The Supreme Court clarified when a prenuptial agreement does not protect a spouse from repaying a debt

The story began with the fact that a citizen borrowed money at interest from his friend for several years in a row. The total amount of loans, judging by the three receipts, amounted to 6 million rubles. Later, the creditor assigned his claims under these agreements to his relative. And the new creditor, through the court, collected the amount of debt and interest from the debtor. It came out to 15 million rubles. The court decision came into force, but the winner of the legal dispute was in for an unpleasant surprise — the debtor did not have any property to repay the debt.

It turned out that six months before the trial the debtor entered into a prenuptial agreement with his wife. Under this agreement, the woman became the sole owner of the garage and house with a plot. A year later, the couple divorced. A couple of months after the divorce, the ex-wife sold the garage, and then the house and land.

Having learned about this, the creditor went to court. The dispute was noticed by Pravo.ru. In court, the creditor referred to Article 46 of the Family Code. It is called “Guarantees of the rights of creditors when concluding, amending and terminating a marriage contract.” This article states that the spouse is obliged to notify his creditor of the conclusion of the prenuptial agreement. What the debtor did not do. Consequently, he must be liable for his obligations regardless of the contents of the marriage contract.

The creditor demanded that the debtor’s share be separated from the spouses’ common property — a house with a plot — and foreclose on it. And also recognize the agreement for the sale and purchase of a garage as void, apply the consequences of invalidity of the transaction and impose joint and several liability on the ex-wife for the obligations of the ex-husband.

The dispute was considered by the Shchelkovo City Court of the Moscow Region. He collected 13 million rubles from his ex-wife — half of the income she received under the contract for the sale and purchase of a house and land. This decision was challenged. Next, the Moscow Regional Court decided that the creditor should be refused. According to the appeal, the marriage contract changed the status of marital property. And this does not allow it to be divided. The spouses concluded it even before the debtor had obligations to the creditor, because the deadline for returning the money had not yet arrived. Thus, the debtor was not obliged to inform the creditor about the conclusion of the marriage contract, the regional court concluded. The decision of the appeal was upheld by the cassation.

Then the indignant creditor went to the Supreme Court. There they studied the materials of the dispute and did not agree with the conclusions of their colleagues.

Here are the main arguments of the Supreme Court. The loan agreement between citizens is of a real nature — it is considered concluded from the moment the money is actually transferred to the borrower. Considering that at the time of signing the marriage contract, the debtor already had two loan agreements, the conclusions of the appeal and cassation about the absence of obligations to the creditor do not correspond to reality, the Supreme Court emphasized.

Thus, by virtue of Article 46 of the Family Code, the debtor was required to notify the creditor of the conclusion of the marriage contract. Since he did not do this, neither the first creditor nor the second “are bound by the change in the regime of the spouses’ property,” the Supreme Court judge concluded. Therefore, they canceled the acts of appeal and cassation and sent the case for a new trial to the regional court.

The position according to which a creditor who has not been notified by the debtor of the conclusion of a marriage contract is not bound by a change in the regime of the spouses’ property is not new, experts emphasize. The Constitutional Court has spoken about this more than once (in particular, in its rulings dated May 13, 2010 No. 839-O-O and No. 2957-O dated December 23, 2014).

According to lawyers, noteworthy is the conclusion of the Supreme Court that already at the moment of concluding a loan agreement, the debtor is considered obliged, as in the future, when disposing of his property, including when concluding a marriage contract, to take into account the interests of the creditor, even if the loan repayment period is still didn’t come.

Supreme Court ruling N 4-КГ21-51-К1

source: press service of the Supreme Court of the Russian Federation