligations of the subjects for mutual maintenance, the procedure for maintaining family expenses for general needs, etc.

Thus, as you can see, the marriage contract very useful in case of divorce thing, but its conclusion requires exclusively serious attitude And professional approach. Therefore, drawing up a contact must be entrusted to experienced lawyers who will be able to legally correctly link everything possible difficulties without prejudice to the interests of the parties.

A marriage contract during a divorce helps regulate property relations between spouses, while its provisions must be correlated with the current legislation of the Russian Federation, but may also contain others, necessary for spouses and the terms and conditions agreed upon by them. Such an agreement can be concluded at any period of marriage, but not after a divorce - a marriage agreement after a divorce has no force, it can be used solely for the purpose of resolving disagreements and legal relations during divorce proceedings. Drawing up such a marriage contract is complex and responsible. legal point view of the event. It is better not to deal with such an issue on your own, otherwise you may not take into account some features and subtleties, and as a result, during a divorce, the contract will be challenged by the lawyer of the other party.

Therefore, first of all, before a divorce, it is better to contact a professional divorce and dissolution lawyer who can:

• Provide legal advice on family law;
• Prepare and draw up a marriage contract;
• Represent the interests of a party during pre-trial or trial proceedings;
• Defend or challenge the legality of the provisions of the marriage contract in case of divorce.

Legal assistance on marriage contracts

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Divorce lawyer - help from a marriage contract specialist

How does a prenuptial agreement help during divorce?

It should be remembered that a marriage contract in a divorce can easily be invalidated if it is found that it was concluded under pressure, the threat of violence, or one of the parties was significantly infringed on their rights or was misled. To avoid this, when drawing up the text of the marriage contract, it is necessary to strictly comply with all the provisions of family and civil law, then the contract will be almost impossible to challenge.

You also need to understand that personal conditions cannot be stipulated in a marriage contract; a marriage contract is used to resolve disputes regarding jointly acquired property or to protect the interests of children. However, even if any of the conditions is considered invalid, in general, this does not cancel the validity of the legal norms of the marriage contract. A prenuptial agreement after marriage, that is, in case of divorce, helps to quickly make a division common property and determine the optimal procedure for providing for children and communicating with them. However, it is quite natural that a competent divorce lawyer can even challenge the provisions of the marriage contract if they do not suit his client, and go to court to resolve the conflict.

It must be borne in mind that the marriage contract itself, unless otherwise agreed, is recognized by law as indefinite. However, divorce automatically means termination of the marriage contract. If the conditions for the division of property during the divorce of spouses according to the contract seem to one of the parties to be unfair, this document can be declared invalid, as stated above. However, most often it is unfair to one of the parties marriage union turns out to be the law, and then a correctly drawn up, legally binding marriage contract will help protect the rights and preserve the interests of both parties.

In law. In cases involving prenuptial agreements, you have the right to recover financial expenses and legal costs, as well as compensation for moral damages, by recovering them in court.