President of the Notary Chamber of Sevastopol Olga Kalenkovich: division of property, marriage contract, inheritance

What documents related to family relationships can be drawn up by a notary?

— This could be an agreement on the division of the spouses’ common property, which, in essence, is similar to a marriage contract, but is concluded when the marriage has already been dissolved. Spouses can also enter into an alimony agreement. This is a document that determines the amount of child support or spousal support in certain situations. In addition, this may be an agreement to determine the child’s place of residence.

A marriage contract and an agreement on the division of common property of spouses necessarily require notarization, and they cannot be concluded in simple written form. The same applies to agreements on alimony and determining the child’s place of residence — they also cannot be concluded in simple written form. An alternative may be court. The dispute between the parties is resolved in court. If there is no dispute, the spouses have agreed on everything, all you need to do is contact a notary.

In this case, for example, an alimony agreement has the force of an executive document, and if the alimony payer does not fulfill his obligations, you can contact a notary, make an execution inscription and immediately submit the document to the FSSP authorities for execution. That is, you do not need to go to court, everything can be done with a notary.

Can such consent be obtained remotely?

— Yes. First, the consent is certified by a notary in the region where the spouse is located. Then he certifies that the electronic document is equivalent to a document on paper, that is, he converts the paper document into electronic form, signs it with his electronic digital signature and either gives it to you on a flash drive or sends it through closed communication channels to a notary in the city where the transaction takes place. The notary who certifies the agreement will do the opposite: he will convert the consent into paper form and attach it to the materials.

My husband and I entered into a donation agreement at the MFC for an apartment purchased during our marriage. The contract states that the husband transfers residential premises as a gift to his wife. Not a share in the common property of the spouses, but the entire living space. The registration of the agreement in Rosreestr was suspended, indicating the reason: the spouses changed the procedure for common joint property established by law, the agreement contains elements of a marriage contract, which is subject to notarization.

— In accordance with the Family Code of the Russian Federation, all property acquired by spouses during marriage is acquired into the joint ownership of the spouses. When registering ownership of an apartment in Sevreestr, the title owner, in your case, was recorded as the spouse. At the same time, the wife also has a marital share in this apartment.

However, the property regime provided for by the Family Code can be changed by a marriage contract, which is subject to mandatory notarization. Therefore, in your case, it is advisable to certify the marriage contract, which will determine the mode of ownership of the apartment only in the name of the spouse. Although it is possible to conclude a gift agreement with elements of a marriage contract, which determines a different regime of property ownership (for only one spouse) and a donation in the name of the spouse, such an agreement is also subject to mandatory notarization.

Further, soon the husband dies. There are two heirs: me (the wife) and my husband’s son from his first marriage; we will inherit according to the law, since there is no will. The questions are:

1. Is it possible to recognize this gift agreement as concluded, thereby excluding the apartment from the inheritance estate?
2. When is it better to file a lawsuit to recognize the contract as concluded: before the expiration of 6 months for acceptance of the inheritance or after the certificate of inheritance is issued?

— I represent the notarial profession; the question of recognizing the specified agreement as concluded in this situation falls within the competence of the court, which makes the appropriate decision. For my part, I can say that a marriage contract is subject to mandatory notarization. In accordance with Article 163 of the Civil Code of the Russian Federation, if notarization of a transaction is mandatory, failure to comply with the notarial form of the transaction entails its nullity.

You should consult with a lawyer about the time to go to court on this issue.

Is it possible to conclude a marriage contract by proxy?

There is no direct prohibition on concluding a marriage contract; however, the power of attorney must indicate all the conditions that must be included in the content of the marriage contract by the attorney. I would also like to note that although there is no direct legislative prohibition, in order to avoid disputes it is better to avoid this option of signing an agreement.

I recommend, in cases where it is not convenient for spouses, due to various circumstances, to appear together at one notary, to resort to a remote format for signing an agreement — that is, each spouse will be with a notary in the region where it is convenient for him, but necessarily at the same time. Today this practice is becoming increasingly popular.

Is it possible to include in the marriage contract a condition that the apartment, which is in common joint ownership of the spouses, in the event of divorce, will become the personal property of the spouse, and the spouse will be paid monetary compensation?

— Current legislation allows the transfer of joint property of spouses by a marriage contract into the separate property of one of the spouses upon the occurrence of certain conditions. Such a condition may be divorce. But to clarify the detailed terms of such an agreement, you must seek a face-to-face consultation with a notary in person.

I rent out an apartment under a notarized agreement with the consent of my spouse. Does the notary transmit information about certified lease agreements to the tax authorities?

— No! To date, there are no requirements for notaries to transmit information about certified lease agreements. This is the responsibility of the taxpayer.

source: newspaper “Komsomolskaya Pravda. Sevastopol» No. 24 (27574)