Features of the Consent of Spouses to Make Transactions on the Disposal of Property

Abstract

Family legislation proclaims the equality of the rights of spouses in the family. Nevertheless, the legal effect of this fundamental principle regarding the property relations of the spouses seems very doubtful. Thus, paragraph 2 of Article 35 of the Family Code establishes the “presumption of consent” of the spouse to carry out transactions with common property. However, in the practical implementation of this norm, its imperfections manifest themselves. Due to the obvious uncertainty and misinterpretation of the term “presumption of consent”, the property rights of one of the spouses are often violated. In this regard, the authors set a goal: to analyze and systematize the positions of civil scientists and materials of judicial practice in order to identify the most common problems that arise when considering cases of this category. Results: the analysis of the legal nature and purpose of the “presumption of consent” was carried out, the need for its concretization was revealed, indicating the circle of persons and legal relations to which it is applicable. Conclusions: based on the analysis of legislation, the doctrine of civil law, the problems of determining the legal nature and scope of the “presumption of consent” are formulated. Based on the results of the study, the authors proposed recommendations for improving legislation.