Today we will try to study the data of Art. 35 SK of the Russian Federation. In general, this is a very important point. Indeed, many disputes of spouses in the family are related to property. Therefore, it is worth knowing what rights a husband and wife have in this regard. Who can dispose of what? In what order? What is considered common property and what is not? All this will be discussed later. Property Relations in families, this is far from the last thing. So what are the rules set in Russia?
Common property
Art. 35 of the IC of the Russian Federation (current version) indicates that spouses have the right to own, as well as to dispose of and use common property. But what applies here? After all, there is the concept of the general, and there is the concept of the personal.
What was acquired before marriage belongs to the second category. This also includes everything that is obtained after the union is registered as a gift (especially as a gift), as well as personal items. Jewelry does not belong to this category.
The common property, as we have already found out, is what is acquired in a marriage. And it is these relations that are regulated by Art. 35 SK of the Russian Federation. Please note: according to modern laws, family income is considered common property. All deposits, units, equity interests, securities, as well as movable and immovable things can be attributed to the so-called co-acquired. And it doesn’t matter who exactly is registered, for example, this or that real estate. If it was acquired in a marriage, then it is considered common.
Part 1
Art. 35 SK RF with comments divided into several parts. Each of them indicates certain features of the property relations of the spouses. The first section is very short. But it is extremely important.
The thing is that the rule is indicated here: spouses own common property on equal terms and by agreement. The same goes for disposal and use. That is, we can say that all are equal. Unfortunately, in practice, this rule has almost no effect. Someone is trying to infringe on the rights of the other spouse. For example, a person working and providing for a family. He believes that he has more rights to this or that property because of his work. Based on the data specified in Article 35 SK RF, we can say that this is not so. And this behavior is simply unacceptable. Although in Russia this is a very common occurrence.
Part 2
The second part of this article indicates the moment regarding transactions with jointly acquired property. Often spouses carry out certain manipulations with property. It is believed that at the conclusion of the transaction the consent of the spouse is already there.
This means that for any conclusion of agreements regarding co-acquired without fail husband / wife must agree to the operation. Otherwise, it is impossible to arbitrarily dispose of what is recognized as common.
Cancel
According to part 2 of article 35 of the IC of the Russian Federation, if one of the spouses disagrees with the transaction with the jointly acquired property, the whole process can be terminated. That is, recognize it as invalid and cancel.
This is done at the request of one of the spouses, who did not give consent to the commission of certain manipulations. The rule does not apply to personal property. That is, what belongs personally to each spouse can be sold, transferred, donated and so on without the consent of the second half.
But with common property, everything is not so easy. True, canceling a deal is not too easy either. After all, it will be necessary to prove that the initiator of the transaction could have guessed or knew exactly about the protest of the second side.If there were no incursions in this direction, and there were no motives for protesting, cancellation of the transaction is almost impossible.
Part 3
Part 3 of art. Also plays an important role. 35 SK of the Russian Federation. This item is responsible for possession, use and disposal of spouses common property in respect of transactions that require mandatory state registration. As practice shows, it is usually about real estate, as well as loans and credits.
P. 3 Art. 35 of the IC of the Russian Federation indicates that with such a development of events, spouses should give each other notarized agreements on transactions with property acquired during marriage, without fail.
If one of the spouses somehow secretly, without the consent and presence of a notarized agreement of the second party, entered into a transaction regarding the acquired property in the marriage, then the injured second half has every right to declare the transaction invalid. One minus - this is done only in court. And there are restrictions on the duration of the appeal. The dissenting spouse will have only 1 year from the date of the transaction (or rather, when the person should have learned about it) for going to court.
Presumption of consent
As you can see, everything is quite easy and simple, judging only by what is written in the law. It turns out that the spouses have equal rights in relation to jointly acquired property, regardless of who it is registered for. And most transactions with property are based on the presumption of consent. This has already been indicated in part 2 of this article.
Nevertheless, if you look at the commentary, you can see that the presumption of consent does not apply to many transactions and to most property. What requires a mandatory notarized approval of the second spouse? This includes:
- real estate transactions;
- what requires state registration;
- all that already requires notarization;
- transactions with the budget (loans, loans, mortgages, and so on).
In order not to puzzle over this specification, it’s enough to clarify: for almost all transactions with common property, it is necessary to obtain the consent of the spouse in a notarized form. This will save you from problems in the future.
Who and how much invested in the acquired joint property does not play a role. And both spouses have equal rights to jointly acquired. Keep in mind one more fact: violation of the law does not entail the best consequences for the initiator of secret transactions. When dividing property (if it comes to that), this fact is taken into account without fail. And the court will side with the injured spouse.
Section
What else did Art. 35 SK of the Russian Federation? Judicial practice is most often based on the division of property of spouses. The most common case is a divorce. Moreover, everything that was acquired by the spouses together will be shared.
How exactly? By law, since spouses in a marriage have equal rights to what they have, then in the process (and also after) the divorce, too. It turns out that in judicial practice the common property is divided 50/50. Regardless of who invested much in it and on whom everything was framed.
Dispute Resolution
At the moment, a new move has been invented to resolve property disputes between spouses. This is the compilation of the so-called prenuptial agreement. This paper indicates the agreement of the spouses in relation to jointly acquired property and secures certain rights for each party.
The conclusion of a prenuptial agreement is possible both during the registration of marriage, and at any time in the official union. Many agree to such a reception. He will eliminate litigation if it is necessary to carry out the division of property. But so far in Russia, most often this step is interpreted as distrust of the spouse. It is not necessary to enclose it. A prenuptial agreement is a purely voluntary agreement. Most importantly, remember: in a marriage, spouses have equal rights to common property. And for transactions with him, you must obtain the consent of the second half.
