Joint property and personal money of spouses

What is included in the joint property of spouses

In accordance with Art. 256 of the Civil Code of the Russian Federation, joint property of spouses as a general rule means property acquired by spouses during marriage. A marriage contract between spouses may establish a different regime for this property.

Family Code of the Russian Federation in Art. 34 reveals what is included in property acquired during marriage:

1. income of each spouse from work;
2. income of each spouse from entrepreneurial activity;
3. income of each spouse from the results of intellectual activity;
4. pensions, benefits, and other monetary payments received by spouses. Exception: payments that have a special purpose (amounts of financial assistance, amounts paid in compensation for damage in connection with loss of ability to work due to injury or other damage to health, and others);
5. movable and immovable things, securities, shares, deposits, shares in capital acquired at the expense of the common income of the spouses, contributed to credit institutions or other commercial organizations;
6. any other property acquired by the spouses during the marriage, regardless of the name of which spouse it was acquired or in the name of which or which of the spouses contributed funds. This includes jewelry and other luxury items;
7. real estate acquired during marriage by one of the spouses on the basis of a lifelong maintenance agreement (since all expenses under a lifelong maintenance agreement are made from the common income of the spouses).

Also, unless otherwise established by the marriage contract, the property of each of the spouses may be recognized by the court as their joint property if it is established that during the marriage, investments were made from the common property of the spouses or the personal property of the other spouse that significantly increased the value of this property (capital repair, reconstruction, re-equipment, etc.).

Important: The right to the common property of the spouses also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income (clause 3 of Article 34 of the RF IC).

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In contrast to shared property, joint property can be formed only in cases provided for by law: in the Civil Code of the Russian Federation, it is the joint property of spouses and the joint property of members of a peasant (farm) household. In this case, its transfer to a different legal regime is allowed.

In accordance with Art. 253 of the Civil Code, joint owners own and use property jointly, unless otherwise provided by an agreement between them. The disposal of common property is carried out by mutual consent of all. Transactions regarding the disposal of common property can be carried out by each of the participants, unless otherwise provided by the agreement. The consent of the remaining co-owners to complete the transaction is assumed.

In the case of disposal of common property without the necessary authority, the transaction may be declared invalid by the court at the request of other co-owners, if it is proven that the third party had intent or gross negligence when concluding a transaction with a person who does not have the necessary authority.

According to Art. 254 of the Civil Code, the grounds and procedure for the division of joint property and separation from it are determined by the same rules as for shared ownership, unless otherwise established by law or follows from the essence of the relationship. Before the division, a preliminary determination of everyone's share of the right is mandatory.

The procedure for foreclosure on a share in common property is determined by Art. 255 Civil Code. The creditor of a participant in shared or joint ownership, if the owner of other property is insufficient, has the right to make a demand for the allocation of the debtor's share in the common property for foreclosure on it.

If in such cases the allocation of a share in kind is impossible or the remaining participants in shared or joint ownership object to this, the creditor has the right to demand that the debtor sell his share to the remaining participants in the common property at a price commensurate with the market value of this share, with the proceeds from the sale being used to repay the debt.

If the remaining participants in the common property refuse to acquire the debtor's share, the creditor has the right to demand in court the foreclosure of the debtor's share in the common property right by selling this share at public auction.

Features of the regime of common property of spouses are defined in Art. 256 GK

• in marriage: joint ownership of property acquired jointly by spouses during marriage, unless a different regime is established by the marriage contract, for example, shared ownership, or even individual property of each.
• before marriage: individual ownership of property owned by each spouse;

Individual ownership of the property of one of the spouses may be classified as their common joint property if its value has significantly increased due to the personal property of the other spouse or the common property of the spouses, unless otherwise provided by the agreement.

The procedure for foreclosure on the obligations of one of the spouses:

• foreclosure is applied to the individual property of the spouse:
• the penalty is applied to his share in the common property of the spouses.

The procedure for foreclosure on obligations to which both spouses are parties:

• foreclosure is applied to the individual property of each spouse;
• foreclosure is applied to their common property.

Property acquired during a de facto marriage without registering a marriage is subject to the regime of separate or shared ownership.

The common property of members of a peasant (farm) enterprise (peasant farm) is determined by the legislator in Art. 257 Civil Code.

The property of a peasant farm belongs to its members on the right of joint ownership, unless otherwise established by law or an agreement between them. Peasant farm members own and use property by mutual agreement. Transactions regarding the disposal of property are carried out by the head of the peasant farm or another authorized representative.

According to Art. 258 of the Civil Code, when a peasant farm is divided into two or more peasant farms, the division of property is carried out on a general basis. When allocating the share of one of the members of a peasant farm, the land plot and means of production are not subject to division. The person who leaves has the right to monetary compensation commensurate with his share. The procedure for dividing and paying compensation is established by the consent of all members of the peasant farm, and in its absence, by the court. The period for payment of compensation is no more than 5 years.

When a peasant farm ceases to operate, its property is divided on a general basis.

What is not joint property of spouses

Property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift or by inheritance, is his property, that is, it is not included in the joint property of the spouses (clause 2 of Article 256)

The joint property of spouses also does not include personal items (clothing, shoes, etc.). Even if such things were acquired during the marriage at the expense of the spouses’ common funds, they are still recognized as the property of the spouse who used them. The exception is jewelry and other luxury items.

Also, despite the fact that the income of each spouse from the results of intellectual activity is recognized as the joint property of the spouses, the exclusive right to the result of such activity created by one of the spouses belongs to its author, unless otherwise provided by the agreement between them (Clause 3 of Article 36 of the Family Code RF).

As stated above, monetary payments that have a designated purpose are also not the joint property of the spouses.

Joint property and personal money of spouses

A well-known old problem of the joint property regime: if the personal money of one of the spouses was spent by him on the acquisition of an item, will it become joint property?

The answer to this question was given by the Supreme Court in the resolution of the plenum No. 15 of 1998 (paragraph 15): no, it will not.

Consequently, as conceived by the Supreme Court, the source of financing for the purchase determines the legal regime of ownership of the thing (hereinafter I will call this approach the theory of transformation).

I'm not sure this complies with Art. 34 and the Family Code, because from paragraph 1 of Art. 36 it follows that the regime of joint ownership does not apply only to “things received by inheritance or as a gift during marriage.” Thus, the law proceeds from the fact that already “at the second step” the individual property of the spouse can no longer exist. This is reasonable, because Art. 34 states that “everything acquired during marriage is joint property.”

The transformation theory proposed in PP 15 creates a big problem: the spouses themselves, and all third parties, must take into account the source of the spouses’ acquisition of property. For example, a husband and wife purchase a car using money given to each of them. The implementation of the transformation concept will mean that the car will be in the common shared ownership of the spouses. The poor potential future buyer of this car, who must rack his brain, how to understand the ownership regime for the car and correctly conclude a purchase and sale agreement!

A more complicated situation: the spouse inherited an item, sold it, and purchased another item with the proceeds.

From the point of view of the insurance company, this will be the joint property of the spouses, since the property was acquired during marriage, and under the exception provided for in Art. 36 it does not qualify. Consequently, the regime of ownership of such a thing as joint property is quite simple and obvious.

But from the point of view of the theory of transformation, this thing will be the individual property of the spouse, and not joint property.

In a recent case, the civil panel of the Supreme Court confirms this conclusion. Moreover, the additional piquancy of the case is that it concerns real estate. The husband inherited an apartment, sold it, bought another apartment with the proceeds, and the apartment was bought in the name of his wife, and she is registered in the real estate register as the owner. Then a divorce happened and the husband went to court with a claim against his ex-wife to recognize his husband’s apartment as individual property. The courts refuse, recognizing it as joint property, but the Civil Collegium of the Supreme Court overturns it and recognizes it as the individual property of the husband.

Thus, the theory of transformation means that even at the “third step” the individual property of the spouse is preserved.

In my opinion, this case was resolved incorrectly, because the norms of the UK do not recognize the theory of transformation at all, and prolonging the transformation so far is a very dangerous decision (primarily for third parties).

Let us now imagine the purchase of such an apartment: taking into account the practice of the same civil college, which believes that a bona fide purchaser is “the one who looks at everything, everything, everything,” before the transaction it is necessary to find out with what money the seller purchased the apartment. After all, if the source of the purchase was money received from the sale of the husband’s personal property, then the alienation regime is not subject to application, the agreement must be concluded only with the husband (who is not listed in the register as the owner!), and the wife’s consent to such a transaction is not necessary. Any lawyer who will accompany such a transaction will simply grab his head! And the transformation theory created by the Armed Forces from scratch will be to blame for this!

In addition, in this case, it is noteworthy that the apartment was registered specifically in the name of the wife. Doesn’t this mean that even if the theory of transformation is correct, the husband himself refused to consider this apartment as personal property, agreeing that his wife should be listed as the buyer and owner in the register. Why this happened is a separate interesting question. Perhaps the husband wanted to show generosity to his wife. Perhaps the husband hid this apartment from creditors. Perhaps he is an official and wanted to avoid declaring the apartment, we don’t know. But it would be correct to find out this and evaluate the motives for such an act.

And finally, one more subtle remark that Oleg Zaitsev made when discussing this case - after all, recently the same citizen. The Supreme Court panel considered a case in which it refused to consider an apartment acquired jointly by persons who were not in a registered marriage as common property. The meaning of the approach is this: which of the cohabitants the property is registered with is the owner; the source of financing for the purchase of the apartment does not matter. This is also wrong, but now - in the light of the new transformation case - and even now it is inconsistent: since it matters who is registered in the register, then in this case it was necessary to discuss the significance of the fact that the purchased apartment was registered in the name of the wife.

To justify the citizen. The collegium could probably say the following: it is quite possible that the judges who participated in the consideration of this case sincerely do not like the joint property of the spouses, consider it an evil, and believe it is necessary to fight it.

I completely agree with this - I also believe that joint property of spouses does not correspond to the social realities of modern Russia and should be abandoned as soon as possible. But this must be done differently: by changing the norms of laws, and not by undermining joint property with ambiguous and non-obvious definitions of trios of judges of the Supreme Court.

Because the issue price for the entire real estate turnover may be too high.

Matrimonial Property Regimes

The legal regime of the property of spouses is a special procedure for the exercise of the powers of spouses to own, use and dispose of common property. There are 2 modes:

1. Treaty;
2. Law.

The contractual regime is used only if there is a marriage contract between spouses. A prenuptial agreement can be concluded both before and during marriage. A marriage contract establishes the rights of the spouses in relation to all property or its individual parts.

The contractual regime may contain completely different provisions that cannot be reduced to uniform rules, so the provisions of each marriage contract should be considered separately. However, it is worth remembering that in Russian law, only property relations between spouses can be regulated by a marriage contract.

It is also important to note that if a marriage contract puts one of the parties in an extremely unfavorable position, then such a contract may be declared invalid by the court.

As for the legal regime of the property of spouses, here it is worth referring to the provisions of regulatory legal acts.

One of the most important features of joint property of spouses is that spouses own, use and dispose of common property by their mutual consent. It is presumed that all transactions made by one of the spouses in relation to common property have been given the consent of the other spouse. This presumption has a significant impact on the grounds and conditions for recognizing transactions for the disposal of joint property as invalid.

And if it is proven that the consent of the other spouse was not given, and the party to the transaction knew or should have known about such disagreement, then the transaction will be declared invalid by the court.

Interesting: In some cases, the consent of the spouse must be notarized. Clause 3 art. 35 of the RF IC: “In order for one of the spouses to enter into a transaction to dispose of property, the rights to which are subject to state registration, a transaction for which a mandatory notarial form is established by law, or a transaction subject to mandatory state registration, it is necessary to obtain the notarized consent of the other spouse).” In this case, the spouse, whose notarized consent was not obtained, has the right to demand that the transaction be declared invalid within a year.

Joint property between spouses contains many subtleties that must be taken into account. If you need help in clarifying aspects relating to the property rights of spouses, write to the specialists of GFLO Consultancy , we will be happy to help you solve any problem and advise on any issue.