Property of spouses in mаrriage or the rights of spousеs in case of divorcement Printable version
Electronic application for the divorce registration
Apply for re-issuance of divorce certificate
Getting of reference on marriage online
Apply for re-issuance of marriage certificate
Issuance of certificate on first name, last name, middle name change
State registration of rights (encumbrances) on real estate
Obtainment of personal credit report
File a bill
Also look:
Contacts of territorial justice departments of Astana, Almaty, Shymkent cities and regional centers of RK
Useful online services
If there are any mistakes in documents or how to make changes in identity card or certificate
Popular services of the portal eGov.kz
Contacts of the Vital Recоrds departments of the local executive agencies of the RK
Entering marriage, not everybody thinks about the order of property ownership in marriage and its sharing in case of divorce. Certainly nobody wants to think of the worst in such a significant moment. In this article we will tell about personal and joint property of spouses, the role of marriage contract, how property shares are distributed, and what conditions will affect on property division upon divorcement.
According to p. 1 art. 32 of the Code On Marriage (Matrimony) and Family legal marital property regime is a regime of their joint ownership, if only the marriage contract was not specified by other conditions. Property acquired by spouses while marriage is their joint property, in accordance with the article 33 of the Code. Property acquired while marriage is joint, but each of the spouses may also have private property.
Joint property means that it is not divided on shares. Private property differs from the joint one that it belongs only to one person and therefore cannot be divided upon divorce.
What does privet property include?
According to the article 35 of the Code private property of spouses is
property, belonging to each of spouses before marriage (matrimony);
property acquired by spouses during marriage as a gift by inheritance or by other gratuitous transactions;
individual things (cloths, shoes and others) except jewels and other luxuries, even if they were acquired in marriage by the funds of both spouses;
property, acquired by each spouses in the period of separate living due to the actual termination of marriage.
In the first three cases, there is no need to formalize a private property in any particular way, also it does not require the court's decision in this case. In the last case (when spouses have been living separately after divorce registration) property is recognized as private, but only by the court decision.
Obviously, while divorcement, private property of each spouse also remains in private ownership. Also there is a special article which allows to recognize your personal property as the joint one, if there were investments which increased the cost of property of the wife or husband. It is especially important if, for example, an apartment belonged to your spouse, was significantly repaired or reconstructed with your common funds, then the apartment can be considered as joint property. You can find this fact in the article 36 of the Code.
What does joint property include
According to the same article 33 of the Code, joint property, acquired by spouses during marriage includes:
income amounts of each of spouses from labor activity, entrepreneurship and results of intellectual activity;
income amounts of joint property of spouses and of private property of each spouse;
their received pensions, benefits, pension savings as well as other payments with no special purpose (amounts of financial assistance, amounts paid for a damage, due to the loss of work ability, due to the health injury and others);
movable and real estate, security papers, contributions, shares in the capital, deposited in credit or other organizations which were acquired at the cost of common incomes of spouses;
any property acquired by spouses during marriage.
All mentioned above property is considered as joint regardless on whose name in the family and for whose money it was acquired.
Point 3 of article 33 of the Code notes that even if you were engaged in household or children care during marriage and had no earnings, you also have the full right for joint property.
Spouses shares in joint property and what is considered by the court in case of property division
Joint property upon divorcement is divided on shares, if it is a case of property division. According to the article 38 of the Code under the division of spouses’ joint property and determining the shares in this property, the shares of each spouse is considered as equal, if there is no additional conditions provided by the contract between them. Shares in joint property of the spouses in common property are determined by dividing of the property and are always considered to be equal (1/2 or 50%), if:
there are no other conditions considered in the contract;
there are no other conditions in the contract about property division;
court did not define these shares otherwise.
According to the article 38 of the Code the court may derogate from equality of the shares in joint property in favor of under aged children’ interests 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 common property of the spouses to the detriment of the interests of the family without the consent of the second spouse. First of all, it refers to people with drug and alcohol addiction: they get the smallest share of the joint property, if it will be proved by the court. You will not find certain rules on this matter in legal acts, the situations are considered personally by the judge.
If the defendant spouse will prove that he was searching a work, had legitimate excuses of his unemployment, was engaged in household and children care, then the court will not be able to reduce his share.
There are some cases when one spouse refuses from his/her share in the joint property. If this fact was agreed earlier, before divorcement, then you can fix it in the marriage contract or in the contract on the division of joint property. If a marriage has been already dissolved, to refuse from the share in the joint property is possible by addressing to a notary. Notary certifies the definition of shares of each spouse in joint property, and then registers a gift contract of a share of one spouse to another.
There is a myth that children also have the right for shares in the joint property. That’s not so, initially the shares of each spouse comprise 1/2. The shares are changed taking into account children only if one of the spouses did not receive income deliberately and spent common funds. Therewith children are not received a particular share, but the share of one of the spouses who continues to care about children is increased.
How to share real estate upon divorcement or special cases of property division
If the property was acquired, received as a gift or by inheritance before the marriage, it is private and is subject to division only if it were invested by common money (for repair, reconstruction, etc.). In this case, the share of invested funds and the impact on final cost of the property will be considered.
The question about the shares in joint property often causes a lot of debates, that is why it is strongly recommended to make a marriage contract or agreement on the division of joint property.
Are the debts divided upon divorcement or responsibility of spouses for obligations
Unfortunately, there are some cases, when after divorcement there is not only property but also debts and obligations. According to the article 44 of the Code on obligations of one of the spouses the charge is attached upon private property of this spouse. When this property is insufficient the creditor is entitled to demand the division of part of the spouse- debtor, which would be due to the spouse -debtor upon the division of joint property, for attachment of charge on it. It means that if the shares of the spouse are not enough to cover the debt, then the part can be charged from the joint property, but not from the personal property of another spouse. If the borrowed funds were spent on family needs, then the debts will be first of all charged from the joint property, and if it is not enough, then from personal property of each spouse. If the borrowed funds were spent on personal needs of one of spouses, then the responsibility accordingly is taken by one of the spouses. If the court sets that the joint property was acquired or increased by illegal means, then the charging is attached upon this joint property, or its part.
One should not hope that marriage contract can save spouses from debts payment. Because it is indicated in the article 45 of the Code that creditors of a spouse-debtor has rights to demand a change in the conditions or termination of the marriage contract concluded between the spouses in connection with the changed circumstances in accordance with the norms of the Civil Code of the Republic of Kazakhstan.
How to submit an application to the court for property division upon divorcement or after it?
According to the article 18 of the Code «On marriage and matrimony» disputes connected with the division of joint property are considered in a legal procedure.
Application for division of property is submitted to the court at the place of residence of the defendant (i.e. of the spouse that meets the property claims). One can apply to the court for the division of property upon divorce and after the divorce was registered. When applying for divorce spouses indicate the presence or absence of property claims. One can apply for the division of property simultaneously with the application, and after getting a certificate of divorce, the main thing is not to delay, as there is the statute of limitations - namely 3 years, during which your claim on the division of property will be considered by the court. It means that if while divorcement you didn’t have property claims to the husband/wife, but later changed your mind, it’s important to submit an application no later than 3 years from the moment of divorcement.
In accordance with paragraph 2 of Art. 8 of the Code of the Republic of Kazakhstan «On marriage and matrimony» when applying the rules establishing the statute of limitations, when considering disputes arising from marital-family relations, the court is guided by the regulations of the Civil Code of the Republic of Kazakhstan.
In accordance with Article 180 of the Civil Code, the running of the limitation period starts from the day when the person knew or should have known about the violation of the law.
Required documents for claiming on property division:
List of property that has been acquired and purchased in marriage, to which you are pretending or want to share. If you file a claim on division of all property, you should make a list of what is private, personal property of each spouse - because this property is not included in the property division.
Documents confirming the right of property that you want to share. For real estate – it is title documents, for car - certificate on registration of the vehicle, housewares - checks and receipts, passports -on technique and stuff. In this case, if the documents are in the other spouse hands, you must specify this fact in a statement that the court could reclaim them in the process.
Documents confirming the market value of the property for division. This can be checks and price references, the appraiser's report, who has a license. If one spouse does not agree with the assessment, the court may appoint an independent expert.
If you apply, you must have a clear idea of ​​what property and how you want to share it, i.e. the option, which will consider the court - that you want to take for yourself, for spouse, what can be taken in terms of money, and how much you are ready to pay to ex-spouse. The court will consider the options and choose the best one in the interests of both sides.
Check for payment of state fee for consideration of claim on the division of property (to see the rates of state fees in the courts). In this case, the fee rate is 1% of the claim amount.
Original and copy of the certificate of divorcement (to apply for registration of divorce or to get repeated certificate of divorce if it was damaged or lost).