Common is the property of several persons. It is divisible and indivisible. In Art. 34 SK of the Russian Federation fixed such concept, as the joint property of the husband and the wife. This is the possession of property on the basis of trust and good faith. Details about this are presented in the article.
The concept of
What is joint property of spouses? Art. 34 of the Criminal Code gives a clear definition of this concept. According to her, this property is acquired in marriage. This definition is fixed in paragraph 1 of Art. 34 SK of the Russian Federation. Spouses own property without the need to allocate shares, but other rules for establishing property rights can be determined by law. According to the Civil Code of the Russian Federation, the division of shares into common property is allowed.
In the Russian legislation there are 2 maina document in this area - the Civil Code and the RF CC. The first determines the norms for the appearance of common property. And the second indicates the types of property that can be joint. Property that relates to the general, is specified in art. 34 SK of the Russian Federation.
All bought in marriage is considered to be jointlyIf the other is not determined by marriage or other agreement. This is indicated in cl. 34 SK of the Russian Federation. Usually a special type of property is approved for valuable property, for example, real estate.
When buying a property type of lawis established by the arrangements that were made during its execution, and by the terms of the agreement on the transaction. The object (land, house, apartment) is registered with one or both spouses. In this case, there are several situations:
- If the buyer is determined by one person. It will be specified in the purchase and sale agreement. If there is no marriage contract, then the right to the object will be with this spouse. This will be joint property, and in case of divorce it will be divided into shares. Details on this can be in the marriage contract.
- The buyers are both spouses. In this situation, a common equity and common joint property can be determined. The first option implies the joint ownership and disposal of property on the basis of the shares indicated in the document. In the second variant, they can dispose of only in the amount of those rights that they are provided with common joint property.
Rights and obligations
According to Art. 34 SK of the Russian Federation, the property should be in possession and use of both parties. This means that one person can dispose of the property, trust the other spouse to do this, since here the principle of good faith is applied. But in the marriage agreement, other rules may apply.
With the execution of the transaction it is understood that itis carried out in accordance with consistency. This is recorded in Art. 34, 35 of the Criminal Code of the Russian Federation. Exceptions are considered situations, if notarial permission is required in the case when the second party is not considered a party to the contract. In the absence of certified powers, the transaction is challenged.
If we take into account the norms of Art. 34 SK of the Russian Federation, the spouses must maintain their property. They can also receive income from it. In this issue there are some nuances. Intellectual property belonging to one person is not common, but the proceeds from it can be used by both parties.
The joint property includes:
- Income received from business activities. Also it concerns interests from deposits, financial assistance, scholarships, pensions.
- Movable property (exception - personal belongings).
- Shares, securities.
- The rest of the property.
A marriage contract can set rulesattribution of property to the general. Usually, property purchased before marriage is not considered jointly acquired. Exceptions are cases where it was proved that funds were invested in these facilities, and this led to an increase in their prices.
In paragraph 2 of Art. 34 of the Criminal Code does not specify that personal property is considered common. These things are inherited, donated or bought before marriage. The law applies to subjects that can only be used by one person, for example clothing. Except include jewelry or luxury goods.
Personal is considered property purchased in marriage,if we prove that the money accumulated before marriage was spent. Usually this happens in those cases when money is given or bequeathed. Exclude the property from the general will only through the court.
Allocation of shares
This procedure is carried out in 3 cases:
- At recovery. Property can be both personal and joint.
- With a divorce. Shares are allocated under a marriage agreement or a document on the division of property. If they are absent, then the norms of the law apply.
- Optional. Parties have the right to allocate shares in common property. This is done on the basis of an agreement and in court.
If there are no disputes, then it is possible to draw up an agreement on the division of property, which is certified by a notary. Otherwise, everything is done by court order.
Art. 34 SC RF with the comments explains many of the nuances:
- The norms of para. 1 are considered mandatory, but you can not ignore Art. 33. The explanations are also provided in Cl. 1, Art. 256 Civil Code of the Russian Federation. According to it, the property is considered joint if it is acquired in marriage, but if other rules are not established by the marriage contract.
- The total cost is stated in the Civil Code of the Russian Federation.
- Whichever way of forming property is, the spouses have the same rights to common property.
- In point 2 the sources of the origin of law are indicated. To the bases carry various transactions with property.
- Property is common, to whom it would be framed.
- Personal things remain the property of a particular person.
- On individual property is said in the comments to art. 36, 37 of the Criminal Code of the Russian Federation.
- The property can be movable and immovable.
- The property is entitled to a person who did not have his income for good reasons. At the same time it is indicated that this can be farming and caring for children.
- To the common property various incomes and payments carry.
This transaction is usually carried out after the divorce,but it can be performed in marriage, by determining shares or separate possession. This is the right of the spouses and the creditors (Article 38 of the Criminal Code of the Russian Federation). In these transactions there are some nuances:
- A section of property can be agreed upon, if an agreement is drawn up.
- If there are disputes, then it is necessary to solve the problem through the court. This body can grant a shared ownership or make the joint property personal.
- They can not share things they have acquired for the training, development of children. In case of divorce, the child's property remains with the parent with whom he lives (clause 3, Article 38 of the Criminal Code of the Russian Federation).
- Do not share clothes, medical items and other personal items. This does not apply to jewelry, designer things, transport, luxury.
- Even with divorce, undivided property will be a joint property.
- You can divide things, real estate, accounts no later than 3 years after the divorce. This is established by Cl. 38 SK of the Russian Federation.
Ownership can be the same as for spouses, and fortheir children. This is necessarily taken into account when dividing, allocating shares, making various transactions. In these situations, the rules of legislation are also applicable, but also be taken into account so that the interests of children are not infringed.
Any property is subject to this section. It can be an apartment, a house, a plot of land, values, shares. And you can divide everything voluntarily in the absence of claims to each other. But this is also done through the court, if there are any disputes. In any case, everything should be done so as not to infringe the rights of the parties.
Difficulties in transactions
With property that is in a jointproperty, deals are made in a special way. It should be borne in mind that this procedure will not be legal in the absence of permission from the second party. This transaction is disputed and recognized as invalid. In practice, there are many such cases. That is why it is not necessary to make a power of attorney perpetual, the document must act for a certain period of time. In addition, the specific purpose of the document is important. If these norms are violated, responsibility arises.
But even with permission to sell or exchange you needmake sure that both spouses are fixed in the contract. This is important when buying property. Nuance allows you to correctly draw up a deal so that no further complications arise.
How to confirm the right?
The definition of common property is fulfilled by means of:
- marriage certificates;
- birth certificates;
- marriage contract.
According to the law, only official marriages are taken into account. Therefore, when living together, even if it lasted for many years, the division of property can not be performed. To get your share you need to go through a complicated procedure of confirming the investment in the ownership of personal funds.
The right to joint ownership is fixed by law. If it is violated, you can go to court. The main thing is to act decisively, relying on the norms of the law.</ p>