In judicial practice, there are more and more cases of division of property in a civil marriage. It's no secret that couples seek to avoid formalizing relationships, so that later they do not have difficulties with the papers. Many simply do not want to make any commitments.
The Importance of Legal Marriage
It is in government. From the moment of making an entry in the acts of registration of acts of civil status, a man and a woman become husband and wife. And from that day on, all property that they acquire becomes common, except as otherwise provided by law (Family Code).
Allocated property, which is personal, and the moment from which the acquisition is no longer considered common. Everything is regulated quite clearly.
Civil marriage
Almost two centuries ago, the concept of “civil marriage” was introduced in France, concluded by people without the participation of the church. In Russia, a similar rule was introduced more than 100 years ago. Today, such marriages are especially popular.
People continue to live in an officially unregistered marriage, saving money, property, making common investments. The absence of a legal marriage from the point of view of the state does not give rise not only to obligations, but also to the rights that arise for spouses after the death of one of them or the termination of a relationship. The division of property in a civil marriage results in serious difficulties and the risk of losing everything.
Normative regulation
Is there a law on the division of property in a civil marriage? For persons living together without marriage, family law does not apply. Their relationship is affected solely by civil law (CC).
Civil Code involves the acquisition of property in two ways:
- creation of common property by adding up the share of each of the partners;
- acquisition of property by the person to whom it is recorded.
Unlike the spouse, the partner does not acquire rights to property received by the cohabitant.
The law on the division of property in a common-law marriage does not exist as such; according to the legislator, there is no need for it.
Exceptions for cohabitants are provided for by the inheritance law (freedom of will and right of inheritance when living together for more than 5 years in the absence of other heirs).
Clarifications of the RF Armed Forces on the division of common property apply.
Cohabitants Property
All property is automatically separate, the fact of its community should be proved in court. Husband and wife are exempted from the duty of proof.
Consider an example. In marriage, a woman often engages in everyday life; a man makes money. Everything valuable, regardless of the income of the wife, is considered common. When dividing property in a civil marriage, a woman is deprived of any rights to the property of the person who lived with her. The rule applies to real estate, deposits, other things. If real estate is clear enough, it’s much harder to deal with valuable things that are not subject to registration (furniture, jewelry, etc.).
Share ownership
Its design simplifies the process of sharing joint property in a civil marriage. The acquisition is made out by agreement drawn up with the help of a notary or a lawyer. Someone uses forms, which he then fills out. If the subject of the transaction is real estate, the transaction with shares will not do without a notary public registration. Otherwise, it will not have the force of law.
The court has the right to recognize the transaction as legal at the suit of one of the parties, but agreement with such a request is not guaranteed, therefore it is better to take measures in advance in accordance with the norms of the law.
A note on the rights of two persons is made in the cash deposit agreement. Similarly, with the purchase of a car. Lack of driving rights does not prevent the acquisition of ownership of the vehicle.
Signing an agreement is the best way to share property after a civil marriage.
The fate of property received before marriage
A prenuptial agreement is an agreement describing the common rights and obligations of spouses. It aims to resolve property issues. The law permits a different division of property in marriage than is described in the code. This also applies to pre-marriage acquisitions. Including, during the period of cohabitation. For example, the agreement may specify general rights to specific objects or extend them to property acquired before a certain date.
Conditions that are unfavorable for one of the spouses are invalid.
The agreement is subject to notarization and after the marriage.
In general, the division of jointly acquired property in a civil marriage by signing a marriage agreement is a good option.
Statutes of limitations
You can declare your rights to property no later than 3 years from the moment when it became known about the violation of their rights. According to the Civil Code, this rule applies to all joint acquisitions.
Which court is applying
Almost all claims for the division of property acquired in a civil marriage are considered by the district courts. Which court to file a lawsuit? At the location of the property. If the dispute does not affect her, then at the place of residence of the defendant.
An exception is a statement of requirements in a lawsuit giving the plaintiff the right to choose the place of proceedings (for example, to recover child support).
General compilation rules
- name of the court where the application is submitted;
- information about the plaintiff (last name, first name, patronymic, address of residence);
- information about the defendant (last name, first name, patronymic, residential address);
- a description of the circumstances of the case;
- references to regulations;
- references to evidence;
- a request for the collection of documents that the plaintiff is not able to provide: its name, body or organization of location, reasons for refusing to issue;
- a request to call witnesses (last name, first name, middle name, address of residence, the essence of information known to the witness);
- requirements to the court on recognition of the right or recovery of unjust enrichment (on the requirements below);
- list of attached documents;
- Signature and date of filing the application with the court.
The number of copies of the claim and the attached papers corresponds to the number of participants in the process.
A receipt on payment of the state duty (calculated depending on the value of the disputed property) and a copy of the representative's power of attorney are also required.
Statement of requirements
What does judicial practice say? The division of property in a civil marriage is carried out in two ways:
- recognition of rights to a share in the common property;
- recovery of money received as a result of unjustified enrichment.
One of the options is selected. They should not contradict each other.
The lawsuit on the division of property acquired in marriage is not filed by partners, the court will refuse to consider it. As stated above, their relationship is not subject to family law.
Recognition of property rights
What to build a lawsuit on? Among the circumstances described, the court must be informed that:
- when, for what amount of property was acquired;
- what is the violation of the rights of the plaintiff;
- whether the participants in the process lived together during the acquisition of the disputed property;
- the parties kept a common household, bought things for common needs;
- whether there was a fact of sharing property.
Consider an example. A man and a woman sold their apartments, and purchased the common house with the proceeds. After several years of living, they decided to leave. The man wanted to get his share back. The former partner refused him. According to the results of the trial, the court took the side of the plaintiff and recognized his right to a share in the house.
Illicit enrichment
This refers to the receipt of property without a sufficient legal basis. Actions excluded from the criminal code are excluded. The application of this principle makes sense in the absence of evidence of common property rights.
Enrichment takes place when selling property that could be recognized by the court as common. For example, in the above example, just such an option would be expected by a woman if she managed to sell a house bought with common money.
The reason for referring to unjustified enrichment is that the revenues were unofficial. Another option - the rights were drawn up on a roommate who died before he had time to make a will, and all the property passed to his heirs.
In this situation, a lawsuit is filed against his heirs. The goal is to achieve recognition that the share of property formally included in the inheritance, in fact, belongs to the civil partner.
Features of evidence
The only evidence is checks, receipts, contracts. The testimony of witnesses is not considered a full-fledged source of information when dividing property in a civil marriage. Judicial practice adheres to the described principle. The words of the witnesses serve only as an additional source of information about the general affairs of the couple.
Using personal funds during the acquisition of shared real estate is easier to prove. For example, previously one of the partners owned a land plot or housing, which he then sold and invested in a common “boiler”. Previously available certificates of ownership, agreement, serve as full evidence.
Acquisition of personal valuables with personal funds is confirmed by bank statements, contracts, which indicate the name of the buyer.
And if the second party in the framework of the trial provides receipts on receipt of funds from third parties for the acquisition of the disputed object?
A judge, on his initiative or at the request of the other party, shall be appointed an expert examination on the identification of the statute of limitations for inscriptions.
Loan repayment after marriage
In a marriage, a loan is recognized as a general obligation. When dividing the property of spouses in a civil marriage, the opposite principle applies. Although the court more often considers a loan as a personal obligation, there are some exceptions.
For example, a loan was issued before marriage, and payments on it began to be made after. Judges sometimes agree with the arguments for compensation for payments to the second party, as Payments have already been made from total revenue.
The loan is issued before marriage, and the values acquired after
A few months before the wedding, the young man issued a loan of 100 thousand rubles, which he then spent on repairs in the apartment of his future wife. At the wedding they were presented with 50 thousand rubles, which were also spent on apartment renovation.
The ex-husband filed a lawsuit. The court decided on it: the balance of loan obligations was divided into two equal parts, like a wedding present in the form of money.
Loan refinancing
In banking practice, it is considered normal to apply for a loan to pay off previously existing obligations after marriage. The reason is more favorable credit conditions. For a loan to be recognized as a general obligation, it must be proved that:
- money spent on general needs;
- both parties were aware of the purpose of the previously taken loan and rated the debt as general;
- the money acquired on the loan was fully or partially spent in marriage.
If the loan was taken earlier for personal needs? Then the court considers it personal, respectively, the loan taken to repay it, is also considered a personal obligation of the person in whose name it was issued by the bank.
What are the judicial prospects
The division of property in a civil marriage in Russia has a number of features. Firstly, there are no special rules governing such property relations, as in Western countries. Secondly, the courts do not have a clear position on these issues. In the same cases, opposing judicial acts are passed.
The process of proof is complicated by the fact that citizens do not always keep documents for a long time or they are not enough to have a complete picture of the situation.