Who needs a prenuptial agreement and why

2024 Author: Malcolm Clapton | [email protected]. Last modified: 2023-12-17 03:44

The marriage contract remains a symbol of commercialism and lack of romance in a relationship. The life hacker understands why this document can be useful even for a loving family, how to draw it up and whether it will work.

What is a prenuptial agreement

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

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

Why is a prenuptial agreement necessary for everyone?

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

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

Victoria Aptekina leading lawyer of the European Legal Service

To avoid manipulation and revenge

Peaceful divorces, in which neither side would feel offended, are rare. With the dissolution of a marriage, property becomes an instrument of manipulation. The opportunity to stay with a child in exchange for an apartment, hastily rewriting property to parents, selling a car for a pittance - all these are not notes from the life of notorious villains.

The marriage contract eliminates such cruel games. It not only prescribes who gets what. Responsibilities can be fixed in the document. So, at the dawn of marriage, spouses may decide that one of them provides for the family, the other (more often the other) is responsible for the comfort and upbringing of children. The divorce agreement will remind you that this was negotiated in advance, and not one of the partners worked hard, but the other was a parasite. Conditions may be different before and after the birth of the baby.

To secure property purchased before marriage

With the help of legally binding agreements, other conflicts can be avoided. For example, one of the spouses had an apartment before marriage. This property would not be subject to division upon divorce. But they sell an apartment and buy a house. Perhaps even without surcharges. Now the property is automatically owned by both spouses in equal shares. A prenuptial agreement would help secure the whole house or most of it (in proportion to the investment) for the former owner of the apartment.

To define responsibility

As the lawyer Alexander Golovin said, the contract can provide for the protection of the rights of both parties, determine:

1. Obligation of one spouse to support the other after divorce.
2. A scheme for the participation of each spouse in family expenses.
3. The procedure for opening bank accounts for teaching children and how much money will be deposited on them every year, month.
4. Responsibility for credit obligations after divorce.

It is also possible to document the responsibility of the partner in case of infidelity. However, the implementation of this provision will completely depend on the skill of the lawyer representing the interests of the injured party in court. In this matter, it is important to know when to stop: you cannot demand all the family good for infidelity. The courts recognize such contracts as invalid, as they infringe on the rights of one of the spouses.

There is only one rule - the rights and obligations of spouses should be equal, infringement of the rights of one of them in favor of the other is prohibited in the marriage contract.

Alexander Gulko Chief Litigation Lawyer, owner of the company "Gulko Judicial Bureau"

To save family savings if one of the spouses owes someone

According to Alexander Gulko, a marriage contract can help not to be left without a livelihood. A case from his practice: an entrepreneur spouse borrowed in foreign currency. The jump in the rate increased this amount several times. The lender filed a lawsuit and demanded that the debtor's share be allocated from the family property.

The spouse provided a marriage contract, according to which all real estate belonged to her and she should not be responsible for her husband's debts. Therefore, the lender could only claim the car and a few bank deposits of the man. Three apartments and a country house with a plot remained in the family.

How to conclude a marriage contract

According to American films, any agreement, even if it was signed in a bar on a napkin, can be used as a complete document. The main thing is to protect it from moisture and present it in court at the right time. But this number will not work everywhere. According to article 41 of the Family Code of the Russian Federation, the marriage contract is certified by a notary.

The contract must comply with a certain form and not contradict the legislation. The sample can be downloaded from this link. A notary must check the document for compliance with the rules. To draw up obligations for property relations, you need to provide:

• agreement in triplicate - two for the spouses, one for the notary;
• passports;
• documents on movable and immovable property, which is included in the contract;
• marriage certificate, if it has already been concluded;
• birth certificate of the child, if any.

The entry by a notary of a note about the agreement in the registration book will cost 500 rubles. Assistance in the preparation of documents is assessed by the specialist himself. When certifying the contract, both spouses need to be present in person.

When to conclude a marriage contract

The law provides for several options for concluding a marriage contract. You can arrange it before the wedding. In this case, the document will enter into force at the time of registration of the marriage in the registry office. If the partners change their minds to marry, the contract is automatically canceled.

You can sign the relevant papers at any time of the marriage. In this case, the contract takes effect after certification by a notary.

The contract will terminate by default upon divorce, unless otherwise specified. The document can provide for the property obligations of the spouses even after the dissolution of the marriage.

If one of the spouses dies, the contract is void. Exception - if part of the property, according to the papers, is the personal property of the deceased partner. In this case, the contract continues to operate, and the assets are divided between the heirs by law or by will.

Why a marriage contract is not a panacea

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

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

Therefore, a marriage contract does not provide one hundred percent protection.

How property is divided if there is no marriage contract

If the spouses managed to save face and a sense of justice during the divorce, it is possible to divide the property according to the principle “this is yours, and this is mine” without a prenuptial agreement. When it comes to court, all family property is divided strictly in half. There are exceptions when the property cannot be divided. Personal and indivisible remains what was:

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

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

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