One of the most pressing issues in the termination of a marriage relationship is the division of the common joint property of the spouses.
To begin with, it should be understood that the common joint property of the spouses includes all the property acquired by the spouses during the marriage, regardless of which of the spouses it was acquired, or who or which of the spouses contributed funds. Spouses have equal rights to own, use and dispose of this property, even if one of them was engaged in housekeeping, caring for children or for other valid reasons did not have independent earnings (income), unless otherwise provided the terms of the marriage contract.
Speaking in detail, the property that is the common joint property of the spouses should include immovable and movable things, income received from commercial and labor activities, including the salary of the spouses or one of them, income from the use of movable and immovable property, income derived from intellectual activity, securities, bank deposits, jewelry and other luxury items.
As a rule, the most frequent and acute issue is the division of real estate.
When can a division of property be required?
The division of the common joint property at the request of any of the spouses can be carried out both during the marriage and after its dissolution, as well as in the case of a claim by the creditor for the division of the common property of the spouses in order to foreclose on the share of one of the spouses.
Persons entering into marriage have the right to conclude a marriage contract, where, in addition to their rights and obligations in terms of mutual content, methods of participation in each other’s income, the procedure for each of them to bear family expenses and other issues, they can also determine their shares in the right to real estate. However, a marriage contract cannot restrict the legal capacity or capacity of the spouses, their right to go to court to protect their rights and must not contain conditions that put one of the spouses in an extremely unfavorable position or contradict the basic principles of family law.
Also, the spouses have the right to conclude an agreement on the division of joint property. Such an agreement can be formalized in two ways: both in a simple written form and in a notarial one.
Property (real estate) division agreement
An agreement on the division of the spouses’ property, concluded in a simple written form, can be drawn up in any form. The main thing is that the division of the spouses’ property has the form of a written document and is signed by both spouses. If one of the parties refuses to fulfill its obligations, the case is referred to the court for consideration.
The agreement can also be drawn up with a notary. This will already be a document with great legal force.
An agreement on the division of property between spouses is a bilateral transaction, and can be compensated, in the case of payment of monetary compensation in exchange for property in kind or gratuitous, when each of the parties receives things in proportion to its share in the right to acquired property. Such an agreement differs from a marriage contract in that it is concluded only in relation to the property available at the time of its conclusion, and also in that it can only be concluded by spouses.
A feature of the property division agreement is that when it is concluded, the disposal of immovable property may occur.
What must be specified in the property division agreement
In the agreement on the division of property, it is necessary to indicate: data of the parties to the agreement (surname, name, patronymic, passport number, by whom and where it was issued, place of registration); date and place of detention; information about the marriage; mutually agreed decision on the division of common property; property that is personal property; signatures of spouses.
When drawing up an agreement on the division of the spouses ‘property, the notary checks the legal capacity of the parties to the agreement, the correctness of the document, and certifies the agreement on the division of the spouses’ property with his signature and seals. Information about the conclusion of this transaction is entered in the register.
In addition to drawing up an agreement on the division of the spouses ‘common property with a notary and certifying it to him, it is possible, with the help of a notary, to carry out the division of the spouses’ common property in marriage by obtaining one of the spouses or each of them a certificate of ownership of a share in the property acquired by the spouses during the marriage.
Thus, a notary, upon a joint written application from the spouses, issues one of them or both spouses a certificate of ownership of a share in the property acquired by the spouses during the marriage, the legal regime of which has not been changed by the Marriage Contract.
When issuing such a certificate, the notary checks whether the property is jointly owned by the spouses and whether it was acquired during the marriage.
Limitation period in cases of division of property between spouses
For claims on the division of property that is the common joint property of the spouses whose marriage has been dissolved, a three-year limitation period is established. The three-year period is calculated from the day when the person learned or should have learned about the violation of his right. Thus, if, after the dissolution of the marriage, the former spouses continue to use common property together, then the limitation period begins to run from the moment when one of them begins to prevent the other spouse from exercising his rights in relation to this property (one of the spouses alienated the property or obstructs to use it, the former spouse does not have access to it, etc.).
Our lawyers have extensive experience in the division of property between spouses. Our lawyers for the division of property are ready to provide you with the following legal assistance in the division of the spouses’ real estate:
– oral and written advice on the division of the spouses’ real estate:
– representation and protection of interests in courts on the division of real estate of spouses;
– consultations and representation of interests on the division of real estate of spouses, where one of the spouses is a foreign citizen.
If you have questions related to the division of property, and you need help or advice from a lawyer, please contact our lawyers by e-mail: info@familylawyer.by or by phone: +375293664477.
