The marriage contract
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the Comment of experts
the First mention of the contract governing the property relations of spouses was published in the new Civil code which came into force on January 1, 1995. Up to this point the domestic legislation recognized everything, acquired by spouses in marriage (except for the personal belongings which are not luxury goods), their joint property. In practice such state of affairs led to the following. In - the first, at divorce all things acquired during marriage had to share equally. Even the contribution in Sberbank made addressed to one of spouses was halved. In - the second, in case of death of one of spouses sometimes there were problems when determining property which is subject to transfer by inheritance: what is a half of things, everyone understands in own way. Very important reservation was published in article 256 of the new Civil Code: the property acquired by spouses during marriage is their joint property if the contract between them did not set other mode of this property. This phrase actually means that spouses have the right to make the contract defining what things belong to each of them and is not obligatory at all that the cost of shares of spouses was equal. In more detail questions of the conclusion and contents of the marriage contract are regulated by the Family code which came into force on March 1, 1996. The marriage contract can be signed during marriage at any time, and also before the state registration of marriage (in this case it will come into force only from the date of the state registration of marriage). The contract has to be signed to a written form and is certified by the notary. The marriage contract can be changed or terminated under the agreement of spouses at any time. The agreement on change or on cancellation of the marriage contract is made in the same form, as the marriage contract.
That can be written down in the marriage contracthas the right to establish
by the Marriage contract of the spouse that their property is joint property (in the absence of the contract the property of spouses also admits joint), share or separate. Any of these decisions can be accepted concerning all property or its separate types. Besides, it is possible to divide thus not only already available things, but also those that will appear in the future. Recognizing property as joint property, spouses thereby establish that they dispose of things together (at the same time during transaction by one of spouses the consent of the second is supposed, the exception is made by only notarially certified transactions - notarially certified consent of the second spouse is necessary here). Establishment of share property on property gives the following opportunities: fruits, production and income from use of the property which is in share property come to structure of the general property and are distributed in proportion to shares; in proportion to shares also expenses on the maintenance of property are made; the spouse will have the privilege of purchase of the share sold to the stranger; the participant of share property has the right to demand an apportionment of the share from the general property or payment of the cost of its share to it. The separate property on this or that property grants to his owner the right to dispose of it at discretion, without asking the spouse`s consent at commission of any transactions. If you acquired shares (as it is known, actions can be only nominal) on the name, you should not consider what to you is permitted to dispose of them without opinion of the half: if in the marriage contract the separate property on the acquired nominal securities is not established, then, according to the law, they will be considered as joint property of spouses. Except the questions concerning the mode of property of spouses in the marriage contract it is possible to define the rights and obligations for mutual contents, ways of participation in the income of each other, an order of execution by each of spouses of family expenses; to define property which will be transferred to each of spouses in case of divorce. At the same time any provisions of the contract can be limited to certain terms or be put into dependence on approach or on not approach of certain conditions. For example, the contract can provide that all property of spouses is their joint property, and in case of divorce - shares in certain shares. Or what within several years all income on the securities which are available in property of spouses goes into the disposal of one of them.should not be
of What in the marriage contract
the Law forbids to limit to the marriage contract legal capacity or capacity of spouses. It is impossible to write down, for example, in the contract that the wife has no right to work, either to accept inheritance, or to compose verses, or to go shopping, or to establish the enterprises. It is impossible to refuse in the contract the right for an appeal to the court behind protection of the violated rights. By the family code it is established that the contract cannot govern the personal non-property relations between spouses, that is the relations deprived of material contents: the choice of a surname at marriage registration; choice of the residence; the right to resolve in common all issues of life of a family; the right to dissolve a marriage. The law traditionally governs the similar relations in the most general way, being limited to ascertaining of equality of spouses in personal legal relationship. The marriage contract does not may contain the provisions concerning the rights and duties of spouses concerning children including definition with which of parents there are children in case of divorce. The contract does not may contain the provisions limiting the right of the disabled needing spouse for obtaining contents - all these questions are in details regulated by the law.
Invalidity of the marriage contract
Exists several bases for recognition of the marriage contract invalid. In - the first, as a result of recognition invalid marriage. At the same time provisions of the Civil code about share property are applied to the property acquired in common by persons whose marriage is nullified. However court of in common acquired property having the right at the section, considering interests of the conscientious spouse, to recognize it not as share, but joint property, in - the second, the contract can be nullified in whole or in part if it contains conditions which put one of spouses in extremely adverse position go contradict the main beginnings of the family legislation. And, in - the third, on the bases provided by the Civil code: not compliance of the contract to the law; when the purpose of the conclusion of the contract contradicts bases of a law and order and morality; if he is imprisoned only for the sake of appearances or with the purpose to cover other transaction (for example to register); if one of spouses is recognized as incapacitated or is limited by court in capacity; or if at the conclusion of the contract one of spouses was not capable to understand value of the actions or was mistaken - signed the contract under the influence of deception, violence, threat or confluence of difficult circumstances.
Signing the marriage contract, it is necessary to consider an order of the address of collecting on property of spouses. By the family code it is established that collecting according to obligations of one of spouses can be turned only on property of this spouse, and at sufficiency of this property the creditor can demand an apportionment of a share of the spouse - the debtor for the address of collecting on it. On the general property of spouses collecting addresses according to their general obligations, and also according to obligations onego from spouses if by court it is established that everything, received according to obligations by one of spouses, was used for needs of a family. If by a sentence of court it is established that the general property of spouses was it is acquired or increased at the expense of the means received by one of spouses in the criminal way, collecting can be is turned respectively on the general property of spouses or on its part. Besides, signing or changing the marriage contract, the spouse is obliged to notify on it the creditor. Otherwise the spouse will answer for the obligations irrespective of contents of the marriage contract.