Marriage contract: form and content

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Contents of the marriage contract

The content of the marriage contract (or contract) is regulated by the Russian Family Code, Article 42. Spouses have the right, by marriage contract, to change the legally established regime of joint ownership, only for certain types of property, or to immediately establish different property regimes for everything - joint, shared, separate property.

It is possible to conclude a prenuptial agreement (contract) in relation to existing property and in relation to missing property, the appearance of which is planned in the future.

Points that a marriage contract may contain

The terms of the marriage agreement (contract) may include:

• rights, obligations of mutual maintenance of husband and wife;
• the manner in which each shares in the income of the other;
• the procedure for each of them to bear family expenses;
• determination of the property that will be transferred to each of the spouses in the event of a marriage breakdown;
• determination of the regime of joint common ownership of property that is not common by law - it belonged before marriage, was given as a gift or inherited during marriage;
• determining the regime of separate ownership of property acquired during marriage;
• determination of the regime of shared ownership of common property, which is joint property, and in relation to separate property. It would be advisable to indicate in the contract a list of property subject to such a regime;
• any other provisions on the property relations of the spouses.

The obligations or rights provided for in a marriage contract may be limited to certain periods or made dependent on the non-occurrence or occurrence of certain conditions.

In a marriage contract, for example, spouses can provide for a period of the first five years from the date of state registration of the marriage, the property acquired by the spouses will be separate, then, after the specified period, the acquired property falls under the regime of joint common property.

Conditions that cannot be included in a prenuptial agreement

A prenuptial agreement (contract) should never include conditions that contain:

• restriction of legal capacity/capacity of spouses;
• prohibition to go to court to protect your rights;
• regulation of non-property personal relations between spouses, their responsibilities and the rights of parents of common children (for example, you cannot indicate the child’s place of residence after a divorce, the amount of future alimony). To regulate these issues, parents have the right to enter into separate agreements in accordance with the articles of the Family Code;
• provisions limiting the right of a needy disabled spouse to receive maintenance;
• other conditions that may place or place one spouse in an extremely disadvantageous and unfavorable position.

How to challenge a marriage contract?

In practice, situations arise when spouses first enter into a marriage contract, and then one of the spouses decides to challenge it. There are different reasons:

• misrepresentation;
• conflict;
• desire to determine a different property regime.

Is it possible to terminate a marriage contract?

Voluntarily dissolving a marriage contract will not be a problem. The only requirement is that the agreement must be terminated in the same form in which it was concluded.

Russian legislation requires that a marriage contract be concluded in notarial form, therefore, the agreement to terminate the contract must also be executed by a notary.

A termination agreement that is concluded without the participation of a notary will be considered invalid.

Termination of the contract in court

To challenge an agreement in court, the general provisions of the Civil Code on the invalidity of transactions are applied. Incapacity, state of intoxication, etc.

A marriage contract is invalid if, for example, one of the spouses was incapacitated at the time of its conclusion.

Despite the fact that the notary has the obligation to verify the fact of legal capacity, there are no provisions in the legislation that would establish the verification procedure. Not all notaries require a certificate from a psychiatrist. Some check capacity visually.

Often, a person suffering, for example, from mental illness, may outwardly look absolutely adequate. Therefore, if it turns out that the spouse does not understand the significance of his actions, then the marriage contract can be terminated. The same applies to the state of intoxication. However, it is not so easy to prove that the spouse signed the contract while intoxicated.

Compulsion

Sometimes one of the spouses initially does not want to enter into a prenuptial agreement. Then the following illegal methods may be used:

Again, these facts can be revealed by a notary. But, if they are not identified in the notary’s office, then it is necessary to go to court.

What part of the contract can be challenged?

The legislation does not prohibit challenging both the entire contract and its part that contradicts the requirements of the law.

For example, spouses entered into an agreement that they will have separate property regime: what is recorded in each of them is personal property.

But they decided to consider the car, which is registered to the wife, as the property of the husband, who drives it most of the time.

Thus, a marriage contract is not a “sentence”; by agreement of the parties, it can always be changed or canceled, and if this cannot be done voluntarily, then you can try to challenge the document in court. This matter is not as simple as it might seem at first glance. However, by contacting an experienced lawyer, you can achieve success.

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Marriage contract: form and content

Home / Marriage contract / Marriage contract: form and content

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According to the Family Code, a marriage contract is an agreement concluded by spouses or persons entering into marriage.

If the law were limited to such wording, a marriage contract could be called any document drawn up and signed by spouses or future spouses. Moreover, even an oral agreement would be considered a marriage contract. Absolutely any provisions could be included in it - right down to a schedule for taking out the garbage or planning for childbearing.

But a marriage contract is one of the options for civil law contracts. According to civil law, a contract is an agreement between two (or more) persons that establishes, changes or terminates their civil rights and obligations.

At the same time, a marriage contract is a document that regulates family legal relations, or more precisely, the property side of family legal relations (Article 40 of the RF IC).

• Consequently, family and civil legislation clearly define the form and content of the document.

Any agreement between husband and wife, the form and content of which does not meet the requirements of the law, is not a marriage contract. Even if the document bears this name, but neither in form nor in content corresponds to the concept of a marriage contract provided for by law, it is invalid and does not entail any legally significant consequences.

So, the main requirements for this document are compliance with the established form, legality of the content, legal capacity of the participants, and free expression of the parties’ will.

Form of marriage contract

In short, the form of a marriage contract according to the legislation of the Russian Federation should be:

• written;
• with notarization.

1. Let's take a closer look at each of these legal requirements for the form of a document.
2. So, a marriage contract must be in the form of a written document.
3. The text of the document must be written clearly and understandably in order to avoid any misunderstandings and discrepancies.

Last names, first names and patronymics of husband and wife (bride and groom), names of settlements and addresses must be indicated in full. Significant dates (deadlines) and monetary amounts - both in numbers and in words.

The text of the document can be divided into chapters (sections), articles, paragraphs.

The document must be signed by the husband and wife (bride and groom).

If one of them cannot sign with his own hand (not due to absence, but due to a physical defect or illness, illiteracy), at his request, the contract can be signed by an outsider.

This signature must be certified by a notary, indicating the reason why the direct participant in the agreement could not put it personally.

The next mandatory requirement for the form of a marriage contract is notarization. The notary's mark indicates that he was convinced of the legal capacity and free will of the participants, explained to them the meaning of the document they were concluding, and checked the text of the document for correctness and compliance with the law. Without notarization, the marriage contract is invalid and void.

Exception! In the period from January 1, 1995 to March 1, 1996, the rule on mandatory notarization of a marriage contract was not in effect. Therefore, marital agreements concluded during this period have legal force without a notary’s mark.

Contents of the marriage contract

The concept of a marriage contract determines its content (Article 42 of the RF IC).

According to family law, a marriage contract is a bilateral agreement concluded by spouses (or persons intending to become spouses) and establishing property legal relations during marriage and after divorce.

Property legal relations between spouses are a broad concept. It is this concept (but not a general, theoretical one, but a practical, individual, personal one - relating to a specific married couple) that is revealed by the content of the contract. What provisions might it contain?

According to the law, the property of a husband and wife that was acquired during marriage (no matter whose money) is their common property. But not all married couples are happy with this state of affairs. With the help of a contract, spouses can determine a different property regime:

• Shared ownership (spouses determine the size of shares in the common property belonging to each of them, for example, husband - 2/3, wife - 1/3);
• Separate property (spouses establish which of them is and will be the owner of property acquired during marriage. For example, the owner will be the spouse with whose money the property was purchased);
• Mixed ownership (spouses can determine different ownership regimes for different property. For example, maintain the regime of joint ownership of property acquired before the conclusion of the marriage contract and determine a separate regime of ownership of property acquired in the future);
• Community property (spouses may go so far as to establish community ownership not only of community property acquired during marriage, but also of personal property acquired before marriage).

Once the property ownership regime has been determined, it is time to indicate which property is the subject of the marriage contract.

This may be a list of all existing property (indicating its distinctive characteristics), a list of planned or probable acquisitions.

Property includes not only housing, land, cars, shares in business, securities, furniture and equipment, but also the income of spouses.

1. Family income and expenses

Spouses determine which incomes of each of them are part of the general “family budget”, and which remain the personal property of each of them. Income includes salaries, profits from business activities, scholarships, pensions, and social benefits.

Spouses can determine which expenses will be covered by the common “family budget” and which will be the responsibility of one of the spouses.

The law allows for any other provisions regarding marital property. However, there are provisions that should never be included in the document.

What should a prenuptial agreement not contain?

1. Personal rights and obligations of spouses.

The nature of the marriage contract involves the regulation of only property legal relations.

However, in the minds of many citizens, a contract may contain any agreement between the spouses, for example, a promise not to drink alcohol, or an obligation to maintain marital fidelity.

Such provisions should not be included in the text of the contract.

1. Provisions restricting legal rights and freedoms

There are a number of rights and freedoms that belong to every person and cannot be limited by any agreement, including marital agreement. This is, for example, the right to free movement and choice of place of residence, choice of field of activity, the right to study and work, the right to judicial protection, the right to divorce, etc.

1. Provisions subject to other agreements

Spouses do not have the right to include in the contract provisions on wills and inheritance, provisions concerning children (for example, on alimony, on determining the place of residence of children in the event of a divorce, on raising children).

1. Provisions limiting the right to content

With the help of a contract, it is possible to improve the situation of spouses in case of disability and need, but not to deprive them of the right to maintenance in these circumstances.

1. Provisions that place one spouse at a disadvantage

Depending on which of the listed provisions the marriage contract contains, it may be invalid from the moment of conclusion or may be challenged. You can read more about this in the articles “Recognizing a marriage contract as invalid” and “Challenging a marriage contract.”

• You can familiarize yourself with a sample marriage contract that complies with the form and content established by law below:

In what form is a marriage contract drawn up?

To simplify the regulation of property issues between spouses, it is advisable to conclude a marriage contract. This agreement necessarily establishes all the rules for the division of property in the event of divorce or demand by one of the parties. However, there is a specific agreement form that must be filled out correctly.

Concept and content of a marriage contract

What is a marriage contract and why is it needed? The concept, form and content of a marriage contract are regulated by the provisions of the IC of Russia. This document cannot be drawn up in simple written form, since it reflects provisions affecting the interests of two interested parties.

The marriage contract sets out the position of the husband and wife regarding the division of joint property and the ownership of individual objects by each of them. This is its main purpose, since drawing up such a document allows you to:

• avoid conflicts regarding the division of each family property;
• simplifies and speeds up the divorce procedure;
• often contains options for the development of property relations between the parties upon the occurrence of a certain event.

Art. 42 of the Family Code of Russia defines the rules for drawing up the content of the contract. The law indicates that in the text of the agreement, spouses can indicate the rules for the distribution of both jointly acquired property and that which is planned to be acquired.

According to paragraph 3 of Art. 42 of the RF IC it is impossible to include certain conditions in a marriage agreement:

• limiting the rights of one of the parties to go to court in the event of a controversial situation;
• refusal of the spouse to receive alimony payments and other payments guaranteed and secured by law;
• other conditions contrary to the law.

As a result, the content of the contract between spouses may contain instructions regarding the determination of the fate of property acquired during marriage. In the text, spouses can indicate certain conditions, upon the occurrence of which the ownership of any property to a specific person is determined. However, it is not permitted to include terms that are contrary to the law or that directly infringe the rights of one of the parties.

What form does it take?

When drawing up an agreement between husband and wife, the question arises as to what form the marriage contract should take.

The solution to this issue is set out in Article 41 of the IC of the Russian Federation, which states that this paper must be drawn up in writing and in all cases certified by a notary.

A marriage contract is concluded in writing, as it can act as evidence in court if disputes arise between husband and wife.

In order for it to have legal force, it cannot be hidden, changed unilaterally or evaded from its execution, it must be certified by a notary.

In addition, a specialist can help you draw up a document correctly and provide a sample or example of its preparation.

The procedure for concluding a marriage contract

The form of the marriage contract is established as written with mandatory certification by a notary. However, it is not always clear at what point it can and should be concluded, what order must be followed?

According to the provisions of the RF IC, a marriage contract can be concluded before marriage, as well as after this event at any time.

The main condition is the consent of both spouses to all conditions included in the documents.

• A marriage contract may be declared invalid if:
• concluded under the influence of threats, force, misrepresentation, etc.;
• contradicts the requirements of the law in form or content;
• contains conflicting instructions regarding determining the fate of the same property, etc.

The procedure for signing a contract usually does not take much time and is carried out by a notary. After the parties sign it, the notary certifies the document. The text can be drawn up in 3 copies, two of which are for the husband and wife, one remains in the custody of the notary.

Sample

To correctly and quickly draw up a marriage contract, you can download its sample below. This will help prepare in advance the documents that will be required to fill out information about the parties, property, etc.

Download a sample marriage contract

In addition, the sample provides a clear idea of ​​the structure of the document, which will allow interested parties to think through individual clauses and conditions in advance. Russian law does not establish a standard form for such a contract, but usually all such agreements are drawn up in approximately the same form.

Thus, a notarized form of an agreement between spouses is a prerequisite for its correct drafting.

The terms of the contract cannot be illegal and infringe the rights and freedoms of at least one party. If the requirements of the law are not observed, the contract between spouses may be declared invalid by the court.

Form of marriage contract - procedure for drawing up

The form of the marriage contract is determined by the legislation of our country and cannot be different. The very concept of this transaction implies an agreement between the spouses on the rights and obligations of each of them in the marriage union. Accordingly, the main features of this document are:

• voluntariness of signing by each party;
• regulation of relationships during marriage.

Russian legislation stipulates the following rules for drawing up a marriage contract:

1. It must be in written form.
2. This agreement must be certified by a notary.
3. The moment of conclusion of the transaction is the moment of certification by a notary.
4. The document comes into force only after the registration of the family union.
5. A couple has the opportunity to conclude this transaction before marriage and throughout their family relationship.
6. Changes and termination of the transaction are possible at any time by mutual agreement of the parties.
7. The contract cannot contain clauses that infringe on the fundamental rights of spouses provided for by the Family Code and other legislative acts.

The marriage contract is drawn up by the spouses independently based on mutual consent. It can also be drawn up by lawyers based on agreements between the spouses.

Such a transaction usually regulates the following relations:

1. The obligations of two parties in a marriage to each other.
2. Property relations of spouses during a family union and after divorce.
3. The procedure for distributing family income, forming a family budget.
4. Shares of expenses for family needs.
5. The order and distribution of family obligations.

If desired, spouses can enter any agreements related to family life. The main thing is to follow the rules for the preparation and internal content of this document.

Contents of the marriage contract

In order for a notary to certify a contract concluded by a married couple or future newlyweds, it is important to draw it up correctly. It should consist of 3 parts:

• introductory;
• basic;
• final.

Be sure to fill out every part of it.

Introductory part

The preparation of any legal document must comply with the requirements of the law. Each document must have the name and details of the person who compiled it. The marriage contract must include the following:

1. The title is "Marriage Agreement".
2. Place of detention: city, country.
3. Date of. When specifying the date, you must indicate the date when the document was certified by a notary.
4. Personal data of both spouses. Here you must indicate surnames, first names, patronymics according to passport data, as well as the place of registration and series, passport number.
5. The purpose of concluding this document.

These points are included in the first part of the marriage contract.

Main part

Depending on the relationship that the spouses want to regulate by concluding a contract, the structure of the main part is determined. Each type of relationship is highlighted in a separate paragraph:

• Rights and responsibilities regarding content

If there is an agreement on mutual rights and obligations to each other, such a clause is created. It usually prescribes the procedure for binding actions, for example, in the event of loss of ability to work. The law provides for the obligation of maintenance and financial assistance to the spouse. Husband and wife have the right to expand these boundaries.

According to the legislation of our country, all income received in a marriage relationship is divided in half between spouses. But the contract may stipulate another form of division. For example, provision may be made for the husband to dispose of his income and the wife to dispose of hers.

According to Russian laws, the family bears expenses based on the total family budget. But the prenuptial agreement may stipulate the shares and responsibilities of different parties to bear expenses for family needs.

• Liabilities to third parties

The law provides for joint responsibility of the family for its obligations. In the contract, the husband and wife can stipulate individual responsibility for certain obligations. For example, a husband may be required to pay his wife's car loan.

This paragraph specifies a list of family property. It is imperative to make a list indicating the owner and the rights of other family members to ownership, disposal and use.

Husband and wife may consider options for shared ownership of real estate. The division of shares can be established in any order.

The list of property can also include the property that is planned to be acquired in the future, and describe the rights and responsibilities of all family members in relation to it.

The same paragraph determines the procedure for dividing joint property in the event of divorce. This does not include property that was acquired by each party before entering into the family union.

If you plan to purchase real estate with a mortgage, then it is better to settle this issue with a prenuptial agreement.

Because upon divorce, the difficulty of dividing responsibility for paying the mortgage and owning a joint living space will arise.

The simplest solution would be to create a clause under which one party to the agreement will renounce its share in the property and receive compensation from the other party.

At the discretion of both spouses, other clauses regulating their relationship may be introduced. They also have the right not to include one or more of the items listed above. The most important thing is that the agreements concluded do not infringe on the fundamental rights of one of the parties. Otherwise, in this case, the contract will always be able to challenge one of the parties to the transaction.

Final part

The final part states the following points:

• agreements on the procedure for changing the terms of the contract, as well as its termination;
• it is also important to indicate the responsibility of the parties in case of failure to fulfill the terms of this transaction;
• validity period of the agreement and its individual clauses;
• the date it comes into force.

Clauses that should not be included in the contract

In order for a marriage contract to be concluded legally correctly, the spouses must know what aspects cannot be regulated by such a document. The agreement cannot include:

1. Refusal of one of the parties to protect their legal rights.
2. Restriction of the fundamental rights and freedoms of a family member.
3. Non-property obligation of a spouse. You cannot be obliged to give flowers and take you on vacation. But it is possible to provide for financial liability for failure to comply with these points.
4. Limit the legal rights of the disabled or incompetent party.
5. Determine the procedure for disposing of property in the event of death. If one party wishes to legally secure this point in a document, a will is drawn up.

When concluding an agreement, spouses are required to adhere to this form. After its preparation, the document is checked by a notary for correctness of execution and compliance with legal standards.