Among citizens far from the legal sphere, there is an opinion that state registration of a marriage contract is necessary after its conclusion. But that's not true. However, certain registration actions (including in Rosreestr) often accompany the fulfillment of obligations under a marriage contract.
Why is a contract needed, and what does its legality depend on?
A marriage contract is a law for two. For husband and wife. They conclude it among themselves to determine their property rights in marriage or in the event of its breakup. In this case, it can be concluded:
- Couples who are already married.
- Future husband and wife before the wedding.
Registration of a marriage contract with Rosreestr or any other government service is not necessary. Although the contract is related to property relations, it does not give ownership rights. It only regulates who will dispose of this or that property and under what conditions.
IMPORTANT: that is, property rights do not arise on the basis of a marriage contract. The document indicates the property that will go to the spouses after the divorce. But this property will need to be registered in subsequent transactions. And these transactions will be accompanied by registration actions. For example, if the contract states that the apartment remains with the wife after the divorce, then in the event of a divorce the apartment is alienated in favor of the wife by a separate agreement.
The marriage contract must be certified by a notary.
The document comes into force when the parties are married. And here a legal nuance arises. If the contract is concluded by already married couples, then everything is in order - after signing and notarization of the contract, it begins to take effect. But what about those who are just about to get married?
It's simple: you enter into an agreement without being married yet. The lawyer assures him. But the document becomes valid only after you receive a marriage registration certificate. If for some reason the wedding did not take place, then the existing marriage contract turns into an ordinary piece of paper.
What governs a marriage contract?
An agreement concluded between spouses is a kind of insurance. Love is love, but in the modern world it is better to secure some kind of official guarantees.
The subject of a marriage agreement is most often real estate. Transport, business assets, bank accounts and securities may also be regulated, but in practice this is not often the case. Therefore, we will talk, first of all, about real estate.
So, what does a marriage contract establish:
- The regime for the use of jointly acquired property (a list of it is usually an appendix to the contract) during family life.
- The procedure for dividing real estate if a couple decides to divorce.
- Form of ownership for real estate: it can be joint, shared or separate.
Please note: the last point is often a mere formality and does not have any legal force. The fact is that in a normal, friendly family the question rarely arises: what form of ownership is our apartment in? This form does not interfere with the normal rhythm of life.
Most often, the second and third points are combined. This makes it easier to understand how to share housing after a divorce.
But sometimes there are other situations. It was because of them that the erroneous judgment arose that a marriage contract needed to be registered with Rosreestr.
Example: Anna and Andrey got married and entered into a prenuptial agreement. It indicated that the apartment, which belonged to Andrey before the wedding, after the registration of the marriage becomes joint property - that is, common property without division into specific shares. By default, each spouse owns half of the home.
But the fact is that no registration actions were taken with the apartment. Both on paper (in the certificate of registration of ownership) and in the Rosreestr databases, the housing is still listed as Andrey’s sole property.
After some time, Anna decided to play it safe and allocate half of the apartment as her own. To do this, she and her husband go to the cadastral chamber and present a marriage contract - it is the basis for making changes to the Unified State Register of Owner Rights. Having provided all additional documents and paid the state fee, the spouses wait for the period allotted by law. After which they receive a new certificate of registration of rights to the apartment. Which states that the housing is now jointly owned by both spouses.
This is where the misconception regarding the registration of a marriage contract grows. Registration activities do occur. But not with the agreement itself.
In the described example (and in all similar ones), the marriage contract is a document of title. And the state registration of new rights and the certificate issued as a result are legal actions.
The fact is that the Civil Code of the Russian Federation establishes the reasons for the emergence of property rights to real estate:
- Registration of rights in the Unified State Register (Rosreestr). Standard procedure with going to the registry office and receiving a certificate.
- The heir becomes the owner from the moment the inheritance is opened. In this case, it does not matter whether the heir accepted the property at his disposal or whether state registration was carried out (Article 1152 of the Civil Code of the Russian Federation). That is, if your grandmother left you a house after her death, then you become its owner immediately after opening the will.
- A person who has the right to accumulate shares (a member of a housing, dacha cooperative or other consumer share company) becomes the owner of real estate if he has paid the share contributions in full (Article 218 of the Civil Code of the Russian Federation).
That's all. As we see, among the reasons for the emergence of owner rights there is no marriage contract. This issue is usually regulated by the judiciary if a dispute arises between spouses.
Important: If you are not going to get a divorce, but still want to share housing, then it is not necessary to enter into a prenuptial agreement. An ordinary deed of gift is sufficient, according to which half of the apartment is alienated in favor of one of the spouses. Donation in this situation will be a less expensive procedure, both in terms of money and time. .
Subtleties of a marriage contract in Russia
- Agreements concluded between spouses in our country and in the West differ significantly. In particular, Russian legislation allows only property relations to be regulated by a marriage contract. But in the USA or Europe, the document can completely indicate certain positions of personal life and obligations towards children.
- In judicial practice, there is a case where the ex-husband was deprived of property rights, despite the existing marriage contract. This happened due to the fact that the ex-husband did not fulfill his alimony obligations. The bailiffs did not find any property from him to recover, so his ex-wife filed a lawsuit. In it, she asked that the marriage contract (under which the defaulter received half of the apartment) be declared invalid, and that the share in the real estate be recovered in order to pay the alimony debt. And the judge granted this request.
- Unfortunately, Russian legislation does not currently regulate the issue of transfer of property rights on the basis of a marriage contract. Of course, it is generally accepted that a marriage contract is the same document of title as a purchase and sale agreement, or a deed of gift. But there are no rules of law that talk about this. This is an "unwritten rule". This means that it can be easily challenged in court. Therefore, any property proceedings due to a marriage contract are strictly individual. In such situations it is impossible to give any universal legal assessment.
- If the marriage contract concerns some other property - for example, a car, household appliances, luxury items, deposits - then usually the text directly states who will own this or that thing or value in the event of divorce. For this purpose, a special list of property to be divided after divorce is compiled.
. Using the terms of the contract, you can change the property regime, as well as respect the rights of both spouses without violating their interests.
At the legislative level, the procedure for concluding a marriage contract is regulated by Chapter 8 of the Family Code of the Russian Federation (FC RF). The contract can be signed both before the official registration of the relationship in the registry office, and at any time during the marriage (Article 41 of the RF IC).
Important! If the marriage contract was signed by the spouses, then it is valid from the moment of its notarization. If the agreement is concluded by the bride and groom, then the terms of the agreement begin to apply from the moment of official registration of their marriage.
A marriage contract regulates only the property relations between husband and wife. Any non-material rights and obligations are invalid, but the contract may indicate the liability that each spouse will bear for their failure to fulfill them.
Read more about when a prenuptial agreement can be concluded: before, during or after the wedding.
Notarization - what is it?
Now let's talk about how the database is designed. The parties can enter into a marriage contract only in writing. The document must be notarized (clause 2 of Article 41 of the RF IC). A couple who wants to enter into a marriage contract can independently prepare a draft agreement, or seek help from a law firm, or from the notary himself.
If the contract is drawn up with errors, it may be declared invalid, and the rights and obligations of spouses will be regulated only by the law.
During the certification process, the notary not only checks the compliance of the contents of the document with legal norms, but also explains to each of the parties their rights and obligations. The text in the contract is written clearly and clearly without any additions or corrections. The full name of each party is indicated without abbreviations in order to avoid possible misunderstandings in the future.
Where and by whom is the contract certified?
The contract is certified by a notary with an inscription in accordance with the law. The procedure can take place both in a state notary office and in a private one.
Even if the contract was drawn up by specialists from a law firm in full compliance with all legal requirements, then a visit to a notary for certification is a mandatory step.
Attention! A marriage contract is considered invalid if the notarial form was not followed when concluding it. The agreement acquires legal force from the moment of its notarization.
What documents are needed for the conclusion?
If a husband and wife decide to legally regulate their rights to movable and immovable property, then they will need to visit a notary to sign a marriage contract. To sign the document, the parties must provide the following documents:
- ID cards;
- marriage certificate;
- documents establishing ownership of specific property;
- other documents.
If the contract stipulates the rights to own a car, the notary will need to present the purchase and sale agreement and the technical passport for the vehicle. If the contract refers to (house, apartment), then the list of documents will include:
- purchase and sale agreement, gift agreement;
- certificate of ownership;
- a certificate confirming the number of people living.
If one of the spouses is an individual entrepreneur, then he will be required to provide a certificate of registration.
If the parties do not provide the entire list of necessary documents, then the notary has the right to refuse to certify the contract, or items will be excluded from it, the presence of which implies the presentation of missing documents by the parties.
Is it necessary for both parties to be present?
The procedure for certifying a marriage contract requires the personal presence of all parties. Spouses or future spouses come to the notary on the appointed day with a draft agreement and a complete list of necessary documents for its certification.
If the agreement has not been prepared, this can be done directly from the notary. If the parties have provided a draft document, the notary must check it. Any legal errors, incorrect or illegal wording found in the contract are subject to change.
After the notary has checked all the documents and explained all the legal regulations, the parties to the agreement put their personal signatures in his presence and only after that the notary certifies the document.
Important! When signing the contract, the presence of third parties is not allowed, since the notarial act must be kept secret.
Procedure for certification procedure
The agreement between the spouses is concluded in writing in triplicate, one for each of the parties, and one copy for the notary archive (you can find out how to correctly draw up a marriage contract, as well as see a ready-made sample document). The procedure for certifying an agreement at a notary office consists of several stages. When drawing up a document, the notary is obliged to perform the following actions:
The final step in notarizing a prenuptial agreement is to serve copies of the documents on each party. One copy remains with the notary.
Read more about the nuances of registration and cost of a marriage contract.
Is it necessary to have the database certified by a notary, or is it possible not to do so?
According to Art. 41 of the RF IC, when concluding a marital agreement regulating their property rights and obligations, it must be notarized.
If there is no certifying inscription on the marriage contract, then such a contract and the obligations specified in it are not subject to fulfillment by the parties.
Is state registration of a document in Rosreestr necessary?
Certified by a notary, it is a document of title; in itself, it is not subject to registration in the Unified State Register (Rosreestr).
Its submission to the registration authority together with the application of the spouses is required if previously the rights, for example, to real estate were registered with one of the spouses, and the terms of the marriage agreement establish a regime of separate ownership of this real estate. In this case, the other spouse’s ownership of the property must be registered, and the agreement will act as the basis for the emergence of rights to the property.
A marriage contract does not grant property rights to the spouses; it specifies the property that will go to the wife or husband after a divorce, but this will require its registration in accordance with the law.
Marriage contracts concluded in accordance with the legislation of the Russian Federation can only regulate the property rights and obligations of the parties. They should not contain clauses regulating the personal relations of the spouses. Such agreements are always drawn up taking into account legal requirements and certified by a notary. Without notarization, the document has no legal force.
If you find an error, please highlight a piece of text and click Ctrl+Enter.
Some suggest that after marriage, registration of the marriage contract in the state registry is required. This is not true, but some registration data (including in Rosreestr) sometimes accompanies the execution.
Is it necessary to register a marriage contract in the Russian Register?
More and more often, recently, married couples are trying to resort to. Such a document is considered an agreement by definition in marriage and in the case of obligations and property rights.
A marriage contract, which provides for a change in the property regime, is nothing more than a transaction, the purpose of which is the creation, change of rights or their termination.
Such transactions do not require state registration, since the document is drawn up in writing and. However, registration of the rights arising from this agreement is mandatory.
Required documents
To certify a marriage agreement implying the transfer of ownership to another person, you must provide the following documents:
- spouses' passports. A marriage registration mark is required;
- . Applies to persons who are married at the time the contract is drawn up;
- documents indicating the fact of ownership of property, which, according to the contract, must pass into the possession of the other spouse legally. One of such documents will be a purchase and sale and gift agreement, and other title documents are also such.
Spouses can independently determine which property will be owned jointly and which property will be separate. In case of divorce, this will allow you to exclude and dissolve the relationship without wasting extra time.
Registration of property rights under a marriage contract in the state register
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;
- document proving payment. 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).
1. Is it necessary to draw up a marriage contract to register ownership of the apartment? The apartment was purchased under an equity participation agreement indicating the shares for me and my husband.
1.1. If the shares have already been determined, then there is no point in concluding a marriage contract (Article 40-44 of the Family Code of the Russian Federation). The property will already be in shares between you and your husband.
2. Is it legal for Rosreestr to refuse to register a child-care facility due to the lack of a marriage contract? 2 parents and 3 children (subsidy, mortgage). Everyone is given equal shares. They refer to the fact that spouses can only have joint property, and not common shared property.
2.1. Hello! The law does not prohibit the acquisition of real estate in the common shared ownership of spouses, therefore they are not required to enter into a marriage contract. The refusal of Rosreestr must be appealed in court.
2.2. Good day, dear site visitor! In this case, the actions of Rosreestr are clearly unlawful; the law does not provide for the mandatory conclusion of a marriage contract. You need to receive a written refusal and file a complaint with the prosecutor's office. All the best to you.
3. After the state registration of the marriage, the Karimov spouses entered into a marriage contract. It stated that Karimova was prohibited from working as a doctor in accordance with her education, and she must take care of the household and raising children. A few years later, Karimova violated this obligation and got a job in a clinic in her specialty. Karimova's husband turned to legal advice asking what measures could be taken against his wife? What answer should Karimov give?
3.1. A marriage contract in the Russian Federation regulates only property rights and obligations in marriage and (or) in the event of its dissolution (Article 40 of the Family Code of the Russian Federation).
Limitation of personal non-property rights of spouses is unacceptable.
4. When registering a marriage, my future husband wants to draw up a marriage contract for his property, and that during the marriage, the property will be registered in the name of the person who will receive it according to the law. Tell me, in such cases, during a divorce, I, as a wife, according to the law, will have something from this marriage? If, for example, you lived in the park for 5 years.
4.1. Good day. What is written down in marriage will be the property of everyone. It all depends on the terms of the marriage contract and how the property acquired during the marriage will be divided. If it’s equal, then everything you gain in marriage will be divided equally. If it is spelled out, as you say, that the property purchased during marriage will be registered in the name of someone, then it will be the personal property of this spouse, then that means it will be so.
4.2. Hello!
If you do not agree to such terms of the marriage contract, then it is better to discuss it with your husband.
But the terms of the marriage contract will be used to guide the division of property during a divorce. If there is no mating dog. - property acquired during marriage is divided in half.
For help, you can contact the lawyer of your choice on the website.
All the best!
5. Please tell me whether the requirement of the Russian registry for a marriage contract when registering property is legal? We bought an apartment in a new building under a share agreement. Builds. For all family members (2 children, 2 adults). Payment 1/2 own. Funds 1/2 mortgage, cat. extinguished the swearing. capital and property By means. Registration was suspended due to the lack of a marriage contract (with a husband in an ordinary legal marriage). What document should I provide so that they don’t require a marriage contract and is it even legal? Thank you.
5.1. Hello! Requiring a prenuptial agreement is illegal. This document is not established by Rosreestr regulations as mandatory for registering a transaction. Write a complaint to the manager.
6. Before registering the marriage, they decided to conclude a marriage contract, but after registration the husband refuses. What should I do?
6.1. An agreement implies the consent of two persons; if you have evidence that your husband has given prior consent to the conclusion of such an agreement, then go to court to force the conclusion of such an agreement. In general, such an agreement can be concluded at any time while you are married. If there is no evidence, all you have to do is persuade him.
6.2. The other party cannot be forced to enter into an agreement.
One of the fundamental principles of civil rule-making at all times has been the principle of freedom of contract. Expanding this postulate in Art. 451 of the Civil Code of the Russian Federation, the legislator enshrined the basic rule according to which no one can be forced to enter into contractual legal relations.
Agree and conclude.
Wish you luck
7. Is a marriage contract a legal establishing document for registration of property rights? The agreement states that 1/3 of the share in the apartment, acquired during marriage in the name of the husband, from the moment of conclusion of this agreement becomes the private property of the wife.
7.1. Is.
Article 42. Contents of the marriage contract
1. By a marriage contract, spouses have the right to change the regime of joint ownership established by law (Article 34 of this Code), to establish a regime of joint, shared or separate ownership of all the property of the spouses, its individual types or the property of each of the spouses.
A marriage contract can be concluded both in relation to the existing and in relation to the future property of the spouses.
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.
8. A mistake was made when drawing up the marriage contract.
They indicated two marriage registration addresses, one of them is correct.
Question: Is it worth redoing the contract and how can this mistake affect it in the future?
8.1. Is it worth redoing the contract and how can this mistake affect it in the future???
It is necessary to redo it if mistakes are made, this is important.
Good luck to you.
8.2. Question: Is it worth redoing the contract and how can this mistake affect it in the future?
It’s better to redo it, you can’t predict how the mistake will turn out.
9. How to draw up a marriage contract? Do I need to register it during marriage registration or after? Thank you in advance.
9.1. Article 41. Conclusion of a marriage contract
[Family Code of the Russian Federation] [Chapter 8] [Article 41]
10. Is it possible to draw up a marriage contract after registering a marriage?
10.1. Yes, you can make it
10.2. yes, of course you can. Draw up and notarize
10.3. Can be drawn up both before and after marriage registration
Family code
Article 41. Conclusion of a marriage contract
1. A marriage contract can be concluded both before the state registration of marriage, and at any time during the marriage.
A marriage contract concluded before the state registration of the marriage comes into force on the date of state registration of the marriage.
2. The marriage contract is concluded in writing and is subject to notarization.
11. Please tell me whether it is worth drawing up a marriage contract before registering a marriage. I would like the apartment as a gift from my parents in the event of a divorce to stay with me or not go to third parties. How to do it?
11.1. It's whatever you want.
11.2. What was given to you personally will not be shared in the event of a divorce and will remain yours, Nadezhda Ivanovna. There is no point in a prenuptial agreement in your case.
11.3. Hello. The apartment belongs to you, as it was given to you by your parents. In the event of a divorce, this property will not be divided.
11.4. Hello! An apartment received under a gift agreement is not subject to division. There is no point in entering into a prenuptial agreement.
11.5. There is no point. Donated property is not subject to division.
12. Is there an alternative to a marriage contract when living together without registering a marriage with the registry office?
Is it possible to sign any similar agreement prescribing the rights of cohabitants to jointly acquired property?
12.1. Cohabitants cannot have joint property. The regime of joint property is established by the Family Code of the Russian Federation and applies exclusively to marital relations.
12.2. Good afternoon No, cohabitation does not entail any legal consequences
13. Please explain whether it is possible to conclude a marriage contract before registering a marriage?
13.1. Hello. In accordance with Article 41 of the Family Code of the Russian Federation:
A marriage contract can be concluded both before the state registration of marriage and at any time during the marriage.
A marriage contract concluded before the state registration of the marriage comes into force on the date of state registration of the marriage.
So it is possible before marriage, but until you sign, it will not be valid.
14. There is a marriage contract on separate property, which was concluded when registering the marriage. Now we have decided to take out a mortgage in shared ownership, what is the right thing to do: terminate the contract or indicate in the mortgage that this is joint property, he still has a child from his first marriage.
14.1. Loan agreement for borrower and co-borrower
Ownership will be in equal shares
15. We are planning to purchase an apartment. The seller has a prenuptial agreement. Is it possible for a marriage contract to be invalidated for some reason after registering a sale and purchase? And accordingly, as a consequence, the purchase and sale agreement is also invalidated?
15.1. Hello! possible, if there are reasons for it
16. What surname should the bride write in the marriage contract if it is concluded before registration?
16.1. The surname she “bears” at the time of the agreement.
17. Please tell me, is the marriage contract concluded after the marriage is registered or before?
17.1. Good evening. In accordance with Art. 40,41,42,43, 44 of the Family Code of the Russian Federation, a marriage contract can be concluded both before the state registration of marriage, and at any time during the marriage.
A marriage contract concluded before the state registration of the marriage comes into force on the date of state registration of the marriage.
18. After registering the marriage, the Mikhailovs decided to enter into a marriage contract, according to which all the property that both spouses had before marriage became joint. The property that will be acquired during the marriage will belong to the husband, so the wife, by mutual agreement, will manage the household. The agreement contained a condition according to which Mikhailov undertakes to pay Mikhailova alimony in the amount of ¼ of the income in the event of divorce on his initiative.
18.1. Problem solving is a paid service
19. After registering the marriage, the Mikhailovs decided to enter into a marriage contract, according to which all the property that both spouses had before marriage became joint. The property that will be acquired during the marriage will belong to the husband, so the wife, by mutual agreement, will manage the household. The agreement contained a condition according to which Mikhailov undertakes to pay Mikhailova alimony in the amount of ¼ of the income in the event of divorce on his initiative.
Does the content of the agreement comply with the requirements of family law?
19.1. Will you acquire knowledge yourself, student Anastasia?! Pick up the Family Code of the Russian Federation.
20. After registering the marriage, the Ivanchev spouses decided to enter into a marriage contract. They wanted to include the following conditions in it: a) establish a regime of joint ownership of the property that the spouses would acquire after concluding this agreement; b) in the event of divorce, Ivancheva undertakes to retain her married name; c) Ivanchev undertakes to bear the costs of maintaining the common minor children. Can such provisions be included in a prenuptial agreement? Explain your answer.
20.1. Sounds like a challenge for students.
21. CAN A MARRIAGE AGREEMENT BE THE BASIS FOR THE TRANSFER OF OWNERSHIP AND REGISTRATION WITH THE UFRSKiK WITH RECEIPT OF A CERTIFICATE OF TITLE?
21.1. Yes, it certainly can.
22. In the concluded marriage contract, two errors were found in indicating the place of registration of residence, is this contract valid? Thank you.
22.1. Hello!
The contract is valid, since no one terminated it, but contact a notary to correct the error.
23. When can a marriage contract be drawn up? On the day the couple was registered, or regardless of how long the couple lived together?
23.1. You can apply at any time
23.2. You can apply at any time - even before registration
24. Is it possible to draw up a marriage contract after registering a marriage?
24.1. Sveitlana, you have the right to conclude a marriage contract and have it notarized at any time before the divorce. Good luck to you with respect, lawyer Nurlan Rakhmanov
26.1. Hello! It is possible before registration, or after.
26.2. Hello!
Marriage contract, according to Art. 41 of the Family Code of the Russian Federation, can be concluded both before the state registration of marriage, and at any time during the marriage.
A marriage contract concluded before the state registration of the marriage comes into force on the date of state registration of the marriage.
The marriage contract is concluded in writing and is subject to notarization.
26.3. It won't work at the registry office. At a notary before or after registration at any time
27. When registering a marriage, does it make sense to also draw up a marriage contract (agreement)?
27.1. It depends on what kind of relationship you have and whether you want to divide everything not 50/50 in the event of a divorce, but in some other way (Article 40-41 of the RF IC)
27.2. Yes, if the 50/50 division of common property does not suit you.
27.3. It's up to you to decide
27.4. It all depends on the composition of the property and mutual desire. It is possible to draw up an agreement on the division of property of the spouses during marriage. The division agreement is also notarized at the request of the spouses