Division of property between spouses 

The main provisions relating to the common property of spouses are fixed in the following laws.

1. The Constitution of the Republic of Kazakhstan. The right to judicial protection of citizens is guaranteed by article 13 of the Constitution of the Republic of Kazakhstan. This rule of law stipulates that everyone has the right to judicial protection of their rights and freedoms.

2. The Civil Procedure Code of the Republic of Kazakhstan. The CPC of the Republic of Kazakhstan reflects the procedural issues of resolving civil disputes. Accordingly, if the spouses (former spouses) disagree about the division of common property, disputes are considered in court.

3. The Civil Code of the Republic of Kazakhstan. The Civil Code of the Republic of Kazakhstan regulates the general issues of the emergence, modification and termination of civil rights and obligations.

The general rule for the division of common property between participants in joint ownership is established in art. 221 of the Civil Code of the Republic of Kazakhstan. This provision states that such a division is possible only after a preliminary determination of the share of each participant in the right to common property.

The division of common property between the participants in joint ownership, as well as the allocation of shares, is possible only after the joint ownership has been converted into shared ownership and the shares of each participant have been determined.If the dispute is about the joint ownership of the spouses, then the allocation of a share is impossible - a division of the common property is carried out.

The procedure for the division (allocation) of common property is established by Articles 218, 221 of the Civil Code.

The Code of the Republic of Kazakhstan "On Marriage (Matrimony) and family". 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. spouses in the common property of the spouses. The division can be carried out both during the marriage and after its dissolution.

The specified rule of law provides for options for sections, including by agreement between the spouses. Such an agreement on the division of common property is made in simple written form and is subject to mandatory notarization.

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.

The procedure for the division of property, which was acquired for minor children, is particularly regulated. Thus, items purchased solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, a children's library, and others) are not subject to division and are transferred without compensation to the spouse with whom the children live. 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.

The norm is fixed, according to which, in the case of the division of the common property of the spouses during the marriage (matrimony), that part of the common property of the spouses that was not divided, as well as the property acquired by the spouses during the marriage (matrimony) in the future, constitute their common joint property.

With regard to the limitation periods, it is also stated that the three-year limitation period from the date of the dissolution of the marriage applies to the claims of the spouses for the division of the common property of the spouses whose marriage (matrimony) is dissolved. According to the requirements of 20 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 (matrimony)"the three-year limitation period for claims on the division of property that is the common joint property of spouses whose marriage is dissolved should be calculated not from the time of termination of marriage, but from the date of when the person found out or should have found out about the violation of their right.

The general rule for the division of common property between participants in joint ownership is established in the norms of the Civil Code. The division of the property of the spouses is possible only after the preliminary determination of the share of each participant in the right to common property. The determination of the shares in the division of the common property of the spouses is indicated in article 38 of the said Code.

When dividing common property and allocating shares from it, the shares of the spouses are recognized as equal. However, the same rule contains a provision stating that this rule can be changed on two grounds.:

- unless otherwise stipulated by the agreement between them,

- the court has the right to depart from the beginning of 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 disrespectful reasons or spent the spouses' common property to the detriment of the interests of the family without the consent of the second spouse.

When deciding whether to depart from the principle of equality of shares or on the priority of one of the spouses for the transfer of specific property, the court must provide an appropriate justification in its decision.

The division of the spouses' (former spouses') common property does not release the former participants in joint ownership from their respective obligations to creditors.

When dividing property under a contract, along with the things that become the property of the parties, it is necessary to indicate the property obligations to third parties that each of the parties will fulfill.

When dividing property in court, the court in its decision indicates the obligation of the former participants in joint ownership to pay off debts. In this case, the debts are distributed proportionally to the shares awarded.

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".

The said regulatory resolution 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.

Paragraph 17 of the regulatory resolution stipulates that the value of the 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, including the opinion of the state body for property valuation.

Paragraph 18 of the said resolution regulates the procedure for dividing the common property of spouses when the division affects the interests of third parties (for example, a peasant (farmer) farm or a former collective farm with the participation of other members, a housing construction or other cooperative, of which one of the spouses (or both spouses) was a member, who had not fully paid his share contribution and in this regard, the court, which has not acquired ownership rights, etc.), in accordance with paragraph 3 of Article 22 of the Code, has the right to separate this claim into separate proceedings.

If, when considering a case on the dissolution of a marriage (matrimony) and the division of the spouses' property (in cases where they have not fully paid the share for the apartment, cottage, garage, other building or room provided by the cooperative), one of the parties asks to determine what share of the share she is entitled to, without raising the issue regarding the division of a share, the court has the right to consider such a claim without separating it into separate proceedings, provided that there are no other persons entitled to share, since this dispute does not affect the rights of the cooperative.

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. Contributions made by spouses at the expense of common property in the name of their minor children, by virtue of paragraph 4 of Article 37 of the Code, are considered to belong to children and should not be taken into account when dividing property that is the joint joint property of the spouses.

If third parties have provided money to the spouses and the latter have deposited it in their name with credit institutions, third parties have the right to file a claim for the refund of the corresponding amounts according to the norms of the Civil Code, which is subject to consideration in a separate proceeding. The claims of members of a peasant (farmer) farm or members of a former collective farm and other persons against the spouses of members of this peasant (farmer) farm or former collective farm may be resolved in the same manner.

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 10, 2008 No. 2 "On certain issues of the application of legislation on limited and additional liability partnerships". Paragraph 16 of this resolution regulates the procedure for resolving a dispute on the division of jointly acquired property of an LLP. Thus, the participant's share can be contributed to the authorized capital of the LLP at the expense of the jointly acquired property of the spouses, which, by virtue of part 2 of Article 32 of the Law of the Republic of Kazakhstan "On Marriage and Family", is the joint property of the spouses. Meanwhile, in the event of a dispute over the division of jointly acquired property, the value of the part of the LLP's property corresponding to the participant's share is included in its composition.

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