Differentiation of the marriage contract and related contracts

The present article considers the question of differentiation of the contracts governing the property relations of spouses. The analysis of the current legislation allows identifying four such contracts: contract on the definition of shares in the common property, agreement on the division of the common property, marriage contract, agreement on the payment of alimony. The family legislation and law-enforcement practice consider each of these contracts as an independent contractual construct possessing special characteristics. However, in the doctrine the question of independence of the listed contracts is debatable. The analysis of the current legislation allows allocating common features of the agreement on the division of the common property, the agreement on definition of shares in the common property, and also the marriage contract that leads to a conclusion about the overlapping of the specified contracts. At the same time, each contract has specifics caused by the subject, parties of the contract, form, etc. Distinctions are shown in independent bases of the invalidity of the marriage contract which are not characteristic for other agreements, and also special, complex structure of the marriage contract. The most essential distinctions are revealed between the marriage contract and the agreement on the payment of alimony. The author concludes that these contracts practically have no common ground, their content is different in the subject, validity, a target orientation. The agreement on the payment of alimony has the power of the court order which the marriage contract does not possess. The contents of the alimentary agreement determine the size, order and ways of payment of the alimony in the presence of the conditions provided by law. The marriage contract does not govern the alimentary relations, it establishes the duties of spouses according to the content which is not predetermined by existence of the conditions necessary for alimony payment. As a result of the conducted research the conclusion is drawn on the absence in the family legislation of an accurate, scientifically reasonable system of the contracts governing the property relations of spouses. In this regard the author suggests to reconsider the system of contracts fixed in the Family Code of the Russian Federation, having defined that all property relations of spouses in marriage, except for alimentary obligations, should be regulated by the marriage contract exclusively. It is offered to consider the agreement on definition of shares in the common property, and also the agreement on the division of the common property as means of individual regulation of relations between the former spouses.

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