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Differences between the American marriage contract and the Russian one

In this article, we will compare the legislative regulation of the marriage contract in Russia and in the United States. Immediately, we note that American legislation in this part differs from state to state.

Business is increasingly international, and marital relations are keeping pace with it. The property of a modern entrepreneur can be found all over the world. In turn, all property and income that are acquired in marriage, as a general rule, are joint property of the spouses. In order to protect both family and business, many people resort to marriage contracts.

The Family Code of the Russian Federation (“ SK RF ”) allows partners to choose the law applicable to their marriage contract if such spouses do not have common citizenship or joint residence. If the marriage contract does not contain a clause on the applicable law, it can be regulated by the law of the country in which they have joint residence. 

Next, we will look at the main differences between the regulation of marriage contracts under American and Russian law, and also give some advice on concluding marriage contracts in the United States. 

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What is a prenuptial agreement for?

In Russia, spouses can change for themselves the general rule on the regime of joint ownership, provided for in Art. 34 of the RF IC, and distribute the property acquired during the marriage as it seems reasonable and fair to them.

In the United States, such an act is the model Uniform Premarital and Matrimonial Agreements (“ UPAA ”) Act, passed in 27 states, as well as individual state laws. The UPAA provides only a general framework of regulation for a certain part of the states, while the laws of the states themselves are more detailed regulation and can differ significantly from each other.

Thus, even the legal regime of property of spouses differs from state to state. For example, in the state of Idaho, all property that spouses acquire after marriage goes into joint ownership, and in the event of a divorce, all assets and liabilities are divided equally. This approach is common in only 9 states and is called “community property” – jointly acquired property. In other states of the United States, there is a common law property approach, which establishes a separate property regime according to a general rule. That is, what was acquired by each partner during the bona fide marriage affidavit sample belongs exclusively to him. 

Similarities in the regulation of marriage contracts in Russia and the United States

Despite the varying requirements of local law, in all 50 states the agreement must be in writing and meet the following requirements: 

  • the agreement must be signed before marriage and the marriage must take place; 
  • agreement cannot cover aspects that are contrary to public policy;
  • the agreement must meet fairness standards. 

Similarly, the RF IC indicates the obligation to comply with the written form of the marriage contract, but also requires that all marriage contracts be notarized. 

Although the regulation of the prenuptial agreement in Russia and the United States is different, many aspects of the regulation are the same. So, neither in Russia nor in the United States it is impossible to include in the marriage contract the terms of custody and financial support of the child after the divorce. 

These issues are resolved by the court, since they relate to the rights of the child, not the parents. Alimony is the right of the child, not the right of the parents, so parents cannot refuse to implement the child’s guarantees for receiving alimony. Under the laws of some states (for example, Arizona), this is contrary to public policy. Consequently, the court will not enforce a prenuptial agreement that determines in advance the time for raising a child, the authority to make certain legal decisions in relation to him, or the regulation of issues related to alimony. 

As for the possibility and procedure for changing the marriage contract, the rules in this case do not differ. According to Art. 43 of the RF IC, the parties have the right to change the marriage contract at any time by mutual agreement. Likewise, according to Art. 32-922, Chapter 9, Section 32 of the Idaho Charter, after marriage, the prenuptial agreement may be amended or canceled by written agreement by mutual consent of both partners.

Grounds for invalidity of a marriage contract

As mentioned above, the grounds for the invalidity of a marriage contract are similar to the general civil grounds for the invalidity of transactions. At the same time, the RF IC contains a special basis. Thus, a marriage contract can be invalidated if it puts one of the spouses in an extremely unfavorable position, for example, completely deprives one of the parties to the contract of property that is jointly owned by the spouses. 

American law also requires that the terms of the marriage contract be fair. While the standards of material justice may be vague, one thing is certain – a prenuptial agreement is not unenforceable just because it provides for less than the law stipulates. In fact, ensuring a different outcome from what the law would provide is most often the end in itself of concluding an agreement. In this case, the marriage contract is not invalid.

Consequences of the invalidity of a marriage contract

As a general rule, the consequence of the invalidity of the transaction is the application of bilateral restitution (clause 1 of article 167 of the Civil Code of the Russian Federation). This rule also applies to a marriage contract. That is, each party to the marriage contract is obliged to return to the other everything received under it or compensate for the cost.

If the marriage contract is a sham or imaginary transaction, then the rules of the transaction that the parties actually had in mind (Article 170 of the Civil Code of the Russian Federation) can be applied to such terms of the contract.

Under section 8 of the UPAA, if a marriage is invalidated, the prenuptial agreement or prenuptial agreement is enforceable to the extent necessary to avoid an unfair outcome. Thus, US law provides for the enforcement of a marriage contract even in cases where the marriage is invalid. However, such enforcement will take place when the parties have been married for a long time and one of the parties reasonably relied on the terms of the marriage agreement at the time of the marriage.

How to establish responsibility for treason

Despite the fact that a prenuptial agreement is essentially the same legal structure in different jurisdictions, there are quite a few differences. The most important difference is the ability to regulate the partner’s personal moral rights. A particularly scrupulous point is the possibility of defining the consequences of treason in a marriage contract. 

Cheating on its own is difficult to define because people have different perceptions of what might be appropriate, and everyone has different personal boundaries. In addition to obvious sexual intercourse, adultery can also be considered flirting, communication, tactile contact and other actions, that is, there is a wide range of possible unacceptable partner behavior. For those who still decide to prescribe such a condition in a prenuptial agreement, American lawyers advise to discuss general definitions with their partner before consulting a lawyer. A lawyer can help with specific wording in a prenuptial agreement or a division of property agreement. 

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