Conditions for concluding a marriage contract in 2021: basic rules

What is a prenuptial agreement?

A prenuptial agreement (or, as it is also called, a marriage contract) is an agreement between the persons entering into marriage, or an agreement between the spouses, defining the property rights and obligations of the spouses in the marriage and (or) in the event of its dissolution.

According to Art. 40 of the RF IC, a marriage contract is recognized as an agreement between the persons entering into marriage or an agreement between the spouses that defines the property rights and obligations of the spouses in the marriage and (or) in the event of its dissolution.

The terms of the marriage contract must be determined by the parties voluntarily based on mutual agreement.

The parties can enter into this marriage contract either before or after marriage.

One thing to consider is that a marriage contract drawn up before the state registration of the marriage comes into force only after the state registration of the marriage.

The agreement is concluded in writing and is subject to notarization ( Article 41 of the RF IC) .

How Russian legislation interprets a marriage contract

The concept of a marriage contract appeared in Russia in the nineties of the 20th century, when market relations came to the country: the well-being of citizens improved and property relations began to play an important role. Since the marriage contract is the fruit of Western culture, it was completely alien to our mentality, however, this phenomenon is still perceived as mercantile, killing romantic feelings.

Nevertheless, in 1994, mention of a marriage contract appeared in the Civil Code of the Russian Federation. If you follow the definition, then a marriage contract is an agreement between persons entering into or being married, defining the property rights and obligations of the spouses during the marriage or after its dissolution. The need to conclude an agreement arises by mutual consent of the newlyweds.

Essentially, a prenuptial agreement is a written agreement on the rules of conduct in marriage or divorce.

Find out more about what a prenuptial agreement is.

What laws govern contractual relationships in marriage?

The existence of an agreement between spouses gives marriage the character of a civil legal transaction. This is exactly how the institution of marriage was viewed in Ancient Rome, and it was in Roman law that the concept of a marriage contract first appeared, which was concluded solely for the settlement of property relations.

The Civil Code of the Russian Federation contains only references to the marriage contract when it comes to the property rights of spouses. The legal nature of this phenomenon is fully described in the Family Code of the Russian Federation, since a marriage contract is valid only between spouses during the marriage or immediately after its dissolution. Chapter 8 of the RF IC is entirely devoted to contractual relations. Thus, the rules of civil and family law apply to the marriage contract.

Next, we will consider in more detail the essence and features of contractual relations between spouses.

Necessary conditions for the entry into force of a marriage contract

For a prenuptial agreement to be valid, it must meet certain legal requirements, which include the following:

Mandatory certification by a notary. Only after this the contract becomes valid (or from the moment of receipt of the marriage certificate, if it is concluded by young people before the wedding). It is not concluded through an intermediary (lawyer); both spouses are present when drawing up and signing the agreement. If one of them, due to a physical defect (paralysis, serious illness), the other half cannot be present at the notary, an official representative does this for him, and a corresponding note is made in the marriage contract.
Both husband and wife must be capable and responsible for their actions.

Full legal capacity occurs upon reaching 18 years of age. But Article 21 of the Civil Code of the Russian Federation says that minor Russian citizens can also sign a marriage contract, but only after marriage. They automatically become legally capable, so they can sign such an important document.

Besides:

The marriage must be real, not fictitious, that is, have the goal of living together, giving birth and raising children. “Civil marriage” or cohabitation is not considered official.
Both parties to the marriage contract must fully agree with its terms (Article 41 of the RF IC) .
In form and content, the marriage contract must correspond to the legal concept of a marriage contract, the terms of which are prescribed in Art. 40 and 42 of the RF IC .

Is the form of the marriage contract established?

As we have already found out, a marriage contract is a voluntary agreement between two persons regarding each other’s property status. However, an oral agreement is not enough, therefore the only possible form of existence of an agreement is recognized by law as a written one.

As for the content, the Family Code contains an article that gives a general idea of what the document should contain. There are no rules of execution or regulations on the form in which the contract is concluded. On the one hand, this gives freedom in drawing up a document, on the other hand, it creates the danger that it will be drawn up incorrectly.

Since the marriage contract considers exclusively property relations related to the field of civil law, when drawing it up, you can rely on samples of standard agreements.

Suspensive and disqualifying conditions

A marriage contract may contain mandatory, disqualifying and suspensive conditions (Article 157 of the Civil Code of the Russian Federation) . Mandatory conditions include:

Suspensive

Conditions suspensive are those conditions that have not yet occurred at the time of signing the marriage contract, and whether they will occur at all is unknown. For example, in the event of a divorce, a spouse undertakes to pay his wife $200 monthly, but in the event of the birth of a common child, the maintenance increases to $500.

A suspensive condition applies when one of the spouses takes out a loan, for example, a mortgage. Art. 46 of the RF IC protects a husband or wife from loan fraud that is possible on the part of an unscrupulous other half.

Here is a suitable example: a husband takes out a large loan secured by property without notifying his wife about it. Realizing that she cannot cope with the payments, she transfers it to her unsuspecting wife, and after the divorce, creditors confiscate her mortgaged property.

In addition, suspensive conditions entail the termination of rights and obligations due to the occurrence of certain events. For example, one of the spouses may be deprived of the right to a specific part or unit of property if his actions entailed adverse consequences for the well-being of the family (alcohol addiction, significant deterioration in financial situation, adultery, etc.).

All marriage contracts signed before receiving the marriage certificate are considered suspensive.

Cancellative

They determine the emergence of the rights and obligations of husband and wife by the occurrence of certain circumstances. This case also provides for dependence on the events specified in the document, with the only difference being that rights and obligations do not cease, but appear. For example, a contract may determine that the birth of a child entails the emergence of new rights to property or the ownership regime changes.

Read: How a prenuptial agreement is drawn up during a divorce: what it gives, when it can be concluded, validity period, consequences

Cancellable conditions are those conditions the occurrence of which is canceled by one or another clause of the written agreement between the spouses. For example, the apartment goes entirely to the wife in the event of a divorce, but if the divorce is initiated by the wife or provoked by her infidelity, then the apartment will remain the property of the husband.

The law prohibits establishing the circumstances surrounding the death of one of the spouses. This situation excludes the regulation of relations using family law, because In the event of the death of a husband or wife, inheritance rules come into force, which are not related to the contract.

What conditions are acceptable?

The conditions that family law allows spouses to indicate in the agreement they conclude:

The procedure for dividing acquired property in the event of divorce. According to the law, all property acquired jointly by the spouses is divided equally between them. In the marriage contract, you can establish any other rule of division that suits both parties.
The manner and degree of participation of the husband and wife in each other's income and expenses. For example, spouses will be able to agree that the salary received by the wife will be spent on the daily needs of the family, and the income of the head of the family will be set aside for the purchase of expensive property, unforeseen expenses, etc.
The rights and obligations of each of them to mutually support each other. Chapter 16 of the Family Code of the Russian Federation talks about the right of one of the spouses to demand alimony from the other for their maintenance, if there are grounds for this (need, disability, etc.), and about the obligation of the other to make these payments. This rule can be modified in a marriage contract.
Changing the regime of personal property of spouses (donated, inherited, privatized, etc.). For example, spouses have the right to establish a regime for common joint (or shared) ownership and disposal of an apartment inherited by the husband.
Establishment of a separate or shared ownership regime for property acquired by spouses during legal marriage. The contract can stipulate what specific property the husband will own and what property the wife will own; what share and exactly what property will belong to each of them.

The contract may also contain other conditions relating exclusively to the property relations of the married couple.

What relationships are regulated by a marriage contract?

Perhaps the most popular question that arouses interest among future spouses is what conditions can be included in a prenuptial agreement. Article 42 of Chapter 8 of the RF IC, which is devoted to the content of the marriage contract, will help you understand this.

According to it, the agreement can only affect property relations. Moreover, the concept of property here is considered in a broad sense, that is, it is not only the totality of property subject to state registration, but also household furnishings, as well as money, shares in the authorized capital, shares, securities - both present and future.

In a marriage contract, spouses have the right to establish a regime of joint, shared or separate ownership of property, its part or the fortune of each spouse separately.

This is the only document that can change the joint ownership regime defined by law (RF IC, Article 33; RF Civil Code, Articles 253, 257-258). This is the value of a marriage contract, which is a kind of insurance against mutual claims to own property.

Thus, the subject of the marriage contract is property and financial relations:

Property regime, its types

According to Art. 42 of the RF IC , a husband and wife, when concluding a marriage contract, establish a regime of shared, joint or separate property.

The joint ownership regime is established by Art. 33 clause 1 of the RF IC by default. It makes no sense to prescribe it additionally. But the marriage contract can cover certain types of joint property. For example, an apartment purchased by a wife before marriage may be described in the contract as joint property, and it will be divided equally in the event of a divorce. If this is not prescribed, the apartment remains with the wife even after the divorce. It is understood that all property is in common use, and in case of divorce it is divided equally.
The shared ownership regime regulates the degree of participation of the husband and wife in the acquisition of property benefits. For example, a country house with an uncultivated plot of land was purchased with my husband’s money. The wife did not spend any money on it, but she improved the plot, laid out beds, made various plantings and flower beds, as a result of which the cost of the plot increased several times. The contract can indicate that during a divorce, the dacha is sold, and 1/3 of the cost remains for the spouse, and 2/3 for the spouse. Here, each spouse owns their share of property, for example, an apartment, and can dispose of it as they wish (sell, give, and so on). The shares can be anything - they are often divided “fairly”, for example, if the husband earned most of the money, then ¾ of the apartment belongs to him.
The separate property regime applies to certain property that will not be subject to the rights of the second spouse. for example, the prenuptial agreement states that bank deposits and securities are the separate property of the husband, and luxury items (jewelry, antiques) remain with the wife in the event of a divorce. And no one has the right to claim what does not belong to him under the contract. When choosing this option, spouses usually agree like this: an apartment for you, a car for me. That is, everyone owns something that they own. You can register ownership of anything - even forks and spoons. You can also divide responsibilities, for example, that everyone pays for their loans themselves.

Important!

All property that is not specified in the contract is automatically considered jointly acquired. In order to avoid unpleasant situations, the legislator has provided for the possibility of amending the marriage contract; conditions may change during family life.

Another important point: these modes can be combined. The document can specify financial obligations (for example, the wife pays utilities, and the husband regularly fills up the car with gasoline). But it is impossible to prescribe in the contract the procedure for personal relations and limit the legal capacity or capacity of spouses.

Read: Rights and obligations of spouses according to a marriage contract: when they occur, types, responsibility, punishment for non-compliance

There is another document that regulates the property relations of spouses - an agreement on the division of property. In some cases it is preferable.

Disposition and ownership of property

Spouses can distribute the size of shares 1:1, i.e. Each person will own 1/2 of the property after the divorce. But you can clearly determine who gets what, for example:

cash deposits remain with the person for whom they were made;
securities belong to those who issued them;
jewelry and rarities will go to the person who purchased them;
gifts given for a wedding are divided equally, or sold at auction and the amount is divided in half;
cars, apartments and garages are transferred to the person to whom they are registered;
personal items (clothes, shoes, hygiene products, perfumes) are not considered joint property.

Marriage agreement under Russian law

For the majority of the population of modern Russia, a marriage contract is an exotic product of a different way of life, something unreal.

However, the marriage contract was known to Roman law and has been in force in the legislation of many countries for centuries. It also existed in Russia, but was abolished by Peter I and renewed by Article 10 of the Code of Laws of the Russian Empire under Catherine II. The introduction of the institution of a marriage contract is one of the most significant innovations of the Family Code of the Russian Federation of 1996, although in principle the conclusion of a marriage contract became possible after the entry into force of the first part of the Civil Code of the Russian Federation - from January 1, 1995, in Art. 256 of which it is stated that “property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property.”

However, before the adoption of the Family Code of the Russian Federation, concluding a marriage contract was difficult, since the Civil Code of the Russian Federation did not have rules regulating the content, procedure for conclusion, termination and other important aspects of a marriage contract. The main legal purpose of a marriage contract is to determine the legal regime of the spouses’ property and other property relationships for the future. The experience of foreign countries and Russia in recent years shows that more and more middle-income people, when getting married, enter into prenuptial agreements. This is probably due to the increase in the number of divorces and the desire of spouses to protect themselves from property losses in the event of divorce.

The marriage contract has become a legal reality in Russia. According to the newspaper “Arguments and Facts”, in the first year of the Family Code in the Russian Federation alone, about 1.5 thousand marriage contracts were concluded. And yet, it is not designed for the mass consumer, and therefore not all persons entering into marriage enter into a marriage contract.

In Omsk, there are still few marriage contracts; many people consult notaries about their conclusion. The peak of prenuptial agreements in Omsk occurred in 1995-1996, when prenuptial agreements were allowed by law, and at the same time, it was during this period that a whole wave of new “Russians” appeared in Omsk, and at the same time, the fashion among them for brides much younger than themselves. Often, the initiators of concluding marriage contracts are future fathers-in-law and mothers-in-law, who understand better than the young that although marriages are made in heaven, they are broken on the ground, and therefore they give the young people an ultimatum: either a marriage contract, or we don’t give money for an apartment, or we don’t give away an apartment, a car, etc.

It should be noted that although the RF IC speaks of “nuptial agreements,” in practice the expressions “nuptial agreement” or “nuptial agreement” are often used, and they are synonymous. So, a marriage contract is recognized as an agreement between persons entering into marriage, or an agreement between spouses (i.e., persons already married), defining their property rights and obligations in the marriage and in the event of its dissolution (Article 40 of the RF IC). By its legal nature, a marriage contract is a type of civil law contract that has certain specifics. In it, spouses (future spouses) establish for themselves the “rules of the game” and these rules they are obliged to follow.

The marriage contract must be concluded in writing and notarized (clause 2 of Article 41 of the RF IC) by placing an certifying inscription on the document. Failure to comply with the notarial form of the marriage contract entails its invalidity (nullity) - clause 1 of Art. 165 of the Civil Code of the Russian Federation. But in relation to the form of the marriage contract, the exception contained in paragraph 2 of Art. 165 of the Civil Code of the Russian Federation: if the agreement (which must be in written form!) was not notarized, but one of the parties to the marriage contract has begun its actual execution, and the other evades notarization, then in such a situation the agreement can be recognized by the court as valid. In this case, subsequent notarization of the agreement is no longer required.

A marriage contract can be concluded both before the marriage is registered and after the marriage. If the marriage contract was concluded before the registration of the marriage, then it comes into force only from the date of registration of the marriage with the registry office. In this case, the marriage contract is a conditional transaction with a suspensive condition. If a man and a woman living together for a long time as husband and wife without registering a marriage have entered into a marriage contract, then the mere fact of concluding a marriage contract does not give rise to any legal consequences for them. In order for the agreement to come into force, it is necessary to register the marriage with the registry office, since the current legislation recognizes only such a marriage (clause 2 of article 1 of the RF IC). And in any case, if the parties intended to register a marriage and, in connection with this, entered into a marriage contract, it will not acquire legal force if the marriage is never concluded.

Family law does not regulate how soon after the conclusion of a marriage contract a marriage must be registered so that this marriage contract can acquire legal force with the registration of the marriage. In other words, the real situation is when the parties conclude (and notarize!) a marriage contract five, ten, fifteen years before registering the marriage. Does such an agreement remain in force, i.e. did it come into effect after the registration of the marriage, so distant from the date of conclusion of the marriage contract? The RF IC does not answer this question. Since the norms of the Civil Code of the Russian Federation can be applied subsidiarily to family relations, it seems that the norms of Art. 429 of the Civil Code on a preliminary agreement, which is valid for one year after its conclusion, if the duration of its validity is not indicated in the agreement itself.

Of course, it would be better to resolve this issue at the legal level. If a marriage contract is concluded after the registration of the marriage (no matter how much time has passed after it), it comes into force from the moment of its notarization and can regulate the legal regime of the property of the spouses, already acquired or that which may be acquired in the future.

A marriage contract can be concluded either for a specific period (fixed-term contract) or without specifying a period (perpetual contract).

A fixed-term agreement will regulate the legal regime of the spouses’ property, their property rights and obligations only during the period of validity of the agreement.

For example, if the contract stipulates that the income received by each spouse becomes his personal property, then in a fixed-term contract this will apply only to those incomes that will be received by the spouses during the period of validity of the fixed-term contract, and not for the entire duration of the marriage.

Spouses can link the moment of entry into force of the marriage contract (or any part thereof) with a certain legal fact (event or action) that will occur or may occur in the future. Such a fact may depend (legal action) or not depend on the will of the spouses (legal event).

For example, a marriage contract may stipulate that in the event of the birth of a child, the apartment inherited by the husband after the death of his grandmother becomes the joint property of the spouses, i.e. their common property.

Or: if the son leaves for permanent residence abroad, the car purchased during the period of marriage of the spouses becomes the exclusive property of the husband. If the marriage between the spouses is officially dissolved, then there is no point in concluding a prenuptial agreement. But if the marriage was dissolved in court before May 1, 1996, and the divorce has not yet been registered in the registry office in accordance with the established procedure, the possibility of concluding a marriage contract remains (since the marriage in such cases is not considered dissolved until the divorce is registered in the registry office by at least one of spouses).

A marriage contract presupposes a special composition of subjects. The subjects, or participants, of a marriage contract are both persons intending to get married and citizens who have already entered into a legal marriage, i.e. spouses.

Not all issues relating to the subject composition of a marriage contract are not clearly regulated in the Family Code. For example, can a marriage contract be concluded by a representative by proxy? Or the guardian of a spouse declared incompetent due to a mental disorder with another spouse? Or is this a contract of a strictly personal nature and representation is inadmissible here? In the literature, opposing points of view are expressed on this matter.

It seems that indeed, unlike most other property transactions, a marriage contract is inextricably linked to the identity of its participants, and therefore cannot be concluded with the participation of a legal representative.

In foreign countries, the procedure for concluding a marriage contract also, as a rule, requires compliance with written form and the presence of the spouses. For example, in France, a marriage contract must be notarized. In Italy, it must be registered with local authorities, and if the contract contains conditions relating to real estate, then also with the authorities that register real estate transactions.

Having regulated the relations of joint property of spouses, the Civil Code of the Russian Federation, giving way to the prevailing stereotypes, allowed the IC of the Russian Federation to regulate only “details”, in particular concerning the rules for determining shares in the common property of spouses during its division and the procedure for such division (clause 4 of Article 256).

It seems that the inclusion of the institution of a marriage contract (and at the same time the contractual regime of the property of the spouses) not in the Civil Code, but in the RF IC is explained by a certain “timidity” of the legislator, who for the first time in the history of the post-revolutionary period finally allowed the spouses to determine the regime of their property themselves , which was a significant, but only the first step in this direction.

I would like to hope that with further improvement of legislation, the legislator will dare to take the second step - to legally qualify a marriage contract as a civil legal transaction (agreement) with all the ensuing legal consequences, which, in essence, it is at the present time. Until this is done, many issues related to the marriage contract must be resolved taking into account the fact that the marriage contract is of a civil law nature, although it is regulated by the norms of the current RF IC. It is obvious that the legislator is following exactly this path, placing the institution of a marriage contract in the RF IC, but “forgetting” to regulate a number of important points. As an example, we can mention the points relating to the conclusion of a marriage contract. Already at this stage, in particular, the question arises as to whether a marriage contract can be concluded through a representative?

This question has already arisen in the legal literature, and there is no uniform opinion regarding the answer to it among scientists. It seems that, despite the fact that the law does not contain a direct prohibition on concluding a marriage contract with the participation of a representative, such a prohibition should be implied, as has already been noted in the literature. Despite the fact that a marriage contract regulates the property relations of the parties, it is very significantly “colored” by personal connections, trust in the relationship of the spouses, and therefore clearly refers to transactions that, by their nature, can only be completed in person. Conducting such transactions through a representative is prohibited by virtue of the direct instructions of the law (Clause 4 of Article 182 of the Civil Code of the Russian Federation). At the same time, there should be one reasonable exception to this general rule. In cases where one of the spouses was declared legally incompetent during the marriage and the guardian appointed to him (who in this case is not the other spouse) believes that the conclusion of a marriage contract on terms agreed upon with the other spouses is in the interests of the ward, it is directed to protect his property rights, the conclusion of a marriage contract should be allowed (just as current legislation allows divorce at the request of the guardian of the spouse recognized by the court as incompetent - clause 2 of Article 16 of the RF IC). At the same time, a mandatory condition for concluding a marriage contract (and its validity) in this case must be the preliminary permission to conclude a contract from the guardianship and trusteeship authority.

Obviously, permission will only have legal force (and actually protect the rights of the ward spouse) if it is given for the conclusion of a specific agreement, in the version submitted to the guardianship and trusteeship authority.

It is advisable to include the corresponding rules in the RF IC. Another question arises regarding the validity period of the marriage contract, if it was concluded when there was no marriage yet. After all, an agreement under current legislation can be concluded at any time after the registration of a marriage, and before its registration (with entry into force from the date of registration of the marriage, even if such an agreement was concluded by persons in an actual marital relationship).

How soon after the conclusion of a marriage contract must a marriage be registered in order for a marriage contract concluded before its registration to become valid? In other words, the real situation is when the parties enter into a marriage contract five, ten, fifteen years before registering the marriage. Does such an agreement remain in force, i.e. did it come into effect after the marriage was registered so distant from the date of its conclusion? The RF IC does not answer this question. Since the norms of the Civil Code of the Russian Federation can be applied subsidiarily to family relations, it seems correct to apply the norms of Art. 429 of the Civil Code of the Russian Federation on a preliminary agreement, which is valid for one year after its conclusion, if the term of its validity is not indicated in the agreement.

It is advisable to resolve this issue directly in the law. If a marriage contract is concluded after the marriage is registered, it can regulate the legal regime of the spouses’ property, both acquired at the time of the conclusion of the contract, and that which may be acquired in the future. However, it should be assumed that in cases where the parties did not include a condition on its retroactive effect in the contract, did not determine the regime of property already acquired in marriage at the time of conclusion of the contract, the latter retains the regime of joint property of the spouses, and the validity of the marriage contract should extend only on property that will be acquired during marriage after the entry into force of the contract.

When resolving another issue that has increasingly arisen in recent years in judicial practice, it should be borne in mind that if the marriage between the spouses is officially dissolved, then it is obvious that after that there is no point in concluding a marriage contract. But if the marriage was dissolved in court before May 1, 1996, and the divorce has not yet been registered in the registry office in accordance with the established procedure, the possibility of concluding a marriage contract remains (since the marriage in such cases is not considered dissolved until the divorce is registered in the registry office by at least one of spouses).

Further. The marriage contract in accordance with Art. 42 of the RF IC, spouses can determine that each of them owns jointly acquired real estate. Moreover, they can, by concluding a prenuptial agreement, actually gift their personal real estate to each other. For example, a marriage contract may provide for both the personal ownership right of one of the spouses to jointly acquired real estate, and to real estate already owned by the other spouse as personal property. So, for example, a marriage contract may provide that a specific apartment, dacha, land plot, enterprise or non-residential premises, owned by the right of ownership only to the husband as acquired by him before marriage, becomes the personal property of the wife (or the common joint property of the spouses).

In the legal literature, the opinion has been expressed that a marriage contract cannot change the regime of separate property of spouses to common property (both shared and joint). In support of this thesis, T.I. Zaitseva points out that Art. 42 of the RF IC contradicts Art. 256 of the Civil Code of the Russian Federation, despite the fact that civil law norms contained not only in the Civil Code of the Russian Federation, but also in other laws, cannot contradict the Civil Code of the Russian Federation.

According to another point of view, a marriage contract, in principle, may contain conditions on the transfer of property belonging to one of the spouses to the common property of the spouses (both shared and joint), or on the transfer of the property of one of the spouses to the other spouse, but, firstly, civil law rules on a gift or exchange agreement cannot be applied to such agreements, since we are talking about an independent – marriage – contract, and secondly, such conditions can be included in a marriage contract as one of its conditions, but cannot act the only content of the marriage contract, because in the latter case we are dealing with an ordinary civil law contract - donations, exchanges, purchases and sales.

It seems that, based on the current version of Art. 42 of the RF IC, it should be recognized that there are no obstacles to this kind of agreements between spouses, and a marriage contract, therefore, is, along with an ordinary civil law transaction (donations, exchanges, purchases and sales) another legal basis for the transfer of rights ownership or establishment of a regime of common ownership of this or that property. Another thing is that the need to use a marriage contract as a legal instrument that “duplicates” traditional civil law transactions is very problematic. The inconsistency of Art. has already been noted in the literature. 42 RF IC and Art. 256 of the Civil Code of the Russian Federation, however, with the statement that “The Civil Code and the Family Code have the same legal force: both are federal laws. Therefore, unfortunately, the Civil Code does not have priority in this area.” It seems, however, that it is precisely in this case that the Civil Code takes precedence. Since a marriage contract is a civil contract (which is also recognized by the authors of the above quotation), then in full accordance with paragraph 2 of Art. 3 of the Civil Code of the Russian Federation “the norms of civil law contained in other laws must comply with this Code.”

It is obvious that in cases where the transaction itself and (or) the transfer of ownership of property are subject to state registration, the ownership right ceases with one spouse and arises with the other (or the type of ownership changes - separate, shared, joint) only from the moment of state registration relevant transaction and (or) transfer of rights to property.

Based on the current version of Art. 42 of the RF IC, which allows, with the help of a marriage contract, to transfer ownership of property, including (and, above all), real estate, as well as change the type (mode) of ownership of it, it should be recognized that on the basis of an existing marriage contract any of the spouses, to whom, by virtue of this agreement, the right of ownership or share in the right of ownership of property belonging to the other spouse is transferred, has the right to demand state registration of this right and, if the other spouse refuses to submit an application for registration, has the right to demand such registration in court ( which does not deprive the other spouse of the opportunity to file a counterclaim to invalidate the marriage contract on the grounds provided for by law).

Rights and obligations regarding mutual maintenance

Art. Art. 89-97 of the RF IC clearly define the procedure for paying alimony both during marriage and in the event of its dissolution. The only basis for assigning monetary payments to the other half is disability or need, as determined by the court.

Disability is usually understood as a disability acquired during marriage, and neediness is the inability to earn enough money to support oneself (a woman on maternity leave) or too little government assistance (a disabled person).

A marriage contract allows you to protect a husband or wife if they are not incapacitated and do not fall under the category of insufficient state support in the form of pensions and benefits. If the other half (usually the spouse) gave up a career or interrupted education due to starting a family, then during a divorce they find themselves in a financially vulnerable position. A prenuptial agreement allows you to stipulate such points in advance and establish a specific amount of maintenance.

Family income and expenses

Art. 42 clause 1 of the RF IC defines the right of spouses to participate in each other’s income and to distribute responsibilities for maintaining the family. In particular, you can clearly indicate who is financially responsible for which area of everyday life.

This applies to the following:

payment for housing and communal services (you can determine equal shares for monthly payments);
buying food;
payment for children's education (tutoring, private school, college);
apartment renovation, summer house arrangement, car maintenance;
expenses for vacations and excursions.

In relation to family expenses, an overriding condition may apply when some incident changes the procedure for incurring family expenses. For example, a husband or wife becomes ill or incapacitated. In this case, the clause in the marriage contract that states the right to share in income equally is canceled. A healthy spouse undertakes to support the family until the other half recovers completely.

The contract divides not only expenses, but also income. These include both cash and other benefits (pedigreed puppies, fruits and vegetables grown in the country). In addition to salaries, a husband and wife can share dividends from deposits, profits from renting out housing, selling an apartment, etc.

Particularly scrupulous spouses may include some special circumstances as a condition precedent. For example, according to the marriage contract, a husband and wife are required to contribute 50% of their personal income to the family piggy bank. In the event of pregnancy and the birth of a baby, the wife ceases to contribute personal funds to the family budget, and the husband undertakes to pay all expenses until the child reaches 3 years of age and, in addition to them, allocate 20% to the wife for personal needs. As soon as the baby turns 3 years old, this condition is automatically canceled.

What conditions cannot be included

Unlike American prenuptial agreements, in the CIS countries they relate only to property relations, and non-property rights and obligations are not considered. In particular, the contract does not cover the following:

personal rights (prohibition of adultery, alcohol consumption). To regulate these relationships, family law provides for the conclusion of other agreements (voluntary alimony agreement, agreement to determine the child’s place of residence with one parent, etc.).
personal freedoms (prohibition on movement around the country, the opportunity to study or work). The contract should not contain clauses that clearly limit the rights of one of the spouses or create extremely unfavorable conditions for him.
principles of raising children;
will and inheritance;
infringement of the rights of disabled spouses;
distribution of non-property responsibilities in marriage (who takes out the garbage, how many times a week to clean the apartment);
disclosure of family secrets;
affecting business reputation;
prohibition on one of the spouses protecting their rights and interests in court. Any civil law contract (which includes a marriage contract), which is drawn up with obvious violations or in some way infringes on the rights of one of the parties, can be appealed to a judicial authority.
depriving a spouse in need of financial support and a disabled spouse from receiving alimony payments from his more financially prosperous husband or wife.

Read: Duration of a marriage contract: entry into force, duration, types of duration, moment of termination, limitation period

If the rules for drawing up a marriage contract are not followed or the rights of one of the spouses are violated, it is declared invalid.

Not every condition can be included in a marriage contract, otherwise it would be difficult to limit this document to any scope.

It is also not allowed to include other conditions in the marriage contract that could put one of the spouses in a position that is clearly unfavorable and unfavorable for him. It is also unacceptable to include in the contract those conditions that would contradict the basic provisions of Russian family legislation.

Information about the subject of the contract

This section should reflect, in accordance with Art. 40 of the RF IC, only clauses relating to the property rights and obligations of spouses. It can be:

regulation of income/expenses;
division of real and movable property;
bank funds (loans, assets in accounts, securities).

In this case, it is advisable to clarify what kind of property it will be - acquired before marriage or jointly acquired.

Read more about the subject and subjects of a marriage contract in a separate article.

Contract form

The document must be drawn up only in writing in triplicate and must be certified by a public or private notary or other authorized person.

Also, each copy is signed by both spouses and a notary employee and distributed one at a time among all the participants who signed it.

Read more about the form of a marriage contract here.

Content

The content of the marriage contract should disclose in more detail the subject of the contract: relate to the established regime of property of the spouses, determine the participation of each of them in income and expenses, relate to the division of property and other property relations.

However, its content should not:

introduce restrictions on the legal capacity of both subjects, go to court to defend their legal rights and interests;
concern non-property relations;
regulate the rights and obligations of spouses in relation to children;
provide for clauses restricting a disabled spouse in need from receiving maintenance;
include other conditions that contradict existing family law and put one of the spouses in an unfavorable position.

These clauses may have any time restrictions, and may also be dependent on the occurrence of any specific conditions. According to the theory of concluding civil contracts, there are suspensive and dispensable conditions.

Possibility of limiting the rights and obligations of spouses

The rights and obligations of the official husband and wife (or future spouses) specified in the marriage contract can be limited:

within a certain time frame,
or the occurrence of any circumstances.

For example, there is a marriage contract; upon marriage, the spouses’ existing apartment belongs to them in equal shares, and upon the birth of a child (children), the wife will be entitled to two-thirds of it, while the husband will receive only one-third. Or, during the first three years of marriage, the residential house belongs only to the husband, and after this period, the wife can also claim half of it.

Above we indicated the conditions that can be included in a marriage contract, and those that should not be contained in it. The list of both is not limited and can be expanded at the request of the parties.

Main requirements:

the contract should only discuss the property relations of the spouses,
the items included in it must not significantly violate the rights and interests of any of the spouses,
the provisions of the contract must not directly contradict the rules enshrined in family law.

Failure to comply with these conditions entails the recognition of the marriage contract concluded between the spouses as invalid.

Duration of the marriage contract

The duration of the marriage contract may be specified in the contract itself. A prenuptial agreement can be fixed-term or indefinite.

An agreement concluded for five years may terminate upon expiration of the specified period.

However, if neither party expresses a desire to terminate the marriage contract, it will be valid indefinitely.

Art. 43 of the RF IC indicates that the marriage contract is terminated automatically upon receipt of a divorce certificate. But even at the time of conclusion, it is possible to stipulate which obligations will continue to apply even in the event of divorce. This could be alimony payments to a disabled ex-spouse, monthly maintenance to a capable spouse who finds himself in a difficult economic situation, etc.

Under what conditions is a marriage contract terminated?

According to Article 43 of the RF IC, the marriage contract ends upon the termination of the marriage. Of course, the points regarding the division of property and obligations to support each other and children are carried out in accordance with the terms of the agreement.

However, you can set the duration of the contract yourself. If you decide that it will be urgent, you must include a corresponding paragraph in the text of the document. The term can be set either as a date or period, or as a specific event upon the occurrence of which the agreement will terminate.

Is it possible to terminate a marriage contract?

Issues of dissolution of a marriage contract are also discussed in Art. 43 of the Family Code of the Russian Federation. The law allows you to terminate the contract at any time, but this must be an agreed decision. It will not be possible to terminate the agreement unilaterally, but if one of the spouses goes to court, such a decision can be made on the basis of the norms of the Civil Code of the Russian Federation (Articles 450-451).

The reasons for termination are usually significant violations of the terms of the contract by one of the parties, which entail serious damage for the other party, including moral damage.

Find out more about terminating a marriage contract.

Procedure for making changes and termination

A marriage contract, like any other civil law transaction, can only be terminated bilaterally. If one of the spouses insists on terminating the contract, and the other is against it, the issue is resolved through the court. According to Art. Art. 450-451 of the Civil Code of the Russian Federation , the reason for judicial termination of a marriage contract is a gross violation of its terms.

For example, a husband, being in joint ownership with his wife, gives one of the apartments to another person without informing his wife. Accordingly, he concealed income that was common, violating the rules of the contract. The court issues a ruling compensating for the material losses of the other half.

The marriage contract can also be amended either voluntarily or by court decision. In the first case, the spouses contact a notary, who enters an additional agreement.

If only one spouse wants to make changes, he has the right to file a corresponding application with the court. There the reasons for possible changes will be considered, whether they are sufficient grounds for making changes.

Useful video: possible options and conditions

Thus, a marriage contract can only regulate the property relations of a married couple, such as the distribution of income and expenses, the establishment of a property regime, the procedure for mutual maintenance, etc. In addition, the contract can be amended or terminated, but only by mutual agreement of the parties, except in cases provided by law. It should be noted that the document cannot contain requirements that in one way or another violate the rights of the spouses or put them in an extremely unfavorable position.