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Ablyatipova N.A. Consistency of Law Enforcement Practice in Matters of Deviation from the Principle of Equality of the Spouses’ Shares in Their Common Property

DOI: https://doi.org/10.15688/lc.jvolsu.2021.3.18

Natalia A. Ablyatipova, Candidate of Sciences (Jurisprudence), Associate Professor, Honored Lawyer of the Republic of Kazakhstan, Department of Civil Law, Russian State University of Justice (Crimean Branch), Pavlenko St / Studencheskiy Lane, 5/2, 295006 Simferopol, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. , This email address is being protected from spambots. You need JavaScript enabled to view it. , https://orcid.org/0000-0002-4579-3871


Introduction: the issues of the division of the jointly acquired property of spouses do not lose their relevance. As a general rule, in the absence of an agreement between the spouses, the division is carried out in court based on the legally established presumption of equality of shares, regardless of the method of participation in the formation of joint property. However, this principle is not absolute and the court has the right to deviate from the principle of equality by increasing the share of one of the spouses. Meanwhile, the possibility of increasing the share in the marital property is interpreted ambiguously in law enforcement, and the incorrect interpretation of the norm is revealed. In this regard, the author sets the goal: to summarize the approaches developed by the judicial practice on this issue, to identify and analyze the grounds for deviation from the principle of equality of shares in the division of property of spouses. Results: the reasons for the increase in the marital share are investigated, the problems of determining the criteria are identified, and the inconsistency of court decisions in similar cases when considering the categories “child’s interest” and “spouse’s interest” is established. Conclusions: based on the analysis of the legislation and materials of judicial practice, the problems of applying the grounds for derogating from the equality of the shares of spouses in the division of jointly acquired property and the ambiguity of the law enforcement are highlighted. Based on the results of the work, the author has developed some practical proposals and recommendations for improving the legislation.

Key words: property of spouses, division of common property, an increase of share, interest of the child, deviation from the principle of equality of shares of spouses, judicial practice.

Citation. Ablyatipova N.A. Consistency of Law Enforcement Practice in Matters of Deviation from the Principle of Equality of the Spouses’ Shares in Their Common Property. Legal Concept = Pravovaya paradigma, 2021, vol. 20, no. 3, pp. 116-124. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2021.3.18  

DOI: https://doi.org/10.15688/lc.jvolsu.2021.3.18 Natalia A. Ablyatipova, Candidate of Sciences (Jurisprudence), Associate Professor, Honored Lawyer of the Republic of Kazakhstan, Department of Civil Law, Russian State University of Justice (Crimean Branch), Pavlenko St / Studencheskiy Lane, 5/2, 295006 Simferopol, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. , This email address is being protected from spambots. You need JavaScript enabled to view it. , https://orcid.org/0000-0002-4579-3871 Introduction: the issues of the division of the jointly acquired property of spouses do not lose their relevance. As a general rule, in the absence of an agreement between the spouses, the division is carried out in court based on the legally established presumption of equality of shares, regardless of the method of participation in the formation of joint property. However, this principle is not absolute and the court has the right to deviate from the principle of equality by increasing the share of one of the spouses. Meanwhile, the possibility of increasing the share in the marital property is interpreted ambiguously in law enforcement, and the incorrect interpretation of the norm is revealed. In this regard, the author sets the goal: to summarize the approaches developed by the judicial practice on this issue, to identify and analyze the grounds for deviation from the principle of equality of shares in the division of property of spouses. Results: the reasons for the increase in the marital share are investigated, the problems of determining the criteria are identified, and the inconsistency of court decisions in similar cases when considering the categories “child’s interest” and “spouse’s interest” is established. Conclusions: based on the analysis of the legislation and materials of judicial practice, the problems of applying the grounds for derogating from the equality of the shares of spouses in the division of jointly acquired property and the ambiguity of the law enforcement are highlighted. Based on the results of the work, the author has developed some practical proposals and recommendations for improving the legislation. Key words: property of spouses, division of common property, an increase of share, interest of the child, deviation from the principle of equality of shares of spouses, judicial practice. Citation. Ablyatipova N.A. Consistency of Law Enforcement Practice in Matters of Deviation from the Principle of Equality of the Spouses’ Shares in Their Common Property. Legal Concept = Pravovaya paradigma, 2021, vol. 20, no. 3, pp. 116-124. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2021.3.18  

 

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