1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?

 

Generally, according to the article 161 para. 1 of the Family Code, personal and property rights and obligations of the spouses are defined by the law of the country where they share a common domicile. If they do not have a common domicile, the applicable law is the law of the country where they used to have the last common domicile.

If spouses have not had a common domicile, their personal and property rights and obligations on the territory of the Russian Federation are defined by the law of the Russian Federation.

Also, spouses who do not have common citizenship or joint domicile while concluding a marriage contract or alimony agreement (alimony to each other) may choose the applicable law. If spouses do not choose the law, the above mentioned common rule applies.

Besides, there are some bilateral international treaties concluded by the Russian Federation with some countries (for example Azerbaijan, Bulgaria, Czech Republic, etc) on legal aid in civil, family and criminal matters. These treaties contain rules defining the applicable law to the property of the spouses. For instance, according to the Treaty between the USSR and Bulgaria on legal aid in civil, family and criminal matters, the applicable law is the one of the country where a couple has or used to have a common domicile, or is defined by their nationality.

The Russian Federation is also a member of the Convention on legal aid and legal relations in civil, family and criminal matters concluded on 22.01.1993 in Minsk and the Convention on legal aid and legal relations in civil, family and criminal matters concluded on 07.10.2002 in Kishinev. According to the above mentioned conventions, the applicable law is defined by the law of the country where the spouse have or used to have a common domicile, or where the public body which examines the case is located, or by the law of the country where they are both citizens.

All the legal matters concerning the real estate of the spouses are governed by the law of the country where this property is located.

 

1,2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?

 

According to the article 161 para. 2 of the Family Code, while concluding a marriage contract or alimony agreement (alimony to each other), spouses who do not have a common nationality or a common domicile may choose the applicable law. If the spouses haven't chosen the applicable law, then the general rules shall appliy to such contract and agreement - personal and property rights and obligations of the spouses are defined by the law of the country where they have their common domicile. If they do not have a common domicile, the applicable law is the law of the country where they used to have the last common domicile.

If the spouses have not had a common domicile, their personal and property rights and obligations on the territory of the Russian Federation are defined by the law of the Russian Federation (article 161 para. 1 of the Family Code).

2,1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?

 

The Family Code provides two types of matrimonial property regime which are statutory and contractual regimes. The statutory matrimonial property regime is the regime of the joint ownership of the spouses. The spouses may change it by concluding a marriage contract (contractual matrimonial property regime).

All the property acquired by the spouses during a marriage is their joint property. Such property is the income of both spouses from their labour activity, business, results from intellectual activity, pensions, social allowance etc. Also all the real estate, movables, securities and other property acquired during the marriage for the common income of the spouses are their joint property.

A spouse who during the marriage kept the house, took care of children or, due to some other good reasons, did not have his/her own income also has a right to the joint property.

It is important to note that the property that belonged to one of the spouses before the marriage as welle as all the property obtained by him/her during the marriage as a gift, by the way of inheritance or other gratuitous deals, remains his/her own property.

Things for personal needs (clothes, shoes etc.), except for jewelry and other luxury items, are deemed as the property of the spouse who used it, despite the fact that they were acquired by the common income during the marriage.

But the property of each of the spouses may be declared as their joint property by court. In this case, it shall be proved that during the marriage, due to the investment of one of the spouses by the joint property of the spouses or the personal property of each of the spouses, the value of the property significantly increased (for example, reconstruction).

Spouses can conclude a marriage contract where they may change a statutory matrimonial property regime (joint property), establish joint, share or separate ownership to all their property, or to different types of the property, or to the property of one of the spouses. A marriage contract may be concluded regarding the existing and the future property.

 

2,2. Are there legal presumptions concerning the attribution of property?

 

Yes, if no marriage contract is concluded between the spouses, all the property acquired during the marriage is their joint property (there are some exceptions, please see the answer to 2.1). To change this presumption, spouses have to conclude a marriage contract.

 

2,3. Should the spouses establish an inventory of assets? If so, when and how?

 

No, it’s not necessary, but the spouses may do it at their wish.

 

2,4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and can it be pleaded against a third party?

 

 

According to the article 35 of the Family Code, spouses possess, enjoy and dispose of their joint property by mutual consent. When a spouse disposes of the joint property, it is assumed that he/she acts with the other spouse's consent.

Court may declare the transaction of disposal of the joint property made by one of the spouses invalid due to the absence of the other spouse's consent only upon his/her request and if it is proved that the other party in the transaction knew or should have known about the spouse's objection to this transaction.

A spouse shall have the other spouse's notarized consent on concluding transaction on disposal of the property if rights to it shall be publicly registered, or transaction which, according to law, shall be notarized, or transaction which shall be publicly registered.

The spouse who didn't give a notarized consent to the concluding of the transaction has a right to demand to declare this transaction invalid in court during one year from the day he/she found out or shall have found out about the concluding of the transaction.

 

2,5. Are any legal transactions made by one spouse also binding on the other?

 

According to the article 35 of the Family Code, spouses possess, enjoy and dispose of their joint property by mutual consent. When a spouse disposes of the joint property, it is assumed that he/she acts with the other spouse's consent.

 

Court may declare the transaction of disposal of the joint property made by one of the spouses invalid due to the absence of the other spouse's consent only upon his/her request and if it is proved that the other party in the transaction knew or should have known about the spouse's objection to this transaction.

Thus, the transactions made by one of the spouses are binding on the other spouse.

 

2,6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?

 

According to the article 45 of the Family Code, the exaction on the obligation of one of the spouses may be imposed only to this spouse's property. If this property is insufficient, the creditor has a right to ask to separate the share of the debtor spouse which he/she would get in case of division of the joint property of the spouses and to impose the exaction on this share.

The exaction is imposed on the joint property of the spouses by the common obligations of the spouses and also on the obligations of one of the spouses if it is established by court that everything that was obtained upon the obligations of one of the spouses was spent on family needs. If this property is insufficient the spouses bear joint l liability for property. It is important to note that the law establishes a list of types of property which a debtor cannot be deprived of (for example, a single housing, except for mortgage, etc).

A spouse has an obligation to inform his/her creditor/creditors about concluding, amending and canceling the marriage contract. In case of not performing this obligation a spouse holds responsibility to his/her obligations regardless of the content of the marriage contract.

3,1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?

 

Spouses can conclude a marriage contract where they may change a statutory matrimonial property regime (joint property), establish joint, share or separate ownership to all their property, or to different types of the property, or to the property of one of the spouses.

In the marriage contract, he spouses may define their rights and obligations concerning mutual maintenance; the ways of participation in the income of each other; the participation in the family expenses; the property that would be transferred to each of the spouses in case of the dissolution of the marriage; and also include in the marriage contract any other provisions concerning their property relations.

A marriage contract shall not limit the legal capacity of the spouses, their rights to apply to court for defending their rights; shall not regulate personal non-property relations between spouses, regulate rights and obligations of the spouses towards their children; stipulate provisions which limit rights of the disabled indigent spouse to obtain maintenance; or contain any other provisions which deteriorate the state of one of the spouses or contradict the basic principles of the family law.

 

3,2. What are the formal requirements and who should I contact?

 

A marriage contract shall be in written notarized form. You have to consult a notary.

 

3,3. When may the contract be concluded and when does it come into effect?

 

A marriage contract may be concluded before the state registration of the marriage or during the marriage at any time.

The marriage contract concluded before the state registration of the marriage comes into effect the day of the state registration of the marriage.

 

3,4. Can an existing contract be modified by the spouses? If so, subject to what conditions?

 

The spouses may amend or cancel the marriage contract at any time at their wish. The agreement amending or canceling the marriage contract shall be notarized, like the marriage contract itself. Also any spouse may apply to court to cancel the marriage contract at any time.

4,1. Do one or more registers of marriage contracts exist in your country? Where?

All marriage contracts shall be notarized. The notary keeps a copy of the marriage contract in its archives and, if necessary, the parties may obtain a duplicate of the contract.

Also, since 2016, all Russian notaries have had an obligation to fill the information concerning the certified marriage contract in the Unified Informational Notary Data Base. The Unified Informational Notary Data Base is a data base which contains the information about all the performed notary acts, inheritance cases and others. Only Russian notaries have an access to it.

 

4,2. Which documents are registered? Which information is registered?

As any other notary acts a marriage contract shall be registered in the registry of notary acts and also in the Unified Informational Notary Data Base. A notary also transfers personal data about the parties of the contract (their names and surnames, dates of birth, data of identity documents), the date of the contract to the Base.

 

4,3. How and by whom can the information in the register be accessed?

Only Russian notaries have an access to the Unified Informational Notary Data Base.

 

4,4. What are the legal effects of registration (validity, opposability)?

A marriage contract shall be notarized. If it is not notarized it is deemed invalid.

5,1. How is the property (rights in rem) divided?

 

It depends on the matrimonial property regime which is established between the spouses.

If there is no marriage contract between the spouses it is deemed that the statutory matrimonial property regime operates (the joint ownership). This means that all the property acquired during the marriage is their joint property (please see the answer to 2.1). While dividing the joint property of the spouses and defining their shares, the shares of the spouses are deemed to be equal unless the marriage contract stipulates differently.

The spouses also may conclude an agreement on the division of the joint property of the spouses during the marriage or after its dissolution. By this agreement they may define their shares in the joint property as they wish. Such an agreement shall be notarized. In case of disputes the spouses must apply to court.

In case of dissolution the marriage, if the spouses have concluded a marriage contract, the provisions stipulated in the marriage contract apply.

 

5,2. Who is liable for existing debts after the divorce/separation?

 

The exaction on the obligation of one of the spouses/ex-spouses may be imposed only to the property of this spouse/ex-spouse. If this property is insufficient, the creditor has a right to ask to separate the share of the debtor spouse which he/she would get in case of division of the joint property of the spouses and to impose the exaction on this share.

While dividing the joint property of the spouses and defining their shares, the shares of the spouses are deemed to be equal unless the marriage contract stipulates differently. While dividing the joint property, the joint debts of the spouses are divided between them proportionally to their shares.

 

5,3. Does one spouse have a claim to an equalisation payment (balancing payment)?

 

5.3.1. In case of a property regime of community (or partnership) of acquests:
- Does the claim have to be satisfied by means of a payment or in kind?
- How is the claim assessed?
- What is the amount of the equalisation payment (balancing payment)?
- When is the claim prescribed?

 

The division of the joint property of the spouses may be performed during the marriage and after its dissolution by concluding an agreement on the division of the joint property of the spouses. An agreement on the division of the joint property of the spouses shall be notarized.

In case of disputes the spouses must apply to court. The court defines what property shall be transferred to each of the spouses. If one of the spouses obtains property which value exceeds its own share in the joint property the other spouse has a right to obtain a monetary compensation or any other compensation.

 

5.3.2. In other cases (not community or partnership of acquests). Which ones?

 

If the property is not a joint property (please see the answer to 2.1), it belongs to the spouse who acquired it.

After the spouse’s death, heirs open the succession in a notary office. The heirs of the first degree are the children, parents and spouse of the decedent. A spouse also may make a will and define the heirs and the inheritance property. It is necessary to note that the share of the surviving spouse in the joint property is not included in the inheritance.

No, the Russian law does not provide any special matrimonial property regime for multi-national couples.

According to the article 10 of the Family Code, the rights and obligations of the spouses arise from the date of the state registration of the marriage in registry offices. That means that the provisions of the Family Code which regulate property relations between spouses apply only to persons who have registered their marriage in registry offices.

Please note that the Russian law does not provide any regulation for homosexual partnerships or any other kind of partnerships except for a marriage which according to the Russian Family code means a registered union of a man and a woman.

In case of absence of registration of the marriage, the provisions of the Civil Code concerning common ownership shall apply.

To know more about marriage contract and agreement on the division of the joint property of the spouses you may consult a notary. Both contract and agreement shall be notarized. In case of disputes you have to apply to a court.