Family relationships are not only joy, but also some problems. They are especially noticeable when it comes to property. Issues related to real estate and property are extremely acute for spouses. In particular, when they decide to get a divorce, or simply cannot decide mutually how to dispose of the property. Therefore, today we will have to find out how the possession, use and disposal of the common property of the spouses takes place. All this is enshrined in law. It is also worth talking about the division of property. After all, this moment concerns to some extent our today's topic.
Property Types
But before that it is worth figuring out what kind of property is involved. After all, there are several types of property. Some spouses personally manage, and some - together.
In the first case we are talking about personal property. This is all that belonged to the citizen before the official registration of the marriage. Also, this type includes real estate and items received under a gift agreement. Of course, personal items (clothing, shoes, and so on) - all this is also only personal. The second spouse does not have any rights to this property.
And the second case is the common property. It includes everything that has been acquired by people in marriage. And it doesn’t matter to whom the property is registered. The procedure for possession, use and disposal of spouses by common property is established and regulated by the legislation of the Russian Federation. More specifically, the Family Code. Moreover, remembering all the rules in this regard is not as difficult as it seems. But the section of what the couple made in marriage is already a more serious moment. And it has to do with our current issue.
Together
So, the first thing you need to pay attention to is that the possession, use and disposal of the common property of the spouses is carried out by mutual consent of the spouses. That is, according to the law, each manages his property as he wants. Moreover, the second half will have nothing to do with this. But with joint ownership, everything changes.
How to handle the property will have to be agreed with the wife / husband. And no exceptions if it was acquired in marriage. In any case, it should be so. Yes, in practice, not everyone remembers that the couple are equal in this regard. But these are the rules. What else do you need to pay attention to?
Deals
For example, real estate transactions. The ownership, use and disposal of the common property of the spouses, as we have already found out, should be established by agreement. More precisely, with the consent of the husband and wife together. But what if a deal is planned with property acquired in marriage?
In this case, you can commit it. According to Art. 35 RF SC, possession, use and disposal of the common property of the spouses is carried out by joint decisions. This means that when dealing with it, it is also implied that the other half is aware of what is happening. Moreover, she gives her consent to the implementation thereof.
Please note: it does not matter who the property is registered in. After all, the joint property of the couple does not depend on this. Spouses are equal in every sense before each other. An exception can only be when it comes to personal property. In this case, as already mentioned, your other half does not participate in the transaction at all.
Notary certification
It so happens that certain agreements regarding property require state registration. In this case, Article 35 “Ownership, Use and Disposal of the Common Property of the Spouses” indicates that your second half will require consent to complete the transaction. No wonder, it is always necessary when it comes to joint ownership.
But only one distinguishing feature takes place here - this is notarization. That is, when a real estate transaction requires subsequent state registration, a written agreement is required from the husband / wife. It must be certified by a notary without fail.
True, there are exceptions. In the event that the spouse (a) is a direct participant in the transaction or is present when it is completed. Although, as practice shows, a certified permit will still be required. The absence thereof is a violation of the conclusion of a contract. So, you can easily recognize it as invalid.
Court and investigation
The Family Code (Art. 35, “Ownership, Use and Disposal of Common Property of Spouses”) has several clarifications regarding our current issue. What if someone made a deal with real estate (not personal), and you were against it? Or didn’t they even know about it?
In such cases, you can either reconcile or assert your rights in court. In Russia, the so-called presumption of consent applies to the common property of the couple. This means that if one of the spouses does something, the second automatically agrees with this.
What follows from this concept? If you are against a particular transaction (or did not know about it), it is enough to notify the judicial authorities about this. They will conduct an investigation, after which the action with the "jointly acquired" is recognized as invalid. It is simply annulled. Such cases are very common in practice. Especially recently.
Time limit
True, not everything is as simple as it seems. After all, the Family Code of the Russian Federation, article 35 "Ownership, use and disposal of the common property of spouses" has one small clarification regarding the filing of a statement of claim.
The thing is that your soulmate has the right to appeal to the judiciary if you begin to manipulate joint property without her consent. Moreover, under such circumstances, transactions will be invalidated. But there is a time limit for going to court.
The husband / wife will have a year from the moment when he / she should have (a) learned about the transaction. Or the countdown begins after a citizen has revealed the violation of his rights to joint property. But after this period it is much more difficult to achieve justice. In practice, few take up such cases if more than a year has already passed.
Alienation
Sometimes there is an alienation of property. This is a real estate transaction, but it does not require any state registration. What if the spouse decided to alienate?
He will need your consent. The use, possession, disposal of property acquired in marriage is carried out only after prior agreement between the spouses. So, you need to get the consent of the second half. Moreover, as in the case of transactions accompanied by state registration, notarized.
There can be no exceptions. You have the right to alienate, give and transfer personal property without the consent of the husband / wife. But for everything that concerns the "jointly acquired", it will be required. Of course, you can make a deal without consent. Only if the second spouse wants to recognize it as invalid, will he succeed. In any case, the judiciary is usually on the side of the one who infringed on the rights and did not inform the agreement being concluded. It will be hard to admit that I am right. Indeed, before the law, husband and wife are equal.They have the same rights to everything that they received or acquired after the official registration of relations in the registry office, with the exception of property transferred by deed of gift or by inheritance / will.
Spouse's death
But the commentary to article 35 of the Family Code of the Russian Federation points to some features related to our current issue. In particular, by what principles will the use, disposal and ownership of joint property occur if one of the spouses dies.
In this case, you have to turn to the principles of inheritance. The share assigned to the deceased will be distributed among the heirs in turn. Spouses are one of the first applicants. Therefore, if there was no will, then the inheritance is transferred by law. In the presence of children, joint property, or rather half of it, will be distributed in equal shares to all first-order heirs.
For example, there is a family consisting of a husband, wife, 2 children. Of the common property there is an apartment. The husband is dying. Then half of it (and this is 50%) of the apartment will be distributed in equal shares by law for his wife and children. Each will get 1/6 of the total. As a result, the wife will now be able to dispose of her 1/2 and 1/6 of the apartment received as an inheritance without any particular problems. The rest will be given to the children.
Section
The possession, use and disposal of the common property of the spouses, as we have already found out, is on an equal footing. Yes, and by mutual agreement. And how then is everything that was acquired during the marriage during the divorce shared?
It’s not hard to guess: since all spouses are equal before the law, then they get exactly half of what they made when they divorce. Excluding personal property. She remains with those to whom she originally belonged.
True, there are exceptions. Sometimes you can recognize personal property as joint. Usually in this regard, the easiest way is with apartments. Recognition is possible if the second spouse at his own expense significantly improved the condition of the property. Or increased its total cost (through overhaul, for example).
Marriage contract
And in some cases, the spouses decide to enter into a prenuptial agreement. This document governs property relations between husband and wife. It states what belongs to whom. Principles for the division of property are also indicated.
Important: a marriage contract can be concluded at any time - during or after official registration, and it must not violate established laws. As practice shows, the presence of this document greatly simplifies life and eliminates disputes regarding the property of spouses in a divorce.
