Spousal rights to the property of the debtor before it's included in the bankruptcy estate
September 17, 2019

In a bankruptcy case of a citizen-debtor, as a general rule, his personal property is subject to sale, as well as property belonging to him and his spouse (former spouse) on the right of common ownership (paragraph 7 of Article 213.26 of the Bankruptcy Law).

At the same time, the Plenum of the Supreme Court of the Russian Federation in its Resolution No. 48 of 25.12.2018 "On some issues related to the peculiarities of the formation and distribution of the bankruptcy in bankruptcy cases" rightly pointed out that the spouse (former spouse), who believes that the implementation of the common property in a bankruptcy case does not take into account the legitimate interests of the spouse that deserve attention, and (or) the interests of the persons who are dependent on him, including minor children, are entitled to apply to the court of general jurisdiction with a request to divide about the property of the spouses before its sale in bankruptcy proceedings (clause 3 of article 38 of the RF IC). Thus, the common property of the spouses will be sold at auction in the framework of the bankruptcy procedure only after the court of general jurisdiction resolves the dispute on the division of this property.

In our opinion, the Supreme Court of the Russian Federation in its ruling rightly took into account the interests of the debtor's spouse (former spouse) and their minors. It should be noted that these interests are qualitatively different from the interests of ordinary lenders in bankruptcy proceedings. The courts of general jurisdiction that have a colossal experience of taking into account the interests of minor children when dividing the common property of spouses. In addition, this provision ensures compliance with the constitutional principle of protection of the property that the spouse (former spouse) of the debtor acquired during marriage.

Tatyana Klepikova
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