Protection of the rights of children in the case of the divorce and division of property of married parents in the Russian Federation
Moscow Collegium of Advocates, Moscow
The rights and interests of minor children need special protection by the state because, due to their young age, they are not able to protect themselves independently. In particular, the issue of protecting the interests of children arises in the situation in which parents decide to terminate their marriage and divide the property they have acquired together.
Despite the fact that children do not have the right to own their parents' property, legislation in the Russian Federation provides for a set of measures aimed at ensuring the property welfare of children in the case of their parent's divorce. The main mechanism gives courts authority to depart from the presumption of the equality of shares in the marital property of the spouses in the interests of minor children (Part 2 of Article 39 of the Family Code of the Russian Federation (the 'Family Code')). The sufficient circumstances for the protection of the interests of children are to be determined by a court in each specific case.
At the same time, it is necessary to differentiate marital property from property that is legally registered in the name of married parents, but was not jointly acquired because they are obliged to re-register it in the name of children, for example, in connection with the rules of maternity capital. The Supreme Court of the Russian Federation explicitly states that such property (or a share in it) belongs to the children; thus, the right of ownership must be properly re-registered in the name of the children and not in the names of their married parents.
In the Russian Federation, the default spousal property regime is joint property (Article 34 of the Family Code). Each spouse is deemed to have equal rights to joint assets according to Part 1 of Article 39 of the Family Code.
The principle of separation of property between parents and children is expressed as follows: generally, children do not have the right to own the property of their parents and parents do not have the right to own the property of their children (Part 4 of Article 60 of the Family Code).
At the same time, courts have the authority to depart from the presumption of equality of spouses' shares in their joint property based on the interests of minor children (Part 2 of Article 39 of the Family Code).
The departure from the principle of equality of shares of spouses in their joint property based on the interests of minor children does not give the latter an independent right to the property of their parents, which is consistent with the provisions of Article 60 of the Family Code.
The Family Code does not contain any list of noteworthy interests of minor children or circumstances that should be considered as sufficient for the court to depart from the principle of the equality of spouses' shares in joint property. The specified reasons and circumstances need to be considered and determined on a case-by-case basis, taking into account the evidence provided by the parties.
Thus, the court has the authority to increase the share in marital property of the spouse with whom the children are to live provided that the interests of the children cannot be respected without this increase, and proper conditions for the maintenance and upbringing of the children cannot be created. Accordingly, such property of the spouses, the consumer properties of which can satisfy the interests of the children, should be jointly acquired by the spouses.
In paragraph 14 of the Review of Judicial Practice of the Supreme Court of the Russian Federation No 3 (approved by the Presidium of the Supreme Court of the Russian Federation on 27 November 2019), the Supreme Court of the Russian Federation interpreted the provisions of Article 39 of the Family Code and narrowed the range of circumstances that may serve as grounds for departure from the equality of shares: 'The presence of a mutual minor child is not an unconditional reason for departure from the principle of equality of shares in the division of property of former spouses. In the case of a departure from the principle of equality of shares of former spouses, the court decision should provide for reasons how the interests of children for which departure should take place are respected'.
In the Ruling of the Supreme Court of the Russian Federation N 18-КГ20-15 of 26 May 2020 (Belaya v Ustinov case), the Supreme Court of the Russian Federation continued the narrowing approach and pointed out that the fact of mutual minor children living with one of the parents is also not an unconditional reason for increasing the share of this spouse in marital property: 'The living of common minor children and the determination of their place of residence with one of the parents is not an absolute basis for increasing the marital share, since the housing rights of children in relation to the property of their parents are preserved, their maintenance is provided by alimony obligations'.
Consequently, the question arises, what circumstances of the case do the courts of the Russian Federation consider as sufficient grounds for increasing the spouse's share in marital property based on the interests of minor children?
An analysis of the judicial practice of Russian courts allows us to single out the main circumstances that may be considered by the court as sufficient for departure from the principle of equality of spouses' shares in marital property based on the interests of minor children:
- marital property includes the only parent's house or apartment in which the children are to live after the spouses' separation;
- disability or other illness of the child that requires special care and additional costs for treatment and life support;
- non-participation of the parent in the payment of child support expenses; child support arrears;
- several children live with the parent as dependents (not necessarily the mutual children of the spouses);
- meagre income of the parent with whom the children are to live; and
- inability to actually pay compensation to the spouse for exceeding the share in the marital property
Several acts of judicial practice demonstrate the circumstances that allowed the court to depart from the principle of equality of shares of former spouses in marital property based on the interests of the minor children
Ruling of the Supreme Court of the Russian Federation N 41-КГ15-11 of 14 July 2015 (Kemenchizhi v Kemenchizhi)
The plaintiff is the former wife who requested the court to increase the size of her share in the marital property due to the fact that her adult son is disabled and needs to be allocated a separate room for living and studying. The plaintiff has no other residential premises, the child is to live with her, and she needs to maintain the material standard of living of the child at the same level, even after the division of property and the dissolution of the marriage between the parents. In the case of the division of the disputed property without departure from the equality of shares, she would have been able to purchase only a one-room apartment. Accordingly, she and her disabled son would have had one living room for two people, and therefore he would not be able to study at home.
The Supreme Court of the Russian Federation remanded the case to the district court for retrial, stating that the lower courts unreasonably rejected the plaintiff's arguments and divided the property of the spouses (a house and a plot of land) in equal shares.
Ruling of the Supreme Court of the Russian Federation N 4-КГ16-74 of 28 February 2017 (Shevchishina v Nikolaev)
During the marriage, the spouses purchased an apartment, the ownership of which was registered in the name of a husband. Three children lived with the former wife and her mother in the absence of other residential premises on the right of ownership. They were registered at the place of residence in the joint apartment of the spouses and were willing to move in. However, the right to use this property of the former wife and children was actually limited due to the residence of persons moved in by the former husband.
In this regard, the former wife asked the court to recognise her ownership of the apartment. The district court satisfied the plaintiff's claim, but the court of appeal awarded one-fourth of the share in the ownership of the apartment to each of the spouses and children. The Supreme Court of the Russian Federation disagreed with the court of appeal and remanded the case to the district court for retrial.
In case of divorce and division of marital property, legislation in the Russian Federation provides for a mechanism for protecting the interests of minor children. In accordance with Part 2 of Article 39 of the Family Code, the court has the authority to depart from the principle of equality of the spouses' shares in marital property based on the interests of minor children.
On the basis of circumstances of a particular case, the court must define sufficient grounds for departure from the principle of equality of shares in the interests of minor children. Thus, for example, the presence of minor children or their living with one of the spouses is not an unconditional reason for such a departure.
The share of the spouse in the marital property may be increased if this property is the only apartment of the parent with whom the children are living; if several children are to live with one spouse; if a child has a disability or other condition that requires special care; if the other parent does not participate in the payment of child support expenses and has child support arrears; and other circumstances.
At the same time, children may have their own property, which is not included in marital property, although it might be registered in the name of their married parents, for example, in the case of using maternity capital funds. Such property (or a share in it) must be re-registered as the property of children in accordance with the law.
 Ruling of the Supreme Court of the Russian Federation N 49-КГ21-13-K6 of 15 June 2021 and Ruling of the Supreme Court of the Russian Federation N 36-КГ19-1 of 5 March 2019.