Prenuptial agreements: can they be disputed?

The matrimonial property regime can be written out and agreed upon. By default, the legal regime in effect is a 50/50 split, starting as of the date that the man and the woman become married. It can be changed via a prenuptial agreement or envisage, for instance, that the property acquired during the marriage remain the personal property of the spouse whose name it is registered in or whose money was used to buy it.

Often times, a prenuptial agreement is concluded by entrepreneurs, in part for the purpose of securing their assets and the organizations they control from adding their spouse as a participant. On the other hand, the husband or wife of an entrepreneur also would like to secure themselves from debt obligations that businessmen often assume as well.

Here's how it sometimes goes: a prenuptial agreement is concluded and during their marriage all of both spouses’ property is put in the name of one of them. In this case, the other spouse will end up with nothing. What can be done in such a situation?

The law offers the ability to the spouse in the latter category who finds himself or herself in an extremely unfavorable state to demand that the prenuptial agreement be deemed invalid.

Meanwhile, there are no criteria written in the law according to which it can be established that one of the spouses finds themselves in an extremely unfavorable state. This fact is established by the court based on the circumstances of a specific case.

In Plenary Resolution #15 on 11/5/1988, the Supreme Court of the Russian Federation provided an example of a situation to be qualified as an extremely unfavorable situation – when one of the spouses becomes completely deprived of all the property acquired during the marriage.

In the court practice that has taken shape, the Supreme Court’s above-mentioned approach has been taken literally by courts, only deeming prenuptial agreements invalid on the basis of which one of the spouses is left without any property at all.

Due to this stance, it’s extremely difficult to have a prenuptial agreement deemed invalid, under which each of the spouses owns property but the volume of property between them is deemed to be substantially disproportionate. For instance, if one of the spouses keeps a car while the other keeps the real estate, a prenuptial agreement cannot be deemed invalid.

Another prickly issue in deeming a prenuptial agreement invalid is the establishment of the validity period of the statute of limitation ensuing. If a prenuptial agreement is disputed on the grounds envisaged in article 44 item 2 of the Family Code of the Russian Federation, a year period statute of limitation applies.

Family Code of the Russian Federation Article 44: Recognizing prenuptial agreements as invalid

2. The court can also deem a prenuptial agreement completely or partially invalid based on the request of one of the spouses if the terms of the agreement put the spouse in an extremely unfavorable state. Any terms of a prenuptial agreement which violate the other requirements of article 42 item 3 of this Code are null and void.

Family Code of the Russian Federation Article 42: The contents of a prenuptial agreement

3. A prenuptial agreement cannot limit the working capacity or the legal capacity of the spouses nor their right to go to court to defend their rights, nor regulate personal non-property relations between the spouses nor the rights and obligations of spouses with respect to children, nor envisage provisions limiting the right of a needy spouse without working capacity to obtain support, nor contain any other provisions that put one of the spouses in an extremely unfavorable state or contradict the main foundations of family law.

Often times, courts set the beginning of the validity period of the statute of limitation in prenuptial agreement disputes as the moment when it was concluded. Such an approach is presented as one of dispute. Spouses can conclude a prenuptial agreement at the moment of the marriage's registration and be married for several years and then during the divorce one of the spouses can end up with nothing, since they didn't dispute the prenuptial agreement for many years when they couldn’t have presumed that the marriage would end in divorce and that they wouldn't put a single property object in their name while they were married.

In determination #5-KG14-144 on 1/20/2015, the Supreme Court of the Russian Federation stated that the validity period for the statute of limitation begins when a spouse has found out or should have realized that as a result of the implementation of the terms of the prenuptial agreement, he or she would end up in an extremely unfavorable state.

We believe that regarding the stance indicated above the Supreme Court of the Russian Federation has not provided any further specifics since the beginning of the validity period for a statute of limitation is a topic subject to discussion and must be properly argued in each court dispute.

Are you standing at the threshold of a court dispute and wondering what its prospects and consequences will be? We encourage you to contact our lawyers in advance, as early as during the hearing preparation stage, rather than the day before the hearing or while the process is already underway, since most court disputes require calculated, well-prepared steps under the leadership of an experienced attorney. In that case, your chances of winning in court may increase manifold.

We await you for a consultation with your documents either online or in our office.