The Law on Bankruptcy of Individuals No. 127, which came into force in 2015, has given many people the opportunity to get rid of debt, start life anew and forget about intrusive collectors. The consequence of this practice was the joint bankruptcy, or bankruptcy of a wife and husband. And this procedure should be understood in detail.
Regulatory framework
Often, when applying for loans, spouses simultaneously become bankrupt. In the overwhelming majority of cases, they are guarantors of each other's loans, or their lenders fall under the influence of a “personal article”. In fact, the onset of delinquency gives debtor status to the whole family.
Family code
In accordance with Art. 34 par. 2 of the RF IC, the assets, property and liabilities of both spouses are equally their property, therefore it is logical that when a joint recovery of existing obligations occurs, the bankruptcy of the wife and husband seems to be the most accurate. But in the Russian legislation there are a large number of subtleties in this matter. For example, the wife of the main debtor is able to defend herself if she signs a marriage contract in advance. She can also write a statement in which she specifies the details of the fact of shared distribution of a certain property, and as a result receives a refund in case of a possible sale of property acquired jointly.
Legal specifics in family bankruptcy
In fact, the regulatory documents and the legislation of the Russian Federation do not directly provide for such a situation as simultaneous bankruptcy of a husband and wife, or family bankruptcy. It is simply impossible to find a norm that can resolve issues in the field of insolvency of spouses, since it is absent. However, cases of bankruptcy of both spouses in judicial practice are already known, and this means that loopholes can be found in the laws. For example, at present, single proceedings for the simultaneous bankruptcy of spouses have been initiated in such regions of the country as Altai Krai, Novosibirsk, Smolensk and Sverdlovsk Regions.
Of course, the initiation of a case requires the existence of specific circumstances, which will be described below.
Family Bankruptcy Circumstances
Thus, deciding on the bankruptcy procedure of a wife and husband, it is necessary to take into account the list of certain factors and do the right thing. This requires:
- Presence of an officially registered marriage - if the spouses file for mutual bankruptcy, a marriage certificate between them is required to be attached.
- A single application for family bankruptcy must be signed by both husband and wife - when filing two separate applications in court, they will also consider cases separately, but a petition for conducting joint proceedings can be made.
- All property held by spouses must be acquired together, because when one spouse is declared bankrupt, only his share in the property acquired together will be recovered, while when applying for simultaneous bankruptcy of a family, all of her property will be taken into account.
- All existing debts should be recognized as “family” - in Art. 45, paragraph 2 of the RF IC, it is emphasized that debts will be “family” only if they appeared in the general interests of the family, for example, when buying a car, apartment, etc.
Optimization and cost reduction
I must say that the simultaneous bankruptcy of the husband and wife makes it possible to optimize and reduce the various costs that arise during production (payment for the services of a financial manager, state duty, etc.). There will also be much less disputes in the case, especially regarding the division of shares in joint ownership, since one family is bankrupt. In addition, you need to pay attention to the time costs that are required to consider the case as a whole.
At the same time, in practice, the bankruptcy of spouses has its own drawbacks: a conflict of interest arising between the husband and wife, insufficient debt of one of the spouses (for example, the law states that the amount of debt of the alleged bankrupt should be at least 500 thousand rubles) .
The court faces a lot of problems in such cases. The federal law needs to be finalized from the date of its approval and up to the present.
Prenuptial agreement as a protective method
The conclusion of a prenuptial agreement is one of the means of protecting one's property, however, it must be said right away that such transactions must be completed at least three years before the alleged bankruptcy. Otherwise, the court has the right to challenge the transaction as concealing property of a deliberate nature, deception.
It is necessary to figure out exactly which clauses of the marriage contract may affect the verdict of the arbitration court, but first you should establish the approximate content of such a contract, based on article 42 of the RF IC.
Sections of the contract
It must be divided into the following sections:
- property regime (shared, joint, separate property);
- participation in the income of the husband and wife;
- content;
- family income distribution procedure;
- the fate of the property from the point of view of law in the event of bankruptcy, divorce, etc.
Especially important in the bankruptcy of spouses physical. persons in practice are the first and last clauses of this contract. In accordance with them, the spouses will choose the wording of the property that they currently have and acquired in the future. So, for example, if you mean an entrepreneur, then in the second paragraph (participation in income) it should be noted that the spouse should bring half of the income from his entrepreneurial activity. The proposed nuances are recommended to be discussed with a lawyer competent in the competent preparation of the marriage contract to protect the property of the spouses from legal proceedings.
People are often interested in how to protect a family with a single dwelling from simultaneous bankruptcy of a husband and wife, but they can be reassured in this matter. In this case, it is not necessary to conclude prenuptial agreements and search for possible solutions. Article 446 of the Code of Civil Procedure of the Russian Federation provides for a list of property that is not subject to sale and recovery during bankruptcy, and this list also includes the only housing. The manager can not implement it in any case. But such a rule is not related to the situation with the mortgage, when the debtor’s housing, even if it is the only one, is pledged by the bank.
List of documents and preparation of application
It has already been indicated above that in order to file an application for bankruptcy of a wife and husband, it is necessary to write a joint appeal with the application of a marriage certificate to him, as well as the signatures of both spouses. In the future, you must adhere to the standard application procedure in accordance with the rules established in the Federal Law No. 127, Art. 213.4:
- the application must be submitted to the Arbitration Court at the place of residence of the individual;
- it is allowed to submit paper if the individual foresees the fact of their own bankruptcy.
Also, all the required documents are attached to the application, the list of which is quite extensive. Among the main securities in case of bankruptcy of spouses in one case, the following can be indicated:
- documents that confirm the debt;
- list of creditors;
- extract from the tax structure for the last three years;
- duplicate documents related to property rights, etc.
The documents must be collected by both spouses, after which the court will consider their case individually or reject them for some reason.
What to indicate in the application?
In the application for joint bankruptcy of the husband and wife, the address and name of the court to which they are sent are initially indicated. Then personal information about the debtors is written (data on the passport, place of residence, etc.). After that, it is indicated for what reason the application is submitted, due to which the rights of the citizen are realized in relation to his debt. Also, the address and the name of the SRO selected by the debtor must be written in the appeal. In accordance with the list of its members, a financial manager is selected whose responsibility will be to conduct business.
Family Bankruptcy: Husband and Wife Insolvency Claim
The family budget implies both joint spending and debt. However, each spouse has to go through the bankruptcy procedure separately, although many actions, documents and expenses are duplicated. In bankruptcy of spouses in one procedure, a solution to such problems is required.
The current law implies that spouses are required to file two separate claims for self-bankruptcy. But in this case, it implies the collection of duplicate documents and double payment of state duty. Such claims can be considered by two different financial managers, moreover, not even one arbitration court (if the place of registration of the spouses does not match). All this makes the already complicated and expensive procedure quite difficult.
Arbitrage practice
Despite the fact that there are no special laws on joint bankruptcy of spouses, judicial practice in this direction still exists. There are various procedural methods that allow us to talk about the possibility of simultaneous bankruptcy of spouses in our country. These include:
- Satisfaction of the application of the husband and wife by the judicial authorities to recognize them as insolvent persons, that is, bankrupt. The court in this case has the right to refer to Art. 34, p. 1, Article 45, paragraph 2, and Art. 213.26, p. 7, RF CC Federal Law No. 127. Thus, the authorized body recognizes the existence of common obligations and creditors of the applicants, so they can apply for the use of the common property regime. In this case, the bankruptcy estate is drawn up in a single family bankruptcy case.
- Two cases (wife and husband) are combined in one production. The court, on the basis of Article 32 of the Federal Law No. 127 and Article 130 of the Arbitration Procedure Code of the Russian Federation, can unite cases on its own initiative or at the request of a citizen who takes part in the case.
It is worth saying that in 2016 FinPotrebSoyuz requested the State Duma of the Russian Federation to legalize the bankruptcy of both spouses. In accordance with the new bill, family bankruptcy can be used by citizens not only in registered but also in divorced marriages. This type will be convenient for both the court and debtors. It is possible that the introduction of this law will require a preliminary tax reform. In many countries, a family bankruptcy procedure has existed for a long time, but in Russia such an idea is still under consideration. There is a certain responsibility of the spouses in bankruptcy.
It is recommended to remember that upon approval of their application by the court, they will not be able to take loans from banks without indicating the fact of their own bankruptcy.
The court had previously declared the whole family bankrupt and thus set a precedent. In the Novosibirsk Region, the Arbitration Court declared A. and M. Kuzminy bankrupt in November 2015. Spouse applications were combined into one process and formed a common register of claims put forward by creditors.