Marriage contract for an apartment

Considering the fact that for many Russian families or future newlyweds, real estate is the most valuable property asset that can be at their disposal, it is advisable for those getting married or spouses to ask questions about how to correctly draw up a marriage contract when buying an apartment or how to correctly draw up a marriage contract for already purchased housing.

The division of responsibilities and rights under a marriage contract mainly depends on how the parties to the agreement purchase the apartment. Basically, housing is purchased in 4 ways:

1. The cost of the apartment is paid in cash or money available in accounts, without borrowing funds.
2. Housing is purchased in whole or in part with a mortgage loan.
3. Part of the amount of money required to purchase an apartment is paid using maternity capital.
4. The apartment is purchased under an equity participation agreement (DPA).

As for the purchase under the DDU, it does not matter whether a multi-storey building is being built during the conclusion of the DDU, or whether the developer is just planning to start building the house. Spouses need to indicate one important nuance in the marriage contract, which is that their duties and rights in relation to the apartment will begin to apply only from the moment the rights to it are registered in Rosreestr. This is due to the fact that until the registration of housing, the spouses are not the official owners of the property, which means they do not have property rights to it, which they prescribed in the marriage agreement.

Circumstances of execution and legal features of the contract

A marriage contract can be concluded between the bride and groom before the wedding, as well as legal spouses at any time before the divorce. It must be borne in mind that a contract certified by a notary before the wedding begins to be valid only after the marriage union is registered. As for the contract certified by a notary during marriage, it comes into force on the day of certification.

If the parties to a future agreement are going to purchase an apartment with their own money, without using loans and government assistance measures (maternity capital), then they need to do the following:

1. 
   Decide when they will draw up an agreement: before purchasing a home or after it.

2. Negotiate the terms of the future contract.
3. The next step is to draw up the text of the contract. Due to the high workload of notaries, it is unlikely that they will help the parties to a marriage agreement in writing legally correct wording of the agreement, so you need to seek help from qualified lawyers or try to write the text yourself using this sample.
4. Next you need to prepare: Passports of both parties to the contract.
5. 3 copies of the contract.
6. Cash to pay for notary services (about 5,000 - 10,000 rubles). Notaries themselves determine the full price of the service, based on the size of the notary fee (500 rubles), office costs, wages for assistants, rental premises and other expenses.
7. Marriage certificate, if the official relationship has already been registered.
8. Title documents for the apartment. Firstly, this is a certificate of ownership; secondly, this is a purchase and sale agreement, an equity participation agreement, and a mortgage agreement.

Marriage contracts for a mortgaged apartment and for apartments purchased with maternity capital are drawn up according to the algorithm described above, taking into account several features indicated in the table.

How to draw up a prenuptial agreement for an apartment purchased during marriage

Spouses have the right to determine in a marriage contract their rights and obligations for mutual maintenance, ways of participating in each other’s income, and the procedure for each of them to bear family expenses; determine the property that will be transferred to each spouse in the event of divorce, and also include in the marriage contract any other provisions relating to the property relations of the spouses.

In another case, this agreement may be an independent document-the basis for the emergence or termination of rights. Let us consider each of the cases in more detail.

Expert opinion

Tarasov Dmitry Timofeevich

Legal consultant with 7 years of experience. Specializes in the field of civil law. Member of the Bar Association.

Registration Law. A marriage contract is an agreement between the persons entering into marriage, or an agreement between the spouses, defining the property rights and obligations of the spouses in the marriage and (or) in the event of its dissolution (Article 40 of the RF IC).

In accordance with paragraph 1 of Article 41 of the RF IC, a marriage contract can be concluded both before the state registration of marriage, and at any time during the marriage. Thus, if the rights to real estate were previously registered in the Unified State Register of Rights to Real Estate property and transactions with it (hereinafter referred to as the Unified State Register) belongs to one of the spouses, and the marriage contract establishes a regime of separate ownership of this object for the other spouse, then the property right of this spouse is subject to mandatory state registration in the manner established by current legislation.

An agreement on the division of common property acquired by spouses during marriage must be notarized. In accordance with Art. 33 clause 1 of the RF IC, the legal regime of property of a married couple is the regime of joint property.

This property regime applies unless otherwise provided by the marriage contract. A marriage contract providing for a regime of shared ownership must be submitted to Rosreestr for registration.

In the event of a divorce, the spouses will not need to divide the apartment, since the rights to it are already divided upon purchase. If a mortgaged apartment is purchased as shared ownership, then the marriage contract must be drawn up at the stage of submitting documents to the bank.

The chances of your application being approved will increase significantly. The agreement will increase the bank’s loyalty to the family and predetermine the positive outcome of the transaction. The shared ownership of the spouses is clearly established in the marriage contract.

Every day in the Russian Federation, drawing up a marriage contract is becoming more and more common. This document allows you to change the regimes established by law for the ownership and use of any property by spouses both during marriage and after its dissolution.

Especially often, drawing up an agreement of this type is necessary when there is real estate. Key points Today, all the rights and obligations of both spouses in terms of joint acquisition of property, ownership, and use are outlined in the Family Code of the Russian Federation.

According to the relevant articles, all real estate acquired during marriage is necessarily joint - regardless of its price, type and other characteristics. In a divorce, the division is carried out in a 50/50 ratio.

But such an approach is not always reasonable. A marriage contract can be drawn up:

• independently, but with further certification by a notary;
• in a notary office with the help of a qualified lawyer.

Particular attention in the agreement should be paid to such issues as:

• Who will get the apartment after a possible divorce?
• In what cases can a child keep an apartment?
• Is the non-owner spouse required to leave the apartment after a divorce and within what time frame?

Additional points depend on the specifics of each individual case. When drafting a document, be aware of the limitations.

In practice, cases often arise when a spouse applies for state registration of termination of property rights and registration of a new right, to whom, under the terms of the marriage contract, real estate has become separate property, and in whose name it has already been registered previously.

This procedure will entail the emergence of the right of separate ownership from the moment of state registration. But it should be noted that, despite this, it is not necessary to make changes to the Unified State Register of Rights in such a case, but this is not prohibited by law, and this procedure already eliminates the need, in the event of alienation of real estate, to submit a marriage contract for state registration of rights, since it will be the basis for the emergence of the right of separate ownership and will be placed in the file of title documents.

1) documents proving the identity of the applicant; 2) an application for state registration of property rights of the spouse into whose ownership the property is transferred, an application for state registration of the transfer of property rights from the second spouse;

Expert opinion

Tarasov Dmitry Timofeevich

Legal consultant with 7 years of experience. Specializes in the field of civil law. Member of the Bar Association.

3) documents confirming payment of the state duty for state registration of the right. For state registration of property rights in this case, the state duty is set at 1000 rubles in accordance with subparagraph. 20 clause 1 art.

Prenuptial agreement when buying an apartment A prenuptial agreement for purchasing real estate is needed because a contract for the purchase and sale of an apartment in shared ownership has signs of the division of property acquired in a legal marriage.

Family Code of the Russian Federation 1. The legal regime of the property of the spouses is the regime of their joint ownership. The legal regime of the property of the spouses is valid unless otherwise established by the marriage contract. A marriage contract for the purchase of an apartment must be submitted to Rosreestr if the spouses want to register the right of common shared ownership.

Subject of the agreement, rights, obligations and responsibilities of the parties

The subject of the agreement is the legal relations of the parties, which can be regulated by it in accordance with the current legislation. The Family Code defines the list of legal relations that are included in the subject of the marriage contract. These are the rights and responsibilities in relation to:

1. Expenses for maintaining the apartment, for example, payment of utilities, current or major repairs, expenses for replacing plumbing, etc.
2. Apartment ownership regime. Housing can be divided into shares, remain in joint ownership, or become the full ownership of one of the marriage partners.
3. Purchasing an apartment in the future. Spouses have the right to specify in the contract the exact period when they will buy real estate, indicate the shares of their contributions or their size, determine the amount of expenses for the apartment, for example, the cost of repairs, and distribute these expenses between them.
4. Division of the apartment in case of divorce.
5. Possible use of the apartment for earning money. For example, the distribution of income received between spouses from renting out an apartment.
6. Extracts from the home after divorce.

The law strictly prohibits establishing conditions in a marriage contract that relate to:

• 
  The civil legal capacity of the party to the agreement, for example, establishing a prohibition for the spouse-owner to freely own his share of the real estate.

• The civil capacity of the party to the transaction, for example, the restriction of the right to dispose of an apartment, which is expressed in the prohibition on the sale, exchange, donation, bequest of property to other persons.
• Non-property personal legal relations. For example, a husband does not have the right to demand that his wife give birth to two children and offer his share of the apartment for this.
• Restrictions on the right to appeal to judicial authorities.
• Division of an apartment in the event of the death of one of the marriage partners. For these purposes, you need to make a will.

Civil liability measures that may be imposed on a party that does not comply with the provisions of the contract are:

1. Fine. This is a one-time payment of a certain amount of money for a one-time violation of an obligation. For example, a husband is contractually obligated to buy his son sports uniforms and shoes every year for classes. If for some reason he did not do this, and his wife solved this problem instead, then, if there is an appropriate condition in the contract, she has the right to demand that he pay a fine.
2. Indemnification or compensation. It applies if the violation committed by a party has serious consequences. For example, a wife and husband agreed to pay a mortgage in the following proportion: the husband pays 75%, and the wife – 25%. After full payment, the parties receive ownership of the apartment in the following shares: husband - 3/4 shares, wife - 1/4 shares. If, for example, a wife cannot repay her part of the loan for any reason, and the husband takes on the wife’s obligation, then, according to the agreement, the wife may be deprived of her share of the apartment.
3. Penalty. It applies to ongoing offences. For example, the husband’s contractual responsibilities include full payment of utilities. If he does not do this before the deadline specified in the utility bills, then he pays in favor of his wife a percentage of the debt amount determined by the contract for each overdue day.

Transfer of property rights under a marital agreement

Expert opinion

Tarasov Dmitry Timofeevich

Legal consultant with 7 years of experience. Specializes in the field of civil law. Member of the Bar Association.

A marriage agreement is necessary to regulate property relations between spouses, which establishes a regime of separate ownership or common shared ownership of existing property.

The regime of joint ownership can change both in relation to property that came into existence during the marriage and in relation to that which may be acquired in the future.

The decision to enter into a marriage agreement can completely change the regime of property ownership, which is provided for by family law. According to the general rule, if property is acquired during marriage, then upon divorce the wife and husband have the right to claim half of it, since it is considered jointly acquired.

The transfer of rights under a concluded marriage contract makes it possible to change the legal owner of the property. Such an agreement will be considered the basis for registering the transfer of ownership of property from one spouse to the name of the other.

Under any circumstances, a marriage contract must be notarized.

The notary establishes the identities of those applying for services, he must talk about the rights and obligations and explain the legal consequences that may arise when concluding such an agreement.

The notary also monitors whether legal norms regarding the impossibility of specifying conditions in the contract that are unfavorable for one of the spouses are observed. When drawing up a marriage contract, you can also take into account the regime of shared ownership.

With this option, the agreement must indicate the size of the share of the spouses’ property. It is possible to draw up an agreement before the marriage is registered, but it will acquire legal force only when the marriage is officially concluded.

Features of the termination procedure

With mutual consent of the parties

In order for the contract to terminate, the spouses must draw up and notarize the termination agreement. A sample of this agreement can be found here.

In addition to the termination agreement in three copies, marriage partners are required to prepare before a personal visit to the notary:

1. Passports of both parties to the contract.
2. Originals of the marriage contract in the amount of 2 copies, one for each spouse.
3. Marriage certificate.
4. Cash. The exact price of the service should be obtained from a notary.

Termination of the contract is permitted by law only when both spouses personally come to the notary and confirm their will as stated in the agreement. After certification of the termination agreement, the marriage contract is recognized as having lost legal force.

Unilaterally

At the sole request of the party to the transaction submitted to the court, the marriage contract is terminated if:

• 
  A party to the contract has violated its terms, and the violation must be considered significant. This means causing such damage to the injured party that, as a result, it is deprived of the benefits and rights that it could have counted on at the time the contract was concluded.

• It is declared invalid due to the use of violence, deception or threats against one of the parties; presence of violations of civil and family legislation; material misconception of one of the parties; shamness of the contract; the pretense of the contract; identification by the court of extremely unfavorable conditions for one party to the contract.
• A change in circumstances that is significant for the parties to the contract. This means that if the parties to the prenuptial agreement could have foreseen the occurrence of such circumstances, they would not have entered into the contract or would have entered into it on different terms.

Before taking a dispute to court, you should try to resolve differences without involving government agencies. This needs to be done with 2 goals in mind:

1. If it is possible to reach an agreement with the other party to the contract without intermediaries, then this fact will save money and time.
2. If it is not possible to reach an agreement with the other party to the contract, then the future plaintiff will have evidence in his hands that directly confirms that he tried to solve the problem without involving the court.

What do we have to do? A proposal to terminate the contract should be prepared and sent via mail by letter with a registered notice attached (it can be tracked) and an inventory. The proposal must indicate a deadline that is given to the recipient to think about it, for example, 30 days.

If there is no response or the other party refuses the offer, the notification and inventory returned by mail will serve as evidence in court that:

1. There really was a letter.
2. The letter did contain a proposal to terminate the contract.
3. The defendant actually received it.

The claim is resolved in a court located at the place of residence of the defendant or at a place determined by agreement of the parties on jurisdiction. Cases are heard by district or magistrate courts. Jurisdiction of cases depends on the claims made by the plaintiff.

Sample statements for various categories of claims are presented in the list below:

1. The application, which states the request for termination of the marital agreement based on a change in circumstances or violation of the provisions of the agreement by the defendant, is located here.
2. The application requesting that the court invalidate the prenuptial agreement can be found here.

Additional documents that must be attached to the claim are:

1. 
   Marriage certificate.

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2. Original marriage contract.
3. Evidence of the arguments presented by the plaintiff in the application (written documents, for example, certificates from medical organizations, certificates from government agencies, contracts, correspondence; witness statements; examination results).
4. Receipt for payment of state duty.

The fee for non-property claims, for example, for recognizing the invalidity of a contract, is 300 rubles. The duty for property claims is calculated according to the formula described in clause 1) part 1 of article 333.19 of the Tax Code of Russia. The fee can be transferred in the following ways:

• Cash at any bank.
• Cash via ATMs.
• In Internet banking.
• On the State website).
• On electronic money services, for example, Yandex.Money.

After the fee has been paid and the documents have been prepared, the papers must be submitted to the court. This is done using one of the methods described below:

1. Sending by registered mail with an inventory through the post office.
2. The plaintiff personally delivers the documents to the court office.
3. Claim documents are sent electronically through the State Automated System “Justice”.
4. The plaintiff's representative transfers the documents to the court office.

If the documents are accepted and the judge begins proceedings in the case, you should arrive on time at each meeting and defend your point of view at it. If for any reason you are unable to attend the meeting, you must:

• Submit a written request to the judge asking him to consider the dispute without the presence of the plaintiff.
• Send a representative to the trial in your place.

If the case ends with a decision that is favorable for the plaintiff, then from the date of its entry into force the marriage contract is recognized as having ceased to be valid and dissolved.

After the divorce process is completed

The same 2 methods described above apply:

1. The spouses come to a common point of view on the situation that has arisen in their lives and decide to terminate the marriage agreement. Then they or hired lawyers draw up a termination agreement. This agreement must be certified by a notary. Only after this is it given legal force, and the agreement terminates.
2. If the husband and wife do not come to a common point of view regarding the future fate of the marriage contract, their disagreements are resolved in court according to the algorithm described in the chapter “Unilaterally”.

What needs to be done to leave a child with the father after the spouses divorce

There is a clear definition on this matter, which is given to us by the Family Code. Without going into legal details, we will include in it everything acquired by people who are married, that is, husband and wife. What the general money was spent on. Joint property does not include only personal belongings. For example, the wife's evening dresses or the husband's razor.

Please be kind enough to answer who can make a notarized translation: 1. Only a citizen of Russia or a certified translator who does not have Russian citizenship? 2.

The Judicial Collegium of the Irkutsk Regional Court did not find any grounds for canceling the decision and satisfying the appeal, indicating that the court reasonably proceeded from the fact that the establishment of a property rights regime for spouses on the basis of a marriage contract is not classified by law as cases that exclude the need to register the transfer of property rights. The court reasonably took into account the legally significant circumstances in the case, namely, that the transfer of ownership of the property in relation to P. was not registered in the Unified State Register, the owner of the property is the defendant D., on the basis of which it came to a reasonable conclusion about the refusal to satisfy P.’s claims.

With the joint consent of the spouses, the marriage can be dissolved in the registry office. Documentation. You fill out the marriage registration certificate and your passports, application forms at the Registry Office. If the marriage is dissolved in court, then an application in 2 copies. , marriage certificate + copies, your passports and in all cases a receipt for state payment. duties.

The procedure for changing and terminating a marriage contract is regulated by Article 43 of the RF IC and correlates with the requirements established by Art. 450 of the Civil Code of the Russian Federation, i.e. this can be done by agreement of the parties or in court (unilateral refusal in this case is unacceptable).

Property acquired by husband and wife during marriage is subject to statutory treatment. It applies to real estate, money, securities, cars and other things purchased with general money. It does not matter which of the two is the legal owner of the object.

This is important to know: Settlement agreement on determining the place of residence of a child

The spouses also agreed that, in connection with the establishment of a separate property regime by them, property that will be acquired by one of them and/or registered in the name of one of them will be considered the personal property of the respective spouse. This provision will apply to any acquired property, both movable and immovable.

According to Article 256 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), articles 33, 34 of the Family Code of the Russian Federation (hereinafter - the RF IC), almost any property acquired by spouses during marriage is jointly acquired or, in other words, it is subject to legal regime.

The procedure for dividing property under an agreement

Property is divided according to the marriage contract in accordance with the following rules:

• The terms of the agreement have indisputable priority over the norms of legislation on the division of family property. If the division of assets occurs in court, then the judge will proceed from the provisions of the agreement, and not from the provisions of the Family Code, when resolving controversial issues.
• The part of the joint property that the spouses decided not to divide under the marriage contract is distributed between them during the divorce in accordance with the norms of the Family Code.
• If the contract is declared 100% invalid or the provisions of the contract regarding the division of marital property are declared invalid, then the division of assets occurs according to the norms of family law.

Registration of property rights under a marriage contract in the state register

Expert opinion

Tarasov Dmitry Timofeevich

Legal consultant with 7 years of experience. Specializes in the field of civil law. Member of the Bar Association.

To register ownership of a property in accordance with a marriage contract, the following documents are submitted to the relevant authority at the address where the property is located:

• documents confirming the identity of the applicant;
• application for state registration of property rights of the spouse into whose possession the property passes;
• an application from the second spouse for state registration of the transfer of ownership;
• a document proving payment of the state duty. In the Tax Code of the Russian Federation, the amount of state duty is set at 1000 rubles;
• marriage contract (a copy and the original are provided);
• marriage certificate (copy).

If the marriage agreement defines common shared ownership of real estate, in addition to the specified documents (with the exception of the documents in clause 2), it is necessary to submit an application for termination of the right of ownership of the common property, as well as an application for registration of the right of joint shared ownership of the spouses.

The marriage contract does not need to be registered with any government agencies. Its effect begins from the moment of marriage registration and after its notarization.

Although the contract is related to property relations, it does not give ownership rights. It only regulates who will dispose of the property and under what conditions; it must be formalized in subsequent transactions. Registration actions will be carried out regarding these transactions.

The presence of agreements “on the shore”, before the partners have officially registered the marriage, becomes a measure that allows one to avoid legal tricks and deception on the part of the spouses. Registration of a marriage contract as a document is not required, but its drafting should be approached carefully.

By eliminating unpleasant court proceedings, challenging the ownership of property, and its division, the agreement may contain some clauses with conditions that allow the spouses to re-register the property in favor of one of the parties for personal disposal.

Re-registration of real estate under a marriage contract is one of the types of transactions that has the right to exist on a par with purchase, donation, inheritance, etc. The document must be certified by a notary office, since it is necessary to confirm the legality of the signed agreement.

Arbitrage practice

In the practice of Russian courts, there is a case in which one party, according to the marriage contract, was supposed to purchase an apartment in favor of the other party after the divorce. However, according to the ex-husband, his wife did not fulfill her obligation. In October 2021, this case was heard in the Maykop City Court of the Republic of Adygea.

So, the ex-husband demanded in court to force the ex-wife to fulfill the obligation she accepted under the marriage contract and to transfer to him an apartment that complies with the terms of the agreement. The apartment must be one-room, not on the top floor and not lower than the 2nd floor.

In turn, the ex-wife stated that the plaintiff has no grounds to demand the apartment, because she fulfilled her obligation. The defendant presented the court with a purchase and sale agreement, under the terms of which the ex-husband received sole ownership of a 1-room apartment that met the conditions set out in the marriage contract.

Taking this fact into account, the court decided that the defendant had fulfilled her obligations. Therefore, there is no reason why the court should take the plaintiff’s side. In this regard, the ex-husband's claim was rejected.

Price of a prenuptial agreement for a mortgage

and they say that the marriage contract is subject to notarization. Without this, the document is considered void. Neither the court nor the bank will accept it for consideration.

For certification of a marriage contract, the cost of a notary for a mortgage is fixed and amounts to 500 rubles. If additional technical work is carried out, the actual text of the agreement is developed, the material side of the life of the applicants is studied, the cost of the prenuptial agreement for a mortgage will increase significantly.

The notary is obliged to explain to the spouses the legal consequences of their actions. The document is checked for compliance with current legislation. Before the agreement is signed, it is allowed to make adjustments and add new clauses.

The notary certifies the marriage contract for a mortgage in triplicate. Each spouse receives one. Another one remains in the archives. Additionally, information about the document is entered into the all-Russian register of notarial actions of the unified notary information system. The possibility of future counterfeiting is completely excluded.

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How long does it take to make a prenuptial agreement for a mortgage? It all depends on the complexity of the situation. In the simplest case, it is enough to fill out a standard form and make an appointment with a notary. If you need to study documents and involve lawyers, the procedure can take weeks.

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