Provision of a marital share in property acquired during marriage

As stated in article 256, paragraph 1, of the Criminal Code of the Russian Federation, property acquired by spouses during marriage is their joint property if the contract between them does not establish a different regime for such property; the same legal regulation of the regime governing the property of spouses is established in the Family Code of the Russian Federation (arts. 33, 34, 36, 39); therefore, the joint property of the spouses is created by direct instruction of the law; if the spouses have not entered into a marriage contract in the course of their lives, or one of them has not acquired property by means of a free transaction, the property acquired by them during the marriage by means of a joint means shall be transferred to their joint property and the shares of the spouses shall be recognized as equal.

The surviving spouse ' s right to inherit does not diminish his right to some of the property acquired during the marriage and joint property of the heir.

However, in accordance with art.

1150 SC of the Russian Federationby the joint will of the spousesorby a treaty of inheritanceOther rules and conditions for the inheritance of common property by the surviving spouse may be envisaged.

The deceased spouse ' s share in this property is determined in accordance with article 256 of the Criminal Code of the Russian Federation. In addition, in determining the surviving spouse ' s share, it is necessary to ascertain the acquisition of property during the marriage by means of a joint means.

34. The CK of the Russian Federation includes the income of each of the spouses from work, business and intellectual activity, pensions, benefits and other non-special-purpose cash payments (amounts of material assistance, amounts paid for compensation for loss of work due to injury or other damage to health, etc.) The common property of the spouses is also the movable and immovable property acquired from the common income of the spouses, securities, shares, deposits, shares in capital invested in credit institutions or other commercial organizations and any other property acquired by the spouses during the marriage, irrespective of whether it is acquired in the name of the spouse or in the name of one of the spouses or by whom the money is paid. The joint property of the spouses is also subject to the joint property regime of the spouses, and in cases where one of the spouses during the marriage has been engaged in household management, child care or for other valid reasons has no independent income.

As proof of ownership of the surviving spouse, half of the property in common with the heir is a certificate of ownership of the share in the common property of the spouses, the issuance of which is provided for in article 75 of the Basic Law of the Russian Federation on Notaries.

A certificate of ownership of the share in the common property of the spouses may be issued to the surviving spouse for half of the common property acquired during the marriage.

On the basis of a written declaration by the heirs of the inheritance and with the consent of the surviving spouse, the share of the deceased spouse in the common property may also be determined in the certificate of ownership.

The property belonging to the owner is owned by two or more persons (general property), property belonging to the heir on the date of the opening of the inheritance, including property rights and obligations; intangible goods, non-material rights and obligations, and property rights and obligations inherent in the identity of the heir (right to maintenance, right to compensation for damage to the life or health of the citizen, etc.) are not part of the inheritance. This agreement of the persons entering into the marriage or the agreement of the spouses defining the property rights and obligations of the spouses in the marriage and (or) in the event of its dissolution is concluded in writing and is subject to notarial certification.

The legal regime of marital property, marriage contract, debts, inheritance.

My observations are that marriage contracts are more and more frequent today, which are mostly concluded by a generation under the age of 40-45 years, and that older generations rarely have this factor, and that there are different opinions about the appropriateness of concluding such a treaty. Some believe that this is normal in today's world and others in the opposite world.

My opinion, a marriage contract, is a potential divorce, i.e., the actual people who entered into it are preparing for divorce. Property issues are closely linked to the psychology of family relations. A marriage contract may, to some extent, be the equivalent of an unregistered marriage. If there are doubts about the durability of a marriage, it may not be registered.

But things are different.

The joint property of the spouses is property acquired by them during the marriage (art. 34, para.

The real estate acquired during the marriage under the contract of sale, the contract of equity participation in construction, the Paenacon contract and others where the money was used to purchase it; even those contracts that were concluded prior to the marriage but that were paid during the marriage, such as rent, mortgage, payment for a square metre in the new building when the land was re-calculated, etc. Such real estate would relate to the property acquired by the spouses during the marriage (art. 34, para. 2); however, it should be noted here that it would apply to such property in proportion to the payment. That is, conditionally, if a person purchased an apartment prior to the marriage with 50 per cent of the value, then entered into the marriage and the remaining 50 per cent was paid in the marriage, the first would be 75 per cent and the second 25 per cent.

There are cases in which personal property acquired prior to marriage (even the one acquired during the marriage through a free transaction — privatization, inheritance, gift, etc.), which is not a joint property (art.

36 U.S.K.), a joint property (art. 37 of the U.S.) may be recognized by the courts if it is proved that the second spouse has invested in the property, which has increased its value.

Also, in respect of the personal property acquired prior to marriage or during marriage under a free transaction, the spouses may establish a regime for joint or joint property by means of a marriage contract (art. 42).

In this case, such property may be disposed of by itself, without the consent of the second spouse, which is implicit in article 35 of the Family Code of the Russian Federation. The marriage contract changes the regime of joint property established by law.

This can be defined by the contract not only with respect to the objects purchased in exchange transactions, but also on a non-reimbursable basis, as described above.

Since the marriage contract changes the regime of joint property, if the contract has been concluded and the other spouse (debtor) has obligations to creditors, the recovery of his property or the spouse's share in the common property of the debtor's spouse that would have been owed to him may not be made (art.

If a marriage contract is concluded, for example, if the debtor ' s spouse has been sued by his previous ex-wife for maintenance on the basis of such property, the claim will not be settled.

In addition, it is not possible to allocate the spouse ' s share of the debtor ' s debt to the courts.

In addition to the topic of inheritance, if the spouses have established a regime of separate property, for example, the apartment they bought in marriage became owned by the wife only, in the event of the husband ' s death, their heirs would not be able to claim his property, which would have been expressed as one-second of the share of the apartment (the marital share) had it not been for the marriage contract.

This is the same example, but on the other hand, when a wife dies and not a husband, the apartment was also bought in marriage and the marriage contract of the spouses determined that she belonged only to the wife.

However, the husband may inherit by will if the husband, despite the marriage contract concluded, bequeaths the apartment to him in his lifetime (article 1120 of the Criminal Code of the Russian Federation).

Right of surviving spouse to share in common property requirements of law and notarial practice

• One of the people said to him, "Teacher, tell my brother."
• so that he may share the inheritance with me.
• He said to the man, "Who made me judge or divide you?"
• And he said unto them, Look! Beware of covetousness: for man's life is not dependent on his abundance.
• Luke's Gospel (12:13, 14.15)

Yes, none of those living under Christian commandments would want to share the inheritance either for themselves or for anyone.

However, the legal fact of the inheritance, when one of the spouses dies, is that the surviving spouse and notary in charge of the inheritance has to deal with the fate of the share in the common marital property.

This widespread situation in our country with regard to civil law and professional notarial law creates known difficulties for both heirs and notaries practitioners.

Moreover, the discussion on the issue of a marriage certificate has even succeeded in breaking up the notary community with supporters and opponents of such a distinction; why is there a controversial situation in notary practice and how it can be overcome through improved legal regulation will be addressed in this publication.

At first glance, problems and disputes over the surviving spouse ' s right to property acquired during marriage should not arise; the right to property is known to be inviolable under article 1 of the Criminal Code of the Russian Federation; the property acquired by the spouses during marriage is their joint property unless the contract between them establishes a different regime for such property (art.

256. In the event of the death of one of the spouses, there is a natural, so-called evental, division of the property acquired during the marriage between the spouse of the deceased who is part of the inheritance and the surviving spouse ' s share, and article 1150 of the Criminal Code emphasizes that the right to inherit the surviving spouse does not in any way diminish his or her right as an owner spouse.

From the point of view of all the above-mentioned norms of Russia ' s updated civil law, it is clear that, first, the surviving spouse has the right to own part of the property, and secondly, the inheritance property consists only of the deceased spouse ' s share, which is the subject of inheritance.

A surviving spouse could not refuse to issue a certificate of ownership, as a waiver of a document would not mean a waiver of a right.

Consequently, in any case, the inclusion in the estate of all property without the allocation of a marital share objectively violates the rights and legitimate interests of the surviving spouse based on the requirements of the current civil law.

With this conclusion, the authors of the relevant sections of the special legal literature on the application of inheritance law in notarial practice are in solidarity.[1]

However, in real life, in the specific notary practice of applying the rules of inheritance law, this is not the case as intended by the legislator and thus provided for by the letter of the civil law. Many notaries in the inheritance cases believe that legitimate approaches are not for them, but for the scientists or methodists of the notaries.

It is much easier to go the other way without thinking about the rights of the surviving spouse; first, the share of the right to property may simply be overlooked if the "living" spouse has not applied for a certificate of ownership, a solution which was proposed in the course of time by the State Notary Ordinance (art. 381).

The allocation of the spouse ' s share then required the spouse ' s mandatory will and, if not, the property was included in the estate; thus, both the requirements of civil law and the subjective rights of the spouse ' s owners were clearly violated in order to simplify the proceedings.

75 The basis of Russian legislation on notaryism (hereinafter referred to as the Basic Law) is not so "disappeared" from the norms of the notary law of the Soviet period. It is stated here that the notary "may determine the share of the deceased spouse" and "may be issued a certificate for half of the common property" of the surviving spouse.

You may ask the deceased spouse to enter into a non-consensual transaction, for example, if he has a share in the marriage; moreover, in the periodical press, notaries are asked to establish such a transaction by law as a special type of one-sided transaction.

This possibility for owners is provided for in article 236 of the Criminal Code of the Russian Federation. If the right of ownership is waived, its objects become unoccupied (art. 225 of the Criminal Code of the Russian Federation) and their future fate is decided solely by the courts and not by a notary procedure.

In fact, notaries make it easier for the heirs to get their inheritance documents.

And it is not lawful for you to give up your property, nor is it lawful for you to give up your property, nor is it lawful for you to give up your property, nor is it lawful for you to give up your inheritance.

Nor will it be in accordance with the law of the notary ' s proposal to the spouse to write a request not to issue a certificate of ownership, or that he will not receive a certificate of ownership at all in the future, etc., etc.

Of course, any ruse to evade the requirements of the law should not be justified, although in this case it is possible to do so with respect to the notary community, in view of the real difficulties of notarial practice.

According to the material from the Civil Law textbook, the marital share is "a certain part of the marital property", but a notary may issue a certificate of ownership in accordance with article 75, paragraph 2, on the basis of only half of the common property; however, the share of the marital property is not always half.

The Family Law provides that: each spouse ' s property may be recognized as joint property with a substantial increase in the value of the spouse ' s property, the spouse ' s residence may be separated and the property may be recognized as the property of each spouse; the notary does not, to date, have the necessary competence to determine the marital shares.

This raises an objective problem with the issuance of a certificate of inheritance and the issuance of a marital share, and it turns out that if a notary wishes to strictly follow the letter of the law, it is impossible to do so without the participation of the court in almost every particular case of the discovery of the inheritance after the death of the spouses.

Boyko gave her marital share after her husband ' s death, P.P. Boyko, on the grounds that her housing and land rights had not been confirmed; in particular, the land had been granted to the deceased by a decree of the head of the October Rural District, i.e. free of charge, thus being only the individual property of the deceased.

The certificate of State registration of the right to a dwelling was issued to the deceased P.P. Boyko on the basis of an extract from the economic book of the administration of the Oktyabrsk Rural District; the latter, according to the notary, did not constitute a ground for the recognition of the right of ownership of the dwelling.

Doubts about the legal documents led the notary to deny the surviving spouse a share of the marital share; she filed a complaint with the court against the actions of the notary, who, in turn, had been left out of consideration by the Krasnoarmey Rabbit.

In this case, and in many other cases, surviving spouses will have to go "to the torment." In the case of courts, in the case of law-abiding notaries, they will be overwhelmed by civil cases by determining the surviving spouses' share of common property.

Yes, there are certain objective justifications for the emerging notary practice, where the surviving spouse ' s share is not singled out but included in the common estate; however, the law is a law and is bound by it by everyone, including, of course, the notary of the Russian Federation, so if the inheritance is discovered, the notary is obliged:

1. • First, to notify the surviving spouse;
2. • Second, to inform him of the compulsory allocation of the marital share;
3. • Third, in the absence of a dispute, issue a certificate of ownership of half of the common property acquired during marriage;
4. • Fourth, where there are circumstances indicating that evidence is needed to determine the share, recommend that the surviving spouse apply to the court and, pending a decision by the court, leave the issue of the issue of certificates of succession open.

This shows that at least two prohibitions must be obvious to a notary: the first is not to ignore the marital share of the estate; the second is not to accept the surviving spouse's refusal to allocate the marital share and then to redistribute property rights between the heirs.

• The consistent implementation of these regulations will enable the notary to:
• (a) Be a guarantor of the inviolability of property;
• (b) To comply with the requirements of article 1150 of the Criminal Code of the Russian Federation and not to diminish the right to marital share;
• (c) Not to provoke possible legal disputes after the issuance of certificates of succession.

However, in order to overcome the current problem, the law on notaries would need to be amended and supplemented accordingly.

75 The basis clearly does not meet the requirements of the existing civil law.

In order for notary practice to adequately implement the spirit and letter of civil law, the new law "On the organization and organization of the notary" should provide for:

1. • First, the duty of the notary to inform not only the heirs of the inherited inheritance (art. 61 of the Basic Law) but also the surviving spouse;
2. • Second, the duty of the notary to inform the surviving spouse of his or her right to a marital share in common property;
3. • Third, the obligation of the surviving spouse to apply to the notary within six months for a certificate of ownership of the share or to apply to the court for a decision on the amount of the share;
4. • Fourth, allow notary not only to issue a certificate of entitlement to half of the common property acquired during marriage, but also to derogate from the equality of shares in the property of the spouses in the absence of a dispute between the heirs and the surviving spouse;
5. • Fifthly, establish the rule that a notary issues certificates of ownership of the estate only after the deceased spouse's share of the common property has been determined.

With regard to the more distant prospects for the development of private law, it is possible to call into question the institution of the common property law of the spouses, which is common to us today. If we remember the history of our country, before the revolution, the spouses in Russia were independent in property relations.

Russian pre-revolutionary legislation established the complete separation of the property of the spouses; the marriage did not unite the property of the spouses, each having and again acquiring separate property (art. 109, para. X, of the Laws of the Russian Empire).

It was not lawful for the couple to have a relationship with each other, but a small union of property took place at the time of the marriage.

These difficulties were seen by pre-revolutionary civilizations, saw, and the lawmakers of that time deliberately avoided even greater problems in the introduction of a common regime of shared property.

With current European trends in mind, the legislative idea is increasingly moving towards recognition of the regime of marital separation as opposed to the universal joint regime.

In this sense, the separation of spouses' property in England and Wales is preferable to full and universal property in the Netherlands and the "community of acquired property" in France.

As for the regime of community of property acquired during marriage, it does not lead to the desired conveniences and stability; for example, the English believe that the regime of common property primarily protects the interests of women with no permanent income and engaged in household management.

The situation of a modern independent woman, on the other hand, prefers the complete separation of the spouses ' property; an exception to the separation regime in the United Kingdom is permitted only for "wives ' homes ", whose joint ownership is firmly established in practice.

It seems that today in Britain, as in Russia before the revolution, even minor difficulties in determining shares in common marital property are feared.

In summary, the right of the surviving spouse to share in the common property under the current civil law is inviolable and should not be diminished, including by notaries in the conduct of inheritance cases and other notarial actions, while the notary community should be assisted in carrying out these tasks by, inter alia, adopting new procedures and rules for the issuance of certificates of entitlement to share in common property under the new law "On the organization and organization of a notary"; as far as the remote prospects are concerned, the institution of separation of the property of the spouses seems attractive; its restoration in the norms of the Russian Civil Code would allow at least the spouses to live on Christian commandments, not to share property in life and not to allocate a marital share after death.

[1] Zaitsa T., Krascheninnikov P. Succession law in notary practice. - M.: Walters Clouver, 2005. - C. 196 - 197.

[2] Russian Justice. - 2003. - No. 9.

[3] The current archive of the Krasnoarmy Rasuda Art. Poltava / Definition of 5 March 2007.

Notary Gazette 2009 No. 3

L.V. Phoennikova, Doctor of Law, Professor,

J.S. Trus, Researcher of the Institute of Advanced Issues in Modern Law, Assistant notary of the Krasnodar Notary District