Development of Law Enforcement on Cases concerning Legal Regime of Marital Property in Contracts Involving Spouses

Abstract

The paper analyzes the development of law enforcement regarding the ability of certain contractual structures to change the legal regime of the marital property. Prior to the introduction of a mandatory notarial form of an agreement on the marital property division (Federal Law No. 391-FZ of December 29, 2015 «On Amendments to Certain Legislative Acts of the Russian Federation») and clarification in paragraph 1 of Article 256 of the Civil Code of the Russian Federation of the type of contract establishing the legal regime of the community property (Federal Law No. 217-FZ of July 19, 2018 «On Amendments to Article 256 of Part One and Part Three of the Civil Code of the Russian Federation»), law enforcement proceeded from the possibility of changing the community property regime (or part thereof) both following a marriage contract and any other agreement (contract) that does not contradict the current legislation. After legislative changes, the Federal Service for State Registration, Cadastre and Cartography, the Ministry of Justice of the Russian Federation and the Supreme Court of the Russian Federation took different positions. In the activities of the Supreme Court of the Russian Federation, there has been a tendency not to qualify the terms of purchase and sale agreements, participation in shared construction and other transactions involving the emergence of shared ownership of spouses as a contract containing elements of an agreement on the community property division or a prenuptial agreement. The discrepancies between the Ministry of Justice of the Russian Federation and the Presidium of the Supreme Court of the Russian Federation on the form of the transaction concluded in fulfillment of the obligation of the recipient of the state certificate for maternal (family) capital to purchase a real estate object in the shared ownership of the second spouse and children are revealed. It is concluded that the dilemma between the freedom of choice of legal forms for the spouses to achieve the desired legal result with minimizing organizational, time and material costs, on the one hand, and ensuring that each of the spouses understands the coming legal consequences (which should be facilitated by notarization of the transaction) on the other hand, should be allowed at the legislative level.