Article 38 of the RF IC. Division of common property of spouses
1. The division of the common property of the spouses can be made both during the marriage and after its dissolution at the request of any of the spouses, as well as in the event of a creditor making a claim to divide the common property of the spouses in order to foreclose on the share of one of the spouses in the common property of the spouses.
2. The common property of the spouses may be divided between the spouses by agreement. An agreement on the division of common property acquired by spouses during marriage must be notarized.
3. 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 in court.
When dividing the common property of spouses, the court, at the request of the spouses, determines what property is to be transferred to each of the spouses. If one of the spouses is transferred property the value of which exceeds the share due to him, the other spouse may be awarded appropriate monetary or other compensation.
4. The court may recognize the property acquired by each of the spouses during the period of their separation upon termination of family relations as the property of each of them.
5. Items purchased solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, 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.
6. In the case of division of the common property of the spouses during the marriage, that part of the common property of the spouses that was not divided, as well as the property acquired by the spouses during the subsequent marriage, constitute their joint property.
7. A three-year statute of limitations applies to the claims of spouses for the division of common property of spouses whose marriage is dissolved.
Return to the table of contents of the document: Family Code of the Russian Federation in the current edition
Comments on Article 38 of the RF IC, judicial practice of application
In paragraphs 15, 16, 19 Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 N 15 “On the application of legislation by courts when considering divorce cases” contains, in particular, the following explanations:
What is the common joint property of spouses?
The common joint property of the spouses, subject to division (clauses 1 and 2 of Article 34 of the RF IC), is any movable and immovable property acquired by them during the marriage, which, by virtue of Art. Art. 128, 129, paragraphs 1 and 2 of Art. 213 of the Civil Code of the Russian Federation can be the object of property rights of citizens, regardless of which spouse’s name it was acquired or funds were deposited in, unless the marriage contract between them establishes a different regime for this property. The division of the common property of the spouses is carried out according to the rules established by Art. Art. 38, 39 RF IC and Art. 254 Civil Code of the Russian Federation. The value of the property to be divided is determined during the consideration of the case.
When dividing the common property of spouses, property that was alienated or hidden by one of the spouses without the knowledge of the other is taken into account.
Considering that in accordance with paragraph 1 of Art. 35 of the RF IC, ownership, use and disposal of the common property of the spouses must be carried out by their mutual consent, in the case when, when considering the requirement for the division of joint property of the spouses, it is established that one of them alienated the common property or spent it at his own discretion against the will of the other spouse and is not in the interests of the family, or has hidden property, then the division takes into account this property or its value.
Property acquired by one of the spouses after the termination of family relations is not subject to division
If, after the actual termination of family relations and running a common household, the spouses did not acquire property jointly, the court, in accordance with paragraph 4 of Art. 38 of the RF IC can divide only that property that was their common joint property at the time of termination of the common household.
Limitation period for claims for division of common property of spouses whose marriage is dissolved
The three-year limitation period for claims for the division of property that is the common joint property of spouses whose marriage is dissolved (clause 7 of Article 38 of the RF IC) should not be calculated from the time of termination of the marriage (the day of state registration of the divorce in the civil registration book upon divorce in the civil registry office, and upon divorce in court - the day the decision entered into legal force), and from the day when the person learned or should have learned about the violation of his right (Clause 1 of Article 200 of the Civil Code of the Russian Federation) .
Clauses 7, 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 25, 2018 N 48 “On some issues related to the peculiarities of the formation and distribution of the bankruptcy estate in cases of bankruptcy of citizens” contain the following explanations:
The spouse of the debtor in a bankruptcy case has the right to apply to the court with a demand for the division of the common property of the spouses
In a bankruptcy case of a citizen-debtor, as a general rule, his personal property is subject to sale, as well as property belonging to him and his spouse (former spouse) by right of common ownership (clause 7 of Article 213.26 of the Bankruptcy Law, clauses 1 and 2 of Article 34, Article 36 of the RF IC).
At the same time, a spouse (former spouse) who believes that the sale of common property in a bankruptcy case does not take into account the legitimate interests of this spouse and (or) the interests of his dependents, including minor children, has the right to apply to the court with a demand on the division of the common property of the spouses before its sale in bankruptcy proceedings (clause 3 of Article 38 of the RF IC). This requirement is subject to consideration by a court of general jurisdiction in compliance with the rules of jurisdiction. A financial manager is involved in the case of dividing the common property of spouses. All creditors of the debtor, whose claims are stated in the bankruptcy case, have the right to take part in the consideration of the said claim as third parties who do not declare independent claims regarding the subject of the dispute (Article 43 of the Code of Civil Procedure of the Russian Federation). The common property of the spouses subject to division cannot be sold within the framework of bankruptcy procedures until the specified dispute is resolved by a court of general jurisdiction.
When selling the property of a debtor citizen, equality of the spouses' shares in the common property is assumed. The debtor's spouse has the right to demand a different definition of shares
If the spouses did not enter into an out-of-court agreement on the division of common property, a marriage contract, or if the court did not divide the common property of the spouses, when determining the shares of the spouses in this property, one should proceed from the presumption of equality of the shares of the spouses in the common property (clause 1 of Article 39 of the RF IC) and the absence of common obligations of the spouses to transfer to the spouse of the debtor citizen half of the proceeds from the sale of the common property of the spouses (before repayment of current obligations).
The spouse (former spouse) of the debtor, who does not agree with the application to him of the principle of equality of shares of spouses in their common property, has the right to apply to the court with a demand for a different definition of shares (clause 3 of Article 38 of the RF IC). Such a claim is subject to consideration by a court of general jurisdiction in compliance with the rules of jurisdiction. A financial manager is involved in this matter. All creditors of the debtor, whose claims are stated in the bankruptcy case, have the right to take part in the consideration of this claim as third parties who do not declare independent claims regarding the subject of the dispute (Article 43 of the Code of Civil Procedure of the Russian Federation).
Article 37 of the Civil Code of the Russian Federation. Disposal of the property of a ward (current version)
1. The commented article is devoted to such an important power of a guardian or trustee as the power to dispose of the property of the ward. This power is significantly limited, and in fact the guardian and trustee are prohibited from disposing of any types of property of the ward without the prior permission of the guardianship and trusteeship authority.
The exception is the amount of alimony, pensions, benefits, compensation for harm to health and damage incurred in the event of the death of the breadwinner, as well as other funds paid for the maintenance of the ward, which are subject to credit to a separate nominal account opened by the guardian or trustee. The specified amounts are spent by the guardian or trustee without the prior permission of the guardianship and trusteeship authority.
It should be taken into account that in some cases the ward can independently dispose of the income received. For example, minors between the ages of fourteen and eighteen have the right to dispose of their earnings, scholarships and other income without the consent of their parents, adoptive parents or guardian (see commentary to paragraph 2 of Article 26). However, subsequently the guardian or trustee provides a report on the expenditure of amounts credited to a separate nominal account in the manner established by the Federal Law “On Guardianship and Trusteeship”
A nominal account can be opened for the account owner to carry out transactions with funds, the rights to which belong to another person - the beneficiary. The rights to funds received to a nominal account, including as a result of their deposit by the account owner, belong to the beneficiary (Clause 1 of Article 860.1 of the Civil Code of the Russian Federation).
According to Art. 25 of the Federal Law of April 24, 2008 N 48-FZ (as amended on July 29, 2017) “On guardianship and trusteeship”, the guardian or trustee annually no later than February 1 of the current year, unless a different period is established by the agreement on guardianship or trusteeship, submits guardianship and trusteeship authority a written report for the previous year on the storage, use of the ward’s property and on the management of the ward’s property.
The report of the guardian or trustee must contain information about the condition of the property and the place of its storage, the acquisition of property to replace alienated property, income received from the management of the ward’s property, and expenses incurred from the ward’s property. Documents (copies of sales receipts, receipts for payment of taxes, insurance amounts and other payment documents) confirming the specified information are attached to the report of the guardian or trustee, with the exception of information about expenses incurred at the expense of the ward’s funds for food, basic necessities and other small household needs. .
2. Paragraph 2 of the commented article contains rules for performing legal actions on behalf of the ward, which contain a number of restrictions. In particular, the guardian does not have the right, without the prior permission of the guardianship and trusteeship body, to carry out, and the trustee does not have the right to consent to, alienation transactions, including the exchange or donation of the ward’s property, leasing it, for free use or as a pledge , transactions entailing the renunciation of the rights belonging to the ward, the division of his property or the allocation of shares from it, as well as any other transactions entailing a decrease in the property of the ward. In Part 3, Clause 3, Art. 60 of the Family Code also provides that when parents exercise powers to manage the child’s property, they are subject to the rules established by civil legislation regarding the disposal of the ward’s property.
The restrictions are discussed more specifically in the Law on Guardianship and Trusteeship. Part 1 art. 21 of this Law mentions such cases that require coordination with the guardianship and trusteeship authorities, such as the transfer of the ward’s property for rent, lease, free use or collateral, the division of his property or the allocation of shares from it, the conclusion of a settlement agreement in court proceedings on behalf of the ward , concluding a settlement agreement with the debtor in enforcement proceedings, in which the ward is the claimant, as well as issuing a power of attorney on behalf of the ward.
3. Paragraph 3 of the commented article establishes a prohibition for a guardian, trustee, their spouses and close relatives to enter into transactions with the ward. Exceptions include the transfer of property to a ward as a gift or for gratuitous use, as well as representing the ward in concluding transactions or conducting legal cases between the ward and the spouse of the guardian or trustee and their close relatives. The concept of close relatives is defined in Art. 14 of the RF IC are relatives in a direct ascending and descending line (parents and children, grandfather, grandmother and grandchildren), full and half-blooded (having a common father or mother) brothers and sisters.
4. In accordance with paragraph 4 of the commented article, the guardian is obliged to manage the property of a citizen declared incompetent, taking into account the opinion of the ward. In the event that the opinion of the ward cannot be determined (for example, due to the characteristics of a mental illness), information about his preferences received from the parents of such a citizen, his previous guardians, and other persons who provided services to such a citizen and conscientiously performed their duties is taken into account.
Comment source:
“CIVIL CODE OF THE RUSSIAN FEDERATION. PART ONE. ARTICLE-BY-ARTICLE COMMENT"
S.P. Grishaev, T.V. Bogacheva, Yu.P. Sweet, 2019
Explanations in reviews of judicial practice of the RF Armed Forces
The Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2016) contains the following legal position:
A residential building purchased using maternity capital funds is in common ownership of spouses and children
A property acquired (built, reconstructed) using maternity capital funds is in the common shared ownership of spouses and children.
* For the circumstances of the case and the motivation for the conclusions, see the attachment to these comments
In the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2; approved June 26, 2015 contains the following legal position:
Limitation period for claims for division of common property of spouses whose marriage is dissolved
“For a claim for the division of common property of spouses whose marriage has been dissolved, the statute of limitations is calculated from the moment when the former spouse became aware of the violation of his right to common property.”
** For the circumstances of the case and the motivation for the conclusions, see the attachment to these comments
The review of legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2006 indicated the following:
The statute of limitations for the division of marital property begins to run from the moment the spouse learns about the obstacles to the use
“The limitation period for claims for the division of common property of spouses whose marriage is dissolved is calculated from the day when the former spouse applying for judicial protection learned or should have learned that the other former spouse had committed an action that prevented him from exercising his rights regarding this property."
The Supreme Court, in particular, motivated the above conclusion as follows:
“..by virtue of clause 7 of Art. 38 of the Family Code of the Russian Federation, a three-year statute of limitations applies to the claims of spouses whose marriage is dissolved for the division of their common property.
The course of the limitation period in accordance with the general rules enshrined in paragraph 1 of Art. 200 of the Civil Code of the Russian Federation, begins from the day when the spouse who applied for judicial protection learned or should have learned about a violation of his right.
In particular, if after the dissolution of the marriage the former spouses continue to jointly use common property, then the statute of limitations begins to run from the day when one of them commits an action that prevents the other spouse from exercising his rights in relation to this property (for example, alienation of property is carried out) .
As can be seen from the case materials, the marriage between the spouses was dissolved in 1998, and the applicant learned about the violation of his rights only in 2003.
Taking into account the above, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the court decisions in the case, which denied the applicant’s demands for the division of property acquired by the former spouses during the marriage, including due to the expiration of the statute of limitations.”
The ruling of the Supreme Court of the Russian Federation dated December 4, 2012 N 41-KG12-21 (the text of the ruling in the “Bulletin of the Supreme Court of the Russian Federation”, 2013, N 7) contains the following legal position:
Division of a residential house by spouses as jointly acquired property in the case when at the time of divorce the ownership of the house was not registered, later one of the spouses became the owner
The Supreme Court of the Russian Federation agreed with the court's conclusion that the residential building is subject to division between spouses - each spouse has the right to a share in the ownership. The RF Armed Forces, in particular, indicated the following:
... an object of unfinished construction, which was a residential building at the time of divorce, is included in the jointly acquired property of the spouses.
At the same time, as the court noted, the mere fact of the absence of state registration of ownership of a residential building at the time of divorce and the further registration of ownership of real estate in the name of one of the spouses does not change the legal status of the disputed real estate as jointly owned and does not give rise to the absence of rights Bozhenko N.V. for a share in jointly acquired property.
Commentary to Art. 38 of the Criminal Code of the Russian Federation
Detaining a person who has committed a crime is the right, and sometimes the moral duty, of any citizen. It is an official duty for a number of law enforcement officials and other departments. In accordance with Art. 38 of the Criminal Code of the Russian Federation, it is not a crime to cause harm to a person who has committed a crime when he is detained in order to bring him to the authorities and suppress the possibility of him committing new crimes, if it was not possible to detain such a person by other means and the measures necessary for this were not exceeded.
This provision of criminal law applies only in cases where harm during arrest is caused to the person who committed the crime. Thus, the legislator establishes the first two signs that make it possible to distinguish between the institutions of necessary defense and detention. Firstly, the necessary defense is applied not only in cases where a crime is committed, but also in cases of other socially dangerous attacks, and causing harm during detention will be lawful only if the detainee commits a crime. Secondly, with the necessary defense, harm is caused to the attacker during the period of the attack until its completion. Detention is carried out after the end of the crime or after its suppression, but in the period after the cessation of the attack. In cases where the criminal resists or uses violence against the persons carrying out the arrest, the latter have the right to the necessary defense, which is a very important circumstance when assessing the legality of the actions of the detainee, since causing harm during the necessary defense is limited to a less strict framework than causing harm during detention. What distinguishes the institution of detention from necessary defense is their intended purpose. Necessary defense is carried out in order to protect the individual, the rights of the defender or other persons, the interests of society or the state protected by law, and the detention of a person who has committed a crime - in order to deliver him to the authorities and to suppress the possibility of the detainee committing new crimes.
Causing harm during the detention of a person who has committed a crime will be lawful if the measures necessary for detention were not exceeded, and if it was not possible to detain the person by other means.
Exceeding the measures necessary to detain a person who has committed a crime is recognized as their obvious discrepancy with the nature and degree of public danger of the crime committed by the detainee and the circumstances of the detention, when the person is unnecessarily caused excessive harm not caused by the situation. Such an excess entails criminal liability only in cases of murder (Part 2 of Article 108 of the Criminal Code of the Russian Federation), as well as intentional infliction of grievous or moderate harm to health (Part 2 of Article 114 of the Criminal Code of the Russian Federation). These crimes are intentional crimes. Therefore, in the event of harm caused by exceeding the measures necessary to detain a person who committed a crime, the perpetrator is aware of the social danger of his actions, his consciousness embraces the fact that the measures of detention are clearly inconsistent with the nature and degree of public danger of the crime committed by the detainee and the circumstances of the detention in particular, and the fact that the harm caused is excessive and not caused by necessity. In this regard, causing harm by negligence during arrest does not entail criminal liability.
When deciding whether to exceed the measures necessary for detention, the nature and danger of the crime committed should be taken into account. Thus, it is unlikely that serious harm to health should be caused to a person who has committed a minor crime.
The circumstances surrounding the arrest must also be taken into account. Here the law establishes fairly strict conditions, allowing the possibility of causing harm during detention only when it was not possible to detain the person by other means. Therefore, from our point of view, it is impossible to recognize as lawful a detention committed with the use of a firearm, even against a person who has committed a particularly serious crime, if this person could have been detained in other ways.
When assessing the legality of detention, many other factors must be taken into account, for example, the number of detainees, their age, physical development, condition at the time of detention (for example, state of intoxication), armament of the detainees, etc. In this regard, the assessment of the legality of causing harm during detention should be carried out taking into account the specific circumstances in each specific case.
A prerequisite for the legality of causing harm when detaining a person who has committed a crime is the purpose of the detention. Its purpose is to implement the tasks of justice, bringing a person to criminal responsibility, restoring justice, and preventing crimes. The purpose of detention is to bring a person to the authorities and prevent the possibility of him committing new crimes. In relation to the institution of detention, the authorities to which the detainee is delivered should include not only law enforcement, but also other bodies where measures can be taken to prevent the detainee from committing new crimes and transfer the detainee to the authorities competent in resolving the issue of bringing the perpetrator to criminal charges. responsibility.
To summarize, we can highlight the following signs that determine the legality of causing harm during detention. The first group of signs characterizes the grounds and purpose of the detention, and the second - the conditions for the detention.
1. Detention is carried out:
- only in relation to the person who committed the crime. In this case, the right of detention is retained from the time the crime was committed until the expiration of the statute of limitations;
- only for the purpose of delivering the detainee to the authorities or suppressing the possibility of the detainee committing new crimes.
2. Upon arrest:
- causing harm is permissible only when it is impossible to detain the person who committed the crime by other means;
- the harm caused must correspond to the nature and degree of danger of the act committed by the detainee, his personality and the circumstances of the detention;
- exceeding the measures to detain a person who committed a crime can only occur in the case of causing excessive harm intentionally and cannot be recognized when causing harm through negligence (or as a result of an incident, case).
If the detainee makes a conscientious mistake regarding the circumstances of the detention, the legal assessment of the offense is carried out in the same way as in the case of necessary defense.
Recommended publications:
Popular questions and answers about the division of an apartment acquired together during marriage:
- Division of jointly acquired real estate of spouses (apartment acquired during marriage and before marriage)
- Division of jointly acquired property of spouses and cohabitants, division of loan debts
We recommend the following publications on the division of common debts of spouses (under credit obligations):
- Comments on Article 39 of the Family Code of the Russian Federation
- other publications in the section Division of property of spouses, divorce, marriage contract (samples of statements of claim, agreements on the division of common property of spouses, samples of marriage contract)
- Statement of claim for division of marital property
Agreement on the division of common property of spouses
- Sample agreement on the division of common property of spouses
- Sample (example) of an agreement on the division of property of spouses
- Statement of claim (counter) to invalidate the agreement on the division of marital property and the allocation of a share
