Prenuptial agreement and children

When getting married, spouses often draw up a prenuptial agreement. The document is intended to regulate disputes that arise after the creation of a family and during its disintegration. The marriage contract and children cannot be combined according to the laws. Such a combination is considered by the legislator as a violation.

What is reflected in the marriage contract?

Family law regulates issues related to family life and the dissolution of relations between spouses. For this reason, the act cannot include provisions regarding the educational process and the child’s place of residence.

If the contract reflects the living conditions of children, then the document is recognized by the judicial authorities as invalid. The basis is non-compliance with the law.

The agreement may include provisions for children relating only to their financial support.

The legislator gives parents the opportunity to decide some issues in the contract:

• the shares in which each parent provides for the children;
• funds used to make purchases for the child;
• payment for an educational institution;
• who controls expenses related to children.

Purchases include food, medicine, school supplies, clothing and more. The law gives the opportunity to divide the family budget as the couple wishes. This rule applies to funds spent on the child.

Parents often include material obligations regarding purchases for their children in the contract. This is influenced by the capabilities of each spouse. Possibilities are taken into account when maintaining a budget separately.

Suspensive condition - responsible for the distribution of property

Initially, you need to decide what such a condition is. It applies to transactions of property value.

For example , the document may provide that upon the birth of a child, the family’s housing becomes his property. It is allowed to establish suspensive conditions in some areas:

• division of property upon termination of relations;
• transfer of rights to property to children;
• division of items on which common property is established between children;
• rights of children born in other marriages.

The marriage contract and children from the first marriage provide that the rights arising after the appearance of a common child in the family are specified.

IMPORTANT! Practice shows that housing is often transferred after a divorce to a child or spouse, with whom the children remain to live. It is recommended to discuss such conditions with lawyers. Otherwise, the judge will declare the agreement invalid.

Cancellable clauses – help change a clause in a contract

In particular, the document may terminate automatically or undergo significant changes . Property rights are transferred to the child, a new type of property is applied, or responsibilities regarding the maintenance of children are divided.

If the contract reflects the conditions associated with the educational process, the document is considered invalid. There are several reasons for this.

In particular, the agreement is intended to regulate property rights . The act also contains material obligations that a person has acquired after marriage. The rules are enshrined in Article 40 of the Family Code.

For this reason, non-property terms cannot be included in the contract. Otherwise, it begins to contradict its purpose. The legislator directly limits what issues a contract can regulate.

Payments can be assigned voluntarily or judicially . In the first case, the agreement signed by the parties applies. It has been established that the document can include conditions relating to the financial support of the child. They partly affect education. For example, this is payment for educational services, vacation trips, etc.

If there is no agreement, then what regulates the rights of parents?

Several options are available. First of all, this is the establishment of alimony on a voluntary basis. The agreement is certified by a notary office .

It reflects the amount of payments and the method of transferring money. The methods used for payment and the procedure according to which deduction is implemented are also indicated. Download an example of a prenuptial agreement below.

Sample prenuptial agreement A prenuptial agreement regarding a child should not reflect where the minors will live after the dissolution of the relationship. This issue is regulated by the spouses at their own discretion in the presence of a notary.

Marriage agreement regarding children

A prenuptial agreement is a bilateral agreement by which spouses establish a contractual regime for joint ownership. The content includes only property issues related to the division of joint property, distribution of family income/expenses, and children have nothing to do with this. Non-property issues are not regulated by the contract. Violation of the content and form of the contract entails the recognition of the contract as invalid.

Is it possible to include children's rights in a marriage contract?

According to the general rule, parents cannot lay claim to the child's property, and children do not claim the material assets of their parents. Article 40 of the RF IC states that the contract contains only mutual property rights and obligations of the spouses, therefore issues of raising a child are prohibited from being reflected in the contract.

Article 42 of the RF IC provides that it is prohibited to establish the rights/responsibilities of parents in relation to minors. For example, financial support in case of divorce.

But there are a number of exceptions to this rule. The Family Code limits the list of issues related to children that can be included in the contract.

Table “Marriage agreement and child”

What questions can be submitted?
Issues that cannot be included in the contract

Funds from which the child's expenses will be paid.	Parents' participation in education.
The husband or wife manages the family budget related to paying for the needs of the children.	Payment of child support in the future.
Financing large expenses for a minor (training, payment for health care, purchase of equipment).	Accommodation for children in case of divorce.

The contract may contain suspensive and dispensable conditions of the marriage contract when it comes to the property interests of minors.

Conditions precedent

Conditions that come into force in the future, upon the occurrence of a specific case. Examples:

1. Parents indicate that after the birth of the child, the common property will become his/her possession.
2. In the event of a divorce, the joint apartment of the spouses will go to the person with whom the children will live.

This is also important to know: How to draw up a prenuptial agreement for a mortgaged apartment?

Cancellation conditions

A list of conditions under which the agreement is completely terminated or canceled in separate articles.

Example #1:

When drawing up the contract, the spouses were officially employed, so the property is conditionally divided in half. The contract contains a condition that if one partner is unemployed, property acquired after dismissal will belong to the working spouse.

Example #2:

Additionally, it is indicated that after the child reaches one year, a DNA examination will be carried out to confirm the relationship between the father and the child.

If the research shows that the husband is not the child’s parent, the transaction is canceled and the apartment returns to the sole ownership of the husband.

Ways to regulate parental responsibilities

If spouses need to agree on non-property issues related to children in the event of a divorce, you can use the methods below.

Table “Ways to regulate the relationship between parents and child”

Type of agreement
What issues does it regulate?

Agreement on payment of alimony	choice of payer (mother or father); form of content; amount of payments; the number of minors in respect of whom it is provided; regularity of payments; duration of commitment; termination conditions
Agreement on participation in raising a child	identifying the parent with whom the child will live; regular communication with the parent; holding joint holidays; requirements for content, level of education

In the event that the mother and father cannot resolve the dispute on their own, the interested parent prepares a statement of claim to the court. The judge determines the property rights of minors and the procedure for their upbringing.

Conclusion

Free legal consultation We will answer your question in 5 minutes!

The inclusion in the contract of conditions that cannot be provided for in the marriage agreement is the basis for recognizing the contract as invalid in its entirety or in some of its issues. Therefore, when mentioning the property rights of children, you must be extremely careful. The pair can only display the following aspects:

• cancellation conditions;
• conditions precedent;
• regulation of child expenses;
• compensation for the cost of education.

This is also important to know: Marriage agreement: form and content

If it is necessary to transfer part of the joint material assets to children, it is better to draw up a gift agreement. In this case, the property will belong only to the child and, upon divorce, will go to the use of the parent with whom he will remain to live.

It is important to know!

• Each case is individual and requires special attention. The information presented on the site is general and does not guarantee a solution to your specific problem.
• We carefully monitor changes in legislation and try to make changes in a timely manner, but this does not always happen quickly.

Therefore, 24-hour legal assistance on any issues is available to you FREE OF CHARGE! Ask your question right now!

Lawyer. The main area of ​​activity is family law. I take an active part in courts as a representative.

Still have questions? Ask them to the duty lawyer!

Marriage of convenience: marriage contract and its consequences

On the threshold of the registry office

On the threshold of the registry office, you don’t want to think about divorce and its results. And the proposal of the other half to conclude a marriage contract can be perceived as a sign of distrust or even self-interest. At the same time, few people remember that a marriage contract serves the purpose of protecting the property rights and interests of both spouses, not only in case of divorce, but also during marriage.

Property disputes are always a serious threat to the integrity of the family. A legally correctly drawn up marriage contract can help preserve the marriage by securing the property relations of the spouses. And, thereby, eliminating the cause of possible conflicts.

The conclusion of a marriage contract is of particular interest to business owners, for those citizens who are relatively calm about their future. A special conversation concerns mothers or fathers who have children from a previous marriage and whose property interests such parent seeks to protect.

And if the spouses decide to file for divorce, the presence of a concluded marriage contract will prevent lengthy litigation over the division of jointly acquired property, as well as not dividing property that is of particular value to each of the parties.

How to conclude

The marriage contract must be concluded in writing. Such a document is subject to mandatory notarization.

The contract can be concluded both before marriage and during marriage. In this case, an agreement concluded at any time before the state registration of a marriage comes into force only from the date of such registration.

A contract made during marriage comes into force according to the general rules of civil law. Thus, the time of entry into force may be indicated in the text of the agreement (for example, after the birth of a child).

If there is no such indication, the document begins to be valid from the moment of its notarization.

The debtor spouse is obliged to notify his creditor(s) about the conclusion, amendment or termination of a marriage contract. If this obligation is not fulfilled, the spouse is liable for his obligations, regardless of the contents of the marriage contract. That is, as if there were no marriage contract at all, and the legal regime for regulating the property of the spouses was in effect.

The validity of the marriage contract ends from the moment of termination of the marriage, with the exception of those obligations that are provided for in the marriage contract for the subsequent period. They usually concern the maintenance of former spouses. But they can also regulate other issues. For example, the right to use real estate owned by a former spouse (say, an apartment, a dacha, etc.).

Prenuptial agreement and children: division of children, property after divorce

A marriage contract is an agreement between 2 persons entering (or already entering) a marriage union, which determines the property responsibilities and rights of the parties (husband and wife). This document, in accordance with the requirements of the law, can be executed only before marriage or when citizens have already concluded it, but not after a divorce.

For the first time, people began to talk about the possibility of registering a marriage contract in the Russian Federation in 1994. Since then, many married couples have taken advantage of the opportunity and entered into such agreements.

Often, before drawing up such agreements, the parties are interested in such a topic as “prenuptial agreement and children”; in this case, a number of nuances need to be taken into account.

To answer this question, you need to turn to the concept of “nuptial agreement”, which is contained in Art. 40 of the Family Code, which clearly states that this document regulates only the property rights of spouses - i.e. Children's rights cannot be included in it. If citizens nevertheless try to include these clauses in the contract, then if they appeal, the judicial authority will declare the document invalid - either completely or specifically in this part.

In accordance with Art. 42, a marriage contract cannot regulate the rights and obligations of spouses in relation to children.

Thus, citizens will not be able to include in the contract the conditions relating to making alimony payments, as well as the obligation to spend money on children in general (for education, food, treatment, etc.).

However, this does not mean that citizens will be exempt from this obligation, because it is established by Art. 63 and 64 of the RF IC, according to which parents must:

1. Take care of the development and education of your children.
2. Ensure that the child/children receive secondary general education.
3. Protect the rights and interests of your children.

How to regulate parental rights without a marriage contract?

As follows from the above, the legislation of the Russian Federation prohibits the establishment of parental rights using a marriage contract.

However, if such a need exists, then it is possible to use alternative options.

If we are talking about alimony obligations, then citizens - the parents of the child (subject to mutual and voluntary consent) can draw up a written agreement, indicating in it:

1. Information about the parties - the payer of alimony and its recipient - the person with whom the children live (full name).
2. Amount of alimony payments.
3. Frequency of payments (usually once a month).
4. Methods of transferring funds (by transfer to a current account opened at a financial institution or in person - against receipt).
5. Information about children (full name, date of birth).

If the spouses cannot reach an agreement on the payment of alimony, then this issue is resolved through the court, by filing a statement of claim or an application for a court order.

After the court issues an act (decision or order), the applicant is given enforcement documents - a court order certified by the official seal, or a writ of execution.

Further payments will be controlled by authorized employees of the Federal Bailiff Service, who, when contacting them, will initiate appropriate enforcement proceedings.

If a citizen who has been entrusted with the obligation to pay alimony does not make payments, he may be held accountable (including criminal liability for malicious evasion).

Issues related to the inheritance of property by children in the event of the death of citizens are also not regulated by a marriage contract.

In this case, citizens can draw up a will, in which they will indicate what property will go to the children in the event of their death. In the absence of a will, inheritance will be carried out according to the law - in order of priority.

The law classifies children, spouses and parents as heirs of the 1st stage - the property of the deceased will be divided between them.

Marriage contract and children, as a suspensive and dispensable condition

As part of the discussion of the topic relating to children and the contract between spouses, it should be noted that the marriage contract is concluded according to 2 conditions: suspensive and dispositive.

Cancellation conditions

The contract is considered signed under severable conditions if its provisions provide for termination when certain circumstances arise. Such circumstances (conditions) often include: dissolution of marriage due to infidelity of one of the spouses, or alcoholism or drug addiction, etc.

The birth of a child can also be a dispensable condition. For example, with the appearance of a child in the family, the marriage contract may automatically terminate.

Conditions precedent

If we talk about suspensive conditions, their presence in a marriage agreement means that the parties (spouses), on the contrary, have additional rights and obligations under certain events.

The birth of a child can be either a suspensive (most often this happens) or a dispensable condition. Birth as a suspensive condition can be applied to issues such as:

1. Division of joint property of spouses after dissolution of marriage.
2. Division of common property (both movable and immovable) between common children.
3. Transfer of property (no matter - real or movable) to a child.

If we turn to legal practice, it is most often possible to come across the following options for transferring a joint property of spouses in the event of divorce:

• Only for children.
• The parent with whom the child will live after the divorce.

Marriage contract and children: division of children, transfer of property after divorce and more

A prenuptial agreement regulates all intra-family disputes regarding property issues at the time of marriage and after its breakup. However, many couples try to include conditions for raising and providing for children into the marriage contract, forgetting that according to the Family Code, the marriage contract and children cannot be bound in one document.

A marriage contract can be concluded both before and after the marriage is registered, but it will only gain legal force after the marriage has been concluded. The marriage contract is regulated by the Family Code of the Russian Federation (Article 40).

Is it possible to include children's rights in a marriage contract?

According to the Family Code, a marriage contract regulates only property disputes that arise during family life and after divorce, and therefore it is impossible to introduce conditions for raising children, determining their place of permanent residence and support.

If the living conditions of children are included in the marriage contract, the document will be recognized by the court as valid, since it contradicts the norms of the Family Code of the Russian Federation on the impossibility of regulating parental rights by marriage contracts.

In other words, if parents want to determine who stays with the child on weekends or has a decisive vote in choosing where to study or live, they can do this through a prenuptial agreement. The only thing that a marriage contract and children can have in common is the question of which parent will provide for the basic needs of the minor and to what extent.

Can parents regulate their child support responsibilities?

Despite the ban on regulating personal disputes related to raising children, legislators allowed parents to independently agree on the following issues:

1. In what shares do parents provide for their common child?
2. From what funds should spouses allocate money for purchases for their children:
   1. Baby food;
   2. Personal wardrobe items;
   3. School supplies;
   4. Medicines, etc.
3. Which spouse will control the management of the family budget, and in particular, the costs of raising a child and purchasing everything necessary, etc.
4. Distribution of parental responsibilities for the purchase of certain groups of goods for the child that are included in the category of expensive purchases:
   1. Payment for a private school or university;
   2. Sports accessories;
   3. Rest in a sanatorium, camp, etc.

The Family Code allows spouses to independently distribute the family budget, which includes child support expenses.

Most often, spouses agree on the division of material responsibilities for providing for the child, depending on the financial capabilities of each while maintaining the family budget separately.

For example, the father pays for private school and additional education and related expenses (stationery, school and sports supplies), and the mother buys the child toys, food and clothing.

Marriage contract and children as a suspensive condition

First of all, let’s define the term “suspensive condition”.

A suspensive condition is applied to the implementation of property transactions. For example, in a marriage contract you can indicate that upon the birth of a common baby, the spouses’ apartment will be transferred to the child.

The birth of a child can be used as a suspensive condition for the following issues:

• Division of property after divorce;
• Transfer of property to a child;
• Division of common property between common children;
• Rights of children from previous marriages (if they are specified in the marriage contract) regarding the division of property after the birth of a common child, etc.

In legal practice, the following options for transferring a shared apartment after a divorce are more common:

1. Children;
2. The parent with whom the children remain.

• Conditions precedent, including the “birth of a child,” must be discussed in the presence of a lawyer so that the marriage contract is not declared invalid by the court.
• Marriage contract and children as an annulling condition
• In addition to the above method of introducing a suspensive condition, according to Russian legislation it is possible to use the birth of a child as a suspensive condition for the validity of a marriage contract.

A disclaimer condition is used to indicate conditions upon the occurrence of which the validity of the marriage contract is terminated or changed.

For example, at the birth of a child, at the request of the spouses, a marriage contract:

1. Don’t waste your time, call us, our telephone consultation is free, right now you will get answers to your questions!
2. Phone in Moscow and the Moscow region: +7 (499) 653-79-33
3. Phone in St. Petersburg and Leningrad region: +7 (812) 332-54-12

1. Automatically terminates its effect;
2. Enforces changes to the marriage contract:
   1. Transfer of ownership of housing to a newborn;
   2. The introduction of a new property ownership regime, for example, the transition from separate management of common property to common property;
   3. Sharing financial responsibilities to provide the child with everything necessary.

Most often, spouses view the birth of a child as strengthening the family, and therefore decide to transfer personal property into common property or transfer part of the real estate to the possession of a minor child.

Why are prenuptial agreements and children incompatible?

We have already mentioned in passing that the main reason why a marriage contract and children are incompatible concepts. Let's talk about this in more detail.

Mentioning in a marriage contract conditions related to the spouses’ responsibilities for raising children automatically makes it invalid.

The prenuptial agreement and children cannot be mentioned in the context of the same document for the following reasons:

• The marriage contract regulates exclusively the property rights and material obligations of the spouses (according to Article 40 of the Family Code of the Russian Federation). It is precisely according to this provision that any non-property conditions included in the marriage contract contradict its main purpose. Such conditions include any issues related to raising children, personal relationships between spouses, etc.
• Direct legislative restriction - “A marriage contract cannot regulate the parental rights and responsibilities of spouses in relation to a common child.” More details in Article 42 of the Family Code of the Russian Federation (clause 3).

Including alimony and the method of calculating it in the marriage contract is also contrary to the law. Alimony can be established voluntarily by agreement between the parents, as well as by court decision.

The only financial conditions related to raising a child that can be included in a marriage contract are payment for education, recreational trips and events, treatment of children, etc.

How to regulate parental rights without a marriage contract?

If the law prohibits establishing parental rights by signing a prenuptial agreement, how can parents take care of their responsibilities after a divorce?

The Family Code offers the following alternatives:

1. Child support after a divorce can be established in a voluntary alimony agreement certified by a notary. In the text of the agreement you can indicate:
   1. Amount of alimony;
   2. Method of payment of alimony;
   3. Deduction procedure (percentage-share or “flat” payment), etc.

You can download a standard sample agreement on the payment of alimony at this address.

1. The division of children after a divorce and the determination of their place of residence after the parents’ divorce can be regulated by an appropriate agreement in a notary’s office.

All of the above types of agreements regarding the upbringing of a child can be concluded without drawing up a marriage contract. The only condition is that the agreement complies with legal standards and is certified by a notary.

Conclusion

Unfortunately, a marriage contract and children are incompatible concepts, and therefore the following questions cannot be included in the contract:

1. Choosing the child’s permanent place of residence;
2. Resolving issues related to the inheritance of their property by children;
3. Distribution of time and responsibilities for raising children and other related issues.

If the marriage contract contains conditions relating to personal non-property issues related to children, then the court may declare the contract invalid (in whole or in part).

Please note that Russian legislation is constantly changing and the information we write may become outdated. In order to resolve a question you have regarding Family Law, you can contact the site’s lawyers for a free consultation.

Prenuptial agreement and children in 2023: from the first marriage

Marriage agreements are used quite often in Russia, but many spouses still make a number of mistakes when drawing them up. And all because they do not know that this document is used only to regulate one type of relationship. Therefore, for example, a marriage contract and children are incompatible concepts.

General information

It doesn’t matter whether we are talking about children from a first marriage or common ones. A marriage contract cannot regulate the relationship between parents and children, with the exception of certain aspects.

The execution of this document is carried out exclusively by a notary. Therefore, you cannot draw up and sign it yourself. Such an agreement simply has no legal force.

When concluding a contract, the following must be taken into account:

1. Many couples draw up and sign a contract before marriage. In this case, it comes into force after the marriage is registered.
2. Both spouses must be adults and have legal capacity.
3. When registering a document with a notary, you need to pay a state fee (about 500 rubles).
4. A prenuptial agreement is usually drawn up for an indefinite period, although spouses may specify certain terms.
5. Spouses can make changes to the document throughout their life together.
6. The agreement can be challenged in court.

The main condition for drawing up a marriage contract is voluntary consent.

What can you specify?

So, a marriage contract is used to regulate property relations between spouses.

For example, both have apartments for which it is necessary to establish a certain ownership regime (joint or separate). The property acquired during marriage is also taken into account.

As for children, it is generally accepted that the marriage contract can contain information about the child’s place of residence and the procedure for providing alimony payments in the event of a divorce. But by law it is prohibited to indicate this in a marriage contract.

The document may only contain the following items:

1. Property ownership regime.
2. Family income and expenses.
3. Maintenance of disabled family members (for example, a wife during pregnancy), etc.

That is, only property issues are taken into account. In relation to children, you can also enter only what concerns their maintenance in marriage.

For example, spouses can share responsibilities for paying for a child’s education. But there can be no talk of any personal relationships.

What cannot be specified

During a divorce, the child must remain with one of the parents. And therefore they try to include this clause in the marriage contract, although this cannot be done. In order to initially determine the place of residence of a minor with his mother or father, as well as to resolve the issue of alimony, it is necessary to conclude an additional agreement. It is rarely arranged in advance.

By law, a document cannot contain the following items:

1. Limitation of the rights of spouses or young children. We are talking about the right to work, receive education or medical care.
2. Regulation of personal relationships.

For example, it is prohibited to indicate that one of them cannot see another family member, etc. When drawing up an agreement, it is very important to adhere to the laws of the Russian Federation.

Let's sum it up

A marriage contract may include provisions regarding children, but they must relate exclusively to property relations. When drawing up a document, parents can (and are even required) to indicate all the necessary points regarding the maintenance of children, payment for their education and other financial issues.

If you want to find out how to solve your particular problem, please use the online consultant form below or call :

Prenuptial agreement and children: division of children, property after divorce

Legislative regulations do not allow combining such legal structures as a marriage contract and children.

Prenuptial agreement: what it is and its features

A prenuptial agreement is an agreement between husband and wife aimed at regulating relations arising over property.

Design Features:

• cannot contain conditions limiting the personal rights and freedoms of one of the spouses;
• provides for the procedure for the distribution of property and property rights;
• spouses do not have the right to provide for conditions in the contract that greatly worsen the financial situation of one of the representatives of the marriage in the event of certain circumstances arising (for example, a marriage contract cannot completely deprive a spouse of the rights to property for the due share if the fact of infidelity is revealed);
• certified by a notary.

A marriage agreement can be drawn up:

1. before marriage;
2. after registration of the union.

Spouses who decide to include unacceptable conditions in the contract may face:

• notarized refusal to register the agreement;
• full or partial challenge (cancellation) of the agreement in court (at the initiative of one of the authorized parties to the marriage).

Can a prenuptial agreement contain a clause regarding children?

Based on the legal nature of the marriage agreement, such a structure cannot contain any conditions relating to the upbringing and maintenance of children, since it is of a property nature and defines the relationship only between spouses as independent units.

Regardless of whether the children are from the first marriage or subsequent unions, drawing up a marriage contract indicating the order of their upbringing is unacceptable.

Nuances

In law, there is the concept of a suspensive condition, which is used to carry out transactions of a property nature (including under a marriage contract).

Using this construction, representatives of the marriage union can provide in the agreement under consideration a different procedure for the distribution of acquired property if they have a joint child (for example, after the birth of a child, the apartment acquired during the marriage becomes the property of this child).

Law enforcement practice knows two options for using a suspensive construction when determining the fate of residential real estate:

1. the full triad of rights to such can be transferred to the born child;
2. the sole owner of the living space will be the husband/wife, with whom the children will live permanently after the divorce.

The appearance of a child in the context of a condition precedent under a marriage agreement may be applied in the following circumstances:

• transfer of the entire triad of rights to property in favor of the pupil;
• distribution of common property between existing children;
• redistribution of property rights between a child born in the current marriage and children from previous unions;
• the procedure for dividing property in connection with the dissolution of a marriage.

There is another legal instrument that can be used in a prenuptial agreement due to the birth of a joint child by the spouses - a severance clause. A severance clause terminates or partially changes the previously accepted provisions of the marriage contract.

A husband and wife entering into a marriage contract and specifying the birth of a joint child as an ancillary condition may entail the following legal consequences:

1. complete cancellation of the current contract;
2. changing the order of distribution of property (for example, housing automatically becomes the property of the child);
3. change in the mode of use of property (if before the birth of the child each spouse managed only his or her part of the property, then after the birth of the child, general management begins).

How can parents determine how to raise and support their children?

Since spouses cannot provide in a marriage contract conditions relating to the upbringing and maintenance of children, in this case there are the following methods:

1. Agreement providing for payment of alimony:

• Determines the person who will be entrusted with maintenance responsibilities;
• Establishes the form of content - natural or material;
• The document does not need to be notarized;
• The amount of content cannot be below the established limits:
• For one child – at least 25% of earnings;
• For two children – at least 33%;
• For three or more – at least 50%;
• The document can be concluded at any stage of the parents’ relationship (before the marriage union, during its existence or at the end of official family life);
• May contain conditions about (if there are no special instructions in the document, then the basic legislative regulations will apply):
• Duration of fulfillment of the alimony burden;
• Regularity of deductions;
• Grounds for termination of the obligation;

1. Agreement on how to communicate with a child:

• Indicates the parent with whom the child will permanently reside;
• Establishes intervals for communication between the second parent and the child;
• Cannot contain conditions that limit or prevent the exercise of parental rights by one of the parents;
• If the parents cannot reach a consensus on their own, then the specified agreement will be drawn up in court at the request of one of the spouses.

Similar

Law enforcement practice and legislation of the Russian Federation changes quite quickly and the information in the articles may not have time to be updated. The latest and most relevant legal information, taking into account the individual nuances of your problem, can be obtained by calling toll-free 24/7 or by filling out the form below.

Prenuptial agreement: to each his own

A favorite pastime of housewives is discussing the scandalous divorces of Hollywood stars and the amount of compensation to wives under the terms of marriage contracts. “If only it were like this with us!” - the women reason, “he didn’t take out the trash five times, and in the divorce I’ll get everything!”

Myth, fantasy? Let's deal with Russian realities.

Indeed, US legislation in different states often allows a woman to feel more than financially protected in the event of a divorce, and allows non-property issues to be included in prenuptial agreements.

Let me start with the fact that according to statistics, only 7% of families in Russia conclude marriage contracts. So far, in our country, regulation of property issues through marriage contracts is not as widespread as in the West, despite the fact that the institution of a marriage contract has existed since 1995.

The Family Code of the Russian Federation (Chapter 8) allows for the possibility of regulating the property relations of spouses in marriage, as well as in the event of its dissolution, by concluding a marriage contract.

It is important to understand that Russian legislation does not allow the possibility of regulating the amount of borscht per week or the frequency of fulfillment of marital debt; it is also impossible to regulate alimony obligations in relation to children using a marriage contract.

A marriage contract in Russia can only regulate property relations between spouses. So, let's look at the main questions.

When can a marriage contract be concluded and in what form?

The law allows for the possibility of concluding a marriage contract not only upon marriage, but also at any time during marriage. A draft marriage contract can be drawn up and signed before marriage, but it will enter into legal force only from the moment of state registration of the marriage.

The marriage contract is concluded in writing and is subject to mandatory notarization. Situations in which spouses come to the understanding that they need a prenuptial agreement vary.

Often this is income inequality between spouses, or financial problems of one of the spouses in business, when the spouses understand that as part of legal proceedings, the spouses' property may be foreclosed on.

Indeed, as a general rule, everything acquired during marriage is subject to division in the event of divorce. Of course, it is possible to prove in court that this property was not acquired with jointly acquired income.

However, this procedure is not simple and very costly; it is easier to stipulate in advance by the terms of the marriage contract that the newly acquired property will belong to the spouse with whose money this property was purchased.

Recently, spouses often pursue the goal of resolving inheritance issues with a prenuptial agreement. Is it possible to influence the amount of inheritance using a marriage contract?

Yes, you can. Formally, a marriage contract cannot contain elements of a will, that is, the ability to dispose of property in the event of the death of one of the spouses. This is understandable: a will is a one-sided transaction and mutual agreement of the terms of the will by two persons is unacceptable.

However, practice shows that spouses who wish to enter into a marriage contract consider one of the most important conditions for themselves to be the need to change the existing procedure for inheriting property. That is why the Plenum of the Supreme Court of the Russian Federation in paragraph 33 of its Resolution dated May 29.

2012 N 9 “On judicial practice in inheritance cases” noted: “The inheritance opened with the death of a married testator includes his property (clause 2 of Article 256 of the Civil Code of the Russian Federation, Article 36 of the RF IC), as well as his share in property of the spouses acquired by them during the marriage, regardless of which of the spouses it was acquired in the name of or in the name of which or which of the spouses contributed funds, unless otherwise established by the marriage contract (clause 1 of Article 256 of the Civil Code of the Russian Federation, Articles 33, 34 RF IC). In this case, the surviving spouse has the right to file an application for the absence of his share in the property acquired during the marriage. In this case, all this property is included in the inheritance.

The terms of the marriage contract, which establishes the contractual regime of the property of the spouses only in the event of divorce, are not taken into account when determining the composition of the inheritance.

Thus, the PPWS emphasizes that not every marriage contract automatically changes the legal regime of the spouses’ property (it does not necessarily have to contain such conditions). The estate is affected only by the marriage contract that changed the property regime of the spouses (provided, of course, that this contract was not changed or terminated during the lifetime of the spouses).

Is it possible to define the alimony obligations of the parties in relation to children in a marriage contract?

No you can not. For these purposes, the Family Code of the Russian Federation provides for the possibility of concluding an agreement on the payment of alimony (Chapter 16). According to Art. 100 of the RF IC, a notarized agreement on the payment of alimony has the force of a writ of execution.

This means that if one of the parties does not voluntarily fulfill its obligations, the alimony agreement can be submitted to the bailiff service for enforcement.

But it is possible to determine the procedure for spouses to support each other through a marriage contract (Part 2, Clause 1, Article 42 of the RF IC).

Is it possible to provide for the rights and responsibilities of parents in relation to children in a marriage contract?

No you can not. The Family Code of the Russian Federation directly prohibits a marriage contract from regulating the rights and obligations of spouses in relation to children (Part 2 of Article 42 of the RF IC). Thus, in a marriage contract it is impossible to determine the child’s place of residence and the procedure for communicating with the child in the event of divorce.

How often can the contents of a marriage contract be changed?

Article 42 of the Family Code of the Russian Federation determines the content of the marriage contract. I would like to cancel that a marriage contract can be concluded both in relation to all property and in relation to part of the property.

In a marriage contract, you can determine the fate of both already acquired property and property that will be acquired in the future.

In practice, a fairly common formulation is to indicate that the spouses recognize that the property will belong to the spouse to whom it will be registered.

Is it possible to challenge a marriage contract?

Yes, you can. A marriage contract may be declared invalid by the court in whole or in part at the request of one of the parties. But it's not that simple.

If a marriage contract does not contradict the current legislation, and was concluded without deception or abuse by one of the parties, such a contract cannot be challenged.

It must be remembered that if you go to court to challenge the terms of the marriage contract, you must do this within one year from the date of its conclusion.

Common mistakes when concluding a marriage contract

The most common mistake is to include in the terms of the marriage contract a provision that in the event of a divorce, one of the spouses remains all the property, and the other - nothing.

In legal language, this sounds like an extremely unfavorable situation for one of the spouses. Part 2 of Article 44 of the RF IC directly states that in this case the court may declare such an agreement invalid. But each case is individual.

It is the prerogative of the court to assess the unfavorable position of the spouse.

An example from my practice. Spouses who have been married for more than 15 years entered into a prenuptial agreement before divorcing. According to the terms of the agreement, in the event of a divorce, the wife would receive a 5-room apartment and a country house, while the spouse would receive a room in a three-room apartment. After the divorce, the spouse went to court to challenge the marriage contract.

In court, he referred to an extremely unfavorable situation, indicated that he signed the contract under pressure, without realizing the legal consequences, since he signed the contract during the period of outpatient treatment for neurosis with a psychotherapist, and generally succumbed to the persuasion of his wife, in the hope of saving the marriage. The court rejected the ex-husband's claim. The marriage contract was upheld.

When studying the circumstances of the case, the court found that the spouses did not settle the fate of all the property. After the divorce, the husband remained the owner of three companies, shares and expensive jewelry. An expert was questioned in court, who explained that the diagnosis with which the plaintiff was treated fully allowed the plaintiff to be aware of the consequences of his actions.

His legal capacity when concluding a marriage contract was checked by a notary, the consequences of concluding a marriage contract were explained to him, which he signed with his own hand.

General recommendations

If you decide to enter into a prenuptial agreement, you need to get a full consultation with a lawyer. Of course, the terms of the marriage contract can be agreed upon with a notary, but it is better to go to the notary with your text agreed in advance with independent lawyers of both parties.