As a general rule, all property acquired during marriage is considered the common property of the spouses. This rule has exceptions. Each of the spouses may have property (including money) in their personal property. What will be the status of the property acquired with these funds?
The following situations that require regulation are possible:
- With the money that is the personal property of one of the spouses, property is acquired, real estate is built. Money can be received as a gift, inherited or acquired before marriage.
- Property belonging to one of the spouses is sold and property is bought or real estate is built with the proceeds.
- Real estate is being built on a plot owned by one of the spouses.
- Property belonging to one of the spouses is exchanged for other property with or without additional payment.
Can the other spouse claim the property thus acquired in the event of a divorce?
THE PROPERTY IS ACQUIRED (CONSTRUCTED) AT THE PERSONAL EXPENSE OF ONE OF THE SPOUSES
According to Article 35 of the Code of the Republic of Kazakhstan on marriage (matrimony) and the family, property is not common joint and is not subject to division, property acquired, although during marriage, but at the personal expense of one of the spouses that belonged to him before marriage (paragraph 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Consideration of Legislation by Courts in Considering Cases on Divorce").
It should be borne in mind that in the event of a dispute, the spouse will have to prove that the house was built or the apartment was bought exclusively with the money that was his property, and the joint money of the spouses was not spent on it. In case of disagreement with the other spouse, this will be difficult, and it is better to prepare for this in advance.
PROPERTY IS ACQUIRED WITH PROCEEDS FROM THE SALE OF PERSONAL PROPERTY OF ONE OF THE SPOUSES
The proceeds from the sale of personal property belong to only one spouse, in whose personal property this property was. Therefore, according to the norm indicated in the previous paragraph, the acquired property will be the personal property of the spouse whose funds were used to acquire it.
A situation is possible when the proceeds from a previous transaction are not enough to purchase property and an additional payment is required from the common money of the spouses (for example, common savings). In this case, the purchased property will go into common ownership, but the size of the shares will be determined taking into account how much of the proceeds from the sale (personal funds of one of the spouses) and the common funds of the spouses are invested in this property.
CONSTRUCTION ON THE SITE OF ONE OF THE SPOUSES
In this case, the constructed house will be the personal property of the spouse only if the personal funds of this spouse (for example, received as a gift or inherited) were used for its construction. If the house is being built at the expense of common funds, then it will be common property, possibly not in equal shares, since the value of the share of one of the spouses should increase due to the value of the land.
EXCHANGE OF PROPERTY OF ONE OF THE SPOUSES
If the property of one of the spouses is exchanged for another property of equal value without additional payment (for example, an apartment for a residential building), then the latter property, in accordance with Article 35 of the Code, becomes the personal property of the spouse who exchanged his property.
The situation is more complicated when an additional payment is made during the exchange. If this additional payment is made at the expense of the personal funds of the spouse exchanging his property, then the new thing also remains in his property.
However, more often the exchange is made with an additional payment, which the spouses make at the expense of common income (salary, savings, bank loans, etc.). In this case, the property received in exchange will go into common ownership, but the size of the shares will be determined taking into account how much money each of the spouses and common funds invested in this property. For example, a 2-room apartment owned by one of the spouses before marriage, worth 6,000,000 tenge, is exchanged for a 3-room apartment worth 8,000,000 tenge. The additional payment is made from the savings of the spouses made during the marriage in the amount of 2,000,000 tenge. In this case, the contribution of the first spouse to the new apartment will be 6,000,000 + 1,000,000 = 7,000,000 tenge, and the contribution of the second spouse will be only 1,000,000 tenge (half of the total surcharge). Thus,
THE IMPACT OF SUBSEQUENT IMPROVEMENTS ON THE SIZE OF THE SHARES OF SPOUSES
It should be taken into account that, in accordance with Article 36 of the Code on Marriage (Matrimony) and the Family, the property of each of the spouses may be recognized as their common joint property if it is established that during the period of marriage at the expense of the common property of the spouses or the property of the other spouse, or the labor of any investments were made from the spouses that significantly increased the value of this property (major repairs, reconstruction, re-equipment, etc.). Therefore, the court, at the claim of the spouse, may recognize his right to a share in the built house or renovated apartment. The court determines the amount of the share based on the specific circumstances of the dispute.
HOW TO AVOID DISPUTES OVER THE DETERMINATION OF SHARES BETWEEN SPOUSES?
In order to avoid uncertainty in this matter, it is recommended to conclude a prenuptial agreement, in which it is stipulated that the acquired property is the property of one of the spouses or to distribute shares in it. This requires the consent of both spouses.