Disputes related to the marriage contract between spouses

In accordance with Article 39 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), a marriage contract is an agreement of persons entering into marriage (matrimony), or an agreement of spouses defining the property rights and obligations of spouses in marriage (matrimony) and (or) in the event of its dissolution. A prenuptial agreement may provide for the property rights of children born or adopted in a marriage (matrimony).

When considering cases in this category, it is necessary to be guided primarily by the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" dated December 26, 2011, the Civil Code of the Republic of Kazakhstan, and the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 No. 5 "On the application of legislation by courts when considering cases of Divorce".

For example: "L-" LLP filed a lawsuit against Aon A.A., Aon Yu.V. for invalidation of the prenuptial agreement, stating that by the verdict of the court No. 2 in Aktobe dated October 29, 2014, A-kin A.A. was found guilty and sentenced to 5 years in prison, with confiscation of property, and the civil claim of "L." LLP for recovery of the amount of damage in the amount of 17,231,000 tenge from A.A. was satisfied.

During the enforcement proceedings, it became clear that on April 02, 2014, a prenuptial agreement was concluded between A.A. and Yu.V.

The plaintiff, believing that the prenuptial agreement was concluded with the intention of evading obligations and responsibilities to third parties and the state, requested that the prenuptial agreement be declared invalid.

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

In the court of first instance, the defendant, A. Yu.V., did not recognize the claims, explaining that the conclusion of the marriage contract was preceded by a difficult relationship with her spouse, A.A.A. owed her parents, and asked to dismiss the claim.

The defendant A.A.A-kin also did not recognize the claims, explaining that he was taking measures to fulfill obligations to third parties, they had not taken any measures to alienate jointly acquired property after the conclusion of the prenuptial agreement, the prenuptial agreement was concluded in the interests of his minor children, without the intention to evade obligations to the LLP "L-", he asked to dismiss the claim.

The court ruled: To satisfy the claim of "L-" LLP to A.A. A-in, Yu.V.A-noy on the recognition of the nullity (invalidity) of the prenuptial agreement transaction.

To invalidate (void) the marriage contract dated April 02, 2014, concluded between A.A. and Yu.V.. To collect jointly and severally from the defendant A.A., A. Yu.V. in favor of LLP "L." the costs of paying the state fee in the amount of 991 tenge.

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

According to paragraph 1 of the said prenuptial agreement, the spouses agreed that all the 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 of the property acquired by the spouses during the marriage. The court found that at the time of consideration of the case, the defendant, Ina Yu.V., had not registered ownership of the property assigned to her personal property by the prenuptial agreement 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-no Yu.V.

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-kin A.A. and A-kina Yu.V. entered into a prenuptial agreement for the sake of appearance, without the intention to create appropriate legal consequences.

In accordance with Article 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 art.43 of the Code on the possibility of its invalidation 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 of damage in favor of L. LLP. The verdict came into force on January 28, 2015.

By the decree of the State bailiff dated February 11, 2015, enforcement proceedings were initiated to recover from A.A.A. in favor of L- 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 the notification of LLP "L." about the conclusion of the marriage contract. 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, Mr. AA, the indictment and his involvement as an accused.

In such circumstances, the court concluded that A.A. A-kin had no intention of executing the transaction, and Y.V. A-ina 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. Ageikin's share in the common property, in order to compensate damages to the plaintiff. Since the prenuptial agreement dated April 02, 2014, was concluded between the defendant A.A. and the defendant Y.V. for the sake of appearances, without the intention to create the appropriate legal consequences, the goals of the prenuptial agreement were not achieved and the parties to the transaction did not intend to achieve them, the court considered it an imaginary transaction and the claims of L- LLP 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-baev D.R. filed a lawsuit with B-va. A.D., notary J. B.N. for the recognition of the marriage contract and the supplementary agreement to it as invalid. The claim is motivated 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 "On Marriage (Matrimony) and Family" had been violated. The apartment is located at 70 (now K.Dina) street, Astana city.. Apartment 47 did not belong by right of ownership to the parties to the contract, but was sold by the defendant to citizen B-another 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.

In the court of first instance, the plaintiff and his representative pointed out that the plaintiff became aware of the illegality of the supplementary agreement regarding the refusal to collect alimony from the decision of the cassation board in 2014. The fact that B-eve sold the apartment became known to him in April-May 2015 when preparing a lawsuit in court. The apartment in the Uyut residential complex, which was transferred to him under a prenuptial agreement, was sold on 02/20/2010. He agreed to the condition of transferring the apartment to B-eve A.D. provided that the rights to it are transferred to the child due to the payment of alimony and repayment of the loan for the purchase of both of the above apartments. The loan was taken in his name against the security of another three-room apartment belonging to him by right of inheritance. The defendant, notary Zh-ova B.N., did not recognize the claims, asked to apply the statute of limitations, in addition, considers himself an improper defendant in this dispute.

According to Articles 157, 158 of the Civil Code of the Republic of Kazakhstan, in case of violation of the requirements for the form, content and participants of the transaction, as well as for the freedom of their will, the transaction may be declared invalid at the request of interested parties, a proper government agency or a prosecutor. An interested party is a person whose rights and legitimate interests have been violated or may be violated as a result of the transaction. A transaction whose content does not comply with the requirements of the law, as well as committed with a purpose that is obviously contrary to the principles of law and order or morality, is invalid.

According to Article 43 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", a marriage contract may be declared invalid by a court in whole or in part on the grounds of invalidity of transactions provided for by the Civil Code of the Republic of Kazakhstan; the court may also declare a marriage contract invalid in whole or in part at the request of one of the spouses, if the terms of the contract put this spouse in extreme disadvantage or violate the property rights of children born or adopted in this marriage (matrimony). The terms of the marriage contract that violate the requirements of paragraph 3 of Article 41 of this Code shall be deemed invalid.

In accordance with Article 41 of the said Code, a prenuptial agreement may not limit the legal capacity or legal capacity of spouses, their right to apply to court for protection of their rights; regulate personal non-property relations between spouses, the rights and obligations of spouses in relation to children; provide provisions limiting the right of a disabled spouse in need to receive maintenance, and other conditions, contradicting the basic principles of the marriage and family legislation of the Republic of Kazakhstan.

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.

Meanwhile, regarding the recognition of the Marriage Contract as invalid, we believe that the court of first instance should have been guided by the following. Article 40, paragraph 1 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", provides that a marriage contract can be concluded both from the date of filing an application for state registration of marriage (matrimony) to the registration authority, before the state registration of marriage (matrimony), and at any time during the marriage (matrimony). The marriage contract concluded before the state registration of the marriage (matrimony) comes into force from the date of the state registration of the marriage (matrimony). Accordingly, the court of first instance had to indicate that this contract had not entered into force, since the parties had not entered into a legal marriage and had not registered it.

According to Article 158, paragraph 1 of the Civil Code of the Republic of Kazakhstan, a transaction is invalid, the content of which does not comply with the requirements of the law, as well as committed with a purpose deliberately contrary to the principles of law and order or morality.

The Code stipulates that the spouses have the right to conclude a prenuptial agreement both before marriage and during the existence of the marital relationship. The marriage contract between the spouses is concluded in accordance with the general norms of civil law. Coercion to a conclusion is not allowed, and its terms must be determined by the parties themselves. The notarization of the agreement concluded by the bride and groom before the marriage takes effect after the registration of the marriage. In cases where the married couple, regardless of the length of the marriage, decided to determine their property status, the agreement comes into force from the moment of notarization.

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.

It should be noted that the recognition of a marriage contract as invalid is regulated by the reference norm of Part 1 of Article 43 of the Code, according to which a marriage contract may be declared invalid by a court in whole or in part on the grounds of invalidity of transactions provided for by the Civil Code of the Republic of Kazakhstan.

 

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