To begin with, let's look at what joint property of spouses (CCC) is. Like, joint property is a form, because it has more than one owner. With some exceptions, common property is all movable and immovable property acquired from the joint income of the spouses, which are also considered as joint.

The emergence of such a regime in relation to a particular thing is due to the transfer of ownership of it.

Taking into account the nature of the property regime and the equal rights of subjects of property rights, from the moment the husband or wife has a particular thing, the second spouse simultaneously receives the right of ownership to it.

Thus, the common joint property of the spouses is a certain property mass formed through marital acquisitions and characterized as a regime of limited community, as it arises in relation to limited property.

The community of property of the spouses is a priority, as it operates within the framework of a certain presumption - until they determine otherwise.

The commonality of the matrimonial estate is dispositive, since it can be changed without problems.

This regime applies not only to spouses - types of joint ownership also include the acquisition of a peasant (farm) association.

When does marriage occur

Since the community applies only to the property of the spouses, which a man and a woman become only after the state registration of marriage, the main and, in fact, the only basis for the emergence of the CCC is.

What does marital property include?

It is generally accepted that everything that they have belongs to the joint property of the spouses. However, the law contains more specific clarifications, naming examples of property that should be considered common marital property. At the same time, it does not matter which of the spouses acquired it and to what extent each of them made his property contribution to the formation of the CCC.

Thus, according to Art. 34 of the RF IC, the common joint property of the spouses is formed at the expense of:

• labor income of husband and wife, income from business or from activities that are considered intellectual;
• pensions, allowances and other social payments for which there are no specific purposes for spending;
• movable property and real estate;
• securities, shares in capital, bank deposits, shares;
• any other things, even if the property is registered in the name of one of the spouses.

It is important to understand that the size of the contribution of each of the spouses does not matter. CCC occurs even in couples where one of the spouses is engaged in the upbringing of children and the household, and the second provides for the family.

Given this, several intermediate conclusions arise:

• the interested spouse does not have to prove the community of the property acquired by the second spouse, it arises automatically;
• things and rights will be joint, regardless of whether they are stipulated by law or not. For example, an apartment under cession is considered common property, although it is not real estate before registration of ownership;
• so that the CCC does not apply to things purchased by the husband and wife, it is necessary to prove the fact of their inclusion in the exceptions, which will be discussed below.

Rights and obligations in relation to common property

Spouses, according to Art. 35 of the RF IC, jointly own and dispose of property, which is defined as common. The obligatory conciliatory and trusting order of possession and disposal will help us to understand what is the essence of the presumption of the common property of the spouses. It can be expressed in several main theses:

1. CCC is pre-established, as it arises without the will of the spouses at the time of marriage. This, however, does not prevent the husband and wife from changing the legal regime.
2. Each spouse has equal rights and obligations in relation to the formed property mass, regardless of the size of his contribution.
3. Both spouses equally own and dispose of the common property. Since the CCC is a regime in which the shares of the owners are not subject to determination, each of the spouses owns 100% of everything jointly acquired.
4. The co-owners equally belong to the property obligations. Spouses jointly not only own common property, but are also liable for common debt obligations, for example, for loans.
5. Common property implies mutual responsibility. Spouses are liable for their obligations with their jointly acquired property. If it is not enough, joint and several liability for each other is activated, but already the private property of each of the couple.

Joint ownership and marriage contract

SSS, according to Art. 33 of the RF IC, is a legal property regime for married persons. However, it is valid only until the husband and wife decide to change it. This can be done by concluding - after its signing, the contractual regime between the spouses will begin to operate. It is regulated by 8 RF IC.

Concluding marriage contract, husband and wife can determine the regime that, in their opinion, will best reflect the essence of their property relations.

When do you need the consent of the spouse to the order of the CCC

The law defines a high degree of trust between the owners of matrimonial property. In accordance with Art. 35 of the RF IC, the possession and disposal of objects belonging to them is carried out by mutual agreement.

The law defines the presumption of the spouse's consent to transactions with the CCC made by the husband or wife - it is assumed that the one who alienates the common property has the consent of the second spouse.

This largely corresponds to the informal nature of the relations of co-owners, greatly simplifying the procedure for exercising administrative rights in relation to the CCC. But at the same time, this creates a threat to such rights, significantly complicating the possibility of their protection, for example, in the case of dishonest behavior of one of the spouses in the alienation of common things.

This issue is of particular relevance in the division of property.

In order to protect such rights in relation to individual transactions, the legislator has limited the effect of this presumption.

To make transactions in which the transfer of rights to property or the transactions themselves are subject to state registration and notarization, their initiator will first have to obtain the written consent of the spouse.

The need to obtain consent is due to the fact that such transactions affect the property status of the family. Consent is made in writing and certified by a notary.

Consent to buy an apartment

Sale of a joint apartment

The property of the spouses is sold according to the traditional model. Joint ownership does not imply the allocation of shares, therefore, if one of the spouses is the formal owner, the notarized consent described above will be required from the second.

If the joint ownership of real estate was registered with Rosreestr, consent is not required, because the co-owners will act as sellers mutually.

The transaction is executed by a notary, after which the rights to real estate are subject to re-registration in Rosreestr.

In some cases, you will have to pay sales tax.

Joint property and bankruptcy of a spouse

Russian legislation provides for the bankruptcy of not only legal entities, but also individuals. This status means the insolvency of a citizen - the inability to answer for existing property obligations to creditors.

The bankruptcy procedure of an individual is a lengthy process that requires studying the property status of the debtor, searching for and selling his free assets. In this regard, a major threat looms over the jointly acquired property.

Section after divorce

The division of property is a right, not an obligation of the spouses, therefore they are not obliged to carry out its division at the time of the dissolution of the marriage. If they fail to do so, the estate formed during the matrimonial period retains the co-ownership regime. Divorced spouses can divide property at any time.

However, with regard to judicial division for divorced spouses, paragraph 7 of Art. 38 of the RF IC defines the statute of limitations - you can file a claim only for three years after the divorce. There are no such restrictions in relation to the contractual division.

Partition after the death of a spouse

In order to protect marital interests, the law allows the division of property not only during life, but also after the death of one of the spouses. In accordance with Art. 1150 of the Civil Code of the Russian Federation, the inheritance rights of a surviving spouse do not detract from his rights in common property with the deceased.

Even before determining the final estate of the deceased, which is subject to division among all heirs or in another order under the will, such a spouse may demand the division of the CCC in order to allocate his marital share.

This makes it possible to avoid the share of the surviving spouse in the inheritance mass, rightly allowing the inheritance to be distributed only by 50% of the CCC. Subsequently, the spouse will receive not only his share in the CCC, but also in the estate as the heir of the first stage, unless otherwise specified by the will.

Conclusion

Within the framework of joint ownership of property, various matrimonial legal relations arise. Joint property arises between spouses only in marriage, extends to almost all paid acquisitions, and ceases only after a divorce.

The presence of common property obliges the spouses to jointly own it with a high degree of trust. It is assumed that when disposing of property they act with the consent of each other, although this often requires documentary evidence.

If the spouses do not wish to maintain the joint ownership regime, they may at any time divide the jointly acquired property.

Lawyer. Member of the Chamber of Advocates of St. Petersburg. Experience more than 10 years. Graduated from St. Petersburg State University. I specialize in civil, family, housing, land law.

The jointly acquired property of the spouses, according to the Family Code of the Russian Federation, belongs to both spouses without allocation of ownership shares. They can jointly manage property and receive equal (joint) income from its use.

Such relations are called the legal regime of property of the spouses, which assumes that all issues of ownership, disposal and use of property are resolved as provided for in Chapter 7 of the Family Code of the Russian Federation. This also includes the definition of what property can be recognized as jointly acquired.

Important! The legal regime assumes that all joint property belongs to the spouses equally and both of them have equal rights to manage (ownership and disposal).

Along with the legal family law, it also provides for the contractual regime of property of the spouses. If there is a marriage contract, the relationship between the spouses in terms of ownership, disposal and use of property is regulated by the provisions of the contract.

Features of the conclusion of a marriage contract and restrictions on its application

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The conclusion of a marriage contract and the issues that it regulates are discussed in articles 40-44 of the RF IC. Despite the fact that citizens of the Russian Federation have had the possibility of concluding it since the adoption of the Family Code in 1996, so far only 4-5% of the country's population enter into marriage contracts.

Important! A marriage contract may describe the obligations and rights of the spouses in relation to both premarital and jointly acquired property.

The agreement may determine the issues of ownership, maintenance, rights to income from the use of property (the funds of the spouses are also considered such) and other issues that relate to the sphere of property interests. At the same time, it is not intended to regulate other (non-property) relations between them and their obligations towards children.

The validity of the marriage contract ends from the moment it is declared invalid or the joint decision of the spouses to terminate it, as well as upon divorce (unless the contract itself provides that its validity will continue after the dissolution of the marriage).

Important! A marriage contract may be declared invalid if it does not comply with legislative norms, in particular, it infringes on the rights of one of the spouses and puts him in an unfavorable position.

Don't know your rights?

The marriage contract must also comply not only with family law, but also with civil law, in particular, the provisions of the Civil Code of the Russian Federation on transactions. This is a stricter version of the organization of property relations of spouses, but it is not able to provide for all the nuances of legal relations that married couples may encounter.

The nuances of determining jointly acquired property under the legislation of the Russian Federation

Not all features of family relations can be regulated with the help of a marriage contract or the norms of the Family Code of the Russian Federation. This document does not cover the property rights of the spouses on the common joint property of the peasant (farm) economy, as well as civil relations (civil marriage).

However, in family relationships such situations are not uncommon, which creates the basis for speculation and conjecture, often incorrect. Most often, married couples face difficulties in determining jointly acquired property if they were in an unregistered marriage.

Also, the legal status of privatized real estate and real estate acquired under a mortgage agreement causes difficulties. Let's consider these questions in order.

Jointly acquired property in a civil marriage - is it possible?

The concept of jointly acquired property for common-law spouses does not exist, since such relations are not regulated by the Family Code of the Russian Federation. Instead, the norms of the Civil Code of the Russian Federation on shared ownership are applied to the property of common-law spouses.

The issues of determining the personal and common shared property of citizens in this case will be much more difficult to resolve than if they were married, so common for common-law spouses will be advice to register expensive property in shared ownership with the definition of shares in its acquisition.

The privatized apartment is not a jointly acquired property?

Privatized housing is not jointly acquired property. This directly follows from the provisions of Article 36 of the RF IC, which refers to personal property those objects that were received free of charge (for example, as a gift, as a result of inheritance or privatization).

An exception will be a situation in which significant funds were invested in a privatized apartment by one of the spouses who is not its owner. If the amount of these investments significantly increases the value of the apartment, then it can be recognized as jointly acquired property.

Buying an apartment with a mortgage

If married couples have real estate purchased under a mortgage agreement, then the decision as to whether it is joint property will depend on when the agreement was entered into.

1. The mortgage agreement was concluded before the marriage.

   In this case, the property will be recognized as the personal property of the spouse for whom the mortgage agreement was drawn up. In case of divorce, the interest paid during the marriage for the use of credit funds and payments on the loan are subject to compensation to the second spouse in the amount of 50%. However, an agreement on the division of property can provide for a different procedure.

2. The mortgage agreement was concluded in marriage.
   In this case, the property will be recognized as joint property, and its division will be carried out in accordance with the norms of family law or under the terms of a marriage contract.

Does the right to common property of spouses also belong to children?

The child has no right to property jointly acquired by the parents. Even if there are children, it will be divided between husband and wife in equal parts, regardless of who the children will live with (unless otherwise provided by the marriage contract or agreement on the division of property). On the other hand, property that was acquired (donated) by parents to children is not common joint property.

The property belonging to the child can be classified as gifts, the ownership of which is registered, as well as personal belongings of children (clothes, toys, sports equipment, computer, books and children's furniture). This also includes bank deposits made in the name of children.

joint property section right

The regulation of property relations arising between spouses is currently based on the existence of two regimes of matrimonial property - legal and contractual. In accordance with paragraph 1 of Art. 33 of the Family Code Russian Federation, the legal regime of property of the spouses is valid, unless otherwise provided by the marriage contract.

The legal regime of property of the spouses, which, as noted earlier, is the regime of their common joint property (Article 33 of the Family Code of the Russian Federation) is established by Chapter 7 of the Family Code of the Russian Federation.

Preliminarily, however, it is worth noting that in the theory of law there are regimes of absolute (full) and limited (partial) generality. According to the rules of the regime of absolute community, all property of the spouses, both movable and immovable, both owned by each of them before marriage and acquired by them during marriage for any reason, including any income, as well as any property obligations and debts of each of the spouses, regardless of the time of their acquisition by the spouses. As an exception, L.B. Maksimovich singles out things for personal use that may be in separate ownership.

Under the regime of limited generality, the limitation may be based on a temporal or qualitative criterion, according to which this or that regime is subsequently extended to marital property. Thus, under the temporal criterion, the starting point is the entry into marriage, from the moment of the conclusion of which, in accordance with the law or the contract, a community of matrimonial property arises. In the second case, generality extends only to a certain type of property or a certain thing (for example, movable property or a car).

Along with the named regimes, the legislation of foreign states, as I.V. Zlobina, I know six more various options property relations between spouses. At the same time, one should agree with M.V. Antokolskaya, who believes that the regime of joint property of spouses existing in Russia can be called a regime of limited community or community of acquisitions, since only the property that is acquired by the spouses during the marriage becomes common.

In general, during the development of Russian family law, two main approaches have been developed in resolving the issue of property belonging to spouses: either recognizing property belonging to spouses as their common property, or recognizing separate property and property independence of each of the spouses. At the same time, in the conditions of regulating relations between spouses regarding property on the principle of community, the property belonging to each of the spouses before marriage (premarital property) has always been allocated as part of the property belonging to the spouses. Such premarital property at various historical stages referred either to the personal property of each of the spouses, or to the common property of the spouses.

At present, the main problem legal regulation relations related to common matrimonial property is to determine the criteria that make it possible to attribute the acquired things, property rights and debts to the category of common property of the spouses and, on this basis, to extend the legal regime of common joint property to them.

In accordance with Art. 34 of the Family Code of the Russian Federation, the joint property of the spouses is the property acquired by them during the marriage. At the same time, the property that belonged to each of the spouses before marriage, as well as the property received by one of the spouses during the marriage as a gift, and by inheritance or other gratuitous transactions, is not included in the common property to be divided between them.

Not limited to establishing common features of property related to the joint property of the spouses, the family legislation of the Russian Federation establishes an approximate, non-exhaustive list of property to which spouses may have the right to common property (Article 34 of the Family Code of the Russian Federation). It is important that the concept of "property" in this case is interpreted broadly and implies not only things, but also property rights, as well as obligations of spouses.

According to paragraph 2 of Art. 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage includes:

• - income received by each of the spouses as a result of his labor activity, as well as pensions and benefits and other payments that do not have a special purpose;
• - income received by each of the spouses from entrepreneurial activities (including the share of profits of a commercial organization;
• - income received by each of the spouses from intellectual activity (royalty, etc.);
• - movable and immovable things, securities, shares, deposits, shares in capital contributed to credit or other commercial organizations acquired at the expense of the joint income of the spouses;
• - any other property acquired by the spouses during the marriage.

The novelty of family law is the inclusion in the specified list of property that arises from citizens and as a result of participation in commercial organizations. Yes, Art. 34 of the Family Code of the Russian Federation provides that the common property of spouses is securities acquired at the expense of common income, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, regardless of which of the spouses it was acquired or in the name of which or which of the spouses contributed funds. However, the wording of the text of clause 2 of the named article of the Family Code of the Russian Federation, which characterizes shares in capital as “contributed to credit institutions or other commercial organizations”, seems to be incorrect, since it is well known that property transferred to a legal entity upon its creation becomes the property organizations. Instead of the transferred property, the participants acquire the rights of claim to the legal entity, which are identified with the share belonging to them as participants in this commercial organization. Accordingly, spouses, contributing property to the authorized (reserve) capital of a partnership or company, lose property rights to it and acquire liability rights in relation to the property of a legal entity. The exception is cases when, as a contribution to a commercial organization, property is transferred only for use. In any case, in monetary terms, the contribution made by a participant in a partnership or company corresponds to a share in the capital only at the time of the creation of a commercial organization. In the future, the value of a share in the capital of a partnership or company is not limited to the value of the contribution and is determined in the manner established by the relevant norms of civil law.

Undoubtedly, one of the grounds for acquiring a share in the Company's capital is participation in its creation, which provides for two acts: signing the memorandum of association and making a contribution to the authorized capital. However, the possibility of acquiring a share is not limited to participation in the creation of a company and does not always require the contribution of funds to its capital. The share can be acquired by concluding an agreement on the assignment of rights, as well as on other grounds provided for by the civil legislation of the Russian Federation.

In view of the foregoing, we consider it necessary to cite the content of paragraph 2 of Art. 34 of the Family Code of the Russian Federation in accordance with the norms of civil law, namely, to exclude from it the phrase “contributed to credit institutions or other commercial organizations” following the words “shares in capital”. As for those used in paragraph 2 of Art. 34 of the Family Code of the Russian Federation, the words “introduced to credit institutions”, they, apparently, refer to bank deposits and, accordingly, should follow after mentioning them.

In general, the analysis of the above norms of the Family Code of the Russian Federation shows that the main criteria for determining the community of property of spouses under the current legislation and, accordingly, the emergence of their right to common property are:

• - the moment of acquisition of property: the property must be acquired during the marriage; this condition is imperative, but it is not unconditional, since, for example, common property may also arise as a result of the transformation of the spouse's personal property into common property;
• - the nature of the means of acquisition: the property must be acquired with the joint funds of the spouses; in turn, the use of personal funds as an equivalent of the acquired property entails the emergence of property rights only from the spouse to whom these funds belonged;
• - method of acquisition (compensated transactions, income from various kinds activities, etc.). The common property of the spouses also includes property acquired under a gratuitous transaction, but in the name of both spouses.

At the same time, it is disputable, in our opinion, to include in the list of criteria for the emergence of the right of common matrimonial property the conditions for the spouses to live together and maintain a common household. Of course, as rightly noted by I.V. Zlobina, the property acquired by the spouses during the period of separation shakes the presumption of common property, since such property can be recognized by the court as the property of each of the spouses, however, non-compliance with the condition of cohabitation does not entail automatic termination of the community of property of the spouses and therefore, it seems, cannot serve as a basis for the unconditional exclusion of this or that property from the scope of the legal regime of matrimonial property.

The defining feature of the legal regime of matrimonial property is the non-shared nature, since the shares of the spouses in their common property are not predetermined, and its entirety belongs equally to each of the spouses. The latter, thus, become co-owners of all the property acquired by them and are endowed with equal powers in relation to it. Shares of participants in common joint ownership are established only when deciding on the issue of determining shares in the division of common property, which entails the termination of joint ownership.

However, we should not forget that the totality of the property of the spouses consists of two parts: 1) property, the owner of which is each of the spouses (Article 36 of the Family Code of the Russian Federation); 2) property acquired during marriage, common joint property of the spouses.

Firstly, the legal regime of property predetermines the equality of the rights of spouses to jointly acquired property. Equality is manifested, in particular, in equal opportunities for spouses to exercise the rights to own, use and dispose of property acquired in marriage. The equality of their rights is not violated even in the case when one of them during the marriage was engaged in housekeeping or did not have an independent income for other good reasons (clause 3 of article 34 of the Family Code of the Russian Federation), Thus, taking into account the fact that it is often impossible to determine the contribution of each spouse to the creation of a joint household in the process of family life (in particular, when the wife provides for the arrangement of the house, the upbringing of children, and the husband creates the financial basis for their well-being), the legislator establishes equal rights of spouses for everything acquired in marriage property, regardless of who is its actual acquirer.

Secondly, along with protecting the equality of the rights of spouses in relation to common property, as a law enforcement measure in relation to the interests of a conscientious (working) spouse, the legislator provided for the possibility of reducing the share of one of the spouses in the common property of the spouses if he did not receive income for disrespectful reasons or spent the common property of the spouses to the detriment of the interests of the family (clause 2, article 39 of the Family Code of the Russian Federation). However, it is important to emphasize that this issue can only be resolved in court in the process of dividing the common matrimonial property.

Thirdly, the grounds for acquiring the property right of spouses to property and the grounds for the emergence of spouses' obligations are no different from the general civil law grounds and are regulated by the Civil Code of the Russian Federation (Articles 8.218, 307 of the Civil Code of the Russian Federation).

Thus, an analysis of the norms of the family legislation of the Russian Federation that regulate the legal regime of marital property makes it possible to identify three main limitations of the community regime provided for by law.

The first of these is due to the fact that only property acquired during the marriage is recognized as common. The mere fact of marriage does not change the legal regime of property owned by a citizen prior to its conclusion. Each of the spouses retains personal property on this property.

The second limitation is due to the fact that the basis of the principle of the community of property of the spouses is a material criterion - common funds and (or) common labor. Accordingly, by analogy with the fact that in family life the income of each of the spouses corresponds to their total budget, so the property acquired with these funds or at the expense of the labor of each of the spouses becomes their common property. The foregoing allows us to conclude that at the same time, all the property received by the spouses, which will be acquired not at the expense of the common funds of the common labor of each of the spouses, will not be included in the common property.

The third limitation of the regime of community property of spouses is the rule established by the legislator on attributing the personal belongings of each of the spouses to his personal property, even if they were acquired at the expense of common funds. So, according to paragraph 2 of Art. 36 of the Family Code of the Russian Federation, “things for individual use (clothes, shoes and others), with the exception of jewelry and other luxury items, although acquired during the marriage at the expense of the joint funds of the spouses, are recognized as the property of the spouse who used them.”

So, based on the foregoing, it can be argued that the principle of partial, or limited, community of property of the spouses, which is the basis for the legal regulation of marital property, consists in establishing a presumption of community only for the property that was acquired by the spouses during the marriage at the expense of common funds and ( or) labor of each spouse. In accordance with this presumption, all the property of the spouses acquired during the marriage, until proven otherwise, is considered common, with the exception of the property that is withdrawn from the joint property of the spouses by a direct indication of the law. The action of the said presumption ensures the protection of the rights of the economically least provided party of marital relations in a dispute on the division of common property.

In the light of the operation of the legal regime of property of spouses, which is the right of ownership, it is interesting to consider the question of the possibility of including a share in the capital of a business company in the composition of marital property.

At first glance, the inclusion of a share in the capital of a business company in the joint property of the spouses seems quite natural, since participation in a commercial organization involves investing in its capital funds belonging to a citizen, which, in the presence of marital relations, form part of the family budget. The use by one of the spouses of common (family) funds for the acquisition of property entails the emergence of the rights of a co-owner to the property in question for the other spouse. However, a share in the capital is not property in kind (Article 213 of the Civil Code of the Russian Federation excludes the right of ownership of participants in the property of business companies or partnerships) and as an object of civil rights is a property right.

The basis for the emergence of property rights is an obligation, the nature of which excludes the establishment of ownership of the rights and obligations generated by it, since "An abstract right cannot be the object of real rights." In this regard, in the science of civil law, the question of the possibility of recognizing property rights as an object of property rights, as noted earlier, causes heated disputes and discussions and is reduced, for the most part, to its denial.

The position of V.P. Mozolin, who considers a share in capital as the right to participate in the affairs of a partnership or company and recognizes “the autonomous right of ownership of a participant to the right (but not to property) to participate in the affairs of the partnership or company”. “In modern conditions,” the lawyer writes, “characterized by the strengthening of the role of property and complex rights in the sphere of civil circulation, there are sufficient grounds to talk about the trend of expanding the range of these rights that act as objects of property rights.” At the same time, this right, according to the named author, cannot be extended to the right to claim against other persons. Otherwise, “public relations themselves become the object of property rights, an integral element of the content of which are property rights.”

In this regard, the question arises: how is the property right of a spouse who is not a member of a commercial organization to the share in its capital acquired by the other spouse realized?

As you know, in its content, the right of ownership is the most complete property right. "The right to property is a fundamental right, affecting directly or indirectly in essence all other civil rights." The owner has the authority to own, use and dispose of the property. At the same time, the main interest of the owner of the share is not its value, but the possibility of acquiring the legal status of a participant in a commercial organization and exercising the rights arising from the issued status.

Will the demands of the spouse of a participant in a company or partnership to amend the constituent documents of a commercial organization and to include him in the list of participants on the grounds that he is a co-owner of a share in the capital be legitimate? Can a spouse, based on his ownership of a share in the capital, apply for participation in a commercial organization before the division of the common property of the spouses?

It seems that the answer to the questions posed should be negative. The fact is that, as already shown earlier, the rights to the share of the spouse, who is its acquirer, arise from a legal relationship between him and a legal entity, called an obligation, under which, as a rule, the participant acts as a creditor, and the legal entity acts as a debtor. . It should be noted right away that this statement is often criticized in the theory civil law. In particular, according to V.A. Lapacha, “an attempt to discover the basis of such an obligation among those listed in Art. 8 of the Civil Code of the Russian Federation does not lead to anything. Serious doubts on the issue of considering the rights of the founder in relation to a commercial organization as obligations are also expressed by K.I. Sklovsky, according to whom, "this is an atypical obligation both in terms of the way it arises and in terms of content." However, despite the doubts expressed, in accordance with the point of view established in the theory of civil law, as well as on the basis of the norms of the law (Article 48 of the Civil Code of the Russian Federation), the relations arising between the participants and the legal entities in question should be qualified as obligations.

In this regard, even if the right of ownership of a spouse who is not a member of a commercial organization to a share in the capital of this Company or partnership arises from a direct indication of the law, then the obligation cannot arise directly from the law. The law establishes the presumption that the obligation does not give rise to rights and obligations for persons not participating in it, and is of a personal nature. According to paragraph 3 of Art. 308 of the Civil Code of the Russian Federation, in cases provided for by law, other legal acts or by agreement of the parties, an obligation may create rights for third parties in relation to one or both parties to the obligation. However, in our opinion, the inclusion of a share in the capital in the composition of the common property of the spouses, owned by them, cannot be interpreted as the basis for the emergence of obligations of the spouse, who does not participate in the obligation, in relation to a business partnership or company. Otherwise, there will be a mixture of obligations and real legal relations. In this matter, in our opinion, it is worth supporting the point of view of K.I. Sklovsky, who writes: “There is no need to repeat all the arguments, which, ultimately, are based on a strict, long-established and very important for maintaining the integrity of the law division into real rights (property and some others) and rights of obligations, by virtue of which any mixing, "interlacing" of these rights is unacceptable.

Based on the foregoing, it seems that the right to a share in capital exists only in relations between spouses and therefore is included in the system of internal legal obligations existing between them. In the absence of which, all claims of a spouse who is not a member of a commercial organization are within the framework of the legal structure on joint ownership of the property in question, established by family law, and can only be presented to the spouse as a co-owner. Thus, the presentation of the above requirements to a legal entity prior to the division of the property in question has no legal grounds, since the spouse of the Company's member is not a party to the obligations arising between the spouse-member and the legal entity.

Taking into account all that has been said, and also in view of the need to somehow resolve the duality of the legal nature of the share in the Company's capital as matrimonial property, on the one hand, and as an expression of the obligations that exist between the Company and its participants, on the other hand, it is very conditionally possible to admit that the shares in the capital are the objects of two types of legal relations - obligatory, arising between the spouse-participant of a commercial organization and the organization itself, and (conditionally) real, arising between spouses.

The “right to right” construction, which is reflected in the family legislation of the Russian Federation, does not give rise to real rights with all their inherent properties to a share in the Company’s capital in relation to relations arising between a spouse who is not a participant and a commercial organization.

As for the relations that arise between spouses regarding a share in the capital, the legal regime of joint property of the spouses secures for each of them the right to common property as a whole, regardless of which of the spouses it is acquired in the name of and, accordingly, which of them is a member of a business partnership or company. In this case, the property right of a spouse who is not a member of a commercial organization acts as a kind of guarantee of his property rights, since his funds, which constitute the common property of the spouses, were also spent on acquiring a share. Thus, joint property relations oblige its participants to exercise the powers of possession, use and disposal of property by mutual agreement. According to Art. 35 of the Family Code of the Russian Federation, the possession, use and disposal of the common property of the spouses must be carried out by mutual agreement. However, in this case, it is necessary to take into account again the fact that it is possible to speak about the powers of possession, use and disposal, which constitute the content of the right of ownership of property, in relation to rights of obligations only very conditionally, because. a share in the capital of a commercial organization does not have a material form. This excludes the right of possession, understood as the actual dominion over the thing. The right to use is also excluded, since in legal obligations the realization of the rights of the creditor occurs not through his own actions, but as a result of the implementation of certain actions by the debtor. As for the authority to dispose, it can be assumed that "the object of the right to dispose cannot be a right, which includes the very right to dispose."

Based on the fact that the possibility of exercising the rights that make up the content of a share in the capital is assigned to a person with the status of a participant in a commercial organization, in our opinion, a share in the capital as a set of rights and obligations of a participant in a commercial organization exists only for the spouse who is its participant. The basis of his rights is the fact of participation and obligations with a legal entity and the fact of membership in it. For a spouse who is not a member of a business partnership or company, a share in the capital is a kind of analogue of property that is an object of property rights, and is expressed through its economic essence - the actual value, without rights in relation to the partnership or company, including without the right to participate in them. The rights of a spouse who is not a participant in a commercial organization to a share in the capital acquired at the expense of common funds by the other spouse and owned by both of them on the basis of the right of joint ownership are reduced only to the right to a part of the property right of the participant to claim against the partnership or company. At the same time, he does not own the right of claim itself, but the property received as a result of its satisfaction (profit received, liquidation balance, value of the share upon exit of the participant from the organization). At the same time, the disposal of shares in the capital, including the withdrawal of a participant from the organization, must be carried out by mutual consent of the spouses, since this is their common property.

Based on the foregoing, it must be assumed that the property right of a spouse who is not a member of a commercial organization is realized as the right to property (its part) received by the spouse-member of the organization as a result of participation in its activities (distributed profit, liquidation balance), as well as income associated with the alienation of a share in the capital, including when a participant leaves the company or partnership. In addition, the spouse has the right at any time to demand the division of the common property of the spouses, including shares in the capital.

Based on the foregoing, in our opinion, we can conclude that the inclusion of a share in the capital in the composition of the common property of the spouses was made by the legislator without taking into account the specifics of this type of property. One gets the impression that this approach is due to an erroneous interpretation of the concept of a share in capital as a thing, along with securities, other movable and immovable property, which, as a rule, are objects of the material world, or as an object understood only through its value. While the originality of a share in the capital is explained by the emergence of its owner of a whole complex of rights and obligations that are different in nature and content, which make up the content of legal obligations between a participant and a commercial organization, the ownership of which is associated with granting a person the status of a participant. So, a lot of legal conflicts and practical difficulties are generated by the procedure for the exercise by spouses of the rights arising from the fact of joint ownership of shares in the capital.

All of the above once again confirms the conclusion that there is an objectively urgent need to improve family legislation in terms of the legal regulation of relations between spouses that arise between them and a commercial organization in connection with the acquisition by one of the spouses of a share in the capital of this organization. In particular, while maintaining the current situation, the procedure for the exercise by spouses of the rights arising in connection with the acquisition of a share in the capital, as well as the procedure for its division, requires improvement.

As an alternative to the legal regime, Chapter 8 of the Family Code of the Russian Federation stipulates the contractual regime of spouses' property, which is important for marital property relations and property relations in the family. The documentary basis of the contractual regime of property of the spouses is the marriage contract (contract).

The fact that a marriage contract was introduced into the family legislation of the Russian Federation is one of its most significant novelties, since with the advent of this institution in Russian family law, spouses for the first time had the opportunity to independently establish the legal regime of their property that best satisfies the interests of each of them.

From the point of view of the topic under consideration, the moment the marriage contract enters into force and, accordingly, the beginning of the property rights and obligations of the spouses provided for by it, is of great importance. So, according to paragraph 1 of Art. 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. In relation to the first case, the law provides that the contract comes into force from the date of state registration of marriage. As for the second case, the moment of entry into force of the marriage contract is not determined by law, which gives the spouses the opportunity to independently determine in the contract the exact date of its entry into force or link this moment with the occurrence of certain conditions or events.

Finally, it should be noted that, along with marriage contracts, among the transactions currently concluded between spouses, agreements on the division of property, the possibility of concluding which is provided for in paragraph 2 of Art. 38 of the Family Code of the Russian Federation. These transactions have a certain similarity with marriage contracts, but, unlike the latter, they do not determine the legal status of property that can be acquired in the future, but only involve determining the share of each of the spouses or the division of already acquired, existing common property. The property that the spouses will acquire in the future is not taken into account in the agreement, and therefore such property will be subject to the joint ownership regime.

A necessary preliminary condition for the emergence of joint property of the spouses is the registration of marriage. All property acquired by the spouses during marriage, with some exceptions, belongs to their joint property, regardless of which of them and at whose expense the property was acquired, created, in whose name it is registered. However, an agreement between the spouses may establish a different regime for this property (clause 1, article 33, clause 1, article 42 of the Family Code of the Russian Federation).

The joint property of the spouses does not include property that belonged to the spouses before marriage, as well as received as a gift or by inheritance by one of the spouses during the marriage. Such property is their separate property. 36. The property of each of the spouses may be recognized as their joint property if it is established that during the marriage, at the expense of the common property of the spouses or the personal property of the other spouse, investments were made that significantly increase the value of this property (major repairs, reconstruction, re-equipment, etc.). n.) (this rule does not apply if the contract between the spouses provides otherwise).

Items for individual use (clothes, shoes, etc.) do not belong to joint ownership. They are the property of the spouse who used them. However, jewelry and other luxury items acquired during marriage at the expense of the joint funds of the spouses are recognized as their common joint property, regardless of which spouse used them (clause 2, article 36 of the Family Code of the Russian Federation). The law does not define what belongs to luxury goods, and this is impossible. Under some circumstances, a certain thing for a given family may be a luxury, but not for another. In the event of a dispute, the issue is resolved depending on the material well-being of a particular family.

For the obligations of one of the spouses, recovery can only be levied on property owned by him, as well as on his share in the common property of the spouses, which would be due to him when this property was divided (clause 1, article 45 of the Family Code of the Russian Federation).

Family relations without registration of marriage do not entail the emergence of common joint property. The dispute about the division of property jointly acquired in this case is resolved according to the rules on the common shared property of citizens.

The possession, use and disposal of the common property of the spouses is carried out by their mutual consent. When one of the spouses concludes a transaction on the disposal of the common property of the spouses, it is assumed that he acts with the consent of the other spouse. A transaction made by one of the spouses on the disposal of such property may be declared invalid by the court on grounds of the absence of the consent of the other spouse only at his request and only in cases where it is proved that the other party to the transaction knew or obviously should have known about the disagreement of the other spouse on making this transaction (clause 2, article 35 of the Family Code of the Russian Federation).

The relationship of common joint property of the spouses terminates with the dissolution of the marriage. This entails the division of common joint property. But the division (full or partial) of such property can also be made during the marriage (clause 1, article 38 of the Family Code of the Russian Federation). In this case, the right of common joint ownership of the divided property shall be terminated. The undivided part of the property, as well as the property acquired by the spouses during the marriage in the future, constitute their joint property (clause 6, article 38 of the Family Code of the Russian Federation).

When dividing the common property of the spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between them. In case of failure to reach an agreement between the spouses, the dispute is submitted for resolution by the court, which has the right to deviate from the beginning of the equality of the shares of the spouses in their common property, based on the interests of minor children and (or) based on the noteworthy interests of one of the spouses, in particular in cases where the other the spouse did not receive income for disrespectful reasons or spent the common property of the spouses to the detriment of the interests of the family (Article 39 of the Family Code of the Russian Federation).

The death of one of the spouses also entails the termination of common joint property. Both the separate property belonging to the deceased and his share in the common joint property pass to the heirs by law or will. This share is determined according to the rules set out above.

If a marriage is declared invalid in a dispute over the division of property acquired jointly in the period from the registration of the marriage until the moment it is declared invalid, the rules on the common shared property of citizens are applied. However, when making a decision to recognize a marriage as invalid, the court has the right to recognize for a spouse whose rights are violated by the conclusion of such a marriage (a bona fide spouse) the right to divide property according to the rules on common joint property (Article 30 of the Family Code of the Russian Federation).

As well as share, common joint property is characterized by the fact that in this case the same property belongs simultaneously and jointly to several persons. But there are significant differences between common shared and common joint property - both in terms of the content of the powers of the owners, and in terms of the grounds for the emergence of relations on common property.

The difference in the content of powers is manifested in the fact that participants in common shared ownership have a share in the right to common property, while participants in common joint ownership impose equal rights on common property as a whole, but none of them has a share in the right to the same property. . The corresponding shares are allocated last only when divided or allocated. But, firstly, a real share in the property is allocated, and not in the right of ownership to it, and, secondly, as a result of a division or division, relations on common joint property are terminated either entirely or for a given participant. As long as the joint property exists, it does not know the shares. The main legal feature of joint ownership is that it is non-shared.

Possession, use and disposal of property in joint ownership is carried out by all its participants. They jointly own and use common property, unless otherwise provided by an agreement between them. When making a transaction on the disposal of common property, the obligatory consent of the co-owners is required. The indication of the law to possession and use "together", to disposal "by consent" is of great importance. Due to the fact that the participants in joint ownership constitute a family or family-work community that has common goals and interests, agreements between them are not concluded, but may be. The disposition "with the consent of all participants" implies the existence of an agreement or is presumed to be.

Each of the participants in joint ownership may conclude transactions on the disposal of common property, unless otherwise follows from the agreement of all participants. For example, such a right can be granted only to one of the participants, for which others issue him a power of attorney.

If one of the participants in common joint property is incapacitated, partially or partially capable, then when making transactions with his participation, in order to protect his rights and interests, special requirements established by law must be observed. So, for transactions in relation to privatized housing in which minors live (regardless of whether they are owners, co-owners or family members of the owners, including former ones), who have the right to use this residential premises, prior permission from the guardianship and guardianship authorities is required. This rule also applies to residential premises in which a minor does not live, if at the time of privatization he had equal rights to this premises with the owner.

If one of the participants in joint ownership has made a transaction on the disposal of common property in the absence of the necessary powers, then at the request of the other participants it may be declared invalid only if it is proved that the other party to the transaction knew or obviously should have known about it. This transaction is voidable, where the burden of proof lies with the party that requires the transaction to be declared invalid.

The legal regime of common joint property is applied insofar as the Civil Code or other laws do not establish otherwise for certain types of joint property. So, the development of the provisions enshrined in paragraph 3 of Art. 253 of the Civil Code of the Russian Federation and essentially reproduced in paragraphs 2 and 3 of Art. 35 of the RF IC, provides that in order for one of the spouses to make a transaction on the disposal of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is necessary to obtain a notarized consent of the other spouse. In the absence of such consent, the other spouse has the right to demand in court the recognition of the transaction as invalid within a year from the day when he knew or should have known about the conclusion of this transaction.

Common joint property of the spouses

Joint property of the spouses arises only upon registration. Actual family life, even long-term, but without the appropriate registration of marriage, does not create joint ownership of the property. In such cases, there may arise a common shared property of persons who, by common labor or means, have acquired some kind of property. Property relations in these cases will be regulated only by civil law.

Movable and immovable things acquired at the expense of the joint income of the spouses are recognized as joint property. These things become joint property from the moment they are transferred to one spouse. Consequently, when one spouse acquires property from a third party, the other spouse also acquires ownership of this thing.

The right to the common property of the spouses also belongs to the spouse who, during the period of marriage, was engaged in housekeeping, caring for children or, for other valid reasons, did not have an independent income. Other valid reasons include illness, military service and other circumstances.

All property that washed before marriage, as well as received by way of inheritance or under a donation agreement or other gratuitous transactions, and personal items, excluding jewelry and luxury items, is the property of each of the spouses. On the other hand, the property of each of the spouses may be classified as joint property if, during the marriage, investments were made in the said property at the expense of the common property of the other spouse, which significantly increased the value of the property. However, this rule applies only when the contract between the spouses does not provide otherwise (Chapters 7 and 8 of the RF IC).

The issue of foreclosure on the common property of the spouses is resolved depending on whether only one of the spouses or both of them is a party to the obligation. If we are talking about the obligation of one of the spouses, then the execution can be levied only on the property that is in his separate ownership, as well as on his share in the common property. But if both spouses can be recognized as parties to the obligation, then recovery can be levied both on property that is in the separate ownership of each of them, and on common property (Chapter 9 of the RF IC).

Common joint property of members of a peasant (farm) economy. In accordance with the current legislation, the property of a peasant (farm) economy is classified as common joint property. However, this rule is dispositive: in the agreement between the members of the farm, a different regime of ownership of the property of the farm may be established.

The Civil Code of the Russian Federation does not establish who can be a member of a peasant economy.

In paragraph 2 of Art. 257 of the Civil Code of the Russian Federation determines what kind of property is jointly owned by a peasant economy. But the formulations given here also raise a number of questions. What, for example, does the phrase “a land plot granted to this farm” mean? According to the previous legislation, the plot was provided, although taking into account the number of members of the farm, but still to its head, a state act on the land (certificate), etc. was drawn up for it. family-labor association, but it was registered as a property for the head? Probably, such an interpretation is admissible in principle, especially for those peasant farms that were created by former collective farmers and workers of state farms, i.e., persons who entered the farm with their land shares. The previous legislation, in our opinion, unreasonably deprived these persons of their land rights when they entered the peasant economy. If we recognize them as participants in joint (or shared) ownership of land, then justice would be restored.