Building a family is not easy, it is even more difficult to keep it. As statistics show, not all couples can do this, and divorces are, alas, not uncommon.

Divorce puts the former spouses before the need not only to dissolve the marriage, but also to resolve issues related to the division of the acquired property. In order to avoid unnecessary and hard-hitting disputes, to save nerves and time, you need to clearly understand who and what has the right to claim what property is not subject to division, when and how the division of property can be formalized, and what are the consequences of such division.

In a situation where the spouses took care in advance to resolve these “inconvenient” issues by concluding a marriage contract, everything is more or less clear.

As a rule, in the marriage contract, they define the rights and obligations of each in terms of mutual maintenance, methods of participation in each other’s income, determine the property that will be transferred to each of the spouses in the event of divorce, and also include other provisions regarding their property relations.

Consequently, during a divorce and division of property, special disputes should not arise, since the parties will be guided by the relevant provisions of such an agreement.

However, it should be noted that the conclusion of a marriage contract does not guarantee that one of the parties or third parties (for example, the creditors of one of the spouses) will not attempt to challenge the validity and legality of such an agreement and / or its individual clauses.

In the absence of a marriage contract and / or its recognition as invalid, its termination or amendment, etc., the norms of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family” (hereinafter – the Code), providing for the regime of common joint property spouses on property.

Let’s make a reservation right away that this regime is valid only when the marriage is registered in the prescribed manner.

In the case of extramarital affairs, the actual spouses can acquire property together, but it will belong entirely to only one of them – the one in whose name it is registered.

Such property is not subject to division. To get a share in it, you will have to stock up on documents and patience and prove in court the fact of acquiring the property with joint funds. The court will assess the credibility and sufficiency of such evidence. The process is not very simple and no one can guarantee the acceptance of the result in your favor.

Therefore, advice: if you are in an extramarital relationship and jointly acquire some property, then indicate both actual spouses as buyers, immediately determining the size of the shares of each of you. Thus, in case of termination of the relationship, it will not be difficult to divide the property.

So, back to registered marriages and the Code.

The Code establishes that the property acquired by spouses during marriage is their common joint property. Moreover, each of the spouses can also have personal property. Let’s figure out the nuances.

Common property jointly acquired by spouses during marriage includes:

•   the amount of income of each of the spouses from labor activity, entrepreneurial activity and the results of intellectual activity;
•   the amount of income from the common property of the spouses and the separate property of each of the spouses;
•   the pensions, benefits, pension savings received by them, as well as other monetary payments that do not have a special purpose (amounts of material assistance, amounts paid in compensation for damage due to disability, as a result of injury or other damage to health, and others) ;
•   movable and immovable property acquired at the expense of the total income of the spouses, securities, shares, deposits, shares in capital contributed to credit institutions or other organizations;
•   any other property acquired by the spouses during marriage.

The legislator separately stipulates that such property is joint, regardless of whose name it was acquired in the family or who of the spouses contributed funds.

Thus, even if one of the spouses did not have income during marriage, for example, being busy with housekeeping and caring for children, he still has a share in the joint property and has the right to claim its determination and allocation when such property is divided .

Possession, use and disposal of such property are carried out by mutual consent of the spouses. This means that the conclusion by one of the spouses of a transaction for the disposal of common property, especially for the disposal of real estate or a transaction requiring notarization, is possible only with the consent of the other spouse. Otherwise, the other spouse has the right to demand that such a transaction be declared invalid in court within three years from the day when he learned or should have learned about the transaction. In this case, it will be necessary to prove that the other party knew or obviously should have known about the disagreement of the other spouse to make this transaction.

IMPORTANT: THE SECTION ARE NOT SUBJECT TO AND TRANSFERRED WITHOUT COMPENSATION TO THE SPOUSE WITH WHOM THE CHILDREN LIVE, things purchased solely to meet the needs of minor children (clothes , footwear, school and sports supplies, musical instruments, children’s library and others). Contributions made by spouses at the expense of the spouses ‘common property in the name of their common minor children are considered to belong to these children and are not taken into account when dividing the spouses’ common property.

According to Article 35 of the Code, the personal property of each of the spouses is:

•   property owned by each spouse prior to marriage;
•   property received by spouses during marriage as a gift, inheritance or other gratuitous transactions;
•   personal items (clothes, shoes, etc.), with the exception of jewelry and other luxury items, although acquired during the marriage at the expense of the spouses’ common funds;
•   property acquired by each of the spouses during the period of separation due to the actual termination of the marriage.

In the latter case, we are talking about a situation where the marriage is not officially dissolved, but the spouses live separately and do not run a joint household. In this case, for the recognition of personal property acquired during such a period, you will need to go to court.

The above property is not subject to division.

IMPORTANT: EACH OF THE SPOUSES ‘PROPERTY MAY BE RECOGNIZED BY THEIR JOINT PROPERTY

This is possible if it is established that during the period of marriage (matrimony), at the expense of the common property of the spouses or the property of the other spouse, or the labor of any of them, investments were made that significantly increased the value of this property (major (but not current) repairs, reconstruction, re-equipment other). If he is recognized as such, the other spouse has the right to demand his division. It is clear that this will require going to court and evidence that such improvements were made at the expense of general funds and led to a significant increase in the value of the property.

The division of the spouses’ common property can be carried out:

•   during marriage at the request of either spouse;
•   at the time of divorce or within 3 years from the date of divorce at the request of either spouse;
•   as well as in the case of a claim by the creditor for the division of the spouses ‘common property in order to enforce the share of one of the spouses in the spouses’ common property.

Separately, it should be said that in accordance with with article 1041 of the Civil Code of the Republic of Kazakhstan, the death of a participant in common joint property is the basis to determine his share in the property and divide the common property or separate from it the share of the deceased participant.

If there are no disputes between the spouses regarding the division of property, then it can be divided by their agreement. Such an agreement on the division of the spouses’ common property is drawn up in writing, by way of conclusion and obligatory notarization.

In the event of a dispute, the division of the spouses ‘common property, as well as the determination of the spouses’ shares in this property, are carried out through mediation or judicial procedure.

Mediation is a procedure for resolving a dispute between the parties with the assistance of a mediator (mediators) in order to achieve a mutually acceptable solution, implemented by the voluntary agreement of the parties (within a period of 30 to 60 days).

The parties to the mediation must reimburse the costs of mediation, including the mediator’s remuneration and expenses incurred by the mediator in connection with the mediation, including travel expenses to the place of consideration of the dispute, accommodation and meals.

In case of successful completion of the procedure, the parties sign an Agreement on the settlement of the dispute (conflict).

However, the condition of participation in this procedure is the mutual voluntary expression of the will of the parties, expressed in the mediation agreement. This means that if one of the spouses does not agree to participate in mediation, it will not be possible.

In addition, it should be borne in mind that the parties have the right to refuse mediation at any stage.

Thus, contacting a mediator, unfortunately, does not guarantee the resolution of the dispute.

And although such an appeal is a right, and not an obligation of the applicant, at present there is a situation where the court, paying increased attention to the observance of the pre-trial procedure for resolving any disputes, may well return the application for the division of property on grounds of the applicant’s failure to apply to the mediation procedure.

Going to court involves filing a statement of claim for the division of property.

Such an application can be submitted simultaneously with the application for divorce, or within 3 years from the date of divorce. The course of this limitation period should be calculated upon divorce in court – from the date the decision enters into legal force, upon divorce in the registering authorities – from the date of registration of divorce (matrimony) in the civil registry book. Omitting this three-year deadline may result in a denial of your requirements, so it is extremely important to comply with it .

Before submitting an application, you must pay a state fee, which is 1% of the amount (price) of the claim. The price of the claim in this case is determined by the value of the claimed property, determined at market prices prevailing at the location of the property at the time of the claim.

To do this, before going to court, it is necessary to clearly define and draw up a list of the property to which the plaintiff claims to section (both available and owned by third parties), determine its market value and confirm it with appropriate documents (checks, appraisal reports, etc. etc.) This list can also include the personal property of the other spouse, the value of which has increased significantly due to improvements made during the marriage through the investment of common funds, as well as the common property that was alienated or spent by one of the spouses without consent other spouse, either against the interests of the family, or hidden by him. The plaintiff has the right to apply for a section of the contribution made by the defendant to the name of his child from a previous marriage at the expense of common funds.

In addition, you need to prepare and describe your vision of how the property should be divided (what is possible to take in kind, and for which you are ready to receive monetary compensation, etc.)

When dividing the common property of the spouses and determining the shares in this property, the shares of each of the spouses are recognized as equal, unless otherwise provided by an agreement between them (for example, a marriage contract or an agreement on the division of common property).

The court does not always distribute property in equal shares, since it has the right to deviate from the beginning of the equality of the spouses’ shares in their common property based on the interests of minor children and (or) based on the interests of one of the spouses, if the other spouse did not receive income for unjustifiable reasons or spent the common property of spouses to the detriment of the interests of the family (for example, gambling, alcohol, drugs) without the consent of the second spouse.

For the court to change the size of shares, it is required to prepare a sufficiently strong evidence base.

If, when dividing the jointly acquired property of the spouses, the share of one of them increases, then the court must resolve the issue of monetary compensation in favor of the other spouse.

IMPORTANT: THE COMMON PROPERTY SECTION MAY BECOME A SECTION OF TOTAL DEBT

When the common property is divided by the court the common debts of the spouses are distributed among them in proportion to the shares awarded to them.

If the borrowed money was spent not on the needs of the family, but on the personal needs of one of the spouses, then he is responsible for such obligations with his personal property, and in its absence or insufficiency, with his share in the common property of the spouses. At the request of the creditor, such a share may be separated from the common property for foreclosure on it.

07/30/2020