Note: This article is not a translation of the Russian original, but rather an adaptation that strives to deliver the same basic information as the Russian original, but in a format that provides more explanation for those English readers which may not be familiar with Russian legal terms and concepts. If you have questions or comments about this article, please, send us a note!
Russian Prenuptial Agreements
for Russians and Foreigners
Legal Department, Alinga Consulting Group
Prenuptial and postnuptial agreements, while well-established in western countries, are not as widely used in Russia. However, they have recently gained favor there among those hoping to protect their property rights during marriage and divorce.
How are these agreements defined in Russia? What information should they contain? What special conditions apply if a foreigner enters into such an agreement in Russia? Russian legislation provides answers to all these questions.
First, it should be stated that Russia does not recognize an inherent difference between prenuptial and postnuptial agreements. Both are known in Russian as a "marriage agreement" (брачный договор) and both are regulated by the same legislation. As prenuptial agreements are more common in the West and the term is generally more recognizable, we shall use the term "prenuptial agreement" to generally refer to the Russian"marriage contract." The reader should bear in mind, however, that in this case the term applies to both types of agreements.
Russian law defines a prenuptial agreement much as the legislation of other countries does. The Russian prenuptial agreement is considered a contract, representing a legally enforceable agreement between those people signing it. The parties to this agreement are either a couple entering into marriage or current spouses who wish to define their rights and responsibilities in marriage and/or divorce through the use of a contract.
While the definition of a prenuptial agreement is fairly universal, their regulation and enforcement substantially differs in Russia, if compared to similar practices in Western countries.
Perhaps the most important difference is that while most Western governments allow prenuptial agreements to cover nearly any topic, a Russian prenuptial agreement can cover only property issues. According to Russian legislation, prenuptial agreements can define ownership of both property owned before marriage, and property acquired, inherited, or otherwise received during the course of a marriage. If the couple later divorces, the property stated in the contract will divided based on the conditions agreed upon in the contract.
The couple can also use a Russian prenuptial agreement to stipulate the amount and method of any future alimony payments and/or child support payments for minor children. Couples can even agree upon the division of income earned or expenses occurred during their marriage or after it ends. For example, the contract can stipulate that the husband will be responsible for all housing expenses, while the wife agrees to provide all of the household's food. Nearly any material agreement can be spelled out in the prenuptial agreement, so long as it is clearly stipulated and so long as it places neither the husband nor wife in a severely disadvantageous position.
Russian legislation does not allow couples to stipulate custody issues; the only issues concerning a child's care and education that can be covered are those which deal specifically with funding that care and education and providing for the child's material well being.
Russian prenuptial agreements can be concluded for specific or non-specific periods. In other words, couples can schedule transfers of property to occur at any time they like, or even provide a date at which the contract will lose its power. However, if no dates are specified, all conditions of the contract will be considered in force from the moment the couple divorces or either the husband or wife dies.
Russian prenuptial agreements must take a specific form. They must be in written form and notarized to be valid. This differs, for example, from British prenuptial agreements, which do not have a prescribed form, and may be either written or verbal.
Russian legislation allows for prenuptial agreements to be signed before or after marriage. If the contract is signed before marriage, it will only become valid after the marriage is complete and a Russian marriage certificate can be shown. If the couple never marries, the prenuptial agreement will never come into force.
Foreigners entering into Russian prenuptial agreements need to consider several additional factors. The first is language. The agreement must be written in Russian; the foreigner should carefully read or have the document translated so as to be fully aware of what he or she is agreeing to before making it official.
Another consideration is that to have a Russian prenuptial agreement notarized, both members of the couple must be present in Russia. In other words, such a contract cannot be signed while the bride is Russia and the husband in England, for example.
Also, both members of the couple will need to present proof of identity; for a foreigner this will include a passport, valid visa, migration card, and sometimes a notarized translation of his/her passport. If the couple is already married, the marriage certificate should also be shown. The couple, when making an appointment with the notary should ask if this translation or any additional documentation may be needed.
Before notarization, the notary will verify that the prenuptial agreement meets the requirements of Russian legislation and will also explain the meaning and implications of the agreement before he or she notarizes it.
Yet another important question that arises in the case of foreigners signing a Russian prenuptial agreement is: "which country's legislation will be used to determine the international couple's rights and responsibilities?" According to Russia's Family Law Code, property rights and responsibilities are determined in accordance with the legislation of the country in which the couple holds or last held joint residence at the time the prenuptial agreement is signed. Thus, the issue is determined by location and not citizenship.
Even if neither husband nor wife is a Russian citizen, but both reside in Russia, Russian courts will declare that Russian law should guide the enforcement of their prenuptial agreement.
If a husband and wife do not have common citizenship, and have never lived together, they may choose which country's legislation will regulate their prenuptial agreement. In this case, however, couples may face seemingly contradictory regulations. For example, Russian law states that, only the legislation of the chosen foreign state will be considered in deciding the validity of a prenuptial agreement. For example, if the foreign country does not require the contract to be notarized, it need not be notarized in order to be valid in Russia. However, the law also states that all prenuptial agreements formed in Russia may deal only with property issues, regardless of what country's legislation has been chosen to regulate that contract. If a couple wishes to name another country's legislation to regulate their prenuptial agreement, the chosen country must be named in the agreement from the start, and the couple should consult with a qualified lawyer about the special implications this may have for their contract.
A Russian prenuptial agreement can be declared invalid in whole or in part, under certain conditions described in the Russian Civil Code and the Russian Family Code.
According to the Russian Civil Code, any contract, including prenuptial agreements, can be declared void if the contract is not written in the proper form or contains content not allowed by law. Also, if the contract was signed by a person not empowered to sign the contract or unable to understand what they were signing (a so-called "person without competence"), the contract is void. Lastly, if the contract was signed under false pretenses, as the result of fraud, or under threat, the contract is invalid.
The Family Code of the Russian Federation states that, additionally, a court can declare parts of a prenuptial agreement invalid if the agreement places one of the couple in an "extremely unfavorable position" (such as negatively affecting the person's material well being). In this case, the court can declare either spouse exempt from the conditions specified in the agreement.
Of course, Russian legislation does not require that all married couples sign prenuptial agreements. Only those couples who wish to independently determine the future of their property relations need to consider signing a prenuptial agreement. For instance, there is little chance that a couple who owns only basic personal effects (such as household goods) will need a prenuptial agreement. The agreement will be of most interest to business persons, who wish to prevent the division of their property in the event of divorce. According to Russia's Family Code, if there is not a separate agreement or unless a court decides otherwise, any property owned by the couple should be divided into equal portions in the event of divorce.
A prenuptial agreement can allow couples to avoid the property disputes that frequently occur in the event of divorce. In this there is unquestionable advantage.
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