The procedure for concluding a marriage contract before and after marriage

In what cases is it worth preparing a contract?

A marriage contract is understood as a document that includes provisions regarding the property rights of spouses both during family life and upon divorce. It is important to understand that such a transaction is recognized as bilateral. Accordingly, the inclusion of any clauses in the contract requires the consent of both the husband and wife.

The need to prepare a prenuptial agreement usually lies in the desire of the spouses to determine in advance the procedure for dividing property in the event of a divorce. If, in the absence of such a document, the procedure involves division in equal parts, then if there is a contract, the court will be guided precisely by its content. The agreement in this case has clear priority.

It is worth concluding a marriage contract in the following cases:

Buying a home in a house under construction . For example, the future spouse invests money in the construction of his own apartment, but there are still 2 years until the end of the process. At the same time, the marriage ceremony with the future wife should take place in six months. Accordingly, upon completion of construction and actual entry into ownership, the apartment will already be considered the common property of the spouses. To prevent the home from being divided in the event of a divorce, it is worth concluding a marriage contract, indicating that the property was purchased with the husband’s personal money and belongs only to him.
Receiving real estate as a wedding gift . Let's say the parents of the spouses invested money in purchasing a cottage for the newlyweds. But on the part of the bride, 3 million rubles were invested, and on the part of the groom, 6 million. In case of dissolution of the union, according to the law, the object will be divided in equal parts. However, when concluding a marriage contract, you can add a clause to its contents indicating that 1/3 of the house belongs to the wife, and 2/3 to the husband. In this case, the object will be distributed between the man and the woman in the designated shares.
Business activity registered before marriage . For example, a man entering into marriage owns a certain enterprise or firm. The future wife does not work yet, but is undergoing training. After registering the relationship, the husband’s business begins to generate income, while the wife does not yet invest that much into the overall budget. In the future, the family plans to buy housing and a car. In order for the court to fairly divide the property in the event of a divorce, the spouses enter into a contract indicating that the car belongs to the wife and the real estate to the husband. Other property is recognized as common and, if necessary, divided equally.
Separate budget . If, with a separate budget, marriage partners actively acquire all kinds of valuables, then the marriage contract states that each spouse is considered the sole owner of those property objects that are registered in his name.
Acquisition of property with personal funds . Generally, property acquired during marriage is considered community property. But if you add a clause to the marriage contract that a specific object belongs to the wife or husband, the court will recognize the property as personal property.
Property is difficult to divide in reality . This is possible when spouses purchase a one-room apartment. If there is no other property, it is easier to include a clause in the contract on the procedure for dividing the property in the event of a divorce. For example, it can be stated that the wife becomes the owner, but at the same time she undertakes to pay her ex-husband 2.5 million rubles as compensation.

Of course, there can be many more options and situations. It all depends on the specific case, income level, possessions acquired before marriage and other points.

Prenuptial agreement: pros and cons

For many couples, especially during periods of passionate love, it seems that concluding a marriage contract is something prosaic, belittling their feelings, and, therefore, bringing divorce closer. However, in fact, a prenuptial agreement even strengthens feelings. After all, it is often property disputes that become a stumbling block for spouses, and if everything is determined in advance, there is no need to quarrel.

Actually, the fear of the term “nuptial agreement” is one of its few disadvantages. The second disadvantage is that the document, of course, will not be able to keep the spouse from infidelity. Everything else is rather a plus. Let's try to figure out what and how can be settled with the help of a marriage contract.

A prenuptial agreement or marriage contract, as most citizens are accustomed to calling it, is an agreement between persons planning to get married or an agreement between spouses. A prenuptial agreement is aimed at defining the property rights and obligations of each spouse, both during marriage and after its dissolution. The rules and procedure for concluding a marriage contract are regulated by articles of the Family Code of the Russian Federation (Chapter 8). Since a marriage contract is a bilateral transaction, the completion of which requires the expression of the will of both parties, the rules of Chapter 9 of the Civil Code of the Russian Federation (“Transactions”) apply to it.

A prenuptial agreement can be drawn up both before marriage and during the entire time that the persons are married. If the marriage contract is concluded before the marriage is registered, it acquires legal force at the time of state registration of the marriage. If the decision to conclude a marriage contract is made by spouses who are already married, then the moment of concluding such a contract is recognized as the moment of its certification by a notary.

A marriage contract is drawn up in writing; the text of the document must contain all the essential conditions on which the spouses have come to an agreement. Certification of the marriage contract by a notary is mandatory. If necessary, a notary will not only certify the marriage contract, but also help draw up its draft. Before certifying a marriage contract, the notary is obliged to explain to the spouses their rights and obligations, the meaning and meaning of the contract they are entering into, and warn them about the legal consequences of its conclusion.

Since a marriage contract regulates property relations between spouses, therefore, the subject of the contract is property, both joint and of each spouse. This means that you can indicate that, for example, at your dacha you will be able to live in turns in the event of a divorce, the wife will take all the household appliances, and the husband will get the garage. By mutual agreement, when concluding a marriage contract, spouses can change the regime of joint ownership established by the Family Code. They have the right to establish a regime of separate and shared property relating to all property, certain types and property belonging to each of the spouses. The law allows spouses to include in the marriage contract any conditions relating to their property relations, including: - the procedure and methods for incurring family expenses; - the procedure for providing financial support to each other (both during marriage and after its dissolution); — determination of the property transferred to each of the spouses upon divorce; — other conditions that do not contradict the provisions of the Family Code of the Russian Federation and other legislative acts.

A prenuptial agreement can be concluded both in relation to property currently available and in relation to property acquired in the future.
Spouses have the right to limit their rights and obligations to a period specified in the marriage contract, or to make the emergence and termination of property rights and obligations dependent on certain conditions. When concluding a marriage contract, it should be taken into account that the following conditions cannot be included in it: - restriction of the legal capacity of any of the spouses (prohibition on going to court to protect their rights and interests, on conducting business activities, on inheritance, on drawing up a will, to receive income); — conditions for regulating personal relations between spouses. That is, it is impossible to write that a wife should not speak in a special tone, and a husband should not look askance at his wife; — determination of the personal rights and responsibilities of spouses in relation to their children; — restriction of the rights of a disabled spouse in need of maintenance; - other conditions that put one of the spouses in an unfavorable position and contradict the norms of family law. In order to change or terminate a marriage contract, an agreement between the spouses on this issue is required. The agreement is drawn up in the same form as the marriage contract itself. Amendments to the contract or its termination are possible at any time by mutual consent of the spouses. The law does not allow only one of the spouses to refuse to fulfill the contract. In accordance with the rules established by the Civil Code of the Russian Federation for amending and terminating contracts (Chapter 29), a marriage contract can be terminated in court at the request of one of the spouses. The marriage contract terminates from the moment of divorce. If the contract provided for the obligations of the spouses after the divorce, such obligations remain in force after the dissolution of the marriage. This is an agreement of persons entering into marriage, or an agreement of spouses, defining the property rights and obligations of spouses in marriage and (or) in the event of its dissolution. The marriage contract is concluded in writing and is subject to notarization. union of a man and a woman registered with the civil registry office. Unregistered de facto marital relations (civil marriage) do not give rise to legal consequences - that is, the rights and obligations of spouses in accordance with the Family Code of the Russian Federation, just like a marriage concluded according to a religious rite. Registration is carried out only in the personal presence of those entering into marriage; representation in this case is not allowed. conditions on the subject of the contract, conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which At the request of one of the parties, an agreement must be reached. An official authorized by the state has the right to perform notarial acts on behalf of the Russian Federation in the interests of Russian citizens and organizations (legal entities). An agreement between two or more persons on the establishment, modification or termination of civil rights and obligations.

Features of the contract

The opportunity to prepare a marriage agreement is available to both persons who are just intending to register a union, and citizens who are already married (Article 41 of the RF IC). In the latter case, the document begins to be valid from the moment of signing. For future spouses, the contract becomes valid from the date of registration of the union.

If the wedding is cancelled, the contract does not come into force. From which it also follows that persons living in a civil marriage cannot enter into such an agreement.

You can prepare a document in the following ways:

independently based on the samples that can be found below in this article;
with the help of a lawyer (the preferred option, because ignorance of legal nuances can result in a number of difficulties when using the contract in the future);
use the services of a notary.

True, one way or another you will need to contact a notary, because the contract must be subject to notarization. Otherwise, the agreement will not receive legal force.

Who can conclude?

Capable citizens who have reached the age of majority have the right to draw up a contract . It can be concluded before marriage, but in this case it will come into force only after the official registration of the relationship (Article 41 of the RF IC), until this time it has no legal force.

Traditionally, the age of marriage is considered to be 18 years, but in some cases the threshold can be lowered to 16 years. If there are certain reasons, registration in the registry office is allowed up to 16 years of age, if this is allowed by regional legislation.

What conditions can be included in the agreement?

The form of the contract does not have any specific standard. The main thing is that the document must be prepared in writing. But as for what conditions can be included in a marriage contract, it all depends on the specific situation and interests of the parties.

Usually the contract stipulates the following points (if necessary):

Property regime. Spouses have the right to establish a joint, shared or separate mode of ownership of property. Moreover, it is possible to include in the list both all property, without exception, and its individual types belonging to each spouse. It is also important to describe which objects cannot be divided in principle, and who exactly is considered their sole owner. For example, these could be cash deposits, gifts, real estate, cars, in a word, any property.
Sizes of shares. The parts belonging to each party are specifically and clearly identified. It is these shares that will be transferred to the spouses in the event of their divorce. It is not forbidden to indicate specifically by name what is due and to whom. For example, a car for a husband, an apartment for a wife. In addition, it is worth clarifying whether premarital property will be subject to division if the other party invested money in it, due to which the value of the property has increased significantly.
Responsibilities for mutual maintenance. In particular, will the disabled marriage partner or the one with whom the children remain receive monthly financial support from the other party.
The procedure for incurring family expenses by husband and wife. For example, in proportion to the size of shares in joint property.
Housing rights. Here it is worth explaining the procedure for vacating housing if the apartment belongs entirely to the second spouse. For example, the non-owner agrees to leave the premises within 30 days of the divorce. And not just move out of your home, but also de-register.
Participation in the fulfillment of monetary obligations. This paragraph specifies whether the second spouse will participate in the payment of loans issued for the second half. And can a creditor seize property belonging, for example, to an ex-wife, to pay off her husband’s debts?
Conditions for terminating the contract and the procedure for its termination. In particular, that the contract can be terminated only with the consent of the spouses who signed it.

The document is certified by the signatures of the husband and wife, as well as a notary officer. Compiled in 3 samples. One for spouses and one copy for storage at the notary office.

Download a sample marriage contract for married citizens

Download a sample marriage contract for persons getting married

Download a sample marriage contract with separate property of the spouses

Restrictions

The provisions of the marriage contract must concern exclusively property, general or personal. It is allowed to include conditions regarding objects that are only intended to be purchased. But it is absolutely unacceptable to include clauses in the contract that affect the interests of third parties or limit the legal capacity of the husband and wife themselves.

For example, it will not be possible to include terms in the agreement in the following areas:

accommodation of children after divorce;
transfer of property to third parties after a divorce procedure (for example, it cannot be indicated that part of the property will go to the mother-in-law);
personal relationships between husband and wife (for example, the frequency of marital duties in sexual terms);
ban on registering a new marriage;
compensation in case of betrayal.

If prohibited conditions were recorded in the agreement, then they will be considered invalid. Moreover, the rest of the agreement will continue to be in force.

The court may annul the contract if its terms put one of the spouses at a disadvantage. For example, if, according to the contents of the document, one party receives everything, and the second is left with nothing.

Mortgage contract

When applying for a mortgage, many banks recommend that spouses enter into prenuptial agreements - this allows them to correctly distribute debt obligations and rights to real estate in the future.

What issues should be covered in the agreement?:

Who is the main borrower?
Is the second spouse a co-borrower?
How ownership is registered: if in common, then the shares are indicated; in case of separate, the amount of compensation in case of divorce is indicated.
Who will make the down payment, repay the interest and the loan body.
What family income will be spent on paying off the mortgage.
The procedure for dividing debt upon divorce.

It is also important to provide for the liability of the parties for non-compliance with the terms of the contract.

What documents may be required

As for what documents are needed when concluding an agreement, it all depends on what kind of property we are talking about. The parties will need to confirm ownership of the objects included in the agreement.

The general list of papers consists of the following items:

passports of spouses;
marriage certificate, if the agreement is drawn up after the registration of the relationship;
title papers for property - extract from the Unified State Register of Real Estate, technical documentation, purchase and payment receipts.

After checking the documents, the notary certifies the contract with his own signature and seal. The fixed fee for certifying a marriage agreement is 500 rubles.

It is recommended to draw up a marriage contract with the help of a qualified specialist, because the subtleties of property issues may not be clear to the average citizen. But it is not forbidden to prepare a contract yourself, using templates, of which there are quite a lot on the Internet. The main thing to remember is that a marriage agreement is a very individual document. And its content directly depends on the property and financial legal relations between specific spouses.

When can this be done?

As mentioned earlier, a contract can be drawn up before and after the wedding. It acquires legal force depending on the situation :

If the document is drawn up before the relationship is registered - from the moment the couple visits the registry office.
If the registration was made during marriage, from the date of certification by a notary.

An agreement drawn up before marriage becomes valid only after receiving a stamp in the passport. Until this time, it is equivalent to an ordinary piece of paper.