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37ISSES OF LEGAL REGULATION OF COMMON PROPERTY OF SPOUSES
Petrov A.
Master's student, Nizhny Novgorod Institute (branch) Moscow University of Humanities and Economics Nizhny Novgorod, Russian Federation
Abstract
This article deals with the issues of legal regulation of such a legal institution as the common property of spouses. Based on the analysis of normative acts, the author compares common joint and shared ownership. The article concludes that the main problems associated with the common property of the spouses are related to the moment of division of that property, which occurs mainly during the divorce period. The author concludes that it is much easier to claim your share of the property, including from third parties, while married or during a divorce, than to claim the thing after the dissolution of the marriage, especially from a bona fide acquirer. The article considers the differences in the ways of protecting their rights by a bona fide spouse, depending on what kind of property we are talking about - movable or immovable.
Keywords: joint property, family law, marriage, family, litigation, division of property.
In the modern world, we are constantly faced with many problems related to the issues of common property of spouses. These issues have always been the subject of consideration by the scientific community. The interest in this problem does not cease in our time.
Among the recent publications on the topic under consideration, one can distinguish the works of A. A. Valevskaya [11], Zh. N. Bubenchikova [2], etc.
The resolution of the situation with the common property of the spouse will largely depend on the provisions of which law will be applied to a particular situation: the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) [6] or the Family Code of the Russian Federation (hereinafter - the IC of the Russian Federation) [3].
Most often, issues of common property of the spouses arise at the time of divorce. This question is raised most often in this category of cases. In accordance with domestic legislation, such disputes are considered in court.
Among all the categories of cases concerning the common property of the spouses, one of the most complex cases is the invalidation of transactions on the disposal of such property.
In accordance with the current legislation, when such a transaction is made by one of the spouses, the consent of the second spouse is implied.
In real life, it is very rare for both spouses to participate in transactions for the disposal of joint property at the same time. Much more often, on behalf of a married couple, a transaction is made by one of the spouses. At the same time, the other party to the transaction, which even knows that it is acquiring the joint property of the spouses, rarely has any questions about the awareness of the second spouse, who is not present at the transaction, about this transaction and its terms, and even more so, about the consent of this spouse to conclude the transaction. For most of our citizens, the institution of marriage is associated with the existence of trust between the spouses and coordinated actions on the disposal of common property.
However, in practice, it is not an exception when one of the spouses, having abused the trust of the second spouse and the other party, sells his property not only without obtaining consent, but perhaps even against his will.
In this case, the question arises about the legality of such actions.
From paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 № 15 «On the application of legislation by courts when considering cases of divorce», it follows that if one of the spouses realized something to alienate common property against the will of the other spouse or spent it in accordance with their own goals, and not in the interests of their family, then when dividing this property in court, both this property and its value will be taken into account [8]. It should be noted that the fact that this happened during the marriage, or after its dissolution, will not play any role.
Very often there is a question concerning the cost of the realized thing. In practice, it is not uncommon for situations to arise when the contract of sale specifies a price much less than the real value of the property. This happens for two reasons.
First, an unscrupulous spouse who sells the common property without the consent of the second spouse wants to sell it as quickly as possible and, as a result, is ready to get rid of it as quickly as possible, albeit at a large discount.
Secondly, an unscrupulous spouse can sell any thing from the jointly acquired property to his friend, putting any, however low, price as the price of the contract, since the price fixed in the contract, in this case, will not have any significance in the amount of real settlements between the parties to the contract.
In order to avoid such a situation, the real value of the illegally sold property may be established in court at the request of the interested party. To prove the real price, any evidence can be used, including the real value of similar products on the market of similar products, as well as the conclusion of a professional appraiser.
In situations where relations in the family have deteriorated, and the spouses understand that divorce in the near future will not pass, the unscrupulous spouse often makes a deal only formally, in order to deprive the second spouse of part of the property. But as described above, the need to return the market value of the sold item in the event of a court decision significantly reduces the chances of an unscrupulous spouse.
However, not all such transactions are formal. Very often, the common property of the spouses acquired together during the marriage actually becomes the property of third parties. When resolving this situation, several factors will play an important role at once.
First of all, the decision may depend on the period in which the transaction was made by an unscrupulous spouse: during the marriage or after its dissolution.
Secondly, the good faith or bad faith of the second party to the transaction will be important.
Indeed, if the common property was sold without the consent of one of the spouses, then the second spouse who is not involved in the transaction has the right to apply for recognition of this transaction. However, it will be possible to demand a thing from the buyer only if the latter knew, or should have known, about the lack of consent of the second spouse to make the transaction.
Spouses have equal rights to own and use common property, but for the legality of the alienation of such property, the consent of both spouses is a prerequisite.
Most often, the object of a dispute about the invalidity of transactions on the disposal of the common property of the spouses are cars purchased during the marriage with joint funds in the name of one of the spouses. In this case, the notarial consent of the second spouse is not required for the conclusion of the contract of sale and, as a rule, the data from the vehicle passport is quite sufficient for buyers.
The situation is quite different when an unscrupulous spouse tries to sell an object of common property without having the notarized consent of the second spouse. Currently, such situations are not common, since the state registration authorities of rights to immovable property necessarily require the notarized consent of the spouse.
You can challenge such a deal within a year from the moment when the second spouse learned or should have known about its conclusion.
The absence of mandatory notarial consent of the second spouse in such cases, as a rule, is sufficient evidence for the court of bad faith on the part of the spouse who sold the object of common real estate.
The existence of a rule providing for the mandatory consent of the second spouse to conduct transactions with common real estate seems to be a fairly reliable barrier against an unscrupulous spouse. But this rule applies when the spouses are married.
If the jointly acquired property was not divided between the spouses during the divorce, it is not so easy to return the illegally sold property Due to the fact that the spouse whose rights are violated must prove the buyer's bad faith, i.e. the fact that the buyer knew or
should have known about the seller's lack of proper authority. In practice, it can be extremely difficult to prove this.
Not infrequently there are situations when the property belongs to the spouses on the terms of shared ownership. If one of the spouses sells his share to a third party without offering it to the former spouse, the lat-ter's right to the primary right of purchase is violated [4].
When a marriage is dissolved and the common property is divided, the question often arises about the division of debts incurred during the marriage, and more and more often the subject of consideration is precisely debts [1].
Additional complexity is represented by cases where the joint funds were invested in the fixed assets of an enterprise [10]
The regulations do not contain clear instructions on the division of debts into personal and general. As one of the criteria for determining what needs the loan was used for, some authors suggest using the goals of the loan specified in the bank when it was received [5]. However, such goals do not always coincide with the actual use of borrowed funds.
The recognition of the debt as general will depend on the needs for which it was spent.
So, very often it is necessary to take out loans to start a business [9], the funds from which are later used for the general expenses of the family.
Common debts may arise on the initiative of only one of the spouses, but if all the funds were reasonably spent for the common family benefit, the debt will be recognized as common.
If the debt of one of the spouses, although it arose during the marriage, but its purpose was to meet personal needs, then the spouse will be responsible for such a debt within the value of the property belonging to him [7].
In conclusion, we note that, as a general rule, the disposal of common property by one of the spouses is subject to the presumption of the consent of the second spouse to such an action, but this rule no longer applies to debt obligations.
References
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3. Family Code of the Russian Federation: Federal Law № 223-FZ of 29.12.1995 // Rossiyskaya gazeta. 27.01.1996. № 17.
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8. Resolution of the Plenum of the Supreme Court of the Russian Federation № 15 of November 5, 1998 «On the application of Legislation by courts when considering cases of divorce». URL: https://www.gar-ant.ru/products/ipo/prime/doc/12013717/ (accessed 2904.2021).
9. Shpinev Iu. S. On the issue of the status of an individual entrepreneur // Innovation. The science. Education. 2020. № 17. pp. 63-72. DOI 10.18411/13111972-2020-00012.
10. Shpinev Iu. S. The concept, essence and legal nature of investments // Problems of economics and legal practice. Vol. 16. № 4. pp. 137-141 DOI: 10.33693/2541-8025-2020-16-4-137-141
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