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Alimony rights and obligations of spouses and former spouses. If your ex-spouse goes somewhere...

Alimony relations between spouses and former spouses constitute the second group of property relations between spouses. All alimony obligations related to marital relations, can be divided into two groups.

1) Alimony relations between persons in a registered marriage. First of all, it should be noted that spouses can provide for the content of alimony legal relations (i.e., their rights and obligations) in a marriage contract. However, their freedom in this aspect is significantly limited, since almost any deterioration in the status of the spouse compared to the legislative regime in alimony relations automatically puts him in an extremely unfavorable position, which is the basis for invalidating the contract in this part.

In the event that there is no marriage contract, does not regulate these relations, or is declared invalid in this part, the provisions of the law that establish the rights and obligations of the spouses for mutual maintenance are applied.

Spouses are obliged to financially support each other. In the event that one spouse refuses such support; if these issues are not regulated by a marriage contract; if the obligated spouse has the necessary means to pay alimony, then the other spouse in some cases can protect his right to receive maintenance through the court. This right belongs to:

  • - disabled, needy spouse. Persons who have reached the age of retirement age, as well as disabled people of any disability group. The need of the spouse who claims alimony is determined by the court in each specific case;
  • - wife during pregnancy and for three years from the date of birth of their common child. Currently, a woman in this position does not need to prove in court either her disability or need;
  • - a needy spouse caring for a common disabled child until the child reaches the age of eighteen or a common disabled child from childhood of group 1. IN in this case the spouse must prove his need.
  • 2) Alimony legal relations between former spouses. The legislation provides for the emergence of alimony legal relations between former spouses who are divorced, provided that the former spouse has the necessary means to pay alimony. The following categories of former spouses have the right to receive maintenance:
    • - ex-wife during pregnancy and within three years from the date of birth of a common child;
    • - a needy ex-spouse caring for a common disabled child until the child reaches the age of eighteen or a common disabled child from childhood of group 1;
    • - a disabled, needy ex-spouse who became disabled before the dissolution of the marriage or within a year from the date of dissolution of the marriage;
    • - a needy spouse who has reached retirement age no later than five years from the date of divorce, if the spouses have been married for a long time.

The last two points are designed for situations where a husband leaves his wife on the verge of retirement age, who has been busy managing household and therefore cannot count on a pension. Similarly, according to the law, a woman who becomes disabled as a result of childbirth is protected. The Family Code does not establish any time limits for the payment of alimony under these points.

In fairness, it should be noted that the law also protects the obligated spouse. Thus, the court may relieve the other disabled and needy spouse from the obligation to support both during the marriage and after its dissolution:

  • - if the incapacity for work of the spouse in need of help occurred as a result of the abuse of alcoholic beverages, drugs or as a result of his committing an intentional crime;
  • - in case of short stay of spouses in marriage. Absolutely rightly, these restrictions on alimony obligations do not apply in the event of a wife’s pregnancy or caring for a disabled child together.

Exemption from alimony obligations, limiting its duration is a right, and not an obligation of the court, therefore, in some cases, despite the short duration of the marriage, it can collect alimony for a disabled spouse in need, for example, if the incapacity arose as a result of childbirth.

The amount of alimony for the maintenance of the other spouse or former spouse in each specific case is determined by the court based on the financial and marital status of the spouses (former spouses) and other noteworthy interests of the parties in a fixed sum of money payable monthly.

I ask you to help me in my situation. We have a car registered to me, it is driven by my wife by proxy. About 3 weeks ago she called me and said that she seemed to hit the car in the parking lot, but she only says that she doesn’t have a scratch at all, and her Zhiguli car has a dent in the door and the rust has fallen off, this in itself is strange, she has a small ladies’ Fiat punto. My wife parked according to the rules, but the Zhiguli was parked sideways and, moreover, on the sidewalk (she hit the side of the Zhiguli with her rear bumper). But she first left, and only then called me, she was just scared. It all happened in the morning in the city center near the kindergarten; there were a lot of people at that moment. She did not agree to my persuasion to return; at that moment I was in another city on a business trip. She said that she was afraid to go there without me and that’s all. Today we received a letter saying that we were being called to the traffic police. Here's what to do now. I have a suspicion that the owner of the Zhiguli, as I later found out as a young guy, having parked the car like this, essentially propping it up, could simply have done this on purpose. My wife has an inexperienced driver sticker. The guy looks like he's from Gopnik, maybe his car was already dented. What to do in this situation, because the wife is not entirely sure that she has hooked him. I have re-read the articles of the Code of Administrative Offenses and examples on the Internet and understand perfectly well that in this situation the law is not on our side, but I still ask you to help reduce this situation to nothing, if there is at least some possibility. I’m always on business trips, and my wife drops off and picks up the children and works; it’s impossible without a car, and it also lasts from a year to a year and a half.

Sincerely! Michael.

My ex-husband and I have not lived together since September 2006; we officially divorced on May 11, 2007. She filed for alimony, but he doesn’t really pay it; he paid about 20,000 rubles in 5 years. During that entire time, there weren’t even calls to the child, not to mention congratulating him on his birthday. This one is for robbery. I have a new boyfriend, we have been living together for a year now, the child calls him father, we plan to officially marry this year. in spring ex-husband will be released and threatens to come and, after 5 years, he remembered his existence. How can you prohibit him from seeing a child until he reaches adulthood (the child is 8 years old)? How to deprive your ex-spouse of parental rights?

My grandmother died in 2010; she had half of 2 rooms. apartment, the other half of her son (my father's half-brother on his mother's side). My grandmother had 2 sons: my father (died in 2003, I am his only daughter) and this uncle. When she got sick, my grandmother’s nephew took care of her and took over the apartment for himself (I don’t know how). Grandma called him herself. Then, after 2 months, this uncle died, his nephew took over his share, although the uncle has a drunkard son and granddaughters. I didn't know anything about it. I found out about a year later, my grandfather’s ex-husband (they are divorced) let it slip to me (my grandfather is 88 years old).

This nephew asked my grandfather not to tell me, so I was 9 months old and found out when the baby was almost a year old. I was not informed about her illness or death. How and where can I now find out how the inheritance was formalized? In what cases can I claim and for what part? What should my actions be?

Dear! There is a will in which the testator (grandfather) bequeaths everything he owns (to the grandmother), and after the grandmother he names the heir (granddaughter). Grandfather died, and not 40 days later, grandmother dies too. The grandmother did not have time to declare herself to the notary. The grandmother's son arrived, who lives in Germany. Who has the right to inheritance? Text of the will: I bequeath all my property, which by the day of my death belongs to me, whatever it may be and wherever it is located (to my grandmother). If the heir named by me, or at the same time as me, does not or refuses him or does not have the right to inherit or is excluded from the inheritance as unworthy, I will bequeath all the property (to my granddaughter). The notary missed one clause in the will (or he will die after the opening of the inheritance, without having time to accept it). Transmission not working? Who has the right to inheritance? P.S. Grandfather has three natural sons, and grandmother has one natural son.

Do I have the right to receive monthly compensation from my ex-spouse for the education of a child after 18 years of age?

I divorced my husband 2.5 years ago. A daughter was born in the marriage. The husband was not interested in his daughter and did not recognize her during the marriage. Now he is laying claim to it. I do not prohibit communicating with the child, but in my presence or in the presence of third parties. I don’t leave him alone with my daughter because of his unhealthy psyche and addiction to alcohol. Tell me, can I demand in court that a psychoneurological and drug examination be carried out for my ex-spouse? How can I protect my child from being alone with his father?

A stamp in a passport about marital status, contrary to the opinion of some young people, changes a lot in the life of a married couple.

From the moment of marriage, spouses enter into legal relations of a personal and property nature.

What rights and responsibilities do spouses have from a legal point of view? This will be discussed later.

Regulatory framework 2019

The relationship between spouses is clearly regulated by the following regulations:

  1. Constitution of the Russian Federation.
  2. Family and Civil Codes of the Russian Federation.

From the moment of marriage, each spouse becomes a bearer of the rights and obligations outlined in the Russian Family Code.

These rights and responsibilities are divided into:

  • property;
  • personal.

Personal rights are rights affecting the personal interests of spouses. The peculiarity of personal rights is that they cannot:

  • alienate;
  • have a cash equivalent;
  • be the subject of transactions;
  • limit the legal capacity of the spouse;
  • be canceled or limited.

Russian legislation prescribes the principle of equal rights for both spouses. Restriction of personal rights in any form is void by law.

Personal rights include:

  • free choice of type of activity and work;
  • the right to determine the place of residence;
  • the right for spouses to jointly decide on issues of upbringing, education of children, as well as other aspects of family life.

The personal responsibilities of spouses are closely related to their rights and are also based on the principles of equality. Husband and wife are obliged:

In some cases, the law requires the written consent of the spouse to certain actions. These include situations where the decision of one of the spouses affects the interests of the entire family.

The Russian Family Code provides for 2 modes of property relations between husband and wife.

The first regime is based on the terms of the marriage contract, and the second – on the norms of current legislation that apply in the absence of a marriage agreement concluded between the spouses.

The property rights of the spouses are:

  • alienable (except for some cases specified in the law);
  • have a material equivalent;
  • are the subject of property transactions.

The property of each spouse can be:

  • personal;
  • joint (common).

The following property is recognized as personal property:

Important! The owner uses and disposes of personal property independently.

Property acquired by spouses during marriage is usually joint. This property is usually acquired as a result of the pooling of financial resources of both spouses.

At the same time, the size of the monetary share contributed by each spouse has no legal significance, even if the earnings of the husband and wife are radically different.

Note! The spouse (usually the wife), who was engaged in housekeeping and raising children, without having his own income at that time, has similar rights to joint property.

According to Art. 35 of the RF IC, a transaction made by one of the spouses in relation to common property will be declared invalid by the court if the second spouse does not agree with it.

When selling common real estate, not only family law, but also civil law must be observed.

Video: Spousal property

These rights include the scope interpersonal relationships, therefore the law concerns only the general limits of liability.

In fact, it is implied that understanding and respect between spouses are the basis family relations, and this cannot be regulated by any agreement.

The issue of non-property rights is addressed in Art. 31 IC RF. The legislation equalizes the rights of husband and wife in relation to:

Spouses must resolve all these issues together on the principles of equality.

As for obligations, Article 31 requires spouses to bear obligations to strengthen the material and spiritual values ​​of the family, raise and develop children on the basis of respect and mutual assistance.

The obligation of spouses to financially support each other is not only a moral, but also a legal norm.

If one of the spouses refuses such support and there is no marriage agreement between them on the payment of alimony, the second spouse who needs it has the right to go to court.

Alimony can be recovered during the marriage from the wealthy spouse in favor of:

After divorce, the ex-wife also has the right to receive alimony during pregnancy and for 3 years from the date of birth of the common child.

Alimony is collected monthly in the amount established by the court or the marriage contract.

Video: Alimony for spouses

Marriage contract

The marriage agreement regulates exclusively property issues, but not the responsibilities of the spouses for raising and maintaining children or, for example, moral aspects.

In essence, a marriage contract is a transaction, so the court has the right to annul it if:

  • the marriage agreement was signed under force or fraud;
  • one of the spouses is incapacitated;
  • it contradicts the legislation of the Russian Federation.

Video: Marriage agreement

If one of the spouses violates the rights of the other and does not fulfill his duties, the marriage will exhaust itself over time.

Married relationships should be built on the principle of reciprocity and compromise, otherwise a family will not work.

If a marriage contract is concluded between the spouses, the injured party can go to court to protect and exercise their rights. If it is proven that one of the spouses abused his rights and infringed on the other, then his share in the division of property can be significantly reduced.

Note! Violation of the personal rights and freedoms of one of the spouses may result in administrative or criminal liability for the other half.

In conclusion, I would like to add: despite the fact that the rights and obligations of spouses are outlined in the Family Code of the Russian Federation and their violation entails certain types of responsibility, the main thing in marriage is still different.

Love, mutual respect, support, trust - these are the basic principles on which marriage is built.. If these foundations in the family are protected and respected, then spouses are unlikely to violate each other’s rights and shirk their responsibilities.

It's no secret that family breakdown is one of the most painful events in a person's life. Such a process is accompanied by significant moral and emotional experiences, often quarrels and mutual reproaches. All this does not allow spouses, upon separation, to adequately assess the property consequences of the dissolution of the marital relationship. When this happens, ordinary people Those who do not suffer from greed and a passion for enrichment, as a rule, do not focus on solving material problems, postponing them for “later.” This behavior is caused not so much by the spouses’ “not giving a damn” attitude to the issues of division of jointly acquired property, but by the reluctance to further aggravate an already difficult situation.

By the way, it will be said that in order to avoid the possibility of similar problems arising in the future, spouses when getting married in other countries (Western Europe and North America) do not hesitate to immediately stipulate all material issues in the event of divorce in the prenuptial agreement (nuptial agreement). Unfortunately, the Russian mentality of bashful intellectualism has given rise to a vicious attitude towards the marriage contract. The formula for such an attitude can be roughly expressed as follows: “It’s a shame to think about the consequences of its dissolution before you have even entered into a marriage.” Oddly enough, this attitude is also covered by confessional appeals such as: “Fear God!”, “How can you anger the church,” “Marriage is made in heaven, and it is unworthy of an Orthodox person, recognizing a spouse before God, immediately thinking about his renunciation marriage”, etc. There are also historical prerequisites for this fact. A negative attitude towards the termination of marriage and repeated entry into marital relations was preached by the law, which established that in the Russian Empire “persons of the Orthodox confession are prohibited from entering into a fourth marriage successively (Vol. X, Part 1, Article 21), although the person entering into the third marriage is subject to penance (decree of the Synod on April 5, 1871).” It is worth mentioning here that at that time a regime of separate ownership of property acquired during the marriage was established for spouses. Leading civil scientists of the past assessed this situation differently. Some pointed out that “one cannot help but emphasize the striking discrepancy between the system of separation and the idea of ​​marriage and the concept of family in civil discourse.” Others stated that “when the idea of ​​marriage is violated in reality, then, of course, the definitions of the law on the separation of marital property are applied - and thank God that they are!” or “when and how this principle of separation was established among us is an extremely obscure and controversial question; but the important thing, in any case, is that at this point we are ahead of Europe, that we have one less difficulty.”

The current presumption of joint ownership, on the contrary, creates only difficulties for separating spouses, because it adds disappointment and resentment.

Despite the idea of ​​marriage as a unity of mental, physical and property thoughts of the spouses, I would nevertheless like to note that if love cannot withstand even the most basic formality in the form of defining mutual rights and obligations, then such love is unlikely to last long. Often it is suspicion that causes the sudden death of deep feelings. On the basis of suspicion, the seeds of mistrust sprout, which corrodes like rust everything that is bright and pure that is in a person’s soul. And if even the proposal to conclude a marriage contract arouses distrust and suspicion among the chosen one, then it is doubtful that such a chosen one experiences truly strong feelings...

What is a marriage contract, which, unfortunately, has never taken root in Russian reality? Let us remember that a marriage contract is an agreement between the persons entering into marriage or an agreement between the spouses that defines the property rights and obligations of the spouses during the marriage and (or) in the event of its dissolution. This agreement can be concluded at any time (but not after the divorce) - both before the registration of the marriage and at any time during the marriage, but it begins to operate, in any case, only from the moment of state registration of the marriage. At the same time, the law provides for a mandatory qualified form of such an agreement, i.e. his notarization. This requirement for the form is imposed by the legislator primarily with the aim that an independent expert (notary) can ensure equality and social security for both spouses equally by explaining all rights, obligations, as well as the consequences of concluding a marriage contract. It is the notary, as an official authorized by the state, who is called upon to observe the legitimate interests of both spouses when certifying the marriage contract.

However, this article is not intended to be a detailed study of all the characteristics of a marriage contract. Let us dwell only on those of them whose knowledge we will need for further study of the problem raised.

Firstly, by a marriage contract, spouses have the right to change the regime of joint ownership established by law to the regime of shared or sole (single-subject) property.

Secondly, spouses have the right to establish for each type of property or specific thing ( property law) property regime.

Third, spouses can determine the property that will be transferred to each spouse in the event of divorce.

Fourthly, spouses have the right to indicate ways of participating in each other’s income, as well as their rights and obligations for mutual maintenance.

It should be remembered that a marriage contract can extend its effect not only to existing property, but also to that which will be acquired by the spouses in the future.

If there is no marriage contract, then His Majesty the Law should reign supreme here. However, in practice, the operation of the law is very often influenced by the influence of the servant of this law - judicial discretion. At the same time, it cannot be said that judicial discretion is always entirely based only on scripta lex (i.e. written law, positive law). It is very attractive for a judge to sometimes deviate from the written right (law) in favor of the particular circumstances of the case, supposedly in order to achieve justice, and to “hide behind” a reference to natural law or leges non scriptae (unwritten laws). The example of interpretation of the Basic Law of Russia proposed by the Chairman of the Constitutional Court of the Russian Federation is very indicative in this direction. In this example, it is proposed to read the law, simply put, not literally (word for word), but for the sake of time and the dictates of the relevant situation (“development of society”, “economic progress”, “changed legal relations”, etc.). Let me express my distrust of this position, since this path leads to the abyss of legal nihilism and uncontrolled judicial discretion. Because then in different cases the law will be interpreted by the courts differently (which often happens now, but will happen much more often when using this approach). Based on an example similar to the “boy-girl”, a generation of lawyers will grow up in law schools who will consider their main goal only to achieve the maximum benefit from reading the law, and not to correctly interpret and apply it in order to respect the rights and interests of not only their client (defendant) ), but without infringing on the rights and interests of other persons. The law should be the same for everyone.

What does the law tell us about the legal status of spouses’ property after divorce?

To begin with, let us remember that the legal regime of the property of the spouses is the regime of their joint ownership, and all property acquired by the spouses during the marriage is their joint property. We will not dwell on the property that does not fall into joint ownership, because its legal fate is virtually non-controversial.

Before continuing our research, let us dwell on the delimitation of the spheres (limits) of application of civil and family legislation, taking into account the topic of the study.

Family law establishes the conditions and procedure for marriage, termination of marriage and invalidation, and also regulates personal non-property and property relations between family members: SPOUSES, parents and children. Civil legislation determines the legal status of participants in civil transactions, the grounds for the emergence and procedure for the exercise of property rights and other real rights, regulates contractual and other obligations, as well as other property and related personal non-property relations based on equality, autonomy of will and property independence of their participants . The rules of civil law contained in other laws must comply with the Civil Code of the Russian Federation.

Consequently, the norms of civil law have priority over the norms of family law when regulating property and personal non-property relations of spouses. Exceptions to this rule may be provided for by the Civil Code of the Russian Federation itself, and also when a specific relationship, even if it relates to property or personal non-property, is not directly included in the scope of regulation of civil legislation. Of course, the norms of family law cannot regulate these relations between participants other than family members. CONSEQUENTLY, THE NORMS OF FAMILY LEGISLATION SHALL NOT APPLY TO RELATIONS BETWEEN FORMER SPOUSES.

We further note that family law does not directly list the consequences of ending a marriage, while the consequences of declaring a marriage invalid are directly established by law. The law establishes two grounds for ending a marriage: death (the court declares the spouse dead) and divorce. Upon termination of a marriage due to the death of a spouse (declaration of death), the property jointly owned by the spouses passes to the heirs and the surviving spouse in accordance with the provisions of inheritance law. Divorce is possible either extrajudicially in the civil registry office, or in court in cases provided for by law.

As follows from the above provisions, the law does not imperatively require the division of property of spouses that is jointly owned. Because of this, it is often Everyday life ex-spouses are faced with a situation where, after the divorce, the legal fate of the property that is their joint property is not determined either by the marriage contract (since they did not enter into it) or by a court decision on divorce (since no one is in court about this didn't ask).

Nevertheless, it should be recognized that even after the dissolution of a marriage, property is recognized as being jointly owned by the former spouses. Such a conclusion, which at first glance contradicts the provisions of civil law on the grounds for the emergence of common property, appears justified upon closer examination. Indeed, civil legislation establishes that the right of common joint ownership arises only in cases provided for by law. In our case, common joint property arose when property became the property of the spouses, which complies with the requirements of the law. However, the termination of a marriage and the loss of persons legal status spouses does not and cannot entail the automatic termination of the right of common joint property. Moreover, the regime of common joint ownership can be changed to the regime of common shared ownership by determining the shares based on the agreement of the participants in the joint ownership, and if no agreement is reached, on the basis of a court decision. This provision of civil law corresponds to the provisions of family law that the division of the common property of the spouses can be made both during the marriage and after its dissolution at the request of any of the spouses. At the same time, the limitation period for a spouse’s request to divide the common property of spouses whose marriage is dissolved is three years.

Consequently, the former spouses retain the regime of common joint ownership of jointly acquired property, despite the dissolution of the marriage.

It is known that the ownership, use and disposal of the common property of spouses is carried out by their mutual consent. When disposing of property by one spouse, the consent of the other is assumed, however, in order to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is still necessary to obtain the consent of the second spouse, and notarized.

It should be recognized that the law does not establish the consequences of failure to comply with this requirement in order to determine the validity or invalidity of the transaction. Only the right of the spouse, whose notarized consent was not obtained, is provided to demand that the transaction be declared invalid in court within a year from the day when he learned or should have learned about the completion of this transaction. Based on the analysis of the above provision, it becomes obvious that the legislator provides for the unconditional recognition by the court of such a transaction as invalid at the request of the spouse, if compliance with the hypothesis of this norm is established.

If you follow the literal reading general provisions about the invalidity of transactions, we will find that the transaction is invalid on the grounds established by the Civil Code of the Russian Federation, due to its recognition as such by the court (voidable transaction) or regardless of such recognition (void transaction). A demand to recognize a voidable transaction as invalid may be submitted by persons specified in the Civil Code of the Russian Federation. Paragraph 3 of Article 253 of the Civil Code of the Russian Federation provides that a transaction made by one of the participants in joint ownership related to the disposal of common property may be declared invalid at the request of the remaining participants on the grounds that the participant who made the transaction lacks the necessary powers only if it is proven that the other party to the transaction knew or should have known about it. Moreover, this norm further states that its rules apply insofar as the Civil Code of the Russian Federation or other laws do not establish otherwise for certain types of joint property.

After a comparative analysis of the above provisions of the law, the following conclusions can be drawn:

Firstly, a transaction made in relation to joint property by one of the spouses without the consent of the other can be declared invalid only by a court decision. This fact irrefutably classifies this transaction as disputable. In this case, only the participant in the joint property (the other spouse) has the right to apply to the court to declare the voidable transaction invalid.

Secondly, the statute of limitations for the claims of a participant in joint ownership (spouse) is one year from the moment when he learned or should have learned about the transaction without his consent.

Thirdly, the provisions for the disposal of joint property established by the Civil Code of the Russian Federation apply to the joint property of spouses not only during marriage, but also after its dissolution. On the contrary, the provisions of the Family Code of the Russian Federation cannot be applied to the disposal of joint property of spouses after divorce.

FROM ALL THE ABOVE CONCLUSIONS, IT FOLDS THAT AFTER THE DISSOLUTION OF MARRIAGE, THE NOTARIZED CONSENT OF THE EX-SPOUSE IS NOT REQUIRED FOR ANOTHER EX-SPOUSE'S COMPLETION OF A TRANSACTION FOR THE DISPOSAL OF REAL ESTATE AND A TRANSACTION REQUIRING A NOTARY REGISTRATION AND (OR) STATE REGISTRATION IN THE PROCEDURE ESTABLISHED BY LAW.

On this conclusion, there is conflicting judicial practice and two mutually exclusive points of view. Let's look at two specific examples from the judicial practice of one of the regional courts of Russia.

In the first case, a representative of citizen T. in June 2001, acting by proxy, entered into an agreement for the sale of an apartment owned by T. as a member of a housing construction cooperative. The agreement is certified by a notary. In the contract, T-va’s representative indicated that at the time of purchasing the apartment (full payment of the share contribution), T-va was not in a registered marriage. When buyer Sh. applied to the justice institution for state registration of the contract and ownership rights, it turned out that the share for the apartment was paid at the time (December 1992) when T-va was in a registered marriage, which was subsequently dissolved (in November 1994 G.). Previously, the justice institution registered T's right to sole ownership of the apartment. Since T-voy’s ex-husband sent an application to the justice institution with documentary evidence of the marriage relationship as of December 1992 and asked not to register the transfer of rights to Sh., the justice institution first suspended state registration and invited the parties to the agreement to provide confirmation of the existence of an individual, and not joint ownership of an apartment by spouses. As appropriate supporting documents, either a division agreement of the spouses (a court decision on the division of jointly acquired property), or a marriage contract determining the legal fate of the apartment, or the consent of the former spouse to alienate the apartment, or other documents could be presented. Having not received such confirmation within the period established by law, the justice institution refused state registration, guided, among other reasons for refusal, by the lack of consent of the spouse, provided for in paragraph 3 of Art. 35 of the Family Code of the Russian Federation.

The seller T-va agreed with the legality of the refusal of the justice institution, and the buyer Sh. appealed it. The court upheld the complaint, indicating that T-v (ex-husband) at the time of the contested transaction “was not a spouse in the eyes of the law.” Subsequent appeals by the justice institution to the courts with cassation and supervisory complaints were unsuccessful. Wherein regional court in his determination indicated that “at the time of concluding the contract for the sale and purchase of the disputed apartment, notarized consent was not required<супруга Т-ва>, because by that time he was no longer the spouse of the owner of the apartment, T-voy,” and the judge of the Supreme Court of the Russian Federation also added that “the marriage concluded between T-voy and T-voy was dissolved in 1994, and since then por T-v did not raise the question of his right to an apartment. In addition, it was established that the SOLE OWNER of the disputed apartment was T-va and she had the right to dispose of her apartment, which she did by concluding a purchase and sale agreement for the disputed apartment with Sh.”

In the second case, the institution of justice, taking into account the position of the courts on such disputes, did not seek the consent of the former spouse. Spouse M-v, being in a registered marriage with citizen M-voy, purchased an apartment in November 1999 under a sales contract, where he was indicated as the only buyer to whom ownership of the apartment was transferred. His sole ownership was registered by the institution of justice in the registry in December 1999. The marriage between the M-wives was dissolved in November 2001, and already in March 2003 citizen M-v, acting in the person of his representative Ch., sells the apartment to citizen K., without receiving the consent of his ex-wife to this transaction. The justice institution registers the transaction and the transfer of the right to the apartment to K., without requiring compliance with the provisions of Art. 35 of the Family Code of the Russian Federation, because received evidence of divorce between spouses. No evidence of the existence of a division of jointly acquired property or a marriage contract between spouses was submitted to the justice institution.

Having learned about the completed transaction, M-va's ex-wife filed a lawsuit against her ex-husband, his representative, the justice institution and the buyer K. to declare the transaction invalid. At the same time, she referred to a violation of the provisions of Art. 35 of the Family Code of the Russian Federation and Art. 253 of the Civil Code of the Russian Federation regarding failure to obtain one’s consent to enter into a transaction for the alienation of jointly acquired property. Defendant M-v agreed with the claim, because. believed that his representative Ch. should have obtained the consent of his ex-wife to sell the apartment. The institution of justice did not recognize the claim, pointing out that from the standpoint of the law, M-you are no longer spouses and the hypothesis of Art. 35 of the Family Code of the Russian Federation has not been implemented. According to Article 253 of the Civil Code of the Russian Federation, when a transaction is carried out by one of the joint co-owners, the consent of the others is assumed, and the contested transaction can be declared invalid only if the buyer K. knew or obviously should have known about M.’s lack of the necessary authority to sell the apartment. The courts of first and cassation instances refused to satisfy the claims and agreed with the law enforcement position of the justice institution. The court of first instance indicated that “with due diligence, M-va was not deprived of the opportunity to timely formalize her right to a 1/2 share of the apartment in the manner prescribed by law.” The cassation court additionally expressed the opinion that the buyer K. is a bona fide purchaser based on the “constitutional and legal meaning of the provisions of paragraphs 1 and 2 of Art. 167 of the Civil Code of the Russian Federation, identified by the Constitutional Court of the Russian Federation in Resolution No. 6-P of April 21, 2003, “therefore, “the rights of a person who considers himself the owner of property are not subject to protection by satisfying a claim against a bona fide purchaser using the legal mechanism established by paragraphs 1 and 2 of Article 167 of the Civil Code of the Russian Federation.”

Based on the supervisory complaint of M-va’s ex-wife, the supervisory court issued a ruling in which the regional court expressed an absolutely opposite point of view than a year ago: “Since the marriage is terminated, the presumption ceases to apply, according to which the actions of one of the spouses in disposing of joint property imply consent second spouse. It is for this reason - that the marriage has ended, that one of the spouses does not have the right to make transactions regarding common property without the consent of the other spouse, that is, without complying with the requirements established by paragraph 3 of Art. 35 RF IC".

Trying to analyze the above not entirely clear explanation of why in the second case it turned out to be mandatory to require the consent of the spouse, we come to the conclusion that the court ignored the concept of the status of “spouse”, which led to an erroneous premise in the logical construction (construction of a syllogism). Arguing that in connection with the termination of a marriage it is necessary to obtain the consent of the spouse, the court loses sight of the fact that Art. 35 of the Family Code of the Russian Federation obliges to obtain the consent of the SPOUSE, and not the participant in the joint property. Meanwhile, the status of “spouses” after the termination of marriage by persons is lost and there is no subject of law - the “spouse”, on whose consent the court insists. In this case, the court points out the consequences of the termination of a marriage that are not established by law (termination of the presumption of the spouse’s consent and the mandatory requirement of the spouse’s consent). Moreover, if you follow the logic of the court and apply the “reverse” technique, it turns out that if the marriage is NOT TERMINATED, then the presumption is valid and the spouse’s consent to make transactions is not required. It is interesting how such a conclusion can be reconciled with the literal instructions of paragraph 3 of Art. 35 of the Family Code of the Russian Federation?

It seems that in both judicial examples cited, the contested transactions could have been declared invalid if it had been proven that the buyers did not have the status of a bona fide purchaser. This conclusion was confirmed by the supervisory court in the second case: “K. could be recognized as a bona fide purchaser in the event that she not only did not know, but also could not know that the apartment was the object of joint ownership of the former spouses of the M-s. The question of whether K., showing reasonable diligence and caution, could have known about the presence or absence of obstacles to the transaction, was not verified or assessed by the court...”

Let's summarize. AFTER THE TERMINATION OF THE MARRIAGE RELATIONSHIP, THE SPOUSES ARE CEASED TO BE SAME FROM THE POSITION OF THE LAW, HOWEVER, THE REGIME OF JOINT OWNERSHIP OF PROPERTY ACQUIRED DURING MARRIAGE BY FORMER SPOUSES, AND NOW SIMPLY PARTICIPANTS IN JOINT PROPERTY, IS RETAINED, EU WHETHER THE MARRIAGE CONTRACT OR THE DIVISION AGREEMENT OR A COURT DECISION DEFINES ANOTHER PROPERTY REGIME ( SHARE OR SEPARATE). THE PROVISIONS OF FAMILY LEGISLATION DO NOT APPLY TO TRANSACTIONS BY FORMER SPOUSES WITH SUCH PROPERTY, SINCE THE FAMILY RELATIONSHIP IS TERMINATED. THE PROVISIONS OF THE CIVIL CODE OF THE RF SUBJECT TO THE REGULATION OF RELATIONS ON THE DISPOSAL OF PROPERTY BY PARTICIPANTS OF JOINT PROPERTY. REQUESTING THE CONSENT OF FORMER SPOUSES WHEN COMPLETING TRANSACTIONS PROVIDED FOR BY ART. 35 OF THE FAMILY CODE OF THE RF, NOT BASED ON LAW.

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Based on the legal dogmas prescribed in the Family Code of the Russian Federation, during the divorce procedure, all property that was acquired jointly during the marriage, including real estate and living space, is subject to division. At the same time, former spouses have equal rights to housing during division. This statement may be refuted by the clauses of the marriage contract if it exists.

Table of contents:

Rights of former spouses to jointly and non-jointly owned housing

Provided that the spouses bought a house or apartment during the marriage, after the divorce they will both have equal rights to living space, i.e. everyone will have the right to own half the value of the property.

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The same condition is also true for a spouse who was not officially employed, but was raising children, maintaining a satisfactory state of life in an apartment or house, or had good reasons of another kind for lack of work and, as a consequence, income.

Jointly acquired property cannot be called that which was received as a result of inheritance, even though the procedure was completed when the spouses were married. Those. If one spouse inherited a house, then after the divorce, one owner will be listed behind this house - the spouse who directly received the inheritance.

Rights of former spouses to privatized housing


Privatization is a transaction of donating real estate between the state and a citizen. All participants in the transaction are entitled to the rights to the received property. If the spouses were registered in an apartment given to them by the state on the basis of social rent, and managed to privatize it before the start of the divorce process, then the living space will be in shared ownership. Those. during the division, each of the people registered on the privatized area has the right to count on equal shares.

If during the privatization process the owner of the property is determined to be a single person, and the second spouse has not indicated a desire to participate in privatization or already has privatized property on his account, after the divorce only one spouse remains the owner of the living space - the one in whose name the privatization was registered.

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If a spouse who has not expressed any intention to be involved in the privatization procedure is registered as registered in a privatized apartment or house, he retains ownership of part of this apartment and the right to live in it. The right is lifelong. This fact can only be changed by a court decision.

If the second spouse is not listed as registered in a privatized apartment or house, then he does not retain any rights to living space after a divorce.

When the living space had already been assigned before the start of the marriage, and after it one of the spouses moved into the agreed upon apartment or house, the rights to housing after the divorce are retained by the spouse who was legally the rightful owner of the apartment before the start of the marriage. In such circumstances, even a child born in marriage does not receive the right to privatized living space.

The rights of former spouses to a refund for repairs and other reconstruction of housing

The spouse who was not favored by the law has the right to try to receive financial compensation as a share of the cost of housing for repairs or reconstruction, which he carried out at his own expense and effort. It seems possible to prove such a phenomenon only through court.

In this case, it is necessary to prove that the cost of housing has increased as a result of the efforts invested by the spouse who is not the owner of the divided living space. The compensation itself will be calculated based on the funds spent on repairs.

Thus, if one of the spouses provided or carried out major repairs to the living space, after which its value, for example, doubled, then during the divorce process he has every chance of receiving half the cost of this living space.

Evidence includes receipts for the purchase of building materials from that time period, preserved contracts with execution companies, acts of acceptance of work and any other papers that confirm that funds for repairs or reconstruction were taken from the own savings of the spouse, who is not the owner of the home. Other evidence includes bank statements, withdrawal receipts, etc.

The rights of former spouses to housing under the terms of the marriage contract

As mentioned earlier, the agreed rules apply in all cases, with the exception of when a marriage contract was drawn up between the spouses - a document with the help of which they secure certain rights to own and dispose of living space in the event of family breakdown. Conditions may vary and are rarely similar in each individual case.

Thus, the contract may stipulate circumstances in the event of which all property passes to only one spouse. Or equal rights to shared housing may be initially secured. It is stipulated that compensation to one of the spouses for repairs and reconstruction in the event of a possible divorce is not provided.

A marriage agreement must be drawn up only after consultation with a notary, with his direct participation in writing out the clauses of the agreement.

Every divorce process is different. Almost always, the division of property into equal shares turns out to be a convention, since, often, after a divorce, only one spouse uses the living space, and the second simply cannot do this and does not receive any funds.

In some cases, an apartment or house is sold and the proceeds are divided. However, such cases are rare. When dividing property, it is best to immediately request the court to pay the second spouse his share of the value in monetary terms, so as not to claim it after the divorce.

In any case, before divorce proceedings spouses should obtain legal advice.