Husband and wife are not one side – Newspaper Kommersant No. 238 (7439) of 12/22/2022

The Supreme Court of the Russian Federation (SC) considered the question of whether spouses become joint and several debtors if their obligation is recognized as general. The Economic Collegium recognized that if one of the spouses took the loan, the other cannot be bankrupted under this obligation. The creditor can only claim the property of the second spouse, which is acquired in marriage. Lawyers note that there was no uniform practice for such disputes, and now citizens will be more protected from the burden of spouse’s debts, which they might not even know about.

The Supreme Court on the evening of December 20 published the full text of the decision in the case of debt obligations of spouses for each other.

So, Elena Temnikova until 2018 was married to Yuri Temnikov, who in 2013-2015 took four loans for 10 million rubles. with Natalia Davlyatova. Mr. Temnikov was unable to repay the debt, and in November 2017, the district court recovered 11.84 million rubles from him. (including interest). Ms. Davlyatova initiated the bankruptcy of the debtor, in August 2018 he was declared insolvent. But the creditor failed to return the money, so Natalya Davlyatova in court demanded that the debt to her be recognized as a common obligation of the husband and wife of the Temnikovs.

In May 2020 (already after the divorce of the spouses), the court granted her request, and in November 2021, at the request of Yuri Temnikov, the district court distributed the obligations between the spouses in equal shares. Mrs. Davlyatova filed for bankruptcy of Elena Temnikova. Arbitration courts of three instances agreed to initiate proceedings, pointing to the recognition of the debt as common for the spouses. Mrs. Temnikova appealed these decisions to the Supreme Court, stating that she personally had no monetary obligation to the creditor. On account of the debt of the ex-husband, you can take only property jointly acquired in marriage, but not any personal assets.

The SC explained that “the presumption of consent with the actions of the spouse” does not mean that the partner has debt obligations to third parties “with whom he did not enter into legal relations.”

Consequently, the recognition of the debt as common does not yet entail a joint and several obligation to repay it, the board emphasized, and does not create a right of claim for the creditor, giving the right to bankrupt the wife for the debts of her (now ex) husband. The Supreme Court recognized the initiation of bankruptcy of the spouse unreasonable and terminated the procedure.

Olesya Petrol, partner of Petrol Chilikov, explains that, by default, a spouse’s debt is considered personal and collection is applied only to his premarital or donated property, as well as to a share in jointly acquired property. To recognize the debt, the common creditor needs to prove that the funds received were spent on the needs of the family, says Anna Larina, executive director of the Help Management Company.

At the same time, according to lawyers, there has not yet been a uniform practice on the possibility of declaring the second spouse bankrupt on the basis of an obligation recognized as general. Some courts considered this possible, referring to Art. 45 of the Family Code – for common obligations, the spouses are jointly and severally liable, including personal property in case of insufficiency of the common one. Other courts rejected such requests of creditors, believing that the recognition of obligations as general is aimed solely at replenishing the bankruptcy estate at the expense of jointly acquired property. The SC supported the latter approach.

“The establishment of a general obligation regime does not mean that a spouse who is not a party to a transaction with a creditor can be an independent defendant,” agrees Valeria Gerasimenko, general director of the Union of Arbitration Managers SRO Severnaya Stolitsa.

To initiate bankruptcy, creditors will now apparently need to obtain a separate court decision on recovery from the second spouse, Olesya Petrol believes, but first they need to establish the fact that the common property is insufficient to pay off the debt, which will not be easy.

“The decision of the Supreme Court will prevent creditors from trying to turn the debt of one spouse into an obligation for both,” says Elena Mende, lawyer of the Anatoly Sobchak Baltic Bar Association. This is fair, she adds, since the creditor still has the option to foreclose on common property, and citizens can “avoid foreclosing a spouse’s debts on personal property acquired out of wedlock.” At the same time, it does not matter how the debt arose, notes Valeria Gerasimenko: “In both cases, the consent of the second spouse to the loan is presumed. The only difference is that banks, as a rule, reinsure themselves and take their consent in writing.” Thus, banks will also not be able to demand bankruptcy of the second spouse for the debts of the first. But if the second spouse vouched for this loan, Ms. Larina clarifies, this is already an independent obligation and bankruptcy on it is possible.

Anna Zanina, Ekaterina Volkova