Vice President of the Notary Chamber of Sevastopol Maxim Yurchenko on the marriage contract and the property of spouses

About innovations

— Tell us about the latest changes in the notarial sphere.

— As of July 1, consular offices outside the Russian Federation may certify the equivalence of an electronic document to a paper one. Let me explain what this means. Consular offices have the right to perform certain types of notarial acts, in particular, to draw up powers of attorney, wills, consents, and various types of applications. Previously, when a person outside the Russian Federation applied to a consular office, he was given a paper document. In order for it to be valid in the Russian Federation, it had to be physically transferred to the country. Given the sanctions and difficulties in the work of postal organizations, this is problematic.

So, from July 1, a consular officer has the right to convert a paper document into an electronic one, sign it with an electronic digital signature and send it, for example, to an email or record it on a flash drive of a citizen (applicant). The applicant sends this electronic document to his representative in Russia. The latter contacts a notary, who in a matter of minutes “makes” a paper document from the electronic document and hands it over to the applicant’s representative. That’s it! Now a document that is made outside the Russian Federation is also valid in Russia.

The new procedure significantly reduces the time for document flow, simplifies it. It has long existed between notaries within the Russian Federation, and has proven its relevance and effectiveness.

On the property regime

— When my husband and I got married, my parents gave me money to buy an apartment. Now it is empty, I want to sell it. Do I need my husband’s consent if he is not registered there, and I am the only owner?

— All property of the spouses acquired during the marriage is their common joint property. Regardless of whether the second spouse worked or received income. Exceptions: property received as an inheritance, received during the marriage under a gift agreement or other gratuitous transactions.

In this situation, the spouses, while married, acquired property. The fact that the money for the purchase of the apartment was given by the parents, as I understand it, is not specified in the contract. Therefore, both the registration authorities and notaries will regard this apartment as an object of common joint property. To dispose of such an apartment, it is necessary to obtain a notarized consent of the second spouse.

If the wife believes that this is her personal property, she can go to court and present evidence that the parents’ money was spent on purchasing the apartment, not the family’s joint money. If a court decision appears that the apartment is the wife’s personal property, the husband’s consent will not be required. But by default, it is required.

— When I got married, I had nothing, and my husband already had an apartment and a car. Can we sign a marriage contract and stipulate in it that the apartment will go to me in the event of a divorce?

— There are two points of view: the first — yes, the second — no. If you read it literally, then the Family Code of the Russian Federation provides for such a possibility: spouses can change the legal property regime and establish a different regime, including separate property, for all the property of the spouses or for the property of each of the spouses.

But in this case, the personal property of one spouse becomes the personal property of the other. Such a transaction contains elements of a gift, so its execution through a marriage contract can be challenged in court. And it is better to avoid such situations.

About the marriage contract

— I am planning to marry a foreigner. Is it possible to enter into a marriage contract with him? If so, what documents will be required for this?

— The current legislation does not contain any restrictions on concluding a marriage contract with a citizen of a foreign state. But when concluding such a contract in the Russian Federation, the parties apply to it the norms of Russian law, which may contradict the norms of other countries regulating the conclusion of a marriage contract. Therefore, what the parties register in Russia will not necessarily apply to property located outside the Russian Federation.

In my opinion, it is correct to conclude such a marriage contract in relation to property and property rights on the territory of the Russian Federation. If it is planned to live outside the Russian Federation and acquire expensive property there, the spouses should conclude a marriage contract or its equivalent on the territory of the country where the property relations will arise. Because there are nuances both in the age at which the marriage contract is concluded and in the positions that are included in it.

As for documents, you will need passports, SNILS, marriage certificate or a copy of the application to the registry office for marriage registration.

— Is it necessary to sign a marriage contract with a notary? Is there such a service at the MFC or somewhere else?

— No, this is exclusively the competence of the notary, and the law provides for a mandatory notarial form for a marriage contract. If this form is violated, such a contract is considered null and void. It does not create any legal consequences for the parties. And the highest judicial authorities of the Russian Federation have repeatedly indicated that the property regime of spouses can only be changed by a notarized agreement. Such a regime cannot be changed by any other agreements concluded in simple written or oral form.

— My husband is a gambler, he plays for money, he started losing more and more. We already have a marriage contract. Is it possible to supplement it so that he pays off his debts only from his property?

— Any change to the marriage contract is possible only by mutual consent of the parties; it is impossible to do this unilaterally. If the other spouse agrees, the contract can be changed or terminated at any time.

— My boyfriend and I are living in a civil marriage. Of course, we have some common things, equipment. We recently took out a car loan, registered it in his name, but we pay together. Is there any way to protect ourselves, for example, by concluding a marriage contract, so that if we split up, everything will not remain his?

— A marriage contract can only be concluded between spouses (the marriage is registered) or between persons who intend to marry. A marriage contract cannot be concluded between persons in a civil marriage without registration. In this case, the general rules of law apply, according to which property acquired outside of marriage is the personal, separate property of each of these persons.

But there is a way out. If young people make some expensive purchases, for example, real estate, and spend joint money on it, they can register this property as joint shared property in 1/2 shares.

— Are there many people willing to enter into marriage contracts?

— This is a common notarial action. Often, the contract is drawn up to obtain preferential and mortgages or with state support. Banks insist on concluding a marriage contract before concluding loan agreements so that the loan obligations are the borrower’s personal obligations. This is a rational position, because, unfortunately, many marriages are dissolved, and difficulties with the division of property begin, and with mortgaged property there are even more difficulties. Therefore, banks ask borrowers to conclude a marriage contract and regulate such issues in it.

Moreover, mentally Russians are already moving away from the idea that a marriage contract is a direct path to divorce. People already understand that, on the contrary, in many cases it allows you to save a relationship, and they actively use it.

Newspaper «Komsomolskaya Pravda. Sevastopol» (Irina ZHIBOEDOVA, Alena MOTROI)