Cemeynye values: general and personal
ARTinvestment.RU   15 июля 2008

Need to share the common property the family, as well as officially out of the total mass of the personal property of each spouse is not only in a divorce. At ARTinvestment.RU published another story rubric «Act for collector»

Need to split the total family assets, as well as formally distinguished from the general mass of property belonging only to the husband or wife (personal property of each spouse), occurs not only in a divorce. To prove their ownership of these or other things people have to, in cases where one spouse is illegally disposed of at their discretion, without obtaining the consent, approval of the second half. For example, in anticipation of the imminent divorce, saving the most precious and valuable, one of the spouses «presents» collection of paintings to trusted individuals - family, friends, their children (including children from previous marriage). Alternatively, creditors are owed large sums in secret from the other spouse sells, transfers the pledged a gift to them jewelry or separate household collection of rare books. Sometimes a valuable private collection of one spouse is out of ignorance or under the influence of deception, delusion is changing at a cheap thing, forgery ...

In such situations, the aggrieved party may try to return the thing or at least get a decent compensation. But before contrive litigation, it is necessary to clearly determine who actually owned the thing, vybyvshie from the collection.

Let's assume that your other half has committed to a deal with his own personal property, for example with the same engravings or painting, which she acquired before marriage or received as a gift or by inheritance. In this case, your claims to the property the court is likely recognized to be unfounded, especially if the marriage contract is missing or does not regulate the particular transactions in such property and if the person can prove that the property does not belong to you. Evidence may be documents - дарственная with videtelstvo the right to inheritance, the contract of sale, payment instruments, as well as the testimony of witnesses.

But if you put your own (for example, acquired before marriage, proceeds from the sale received by inheritance dachas) or general (family) means, in the restoration of the prints or to pay the salary for the manufacture of precious icons, the cost of these items increased , so you can ask the court to determine the size of the share of each spouse to the property. If the court will satisfy your request and determine your share, you can seek dissolution of the transaction.

If the transaction is in respect of common property taken without your consent, to recognize it as invalid have to go to court. Recall the joint ownership regime applies to property acquired by spouses during marriage as through their individual income ¹ , and from general revenue. If due to such proceeds bought jewelry ² and other luxury items ³ , then these things relate to the composition of the common property even when one spouse acquires them, then gives the second half.

gain recognition as invalid the transaction, done on a common property of spouses is difficult. Article 35 of the Family Code, although it states that the disposal of common property is carried out by mutual agreement of the spouses, but it also specifies that when one spouse transactions on the order of common property, it is assumed that it is acting with the consent of the other spouse.

Nevertheless, the possibility for the recognition of a court there is an invalid transaction. To this end, the husband, without whose consent was committed transaction, must apply to the court with an application for its dissolution. The plaintiff must prove to the court that his consent to the transaction was not and that the new owner of the thing (person, kupivshee it has received as a gift, to the pledge) knew or certainly should have known of the plaintiff's opposition to the trade. Please note: «aware of the opposition», rather than the absence of consent, ie, the plaintiff need to try to prove that, for example, a buyer of vintage items from the family collection was acting in bad faith, knowing that one spouse was against such a sale. If the sale was carried out, for example, through the shop, it is impossible to prove this fact. But if the thing has become, for example, someone from a collector friend, who was perfectly aware that the «thing not for sale», then the court could invite witnesses to confirm that in the presence of the collector of the buyer (possibly more than once) refused sell an item collection, that the collector had other plans on the order of assembly, the individual items from it, etc. Then the court may take note of evidence such as personal correspondence, documents, clearly indicating the intention of the spouse to convey a collection donated by a third person, testamentary disposition, the consent to give the thing to display at a future show, etc.

If a claim for recognition of transactions ordered by the joint property as invalid is granted, in accordance with the Civil Code is considered that this transaction is invalid from the moment of its commission and each party shall return to the other side of whatever is received in the transaction. And if a citizen or organization, obtain the your thing, sells, gives it, otherwise the transaction, they are also null and void, because unauthorized person committed. And if a thing is impossible to return, its price must be paid in money.

If it sold, a gift set of your second half belonged to the law of personal property for you, it also should be able to prove it. If you succeed, then the search for rules that protect your rights as an owner, you will no longer in the Family Code and the Civil.

Elena Pokidova, Attorney

Source: ARTinvestment.RU

¹ Revenue ton of labor, business and intellectual property, pensions, allowances and other Return

² The objects of gold, jewelry made of precious and semiprecious metals and stones. Return

³ valuables, works of art, antiques and unique items, collections and other things that are not required to meet the immediate needs of family members . Return