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New rules of division of joint property of spouses

DATE: October 7, 2022 | AUTHOR: AT

Since September 1, 2022 the amendments to p. 3 of Article 35 and p. 2 of Article 39 of the Family Code came into force – Federal Law № 310-FZ as of June 14, 2022.

This law stipulates the rule that a spouse who did not give his/her notarized consent to the alienation of property shall have to prove that the acquirer knew or should have known about the absence of his/her consent. Although courts used to take a similar approach before, it is now enshrined in the law.

Proving the acquirer’s knowledge can be simplified if the inclusion of the asset in the common property is reflected in the data of publicly available registers.

That is why we recommend to reflect the spouses common ownership of the property in the Unified State Register of Legal Entities, so that the purchaser is aware of the existence of the second spouse and the necessity to get the spouse’s consent when purchasing the property. For the stakes in the charter capital of LLC, shares of JSC and movable property, the possibility to reflect such information in the register is not yet foreseen.

We recommend that buyers should not rely upon this norm and when buying a property purchased by the seller during marriage under a compensation transaction, make sure it belongs to the common property of the spouses (or has passed into the personal ownership of the seller on the basis of a court judgment, marriage contract, or an agreement on the division of the common property of the spouses).

The burden of proving that the property has become the personal property of the seller is reasonable. If the seller cannot provide proof that the alienated property has passed into his or her personal ownership, we recommend requiring spousal consent for the transaction.

The rules for dividing joint property have also changed. Introduced the concept of “reduction of property” – bad faith actions of a spouse alienation of joint property of spouses without the consent of the other spouse. If one spouse has taken such a bad faith action to reduce the community property, the other spouse may receive other property on account of compensation, in order to depart from the principle of equal shares in the division of the property of the spouses.

Please note that the law consolidated the already established court practice – the courts have already applied the approaches that are now fixed at the level of the law.

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