Перевод в сфере семейного права

UNIT 5

Property on Divorce

VOCABULARY

matrimonial assets имущество, нажитое в браке

marital funds / property имущество, собственность супругов joint assets совместная собственность

lump sum паушальная, общая сумма

maintenance зд. содержание, средства к существованию; алименты

maintenance order решение суда в отношении средств к существованию (одного из супругов после развода)

money purchase plan/scheme - система установленных взносов в пенсионный фонд, согласно которой сумма взносов служащего определяется его жалованием

annuity for maintenance аннуитет в обеспечение средств к существованию exclusion order судебное решение о лишении прав

to entail учреждать заповедное имущество (ограниченное в порядке наследования и отчуждения)

retirement benefit пенсия, выходное пособие

Task 1. Find the Russian counterparts for the following English combinations.

Task 2. Read the text and render it into Russian.

Marital property in Russia. Property division

Basic principles

In a number of Western countries, entering a marriage implies the man and woman uniting their assets and this becoming joint property. Russian divorce law, in contrast, stipulates that all money saved and property or assets purchased prior to the marriage remain that individual's property in the event of a divorce. This also applies to assets or monies received without payment: i.e. as a gift or inheritance; the recipient of this gift or inheritance retains sole ownership of the property in the event of a divorce in Russia. This is the case even if the car, flat or country house was used by all members of the family during the marriage.

An important adjunct here in a Russian divorce though it that if in the course of the marriage an investment into one of the spouse's (pre-marriage) properties at both parties' expense substantially increases the market price of the asset then the second spouse has the right to claim for a proportionate sum in that property. For example, in a divorce in Russia, if a country house was renovated from a single story shack into a three-storey mansion then the second spouse would be able to claim for a proportion of the final price equivalent to their proportion of investment.

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Court jurisdiction

In a Russian divorce, it does not matter whether a property is located in Russia or abroad. However, experience shows that it makes sense to divide a property in the country where the property is actually located to avoid future problems with enforcement of the court decision. The reason is that a Russian court's jurisdiction over a property abroad could be rejected locally and then proceedings would have to begin all over again.

Russia has signed agreements on providing legal support in civil and family cases with Poland, Finland, India, Egypt, Italy, Cyprus, Greece, Bulgaria, Hungary, the majority of former Soviet republics and some other states. Such an agreement guarantees that a court decision in a Russian divorce would be recognized in the other state and be enforceable if needed. It is important to note that Russia has exclusive jurisdiction over cases related to real estate located on Russian territory.

Task 3. Study the Russian Family Code Chapter VII articles 38-39.

a)Make your own glossary of the legal terms in English (see the Appendix). Look up for their Russian counterparts. Compare it with your fellow-student’s, discuss and complete.

b)Student A: Listen to the teacher’s questions and translate them into English.

Student B: Answer the questions in English.

1.Когда может быть произведен раздел общего имущества супругов?

2.Каков порядок разрешения споров при разделе имущества супругов?

3.Как определяется совместная собственность супругов?

4.Все ли имущество супругов подлежит разделу?

5.Каковы правила в определении долей при разделе имущества?

Task 4. Read the text and translate paying attention to the words and grammar structures in bold orally.

Property on Divorce - the United Kingdom

Part I

On marriage breakdown it will usually be necessary for the divorcing couple to distribute and reallocate their property and financial assets, whether it be the family home, a pension, the car, investments or other assets. Most couples will sort out matters themselves, but some will end up taking their case to court.

In England and Wales the courts regard the divorce as of primary importance and the question of financial matters and matrimonial assets as being ancillary. However, usually the husband and wife will agree that the marriage is over and that getting a divorce is the correct procedure, so this part of the process is quite simple.

The arrangements for the children will often be resolved by agreement, however there can often be disputes over the financial matters also including a members pension rights. In the case of pension arrangements, this could take the form of an earmarking order or pension sharing order against retirement benefits.

It is not unusual for ancillary relief proceedings to take longer than the divorce to resolve but even so the whole process is typically measured in months rather than years. On divorce, even if the parties agree to a financial order, it cannot be made final until the decree nisi is granted. For couples either on divorce, judicial separation or nullity of marriage the court has the power to make a financial order against the assets owned by the husband or wife in their own names or assets owned jointly.

In addition the court has the power to make a financial order that will apply to the sale or transfer of property, a payment of a lump sum from the assets or a members pension rights or where there are children and an income for a non-working spouse is required, maintenance payments. It is important to

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realise that the court does not have the same jurisdiction where the couple is not married but living together.

Clean break

Under the Matrimonial Causes Act 1973 (MCA 73) the courts are given direction for the resolution of the financial matters for a couple on divorce and this includes having regard to a clean break. This means that the matrimonial assets will be divided between the couple resulting in a complete separation when the marriage ends, usually sometime after the court grants the decree absolute. However, where there is an obligation to maintain children of the marriage it may not be possible to achieve a clean break.

This could occur if there were limited assets of the marriage and one of the parties was a high earner (usually the husband) whereas the other party looked after the children (usually the wife). On divorce she would be unable to support herself and there may be a requirement for a maintenance order. Even so, the courts will usually expect an order for maintenance for the spouse to be restricted by time so as to achieve a clean break in the future. One assumption is that the wife will have existing skills from a previous employment, can be re-trained and will eventually have a sufficient income to support herself.

Where there is a pension arrangement involved and an earmarking order against the member’s pension rights at retirement age, a clean break will not be possible. This arrangement will mean the former spouse will have to wait until the member chooses to retire before payment of a pension income or any tax free lump sum. As most couples usually want a clean break of the financial matters on divorce, it is understandable why earmarking is only occasionally used to settle the retirement benefits.

A clean break would result in an internal or external transfer of pension benefits and in many cases the spouse is nearing retirement and requires a pension income. Where this is a money purchase scheme, the spouse can use the pension fund to buy an annuity and has the option to use an open market option to search for the highest pension annuity. Once you have purchased an annuity it cannot be changed.

During divorce procedures the court will divide the matrimonial assets based on the rules as set out in section 25 of the Matrimonial Causes Act 1973 (MCA 73). These rules consider for each party the matters of income, property, financial needs, obligations, standards of living, age of the parties and may other factors.

However, there has been an increasing tendency for the courts to concentrate on and aim to satisfy the needs of the parties when deciding on financial matters. This means that where the couple have young children the court assume they will stay with the wife and that they will need a roof over their head. Usually the wife will remain in the former matrimonial home and the property will be transferred to her name with the husband receiving other assets, for example retaining the full value of his pension arrangements and this process is known as offsetting.

Satisfying the parties, in particular the wife, on a needs basis has occurred in most cases even if the parties are wealthy. The wife has received only enough for a house and an income to satisfy her needs and this is often been only a fraction of the value of the total assets. With the case of White v White (2000) the needs basis approach has been changed as the ruling by the House of Lords emphasised the starting point should be on an equal split of assets, based on the equal contribution by the parties whether one is an income-earner or a home-carer.

In the United Kingdom it is important to remember that the existence of a pre-nuptial agreement

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specifying the ownership of assets as a result of a marriage breakdown is not binding in law. The court has the jurisdiction over the division of assets and can look beyond any agreement when making a final order. If the couple are not married and remain so, then the existence of such an agreement will be effective in UK law.

Matrimonial home

Where the married couple are joint legal owners of the matrimonial home, both have the right to remain in the property unless the court makes an exclusion order. Various orders can be made to achieve this:

-transfer to one party's sole ownership;

-deferred interest order granted by the court. There is the right for one of the parties to occupy the matrimonial home up to an agreed point in time, such as the children are independent. It will be agreed who will pay what bills;

-Mesher Order granted by the court. In this case usually the wife is allowed to remain in the property rent free, and the sale of the matrimonial home is postponed until the children are 17 years of age;

-Martin Order granted by the court. The wife or husband remains in the property for the remainder of their life or until a "trigger" event occurs such as remarriage or a voluntary decision to leave the property.

Comments:

1 A Merser Order: an order made in case the house is settled on trust for one or both of the spouses in certain shares, but with sale postponed until a future event, such as until children have reached a particular age or have finished full-time education, or until the death, remarriage or cohabitation of the other spouse.

2 A Martin order: this is an ordering giving one spouse a right to occupy the house until that party’s death, remarriage or cohabitation, after which the proceeds of sale are divided in certain shares. A Martin order effectively gives the party in occupation a life interest in the house, unless a specified event occurs.

Task 6. Translate the following expressions in brackets into English and complete the sentences.

1.The obligation to maintain children of the marriage can occur if one of the parties was (лицо, имеющее высокий заработок) whereas the other party looked after the children.

2.(Окончательный разрыв отношений) will not be possible if there is a pension arrangement involved and there is (приказ суда о временном переносе денежных сумм с одного счета супруга на другой) against the members pension rights at retirement age.

3.Where there is a (система взносов в пенсионный фонд, сумма по которым определяется жалованьем служащего), the spouse can use the pension fund to buy (ежегодную выплату,

установленную договором).

4. The right for one of the parties to occupy the matrimonial home up to an agreed point in time, such as the children are independent, is called (судебное решение о пребывании по прежнему месту жительства до наступления заранее оговоренного события).

5.The court will expect the parties to make offers to settle all or part of (имущества, нажитого в браке) and for the recipient to give full consideration.

6.Rule 2.51B of the Family Proceedings Rules 1991 states that the (главная юридически обоснованная цель) of the court must be to ensure that the parties are on an (в равном положении) and deal with the case in ways that are proportionate to the amount of money involved.

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receives during the marriage. However, if personal assets are not kept separate, they may be converted into marital property and then the other spouse may be entitled to a share.

А: А как может быть разрешена ситуация с домом, в котором проживала супружеская пара, если до их бракосочетания дом принадлежал лишь одному из супругов?

В: Things that the spouses owned prior to their marriage remain separate property. However, in an equitable distribution state it may not be fair to exclude one spouse from sharing in the value of the house, especially if he or she has helped pay the mortgage or has made improvements in the house.

Task 8. Translate into English paying attention to the word combinations in bold.

1.Имущественные отношения в семье более подвластны правовому регулированию,

чем личные неимущественные.

2.Имущественные правоотношения между супругами — это урегулированные нормами

семейного права общественные отношения, возникающие между супругами из брака, по поводу их общей совместной собственности, а также их взаимного материального содержания.

3.Законом выделено два правовых режима имущества супругов - законный и договорный. Законный режим имущества супругов действует, если брачным

договором не установлено иное.

4.Раздел общего имущества супругов может быть произведен как в период брака, так и во время его расторжения или после расторжения брака. Раздел общей совместной собственности возможен по взаимному согласию, а при его отсутствии — в судебном порядке.

5.Суть раздела сводится к определению долей каждого из супругов в их общем имуществе. Не все общее имущество супругов подлежит безусловному разделу.

6.В условиях становления и развития рыночной экономики особое значение имеет

договорный режим имущества супругов, предусмотренный в брачном договоре.

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UNIT 6

Prenuptial agreements.

Property on Divorce (II)

VOCABULARY

antenuptial agreement ( pre-marital, pre-nuptial) брачный контракт, добрачный договор,

добрачное соглашение (об имущественных отношениях будущих супругов)

post-nuptial agreement имущественный договор, заключенный между супругами после бракосочетания

windfall receipts случайные доходы (семьи)

heirloom фамильная собственность; фамильная ценность

settlement зд. 1) урегулирование(интересов сторон) 2) акт распоряжения имуществом

(в пользу кого-л.); акт установления доверительной собственности; акт учреждения семейного имущества

undertaking 1) принятая обязанность; положение, постановление договора 2) предприятие retention зд. удержание вещи; право удержания (применительно к вещи, определённой родовыми признаками)

disposition 1) отчуждение (имущества) ; распоряжение (имуществом) 2) постановление, положение (договора, закона) 3) разрешение дела; решение по делу

Task 2. Study the Russian Family Code Chapter VIII , articles 40-44 and section VII, article 161 (see the Appendix).

a)Make your own glossary of the legal terms in English. Look up for their Russian counterparts. Compare it with your fellow-student’s, discuss and complete.

b)Student A: Translate the questions into English.

Student B: Answer the questions.

1.Когда может быть заключен брачный договор? Каков срок его действия?

2.Могут ли супруги посредством брачного договора изменить режим совместной собственности, установленный законом?

3.Какие типы собственности могут быть упомянуты в брачном договоре?

4.Какие требования предъявляются к составлению брачных договоров супругами – гражданами Российской Федерации, а также при участии иностранного элемента?

5.Законодательство какого государства, при наличии иностранного элемента, определяет имущественные права и обязанности супругов?

6.Какие обстоятельства могут привести к признанию договора не действительным?

7.Какие условия необходимы для расторжения брачного договора?

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Task 3. a) Translate the text in writing paying attention to the words and grammar constructions in bold.

Pre-Marital and Post-Marital Agreements in the UK

A pre-marital agreement is an agreement entered into by a man and woman on contemplation of marriage which deals with the financial arrangements that they are to make should their marriage end in divorce. People are increasingly making them, particularly where substantial assets are involved. Post-marital agreements are similar to pre-marital agreements except that they are made during marriage.

Although couples are free to make pre-marital (or post-marital) agreements governing the distribution of property and finance should their marriage break down, they are not completely free to do as they like. Thus, the terms of the agreement cannot limit or oust the divorce court's powers to make property and finance orders, and either party to the agreement can still opt to apply for property and finance orders on divorce.

At one time there was considerable judicial reluctance to uphold these agreements. They were considered to be contrary to public policy as they undermined the institution of marriage. In fact, only in 1995, Thorpe LJ had stated in F v. F (Ancillary Relief: Substantial Assets) [1995] that such agreements were of 'very limited significance' in England and Wales. In recent years, however, there has been a change of attitude, and the benefits of such agreements are recognised as an important part of the settlement culture. However, they are not necessarily binding, as the court has the ultimate say and will take the agreement into account when conducting its discretional exercise, either as one of the circumstances of the case under s.25 or as conduct which it would be inequitable to disregard under s.25(2)(g). Depending on the circumstances, however, the general approach of the courts is that agreements freely negotiated between the parties to a marriage should be upheld, unless they were unfairly entered into or they create injustice.

Edgar v. Edgar is still the leading case on private agreement, but in X v. X (Y and Z Intervening) [2002] , where the wife was held to the agreement - because she had willingly entered into it with the benefit of expert advice –Munby J usefully listed the propositions which apply to such agreements:

-The court must apply the s.25 criteria and reach a just result, what Lord Mcholls in White v. White called the 'fair' result; but the fact that the parties have entered into an agreement is a very important factor in considering what is fair.

-The court will not lightly allow parties to depart from an agreement, and agreements should as a matter of general policy be upheld by the courts, unless contrary to public policy or subject to some vitiating feature, such as lack of legal advice, duress or change of

circumstances.

- The mere fact that one party might have done better by going to court is not of itself generally a ground for permitting that party to resile from an agreement. The court must nonetheless have regard to all the circumstances, including, in particular, the circumstances surrounding the making of the agreement, the extent to which the parties attached importance to it, and the extent to which the parries have acted upon it. The relevant circumstances are not limited to the purely financial aspects of the agreement, but social, personal, religious and cultural considerations can also be taken into account.

Options for Reform - Preand Post-Marital Agreements

As the law currently stands, couples are free to make pre-marital and post-marital agreements about their matrimonial assets, but the court retains a supervisory jurisdiction and has a discretion to decide whether or not the terms of the agreement should be binding in the circumstances.

The question has arisen, however, as to whether there should be legislative reforms to make them legally binding. There has been a reluctance to do this because it would be contrary to

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public policy in that it would undermine the idea of marriage as a life-long indissoluble union. It would also remove the courts' willing to uphold them, and family lawyers are increasingly having to advise clients about them, particularly in 'big money' cases, then perhaps it is time to introduce legislative reform.

As long ago as 1997 Wilson J in S v. S (Divorce: Staying Proceedings) [1997] said that, like other jurisdictions, such as in the USA and the European Union, 'we should be cautious about too categorically asserting to the contrary'. In 1998, the Government mooted the possibility of legislative reform to make such agreements legally binding, except, for example, where there were children, or there had been no independent legal advice, or non-disclosure, or duress. In November 2004, Resolution recommended that s.25 Matrimonial Causes Act 1973 be amended to give the court a duty to treat pre-marital and post-marital agreements as legally binding, subject to the overriding safeguard of significant injustice to either party or to any minor child of the family.

Task 4. Read the text and translate it in written form.

Advantages of Making Marital Agreements Legally Binding

-Creates greater certainty as the parties, not the courts, are responsible for regulating financial and property matters.

-Reduces the need for costly, time-consuming and, sometimes, traumatic litigation. Brings the law into line with the law in most of the rest of Europe.

-Brings the law into line with the law governing cohabitants, as they can enter into private agreements.

-Gives the parties autonomy to choose how to regulate their own affairs.

-Brings the law into line with the increasing emphasis on settlement and agreement on

divorce.

Disadvantages

-There may be problems drafting agreements, and lawyers risk having negligence claims brought against them for failing to draft them appropriately. A party may be unwilling to seek legal advice.

-There may be problems of non-disclosure, duress, mistake and inequality of bargaining

power.

-It is difficult for agreements to make provision for future contingencies, for example the birth ot children, ill-health of either party, loss of a job, or receipt of a windfall, such as an inheritance or a lottery winning.

-The birth of children may cause particular problems, because, although it may be appropriate for a spouse to contract out of any financial obligation to the other spouse, the parental obligation to support and maintain children cannot be terminated by agreement.

-Although greater use of agreements will reduce lawyers' and court time spent in respect of ancillary relief, cases are likely to be brought attacking such agreements on various grounds (such as duress, non-disclosure, incapacity and hardship). It may be difficult to draft legislation to protect against injustice and unfairness, and any legislation may lead to complexity.

-Negligence claims against lawyers may increase because of problems drafting such agreements.

Although reform making these agreements binding would not be a universal panacea for solving all the problems inherent in the current discretionary system of ancillary relief, there is sound argument for reforming the law in order to encourage greater use of agreements. However, any reforms will have to make provision for agreements to terminate on the birth of a child and

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other triggering events (such as illness and unemployment), in order to avoid unfairness and injustice.

Although there are currently no proposals to reform the law, the decision of the House of Lords in Miller v. Miller has arguably made the case for making pre-nuptial agreements binding even stronger. People may wish to safeguard their assets on entering into marriage, particularly where those assets are significant. Furthermore, the Law Commission's proposals for reforms of the law governing property and finance for cohabitants make provision for cohabitation contracts, which makes the case for allowing married couples to make binding agreements even more persuasive. It would seem somewhat discriminatory to allow cohabitants to enter into binding contracts, but not married couples. Permitting pre-nuptial agreements to be binding (subject to certain safeguards) would also fit well with the settlement culture that pervades the family justice system. As Morley ([2006] Fam Law 772) says, the issue is fundamentally 'one of paternalism versus individual responsibility'. Referring to the case of Hyman v. Hyman [1929] (which held that pre-nuptial agreements contravened public policy), Morley states that 'society has changed dramatically since 1929', and that '[j]ust because the courts are supposed to have an almost unfettered discretion does not prevent them from enforcing prenuptial agreements that comply with whatever rules the courts deem fit'.

In July 2007 the Pre-Nuptial Agreement Bill was introduced into the House of Commons by Quentin Davies MP as a private member’s bill to provide for the enforceability of pre-nuptial agreements but this was not taken forward by the Government.

Task 5. Render the following text in Russian paying attention to the words and grammar constructions in bold.

Ancillary Relief Cases with a Foreign Twist

Choice of Law

Once an English court has accepted jurisdiction in an application for ancillary relief under the Matrimonial Causes Act 1973 [after an English divorce] or the Matrimonial and Family Proceedings Act 1984 [after a foreign divorce], the court will apply English law to the dispute, regardless of the nationality of the parties or other connection with another jurisdiction. This contrasts with the position in many other jurisdictions where an ancillary relief application involving UK nationals would be judged pursuant to English law as a result of which expert evidence as to English law is frequently relied upon. The European Commission is currently implementing Rome III which will come into force on 1st March 2008 and will harmonize the applicable law in ancillary relief cases such that it might be the local law, a law of the parties' choice, or the law of closest connection to the parties or the marriage. However, the UK together with Ireland and Malta has decided not to opt into these provisions. Is there though a way of getting foreign law in through the back door? This might be particularly relevant in a case where the parties had entered a pre-nuptial settlement abroad; for example in Spain parties can opt upon marriage for a particular property regime which might effectively exclude from consideration assets brought into the marriage. Two earlier Court of Appeal decisions suggesting that foreign law has no place in English ancillary relief proceedings might not now be considered as good law – Dart v Dart [1996] , no consideration given to USA divorce law in Michigan and Thyssen-Bornemisza v Thyssen-Bornemisza [1985] – no consideration to Swiss divorce law.

Given the current state of the law, is a party now justified in calling expert evidence in relation to foreign law, for example in relation to the enforceability of a pre-nuptial agreement? Can a party claim the costs of doing so? These issues remain unresolved.

Foreign Property

One of the most common situations is the foreign holiday home. At common law all courts have

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