The presence of cohabitation without marriage registration is not an indisputable proof that the property was acquired during this period with the joint funds of persons living together

Ya. filed a lawsuit against K. and M. to recognize the property as common shared ownership and determine a half-share for it. The plaintiff motivated her claims by the fact that she had been in a de facto family relationship with A. since 2000, and on October 20, 2011, they registered their marriage. On December 10, 2011, her husband died suddenly of cancer. After his death, an inheritance was opened, which was applied for by three heirs of the first stage: she, the spouse, the mother of the deceased, K., and M.'s daughter from his first marriage, N. However, the property included in the inheritance, consisting of five objects, is the common property of her and M., since it was acquired during the period of living together and running a common household with the testator. Therefore, the plaintiff asked to satisfy her claims, having determined for her a ½ share in the common property, which is registered with her spouse. By the decision of the Ust-Kamenogorsk City Court of August 22, 2012, the claim of Ya. to K., N. for recognition of property as common shared ownership and determination of a half share was left without satisfaction. By the decision of the Appellate Judicial Board for Civil and Administrative cases of the East Kazakhstan Regional Court dated November 13, 2012, the court's decision was overturned, and a new decision was made in the case to satisfy the claim of Ya. The Court of Appeal decided to recognize the common shared property of Ya. and deceased M. property consisting of: apartment on Krasina Street, Ust-Kamenogorsk; land plot No. 1004 for individual construction, with an area of 0.128 hectares, located in the 25th residential microdistrict of Ust-Kamenogorsk; land plot No. 18 for the placement and operation of a recreation center with an area of 0.07 hectares, located in the Zyryanovsky district on the coast of the Bukhtarma reservoir, recreation center "Edelweiss"; garage with a plot of land on Krylova Street (box No. 4); cars "H", 2006 model year.

The presence of cohabitation without marriage registration is not an indisputable proof that the property was acquired during this period with the joint funds of persons living together

In the named property, the board determined a half share of Ya. By an additional decision of the Appellate Judicial Board for Civil and Administrative Cases of the East Kazakhstan Regional Court dated November 19, 2012 with K. and N. The court expenses incurred in favor of Ya. were collected in a shared manner: representative services in the amount of 75,000 tenge and the refund of the state fee – 79,508 tenge, a total of 154,508 tenge. By the decision of the cassation judicial board of the East Kazakhstan Regional Court dated February 07, 2013, the decision of the appellate instance was changed, regarding the cancellation of the court's decision regarding a land plot for individual residential construction with an area of 0.128 hectares located in the 25th residential district of the city of Ust-Kamenogorsk, the board's decision was canceled, with the decision of the court of first instance remaining in force in this part. The collected amount of the state duty of 79,508 tenge has been reduced to 73,506 tenge. The rest of the decision of the appeals board was left unchanged. In the petition, K., referring to a violation of the norms of substantive law, asked to cancel the decisions of the appellate and cassation instances, and to leave the court's decision in force. She indicated that the property included in the estate belonged only to her son M., and had been acquired by him prior to the registration of his marriage with Ya. In the response to the petition, the defendant N. asked for its satisfaction, and the plaintiff Ya. - leave the contested judicial acts unchanged, and K.'s petition. without satisfaction. She pointed out that the disputed property belonged not only to the testator, but also to her, since it was acquired by them with common funds during the period of living together for more than 10 years. The Supervisory Judicial Board of the Supreme Court overturned the decisions of the appellate and cassation judicial boards for civil and administrative cases of the East Kazakhstan Regional Court, and the additional decision of the appeals board in this case. She upheld the decision of the Ust-Kamenogorsk City Court of the East Kazakhstan region, stating the following. As follows from the case file, Ya. and M. They have lived together since 2000, have no children together, and the marriage was registered only on October 20, 2011, shortly before his death on December 10, 2011. Prior to living together, each of them was in a registered marriage, which was dissolved in January 1999 and June 2010, respectively. From his first marriage, Ya. has two children, and M. has one daughter, N., the defendant in the case. After M.'s death, an inheritance was opened for four real estate objects and a car, purchased and registered in his name before entering into a legal marriage with Ya. By refusing to satisfy the claim, I On recognizing the testator's property as common property and determining a half share in it, the court of first instance was lawfully guided by the requirements of Article 33 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code). According to this rule, the common joint property of the spouses is the property acquired by the spouses during marriage. However, in this case, as can be seen from the case file and is not disputed by anyone, all the disputed property was acquired in the name of M., before his marriage to the plaintiff Ya. In overturning this decision, the appellate and then the cassation instances essentially came to the opposite conclusion that the disputed property was in common ownership, since Ya. and M. had lived together since 2000. During this period, disputed property was acquired, with the exception of one land plot, which was recognized by the cassation instance as the property of one M. Therefore, the named courts, with reference to Articles 209-210 of the Civil Code, decided to recognize the inherited property as their common shared property, recognizing the plaintiff's half share in this property.  However, such conclusions of the courts cannot be considered convincing and based on the law that must be applied. In essence, they contradict the provisions of the marriage and family legislation, in particular articles 33, 35 of the Code on the ownership of property to each of the spouses before entering into a legal marriage (matrimony). In this case, as established in the case and correctly indicated by the court of first instance, all the disputed property was owned by one M. even before the registration of the marriage with the plaintiff. The presence of cohabitation without marriage registration is not an indisputable proof that the property was acquired during this period with the joint funds of persons living together. In addition, the plaintiff also owned other separate property, and nothing prevented her from determining the legal status of the disputed property before the marriage was registered and during M.'s lifetime. Moreover, as established in the case and follows from the conclusions of the appellate instance itself, the plaintiff Ya., like M., had equal wages when living together. At the same time, they provided financial assistance to their adult children. There is no sufficient evidence that they maintained a common budget and invested joint funds in the acquisition of common property in the case. In such circumstances, judicial acts of the appellate and cassation judicial boards cannot be considered justified, they are subject to cancellation with the decision of the court of first instance remaining in force. 

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