Family law in Russia was created in order to protect the family, as well as the rights, interests and freedoms of each member. An important role here is played by property issues. Quite often, spouses quarrel over the fact that they are not able to share everything that they gained during the marriage. To resolve such disputes, it is necessary to refer to Art. 38 SK. It is there that all the features of the division of joint property are indicated. What to look for? What nuances should spouses consider? Answers to all these questions will be proposed below. In fact, everything is not as difficult as it seems.
The concept of joint property
To get started, let's look at the terminology we will use. A similar phrase characterizes all property acquired for the general monetary funds of the family, as well as property purchased in a marriage. It doesn’t matter who it is framed for. The main condition here is the purchase of something after the formalization of relations.
Also in marriage, spouses may have personal property. It:
- everything that was given to a particular person;
- items and property received before marriage;
- personal items.
What else do you need to know? What features does art. 38 SC of the Russian Federation?
Property Basics
There are no obscure norms of Russian legislation in the field under study. Based on the proposed laws, it can be noted that Article 38 of the Code indicates the possibility of sharing joint property at any time.
In other words, a husband and wife are able to share common property both in marriage (no matter when, exactly), and after a divorce. In addition, such a transaction will be available at the request of the creditor, if it is necessary to recover the debt from one of the spouses.
Disputes and Peace
Art. 38 of the IC of the Russian Federation emphasizes that husband and wife can share joint property by personal arrangement. In order to do this, during the marriage, a notary will need to conclude an agreement. It may be:
- prenuptial agreement;
- property sharing agreement.
In the first case, the document regulates the basis for the separation of both existing property and everything that will be acquired in the future. In the second, the action of the paper applies only to existing property.
Clause 3, Article 38 of the IC of the Russian Federation indicates that in property disputes the division of property will occur in court. The authorized body will allocate shares in a particular property, as well as determine to whom and what will belong.
If the share of one of the spouses significantly exceeds the share of the other, monetary compensation is possible to the one who is deprived.
Separate accommodation
Sometimes it happens that the couple did not divorce, but for a number of reasons they live separately from each other. In paragraph 4 of Art. 38 of the IC of the Russian Federation spells out the features of the division of property acquired by husband and wife under similar circumstances.
The court may recognize property purchased during the period of separate residence as personal property of the person for whom it is registered. This rule applies to divorce.
Separation Features
It should also be noted that spouses buy items not only for personal use, but also for children. In Art. 38 UK contains paragraphs indicating how such property is divided.
Items that were purchased only to meet children's needs (clothing, books, toys, shoes, tools, and so on) are recognized as property of minors. Such property is not subject to division, as it has nothing to do with husband and wife.
All contributions that the parties made due to common ownership in the names of common minor children are also not divided. Why? Because they are recognized as children's property.
Residual stuff
It happens that spouses share property, and then make a new one. Everything that was not shared between a wife and a husband is recognized as joint property. In the same way as all the property that will be purchased during the marriage in the future.
The exception is cases with the registration of a marriage contract. They prescribe, as already mentioned, all the features of the separation of existing and future property. All that was not subject to division (with the exception of personal property) was the common property of the wife and husband.
Limitation of actions
What else is provided for by Art. 38 SC of the Russian Federation? Property recognized as common can be divided both in marriage and after its dissolution. But in Russia there is a statute of limitations for applying for this operation.
Claims of ex-spouses regarding the issue of separation of ownership are prescriptive. Former spouses currently have 3 years left. What does it mean?
Within 3 years from the moment of the divorce, the husband / wife may apply to the court for the separation of joint property.
Comments
In order to study the proposed topic as accurately as possible, it is necessary to read Art. 38 SK RF with comments. It will provide some clarifications that can clarify the situation in contentious issues.
For example, some do not understand when the statute of limitations for a lawsuit related to the division of joint ownership begins to expire. Someone assures that the period starts from the date indicated when the marriage bonds were broken. This is actually not the case. The three-year period is counted from the day on which the plaintiff could find out about the violation of his rights to property.
We can say that in accordance with Art. 38 SC, the limitation period takes place from the moment of obstruction of the use of one or another joint property.
First - investments, then - property
Now about a bit of contentious issues. For example, what if the spouses bought a residential building, which at the time of divorce was not registered in the property? After the divorce, one of the parties became the owner.
Judicial practice under Art. 38 of the RF IC emphasizes that in such circumstances both spouses are entitled to a share in the house. It or an incomplete object is recognized as the common property of the husband and wife.
Debts
But what if during the time of family life the parties formed debts? What does art. 38 SK?
Divorce debts are usually split in half. The exception is debt arising from each party before marriage. In this situation, each spouse pays his own share of the debt.
If the loan was taken after the wedding, then, as already mentioned, it is divided between the wife and husband. But there are exceptions. In Art. 38 SK is not indicated, but in general the Family Code provides for the permission from the second spouse to take a loan / loan. If there is no such agreement, you can go to court and invalidate the operation. Then the judicial authorities can leave the debt to the one who took the loan.
In general, the situation with the debts of the spouses is ambiguous. It all depends on the circumstances of the case. The court may recognize the debt as either general or belonging to one of the parties, depending on the documents and checks provided.
About the marriage contract
Following paragraph 2 of Art. 38 of the RF IC, the wife and husband can at any time conclude an agreement on the appropriation of property or sign a marriage contract. In general, these documents are executed in the same way. The difference between them has already been indicated earlier.
To issue a prenuptial agreement, you need:
- Compose the text of the agreement. It is important to take into account current legislation. It is recommended to prescribe the features of the separation of property acquired in marriage - both current and future.
- Prepare documents of ownership of certain objects, passports of the parties and a marriage certificate.
- Contact a notary and sign an agreement in his presence. Notary services are paid separately.
As soon as the notary public confirms the legality of the document and puts his signature, one can rejoice - property disputes should be resolved once and for all. Nevertheless, such a welcome is not welcome in Russia. Marriage contracts are often regarded as a sign of distrust of the spouse. Therefore, the bulk of the population is guided by the general principles of Art. 38 SK.
Mortgages and loans
Now many families take marriage loans and apply for a mortgage. This is necessary in order to acquire expensive objects. For example, apartments or cars. How will such property be divided between wife and husband?
In Art. 38 SC did not indicate any features regarding this issue. But judicial practice demonstrates that all property issued on credit or a mortgage during an established relationship is considered common among spouses. And no matter who it is framed for. If a loan / mortgage was formed before the wedding, the acquired property is recognized as the property of the person for whom it is registered.
Summary
Now it is clear what norms and features Art. 38 SK RF. Property acquired in a marriage is most often recognized as joint. And it is divided either by mutual consent of the husband and wife, or by court. In practice, there is a second scenario.
An exception may be property received:
- as a present;
- by inheritance;
- by sale through the premarital / inheritance finances of one of the spouses.
Accordingly, if the wife inherited money and bought an apartment for them, such housing can be recognized as personal property. But such a decision will cause a lot of trouble to the plaintiff. Spouses will have to prove and confirm the fact of acquiring property for their personal savings.