Disputes related to the marriage contract

Legion LLP filed a lawsuit against A.A.A., A.Yu.V. for invalidation of the prenuptial agreement, stating that by the verdict of the court No. 2 of Aktobe dated October 29, 2014, A.A.A. was found guilty and sentenced to 5 years in prison, with confiscation of property, and satisfied the civil claim of Legion LLP for recovery from AA of the amount of damage in the amount of 17,231,000 tenge. During the enforcement proceedings, it became clear that on April 02, 2014, a prenuptial agreement was concluded between A.A.A. and A.Yu.V. The plaintiff believes that the prenuptial agreement was concluded with the intention of evading obligations and responsibilities to third parties and the state, and requested that the prenuptial agreement be declared invalid.

In accordance with Article 49 of the Civil Procedure Code of the Republic of Kazakhstan, having clarified the claims, he asked to recognize the marriage contract dated April 02, 2014, concluded between A.A.A. and A.Yu.V., invalid on grounds of fraud under Article 160 of the Civil Code of the Republic of Kazakhstan, committed only for appearance, without the intention to cause legal consequences, supported the claims in full, asked the claim satisfy.

The court satisfied the claim and declared invalid (void) the marriage contract dated April 02, 2014, concluded between A.A.A. and A.Yu.V..

The Court of First instance, justifying its decision, pointed out that A.A. A. and A.Yu.V. have been married since June 04, 2005. On April 02, 2014, a marriage contract was signed between A.A. and A.Y.V., which was certified by a notary.

According to paragraph 1 of the said prenuptial agreement, the spouses agreed that all property acquired by the spouses during the marriage and registered in their name both during the marriage and in the event of its dissolution is the property of A. Y.V. regardless of which spouse it is registered to.

Thus, the specified marriage contract changed the regime of joint ownership acquired by the spouses during the marriage.

The court found that at the time of consideration of the case, the defendant Ageikina Yu.V. had not registered in her name the ownership of the property attributed to her personal property by the marriage contract dated April 02, 2014, for certain reasons.

These circumstances indicate that after the conclusion of the marriage contract by the spouses, the defendants in the case, the status of the property in their joint ownership has not changed, the property has not been legally transferred to A.Yu.

No evidence has been provided to the court confirming the defendants' intentions to formalize the transfer of ownership rights in accordance with the marriage contract, by virtue of art.65 of the CPC RK. That is, the defendants A.A.A and A.Yu.V. entered into a prenuptial agreement for the sake of appearance, without the intention of creating appropriate legal consequences.

160 of the Civil Code of the Republic of Kazakhstan, an imaginary transaction, that is, a transaction made only for appearance, without the intention to create the corresponding legal consequences, is invalid.

This requirement applies to all types of civil law transactions, including a prenuptial agreement by virtue of a direct indication in Article 43 of the Code of the possibility of declaring it invalid on grounds of invalidity provided for by the Civil Code of the Republic of Kazakhstan.

From the analysis of these norms, it follows that when concluding an imaginary transaction, there is a discrepancy between the expressed will and the actual will of the parties, which is not aimed at achieving any civil relations between the parties to the transaction, and the purpose of the parties is to create legal consequences for each or one of them in relation to third parties.

The case materials established that by the verdict of the Aktobe court No. 2 dated October 29, 2014, 17,231,000 tenge and the amount of the state fee of 172,310 tenge were recovered from A.A.A. in compensation for damages in favor of Legion LLP. The verdict came into force on January 28, 2015.

By a decree of the state bailiff dated February 11, 2015, enforcement proceedings were initiated to recover from A.A.A. in favor of Legion LLP the amount of 17,231,000 tenge.

According to clause 8 of the Prenuptial Agreement, each of the spouses is responsible for the obligations assumed or imposed on him to creditors only within the limits of his property under the terms of this prenuptial agreement. The spouse is not responsible for transactions and obligations made by the other spouse. (clauses 8, 9 of the Marriage Contract).

Thus, the marriage contract establishes a restriction on the creditors' rights to foreclose on the property of the other spouse acquired during the marriage.

There is no evidence of notification of Legion LLP about the conclusion of a prenuptial agreement.

The court took into account that the prenuptial agreement between the defendants was concluded on April 02, 2014, after the initiation of a criminal case against the defendant A.A.A., the indictment and his involvement as an accused.

In such circumstances, the court concluded that A.A.A. had no intention of executing the transaction, and Ageikina Yu.V. did not demand its execution, which indicates the imaginary nature of the transaction, and regards this transaction as a desire to avoid foreclosure on the defendant A.A. Ageikina's share in the common property, in order to compensate the plaintiff.

Since the prenuptial agreement dated April 02, 2014, was concluded between the defendant A. A.A. and the defendant A.Yu.V. for the sake of appearance, without the intention to create the legal consequences corresponding to it, the goals of the prenuptial agreement were not achieved and the parties to the transaction did not intend to achieve them, the court recognizes it as an imaginary transaction and finds it invalid, and the claims of LLP "Legion" to be satisfied.

The court has the right to apply the consequences of the invalidity of an insignificant transaction on its own initiative.

Based on Article 157 of the Civil Code of the Republic of Kazakhstan, an invalid transaction does not entail legal consequences, except for those related to its invalidity, and is invalid from the moment it is made.

If the transaction is invalid, each of the parties is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind, to reimburse its value in money – unless other consequences of the invalidity of the transaction are provided for by law.

Since the parties to the prenuptial agreement have not received anything under this transaction, they have no obligation to return what they received under the transaction, and, therefore, there are no grounds for applying art.157 of the Civil Code of the Republic of Kazakhstan.

Another example, B.D.R. filed a lawsuit with B.A.D., notary J.B.N. for the recognition of the marriage contract and the supplementary agreement to it as invalid. The claim is caused by the fact that the marriage contract, certified by a notary, was concluded after the dissolution of the marriage between the spouses, therefore it is not prenuptial. The plaintiff stated that the norms of Articles 39-43 of the Code of the Republic of Kazakhstan "Marriage and family" had been violated. The apartment is located at Astana street . (now K.D.) house 26, apartment 47, did not belong to the parties to the contract by right of ownership, but was sold by the defendant to citizen B.U.A. before the conclusion of this marriage contract. The apartment in question was purchased by the couple during their marriage and sold without his consent. The supplementary agreement to the prenuptial agreement contradicts the legislation on parental alimony relations.

The court partially satisfied the claim, invalidated paragraph 2 of the supplementary agreement dated 17.01.2007 to the prenuptial agreement No. 657 dated 09.01.2007, concluded between the former spouses B.D.R. and B.A.D., the rest of the claim was denied.

The court found that B.D.R. and B.A.D. were in a registered marriage. During the marriage, a bank loan agreement No. 11017802685 dated February 17, 2006 was issued for the intended use - the purchase of two apartments: in Astana: the first - in the residential complex "U.", the second - on S. street..

On 13.11.2006, the marriage was dissolved. After that, on 09.01.2007, the former spouses drew up a contract called a marriage contract, but in fact it was an agreement on the division of the jointly acquired property of the spouses.

According to the terms of the said prenuptial agreement, from the date of signing the agreement, the apartment in the Uyut residential complex is the property of B.D.R., and the apartment on. house. No. 47 — B.A.D. On 12/21/2006, prior to the conclusion of this agreement on the division of joint property, the apartment at 70 St. had already been sold by defendant B.A.D. to citizen B.U.A. without the consent of B.D.R.'s spouse.

On 17.01.2007, an additional agreement was drawn up to the prenuptial agreement stating that the loan under the bank loan agreement No. 11017802685 dated 17.02.2006 in JSC Halyk Bank of Kazakhstan, received for the purchase of two shared apartments, would be repaid by B.D.R., provided that the citizen B.A.D. completely waives alimony for the maintenance of her son R.K.D.

However, subsequently B.A.D. applied to the court for the recovery of child support.

The content of the supplementary agreement on the waiver of alimony for the maintenance of a minor child contradicts the requirements of Article 148 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family". In addition, paragraph 1 of Article 172 of the said Code stipulates that alimony cannot be offset by other counterclaims. Therefore, the claim for invalidation is justified.

In the rest of the case, the court of first instance found no legitimate grounds for satisfying the claim, the division of property was made by mutual agreement of the parties, and in fact did not entail a violation of their rights, both parties disposed of their property at their discretion.

In the circumstances described above, we believe that the court satisfied the plaintiff's claims regarding the recognition of the additional agreement to the Prenuptial Agreement reasonably and lawfully. This decision has not been appealed or appealed to a higher court.

Kazakh legislation provides for the possibility of concluding a marriage contract only with respect to property (property rights). Therefore, the provisions of the marriage contract governing the personal relationship of the spouses will be invalid. The disputed legal relations are regulated by Articles 39-43 of the Code quite fully, in view of which there are no difficulties in considering cases of this category.

 

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