Division of property between spouses
Article 37 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" stipulates that the need to divide the common property of the spouses is determined by them by mutual agreement (contract) or at the request of one of the spouses (in court), also in the case of a creditor's claim to divide the common property of the spouses for foreclosure on the share of one of the spouses in the common property of the spouses. The division can be carried out both during the marriage and after its dissolution.
In November 2014, article 37 of the Code was amended, according to which it is stipulated that in the event of a dispute, the division of the common property of the spouses, as well as the determination of the spouses' shares in this property, are carried out through mediation or in court. This provision is aimed at expanding the scope of conciliation procedures.
This article stipulates that when dividing the common property of the spouses, the court, at the request of the spouses, taking into account the interests of the minor child, determines which property is to be transferred to each of the spouses. If property is transferred to one of the spouses, the value of which exceeds the share due to him, the other spouse is awarded appropriate monetary or other compensation.
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" It contains noms that clarify the composition of common property, the procedure for determining the value of property to be divided, and the division of a bank deposit in the name of one of the spouses.
Thus, according to paragraph 16 of the said regulatory resolution, the property to be divided includes the common property of the spouses, which they have at the time of the case or which is held by third parties. If the court finds that one of the spouses alienated the common property or spent it at his discretion against the will of the other spouse and not in the interests of the family, or hid the property, then this property or its value is taken into account when dividing. The total debts of the spouses (paragraph 3 of Article 38 of the Code) and the right to claim obligations arising in the interests of the family are also taken into account.
At the same time, according to article 35 of the Code, property acquired during marriage (matrimony), but with the personal funds of one of the spouses that belonged to him before marriage (matrimony), received as a gift, inheritance or other gratuitous transactions, is not considered common and is not subject to division, and also, personal items purchased at the expense of the spouses' common funds, with the exception of jewelry and other luxury items.
If, after the actual termination of family relations and the management of the common household, the spouses did not jointly acquire property, the court, in accordance with paragraph 2 of Article 35 of the Code, may divide only the property that was their common joint property at the time of the termination of the management of the common household.
According to paragraph 19 of the regulatory decree, the division of a bank deposit in the name of one of the spouses is carried out according to the rules of Article 37 of the Code. Property division cases are considered in compliance with the general rules of procedural legislation.
The conclusions of the court on the composition of the property to be divided between the spouses, on its value as a whole and on each component in the amount due to the spouses of shares in specific things transferred to the ownership of each of the parties, should be clearly stated in the reasoning of the court's decision, indicating the circumstances and evidence on which these conclusions are based.
So, on August 21, 2015, the Judicial Board of Appeal for Civil and administrative cases of the East Kazakhstan Regional Court, case No. 2a-2361, overturned the decision of the Semeysky City Court of June 17, 2015. according to the claim of K.ovoy R.O. to K.kovu S.B., she left the application without consideration. The reason for the cancellation was that the said court divided the immovable property – the apartment, which is located in Astana. The main reasons for canceling changes in the cases of this category is the incorrect definition of the composition of jointly acquired property.
So, on June 9, 2015, the Appellate Judicial Board for Civil and Administrative Cases of the Astana City Court, case No. 2a-2790, changed the decision of the Almaty District Court of Astana dated April 21, 2015 on the claim of Yu.vich N.N. to Zh.voiG.E. on the division of jointly acquired property, regarding the refusal to She cancelled the claim for the division of jointly acquired property, satisfied the claim, recognized as jointly acquired property an uninhabited building (service station) with a land plot at 18 Sh.Zh.ova str., building No. 2 (formerly F.va 1 st.), determining the share of Yu.vich N.N. in the ownership right in the amount of 1\2 parts.
According to the case file, it follows that Zh.G.Ye. is an individual entrepreneur, and during her marriage, a contract was concluded with her for trust management No. 25 with the right to subsequent transfer ownership of the unused premises of the former sports complex located at 1 F. Street, Astana. Ownership of the disputed property was registered for by the defendant on 05.11.2003.
The arguments of the court of first instance about the absence of any investments and refurbishment of an unused building did not correspond to the circumstances of the case. The land plot for the placement and operation of the disputed building, which is inextricably linked and following the legal fate of the building, was acquired by the defendant through the conclusion of a purchase and sale agreement dated July 24, 2007 between the Department of Land Relations of Astana and Zh.v. G.E., who is married for 4,713,156 tenge at the expense of jointly acquired funds. Based on the position of the defendant's gratuitous acquisition of ownership of the building of the former sports complex, it follows that the investment of the specified amount of the total funds of the spouses is a significant contribution, which made investments that significantly increased the value of this property in the complex.
So, on February 16, 2015, the Appellate judicial Board for Civil and Administrative Cases of the Pavlodar Regional Court, case No. 2a0243, changed the decision of the Pavlodar City Court dated November 17, 2014 on the claim of S.R.M. to S.O.G., S.N. with the involvement of a third party without independent claims of the State Institution "Department of Internal Affairs of the Pavlodar region" on the recognition of transactions for the purchase and sale of cars as invalid, the determination of shares and the division of jointly acquired property, reducing the amount of property to be divided.
Thus, the claims of the spouses were declared on the division of property in kind. However, the court of first instance made a division separately for each claim, thereby dividing the total list of property, which was unequal for both parties. So, during the marriage, the spouses acquired property consisting of five cars (special equipment manipulators), two passenger cars "Hyundai Santa Fe" and Toyota Venza" and an apartment building with a plot of land.
It follows from the case file that both passenger cars were purchased by the spouses during the marriage, respectively, they were common joint property. According to the information provided by the Department of Internal Affairs, only one Isuzu GIGA car is registered for S. R.M. The defendant disposed of the second car without the consent of the spouse. In this regard, when dividing the property, it was necessary to take this car into account, collecting compensation for the benefit of the plaintiff for a half share of the car in monetary terms.That was done by the court of appeal.
The defendant, IP Sushko O.G., provided trucking services for the transportation of goods. At the same time, in the period from January to June 2014, 4,085,000 tenge was transferred to the accounts of Sushko O.G., the marriage between the spouses was dissolved by a court decision dated August 19, 2014, before the dissolution of the marriage, the spouses lived together, ran a common household, therefore, all the money was spent by them on common needs. Consequently, there were also no grounds for collecting this amount from the defendant in favor of the plaintiff.
The other most common reason for changing judicial acts is the incorrect determination of the value of the property to be divided.
On June 9, 2015, the Appellate Judicial Board for Civil and Administrative Cases of the Pavlodar Regional Court, case No. 2a- 462, changed the decision of the Pavlodar City Court of December 18, 2014 on the claim of T.N.K. to T.R.A. on the division of property, reduced the amount of satisfaction of the claim. Thus, when determining the value of the property to be divided, the court of first instance committed violations of the current legislation. In P. 17 of the Normative 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" it is established that the value of property to be divided, in the absence of an agreement between the parties, is determined by the court on the basis of an expert opinion.
If the defendant disagreed with the expert's opinion on the value of the property, the court of first instance was obliged to appoint a forensic automotive expert examination in the case. To eliminate this violation, the court of appeal ordered such an expert examination, the data of which indicated the need to reduce the amount collected.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
