The property of each of the spouses should include the property belonging to each of the spouses before marriage.
T. filed a lawsuit against J. for recognition of the right of individual ownership of the apartment. By the decision of the Kostanay City Court of the Kostanay region dated October 27, 2016, which was left unchanged by the decision of the Judicial Board for Civil Cases of the Kostanay Regional Court dated February 1, 2017, the claim was denied. The Judicial Board for Civil Cases of the Supreme Court annulled the judicial acts of the local courts, adopted a new decision on the satisfaction of the claims in the case, recognizing the property of T. Apartment 41, located at 69 Tolstogo Street, Kostanay. T.'s petition was granted on the following grounds. It follows from the case file that the parties had been married since July 27, 2011. The marriage was dissolved on November 26, 2015. Before her marriage, T. owned apartment No. 1, located at 14 A, Kostanay, 8th microdistrict, which she acquired on August 10, 2006. On October 12, 2011, T., being married, sold the apartment belonging to her by right of ownership. According to the apartment purchase and sale agreement dated January 5, 2012, T., with the consent of her spouse, purchased apartment 41, located at 69 Tolstogo Street, Kostanay (hereinafter referred to as the disputed apartment). In support of the claim, the plaintiff indicated that the disputed apartment does not belong to the common property of the spouses, since it was purchased with personal funds received from the sale of the apartment she acquired before marriage, as well as money deposited with JSC "B". The defendant, in turn, did not work and did not have a contribution to the common property, since he is a disabled person of the first group. The defendant, disagreeing with the plaintiff's claims, indicated that the disputed apartment was a common joint property acquired during the marriage.
The property of each of the spouses should include the property belonging to each of the spouses before marriage.
The local courts, rejecting the claim, concluded that the property acquired in marriage is a common joint property of the 30 Kazakhstan Republics of the Kyrgyz Republic No. 12/2017, regardless of in whose name it was acquired in the family, or by which of the spouses funds were deposited. The conclusions of the courts are not based on the factual circumstances of the case and contradict the norms of substantive law. Article 35 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code) establishes a list of grounds for restricting the personal property of each spouse from their joint ownership. First of all, the property of each of the spouses should include the property belonging to each of the spouses before marriage. From the normative resolution of the Supreme Court of the Republic of Kazakhstan "On the application of legislation by courts in the consideration of divorce cases" dated April 28, 2000 No. 5, it follows that property acquired during marriage, but with the personal funds of one of the spouses belonging to him before marriage, is not common joint property and is not subject to division. marriage. It follows from the above norms that a legally significant circumstance in deciding whether to assign property to the common property of the spouses is the means by which (personal, common) property was acquired by one of the spouses during marriage. The acquisition of property during marriage, but with funds owned by one of the spouses personally, excludes such property from the regime of common joint ownership. The court found that T. had owned an apartment before her marriage, which she subsequently sold and used the proceeds to purchase the disputed apartment. The parties did not dispute the fact that the disputed apartment was purchased with the money accumulated by the plaintiff before marriage, as well as from the sale of the apartment owned by the plaintiff before marriage with the defendant. The arguments of J. The claims that the disputed apartment was purchased with his mother's money are untenable, since the defendant has not provided evidence in accordance with the requirements of Article 72 of the CPC. In such circumstances, the conclusions of the local courts do not correspond to the actual circumstances of the case, and the courts have not applied the norms of article 35 of the Code.
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