Civil marriage and division of jointly acquired property in 2022

Many couples choose not to register their marriage for a variety of reasons. Some are protecting their other half from the need to disclose information about income and property, some are trying to protect at least part of their joint assets from foreclosure, and some simply do not want to take on additional responsibilities.

At Krainev and Partners, we often encounter the need to protect rights in actual marital relations. Many clients are surprised when they learn that the commonly used expressions “common-law marriage” and “common-law spouse” are best avoided in official documents. Most judges, prosecutors, tax inspectors and other recipients of our documents close to the jurisprudence are vaccinated against this term while still in university.

In this regard, we are trying to use more neutral terms: mother/father of the Plaintiff’s child, partner, lover, etc. But sometimes you can’t do without the word “cohabitant”. Of course, many people get upset when they see it in documents. The negative connotation of this concept was aptly noted by stand-up comedian Victoria Skladchikova in “Open Microphone”:

- Who is he to me? Roommate? It seems to me that when you call a person “cohabitant,” you automatically assign him a diagnosis of “alcoholism and theft.”

Today we are looking at 10 main advantages and disadvantages of “civil marriage”, and also dispelling several myths about it.

What is civil marriage in the field of law

Civil marriage is one of the forms of relationships. The law states that civil marriage is a family status. As part of this relationship, a man and a woman must live in the same territory, lead a common life, form a common budget, but did not contact the registry office to get stamps in their passports.

Such relationships also have an alternative name. In particular, the couple is called cohabitants, de facto spouses. The reason for such popularity of this form of relationship for each case is something different. Sometimes people do not want to be dependent on someone, in other cases they are simply afraid to take a decisive step, or do not want to deal with paperwork. Each case is individual.

Pros and cons of cohabitation

Civil marriage, like an ordinary one, has pros and cons. In order not to repeat ourselves, when considering the positive aspects of cohabitation, it is necessary to bring to the fore the moral aspects:

• Firstly, cohabitation is a good way to test your feelings. If it doesn’t work out to live together, then you can separate without the unnecessary problems that arise during a divorce;
• secondly, cohabitation can be excellent training for family life;
• thirdly, an official marriage is often based only on a sense of duty to each other and the state, while a civil marriage is a clear confirmation of the presence of feelings between spouses.

The disadvantages of cohabitation are:

• firstly, it is believed that cohabitation implies a certain freedom in relationships. This is especially true for men;
• secondly, common-law spouses who have lived together for a long time and decide to separate will most likely encounter problems related to the division of property;
• thirdly, children born in cohabitation are not protected from a legal point of view.

A civil marriage is a relationship that has the right to exist. From the point of view of the advantages of cohabitation, it is even somewhat useful. For example, a couple who has decided to get married officially would not mind living in a civil union for at least a few months.

How to divide property in a civil marriage

Property accumulates in a civil marriage, but the catch is that this relationship can fall apart and dividing the common property will be quite difficult. Before the law, you and your ex-spouse are practically nobody to each other, so equal division, as happens in official relationships, is almost never discussed.

Of course, common property can be divided between former partners who have entered into a civil marriage. The benefits have to be shared taking into account a special approach. In particular, the property will be received by the spouse in whose name it is registered. Thus, if a spouse bought an apartment, a car and other property, and the wife ran the household, then the property will go only to the spouse in whose name it is registered.

While legislation regarding the issue of division of common property and alimony in a civil marriage is at the development stage, it is therefore difficult to achieve a different outcome. However, it is possible to collect evidence confirming the fact that the man invested his funds in the woman’s property and, as a result, the actual value of the property increased compared to the original one.

Sometimes partners themselves decide on the issue of regulating property relations and alimony. In particular, they draw up an agreement that regulates the procedure for dividing common property. With the help of the agreement in question, spouses are allocated shares of property from common savings. If the spouses could not come to a common denominator, they can file a lawsuit, and then the judge will resolve their conflict according to the nuances prescribed in the current legislation. The same applies to the topic of alimony.

What are the differences between an official marriage and a civil marriage?

In everyday life, the concepts of civil and official marriage are given diametrically opposed meanings. A marriage registered in the registry office is called official, and an unregistered one is called civil. From the point of view of legal terminology, such definitions are fundamentally incorrect. Any relationship between residents of our country is regulated by the Civil Code.

Thus, from a legal point of view, a registered union is civil, while an unregistered one is called cohabitation. Answering the question: “Is a civil marriage an official marriage or not?”, from a legal point of view, it should be said that yes. Nevertheless, the concept of civil marriage is firmly associated among most people with cohabitation. Therefore it must be viewed from this point of view.

Most couples who decide to live together submit an application to the registry office for moral reasons. They strive to be recognized as husband and wife in the eyes of the public. From a moral point of view, civil and official marriage are no different, but from the point of view of the law, the difference is great. What is the difference between a civil marriage and an official one? We need to talk about this in more detail.

The main legal differences between civil and official marriage are as follows:

• Firstly, the law does not provide for the consolidation of property of unofficial spouses into common property. It will belong to the party for which it is registered. At the same time, who allocated the money for its acquisition does not matter. In an official marriage, the husband and wife have equal rights to all property, regardless of who it is registered to;
• secondly, in a legally registered marriage, children have official parents who bear legal responsibility to them. At the same time, unofficial relationships often lead to the fact that a man refuses to recognize the fact of paternity, and this has to be proven in court;
• thirdly, there is a significant difference in the distribution of debt obligations. In an official marriage, debts are often divided equally, but in cohabitation, the obligation to repay them falls solely on the borrower.

There is a significant difference between a civil marriage and a legal marriage and from the point of view of inherited property. If the relationship is officially registered, then the inherited property is distributed in equal shares among the closest relatives, which includes the wife. The common-law spouse is not an heir unless otherwise specified in the will.

Advantages of an official barque over a civilian one

The difference between civil marriage and cohabitation

The pros and cons of official marriage should be considered taking into account the above differences. At the same time, you need to understand that for one of the parties the advantages may turn out to be disadvantages and vice versa. For example, according to the law, official marriage means joint housekeeping and legal responsibility to each other. All acquired property is joint. At the same time, the funds for its acquisition could only be earned by one party, but in the event of a divorce it will be divided in half. To avoid this, you will have to prove your rights to material assets in court or enter into a marriage contract in advance.

There are quite a lot of similar nuances. However, the following points are considered to be the advantages of official relations:

• the possibility of dividing joint property and debts in the event of divorce;
• a confirmed fact of marriage allows you to visit your husband or wife in places where access to other people is closed, for example, in a hospital;
• husband and wife are each other's first heirs.

In addition, the advantages of official marriage over civil marriage include certain benefits. Our state is loyal to couples who have legalized their relationship, so spouses have a better chance of getting preferential housing and have a lot of other preferences.

The main disadvantages include:

• the inability to dispose of jointly acquired property without the consent of the other party, which must be confirmed by a notary. For example, to rent out or sell real estate, the official consent of the spouse is required;
• Another problematic aspect may be the need for divorce. Cases of divorce are not uncommon in our country, and if the parties do not agree on the division of property and debts, then the divorce procedure will be carried out through the court, and the proceedings may drag on for several years;
• When listing the disadvantages, it is worth mentioning the costs of painting at the registry office, as well as the wedding celebration, without which such a ceremony is rarely done.

In conclusion, it should be said that the vast majority of Russians find more advantages in official marriage than in cohabitation. However, each couple must choose an official or civil marriage independently, based on their goals, financial situation and other factors.

Legal protection of the child

When listing how a civil marriage differs from an ordinary one, it is necessary to point out another important advantage in favor of the latter, namely the legal protection of common children. In civil marriages, men do not often recognize paternity. This is done primarily in order to receive additional subsidies from the state for the maintenance of children (they are available to single mothers). But this is a double-edged sword - in the event of a breakup, the child’s father will not be obliged to pay funds for his maintenance, and paternity will have to be proven by filing a statement of claim.

What is a civil marriage: its pros and cons

In this regard, the difference between civil and official marriage is obvious. In case of divorce, filing for alimony is much easier. This can be done during the divorce proceedings. All that is required is to submit an additional statement of claim. Most likely, the judge will combine the consideration of both cases into a single trial.

Changes in the division of property in 2022

People who have entered into a civil marriage have rights when dividing property that are markedly different from those that a formal union can offer former spouses. But, despite the dampness of the legislative framework, it is still possible to defend your rights both in the matter of property and alimony.

Serious changes began back in 2022, when the State Duma began to talk about equating civil marriage to official relations. For a union to be recognized as legal, the following conditions must be met:

• The couple must have lived together for more than five years;
• If a couple has one child together, they can live for two years.

In situations where the union is recognized as official, common-law spouses will have rights and obligations to each other (they pay alimony, etc.). If legal disagreements arise, they can be resolved with the help of the Family Code.

The project was not approved. It is a pity, since such an approach would significantly ease legal conflicts when it is necessary to pay alimony for common children and divide property. Especially considering the fact that during the period of civil relations, many couples manage to acquire not only property, but also children, for whom they also have to share custody.

What difficulties do cohabitants encounter?

As long as people are healthy and live together, there are no problems, except for some inconveniences.

• Establishing paternity

According to Vadim Bashir-Zade, a lawyer at the Moscow Arbat Bar Association, in a civil marriage there is no presumption of paternity of the spouse - the rule according to which the official spouse of his mother is recognized as the father of the child.

“To establish paternity, it is necessary either to recognize paternity on the part of the father by submitting an application to the registry office, or, if the child’s father is recorded from the words of the mother, to establish paternity in court,” says the expert.

• Getting a mortgage

Another example of discomfort is applying for a mortgage. One of the couple must have a good salary in order for the loan to be approved for him alone. The second spouse can become a guarantor for the loan, but this will be a very risky step for him.

“In cases of applying for a mortgage loan, the bank can take into account the income of the common-law spouse, but the property itself is registered only as the sole property of the borrower. The guarantor for the loan is jointly and severally responsible for servicing it,” explains the press service of VTB Bank.

You can try to find a bank that will agree to give a mortgage for one apartment to two borrowers with registration of shares. “In the event of termination of relations, the mortgaged apartment is divided according to the shares in which this apartment was purchased. And if the former common-law spouses do not pay the loan, the bank sells the apartment and pays off the total debt,” says Uralsib Bank.

Find the best mortgage rates

Calculator Compare.ru

The main problems arise when cohabitants break up.

• Payment of alimony

If a couple has children, but the father of the child was recorded from the words of the mother, then in order to collect alimony, paternity will need to be established through the court. “Without establishing paternity, it will be impossible to collect alimony, unless the common-law spouses have entered into a notarial agreement,” notes Bashir-Zadeh.

• Property division

In essence, there can be no division of a car, apartment, electronics, jewelry purchased by one of the partners during their life together, or, say, a contribution between unofficial spouses. Because the concept of jointly acquired property does not apply to them.

“Common-law spouses divide property in accordance with civil law - the common property may be in their shared ownership, and if not, then it will remain with the spouse for whom it is registered,” says Oleg Sukhov, president of the Guild of Real Estate Lawyers.

If one of the spouses, being in a civil marriage, bought, for example, an apartment, and then formalized the relationship with his other half, then the property will not become joint.

The only opportunity to receive part of the property or compensation for it is through the court with a requirement to determine shares in the common property in accordance with Article 244 of the Civil Code of the Russian Federation. But this is a very difficult and long process. You will have to provide convincing evidence that the property was purchased with joint money.

First of all, in such a situation, you will need to prove the fact of cohabitation. “And running a common household, as well as the moment from which living together began,” adds Vadim Bashir-Zade. — In addition to the explanations of the former common-law spouses themselves, one should rely on the testimony of relatives or neighbors, as well as other evidence: registration at the same address and joint payment of utilities; joint photographs; correspondence."

Evidence of the purchase of things with common money can again be correspondence between spouses about purchase plans, checks and testimony of witnesses.

But when considering the issue of the right to housing for common-law spouses, the norms of the law on foreclosure on a share in common property do not apply, warns Bashir-Zadeh.

In this case, a person can only try to prove that repairs in the apartment of one of the spouses were made at the expense of the second. “In this case, he can count on compensation,” notes Oleg Sukhov.

If one of the cohabitants dies, then the rights of his unofficial spouse and children are not protected in any way.

• Loss of compensation

“In the event of the death or death of a person who was in an unregistered marriage, the actual spouse does not have the right to compensation for damage caused by the death of the breadwinner (Articles 1088–1089 of the Civil Code of the Russian Federation),” warns Vadim Bashir-Zade.

• Problems with inheritance

The common-law spouse, unlike the official one, is not included in the first place as heirs. So, in the absence of a will, you will have to enter into an inheritance through the court. At the same time, in the very last place.

https://www.sravni.ru/text/2017/6/28/kak-oformit-nasledstvo/

What is recognized as jointly acquired property?

When a civil marriage ends, the division of property is one of the most troublesome events. But first, let’s figure out what can be classified as common property received in the process of common residence.

• Real estate of various types (apartment, house);
• Allotments of land;
• Movable property;
• Tools such as agricultural machinery or musical instruments;
• Jewelry;
• Other material benefits received during the period of cohabitation (bonuses, lottery winnings)

But in cohabitation, common-law spouses can acquire individual property, which includes:

• Property that spouses acquired before entering into cohabitation or after they stopped living together (including an apartment);
• Apartments that were purchased with a person’s personal savings or with the help of a loan issued in his name;
• Items that are intended exclusively for personal use (jewelry does not count);
• Intellectual property, regulated through copyright;
• Property that was given to one of the cohabitants or was inherited by him.

Property included in the second list cannot be divided even after an official relationship, since only one of the cohabitants has the right to it.

Remember the main thing:

1. You can prove a “civil marriage” through the court if you want to establish paternity or receive part of the property.
2. You need to download the case law on a similar situation and attach it to the claim.
3. Witnesses for the hearing must be announced in advance through a petition.
4. Witnesses can be interviewed even in another city; for this purpose, a VKS (video conference call with another court) is assigned. Your witness will have to come to the court at the appointed time, who will tell you to keep secret.

Be sure to download:

The principle of division of jointly acquired property in marriage

If the spouses were in an official marriage, upon divorce, all property acquired in it will be divided into two parts. Of course, controversial situations are possible, but the difference between an official marriage and an actual marriage is that almost all these disputes are described in the Family Code. For example, if you need to share an apartment, then in an official marriage this will not be difficult.

It’s another matter if the spouses did not register their relationship, but lived together and ran a household together. The division of property and alimony in the case under consideration can take place according to several scenarios. In particular, the person who bought it and in whose name it is registered will be able to receive the property.

When we are talking about large values, such as movable and immovable property, the ownership of the things in question can be recognized as general. If the former spouses do not agree to jointly own the property, it will be divided into shares, according to the contribution of each spouse. This is important because when buying expensive property, usually everyone contributes funds. But if in an ordinary marriage the division occurs equally, regardless of the money invested, in this case, the share of each is determined depending on the contribution made by him.

Some couples are prudent enough to draw up a document on shared ownership, where it is written down who will receive what part of the property in the event of a breakup, how much alimony they will pay, etc. Such items must be written down before an expensive purchase.

What rights and responsibilities do unregistered spouses have under the laws of Russia?

According to the law, an unregistered marriage does not create conjugal rights and obligations. The application of family law applies exclusively to the rights of a child born in an unregistered partnership. Children receive rights similar to those of children born in an official marriage. In a situation where the fact of paternity is recognized. According to the law, there are formally two single-parent families, not a single marriage is formalized, and the child has two parents.

According to the Constitution of the Russian Federation (Article 51, paragraph 1), a person enjoys the right not to testify against close relatives, including a spouse: “No one is obliged to testify against himself, his spouse and close relatives, the circle of whom is determined by federal law.”

Constitution of the Russian Federation of 1993

The “common-law spouse” does not receive such a right. If the cohabitant is under investigation and arrested, according to the internal regulations of the pre-trial detention center (pre-trial detention center), the other will not be able to receive a visit.

No compensation or payments are made to the “common-law spouse” in the event of the death of a partner as a result of an industrial accident.

Video: problems of civil marriage, why it is better to register with the registry office

If there are children

A child in a civil marriage also becomes a problem when the spouses decide to separate. As a rule, in order for a child to qualify for child support, as in the case of an official relationship between parents, paternity must be confirmed. Then the child will be given the following rights:

• Child support will be supported by child support;
• The child is allowed to communicate with his parents;
• The child will have the official right to live with any parent in the same place (house, apartment);
• Enter into an inheritance after the death of a parent;
• Express your opinion on the topic of which parent wants to live with and more, and the parent will be able to protect the interests of the child.

In other words, a child born in a civil marriage without confirmation of paternity may not even receive alimony after the parents divorce. But civil marriage still does not exclude alimony, although to obtain it you will have to go through a special procedure.

After the death of a spouse

If one of the cohabitants dies or leaves the family, the second, as a rule, is left with nothing. This is dangerous when a couple bought an apartment and registered it in the name of the husband or wife.

In this case, the property will go to the children and other relatives of the deceased. If there are children together, then the property will remain with them, and the mother will not have to look for other housing.

You can make a will, but at a young age no one worries about this. Over the past 10 years, the number of deaths from cardiovascular diseases at a young age has been increasing. But even if there is a will, this does not provide an absolute guarantee. A good lawyer will challenge it in court and return the property to the relatives of the deceased.

And since the marriage was not officially registered, it means that it is almost impossible to prove the right to half.

If a husband dies while married, the wife receives compensation as well as a portion of her husband's salary. The director of the enterprise also pays vacation pay and funeral expenses. In cases of cohabitation, such payments are not provided.

Peaceful division of property

It is possible to divide an apartment and other property after a break in civil relations, as well as establish the amount of alimony peacefully . This is the simplest method and is used when cohabitants are on good terms and are ready to cooperate, and the apartment is their common property. As a rule, it is possible to agree verbally, but in order for the agreements to have more weight, it is advisable to consolidate them with the help of a settlement agreement. The agreement describes in detail all the steps of dividing the property and is certified by a notary.

Division of property in court

Court proceedings are initiated when the spouses could not reach an agreement. Judicial practice includes several points:

• The fact that people lived together is not a good reason to share the apartment and other benefits they received during this period;
• If you run a common household, this has no legal consequences;
• If a couple lived together, under certain circumstances, the rules regarding common property can be applied to the acquired goods.

Usually the issue is resolved taking into account the provisions of Art. 245 of the Civil Code of the Russian Federation. Property can be divided into equal shares or in some other way.

Adviсe

Some websites give advice that you need to interview relatives who will confirm the marriage and the judge will accept such evidence. This is stupid and untrue. If such a possibility existed, they would immediately begin to use it for selfish purposes.

Imagine the situation: a lonely man lives in his apartment, and suddenly he receives a summons to appear in court. In court, he learns that one lady has decided to officially recognize him as her husband. He has no relatives, it turns out that he cannot refute this.

But her relatives unanimously claim that the couple lives together and runs a common household. Do you really think that a judge in such a situation will take responsibility and officially recognize the marriage?

Sometimes on forums women are advised to collect documents about general purchases and expenses and on this basis officially prove the marriage. Of course, this is also fiction. According to Russian laws, no one prohibits you from making purchases with anyone or taking money. Nobody even forbids you to rent one apartment for two, but on this basis you are not recognized as husband and wife.

Perhaps we dispelled someone’s hopes, and saved someone from unnecessary expenses on a lawyer. But we are glad that we have destroyed some of the myths that were invented on the Internet regarding the recognition of civil marriages.

If after reading the article you do not plan to change anything in your relationship, try to protect yourself legally. For example, if you buy property with common money, list yourself and your spouse as buyers.

Sometimes we are asked whether it is possible to claim the property of a common-law spouse after his death? It is possible, but it is better if he left a will in your name or issued a deed of gift.

Situations often arise when a man or woman wants to officially recognize a civil marriage, for example, after the death of a spouse, or when they refuse to divide property purchased with common money.

In 2022, it is very difficult to prove a civil marriage. There are several cases in judicial practice where this could be done. To do this, you need to apply to the magistrate or district court with a statement of claim. There you can prove paternity and divide property.

Many people misunderstand the very concept of a “civil” marriage and because of this, misunderstandings occur. According to the law, such a concept does not exist, there is only an ordinary marriage. To conclude it, the following conditions must be met:

• The bride and groom must be over 18 years old. If the age is younger, then you need to contact the city administration and get permission for the wedding. Most often it is issued if the bride is pregnant.
• Both newlyweds must be legally capable.
• Spouses must pay a state fee of 350 rubles.
• There should be no coercion or intimidation. The decision must be voluntary.

Statement of claim for division of property

To begin dividing property or establishing alimony, you need to write a corresponding application. Moreover, you can use several alternative versions of such statements:

1. In the first case, you should write an application for recognition of the right to a share of the property. It is used if the property is registered in the name of one person, but the second common-law spouse also invested his money in this property.
2. The second case is when the spouse claims unjust enrichment. Such a statement is worth writing if it can be proven that one of the spouses transferred their money to the other.

When you have chosen the type of claim document, you need to indicate a certain set of information about common-law spouses. For example, who is the plaintiff, the name of the application, on what grounds it is being submitted, attached documents, request, etc. An application for division of property should look like this.

How to prove that you are a common-law wife

The wife will have to make serious efforts to prove cohabitation and running a common household. Most often, this is required after a breakup. Although women consider themselves full-fledged wives, from a legal point of view, they are strangers, like neighbors.

There are situations when there is practically no chance. The most striking example is if the husband’s relatives bought property with common money. Or you built a house on their site. In such a situation, even the court will not help.

Try to find any receipts that will indicate joint purchases.

Evidence in court regarding the division of property

In order for the court not only to accept your application, but also to take your side in the issue of alimony and common property in a de facto marriage, you need to collect evidence. This is important if you need to prove your position. A good argument for staying in a de facto marriage can be based on several facts. In order for the court to recognize your right to property and consider the application, you need to prove the following points:

• That common-law spouses lived in the same territory before the division of property. Witness testimony can be used as evidence. For example, what neighbors or friends of the ex-couple say.
• People led their daily lives and households together. Receipts from stores, vacation tickets, etc. can prove this fact.
• We bought things and had a common budget. Can be proven using checks and various payment documents.
• Collectively used property. For example, this can be proven by video, photos, testimony of neighbors, etc.

To maximize your chances of winning a civil case, you will need to collect the maximum evidence base that you have entered into a civil marriage. But even this does not guarantee a successful outcome. The reason is that the division of property in a civil marriage is associated with many legal difficulties. To begin with, the law does not even have the concept of “civil marriage,” which means that actual spouses remain complete strangers before the law. To understand the intricacies of the case at hand, you should hire a lawyer.

You can get legal assistance regarding the division of jointly acquired property in a civil marriage on our website.

How to legally register a relationship

The only reliable way to legalize a “civil marriage” is to register it with the civil registry office. If the common-law spouse decides to recognize the marriage through the court, he will receive a refusal to accept the statement of claim.

Does changing your last name have legal consequences?

Changing the surname of spouses in a “civil marriage” will make them namesakes, but will not confirm the fact of marriage. The procedure will be carried out in accordance with Article 19 of the Civil Code, not the Family Code.

Is it possible to prove the legality of a civil marriage in court?

The Soviet KZoBSO (Code of Laws on Marriage, Family and Guardianship) of 1926 recognized de facto marriage, cohabitation was considered a sufficient basis for recognition of marriage. In the summer of 1944, by decree of the Presidium of the Supreme Soviet of the USSR, the provision of the code on equating an actual marriage with a registered one was abolished. A few months later, a decree of the Supreme Soviet of the USSR appeared, clarifying that the provisions of the 1926 law can be applied to persons whose spouse died or went missing during the Great Patriotic War. Church weddings performed in occupied territory were also recognized. All facts were proven in court. These provisions remain in effect to this day. It doesn’t matter how long the spouses live in a de facto marriage, one year or sixty years, the court will never recognize such a marriage by its decision.

The decision to register a relationship must be voluntary on both sides; the existence of a marriage will not be recognized through the court

The Family Code provides only one exception:

The provision on recognition of legal force only for marriages, the state registration of which was carried out in the civil registry authorities (Article 1 of this Code), does not apply to marriages of citizens of the Russian Federation, performed according to religious rites in the occupied territories that were part of the USSR during the Great Patriotic War. Patriotic War, until the restoration of civil registration authorities in these territories.

Art. 169 clause 7, Family Code of the Russian Federation dated December 29, 1995 N 223-FZ (as amended on December 30, 2015)

From judicial practice based on the decisions of the Supreme Court, the following conclusions follow:

• an unregistered marriage does not create legal consequences;
• a common household and cohabitation only indicate that the couple does not share property and considers it common;
• the rules of the Civil Code on shared ownership apply to common property;
• if it is impossible to divide joint property, the shares of each of the “common-law spouses” will be considered equal according to the law (Article 245 of the Civil Code of the Russian Federation).