JUrkonsultatsija: Points at issue in definition of a mode of the joint property of spouses
the Question: To me of 18 years, I live in PGT Korenevo. In 2009 my grandfather hard was ill, on it the apartment has been issued, and my mum with the were the husband and the grandmother have solved pereoformt apartment on mum. But as they did not need to tighten with process, renewing donative, they have decided to issue apartment sale and purchase. And as I at that point in time was the minor, my part remained at me. But a problem that registration has occurred 16. 10. 2009, and my mother has undersigned with the stepfather 30. 10. 2009, t. e later. The list has taken place in corrective kalonii. I would like to learn, at divorce with mother my stepfather can apply for an apartment part? A leah Is considered it in common acquired property?
Larchenko Tatyana Aleksandrovna
the Answer: According to article 256 of the Civil code of the Russian Federation the property acquired by spouses during marriage, is their joint property if the contract between them does not establish other mode of this property. The property belonging to each of spouses to the introduction into marriage, and also received by one of spouses during marriage as a present or as inheritance, is its property. According to article 558 of the Civil code of the Russian Federation the contract of sale of an apartment house, apartment, an apartment house or apartment part is subject to the state check in and it is considered the prisoner from the moment of such check in. Property right transition under such contract also is subject to the state check in. Dates of the state check in of the contract and property right transition on it, by the general rule, coincide. The family legislation establishes (connects) occurrence of legal consequences owing to a finding of the man and the woman in marriage from the moment of marriage check in in the order established by the law. Marriage consists in civil registration bodies. The rights and duties of spouses arise from the date of the state check in of a marriage in civil registration bodies (article 10 of the Family code of the Russian Federation).
Thus, the decision of a question on a recognition of apartment the joint property of spouses will depend on date of check in of transition of the property right under the concluded contract of purchase and sale of apartment. That is, if property right transition is registered before marriage date the apartment, by the general rule, will not be the joint property of spouses. If later or simultaneously with marriage date - that, by the general rule, it is the joint property of spouses.
your situation anyway is disputable and each of the parties has the right to declare the legal requirements on apartment. Practice shows that at the decision in court of similar disputes validity of the proofs presented by the parties on business (the fact of joint residing before marriage, participation in expenses on purchase of apartment and etc.) will matter.
Yours faithfully, Shilov Dmitry,
the lawyer of Independent analytical agency “ Investment cafe “