D E C I S I O N
XXXXXXXXXXXXXXXXXX district court of Saint Petersburg composed of:
Attorney at Law XXXXXXXXXXXXXX and
Attorney at Law Karina Krasnova
After consideration in the course of an open hearing of a petition for appeal of XXXXXXXXXXXXXX from a judgment of Justice of Peace of judicial district of June XX, 20XX on a civil action of XXXXXXXXXXXXX against XXXXXXXXXXXXXXXXX on partition of property
H a s f o u n d:
Plaintiffs (former spouses) married on July XX, 20XX in Helsinki, Finland. The marriage was dissolved on May XX, 20XX based on a decision of Justice of Peace of judicial district No XX of Saint Petersburg of December XX, 20XX on an action of XXXXXXXXXXXX against XXXXXXXXXXX, appellate resolution of XXXXXXXXXXXX district court of May XX, 20XX.
XXXXXXXXXXXX submitted a claim to judicial district No XXX of Saint Petersburg on partition of jointly acquired property (apartment No XX in building XX of XXXXXX Ave acquired by XXXXXXXXX on May XX, 20XX), recovering from the respondent of cost of 1/2 of share of apartment No XXX of building XXX of XXXXXXXX St. acquired by the respondent on March XX, 20XX and sold by the respondent on October XX, 20XX.
By Judgement of Justice of Peace of judicial district No XXX the claim was dismissed.
The plaintiff submitted a petition for appeal from the above judgment. The plaintiff specified that while considering the case the court of first instance did not take into account that marital relationships between the parties continued until 20XX, and consequently, the disputed property was to be divided as jointly acquired during their marriage.
In accordance with Article 328 of the Civil Code of the Russian Federation, the Court of Appeal while considering the petition for appeal has the right to:
Affirm the decision of Justice of Peace and dismiss the appeal, petition;
Change the decision of Justice of Peace or recall the judgment and make a new decision;
Recall the judgment of Justice of Peace fully or in part and dismiss the matter or leave the claim undecided.
In accordance with Article 330 of Code of Civil Procedure, decision of Justice of Peace may be recalled or changed in the court of appeal on the grounds specified in Articles 362 – 364 of the Code.
The claimant and her representative appeared before the court and affirmed the petition for appeal.
Representative of the respondent appeared before the court and resisted the petition for appeal. In the course of previous court hearings the respondent also was against satisfaction of the petition for appeal specifying that marital relationships between the parties had been ceased since July 20XX, in view of which he considered the disputed property as his own property and not jointly acquired property.
After hearing of the parties and examination of the case materials the court considers that the judgment of Justice of Peace shall be affirmed.
In accordance with Article 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property. In accordance with part 1, 4 of Article 38 of the Family Code of the Russian Federation, division of jointly acquired property of spouses may be made both during their marriage and after its dissolution subject to a request of one of the spouses and also if a creditor submits a petition on partition of joint property of spouses in order to levy execution upon share of one of the spouses in joint property of spouses. The court may recognize property acquired by each of the spouses during their separation in case of termination of family relationship as property of each of the spouses. If after actual termination of family relationship and keeping joint house the spouses did not acquire joint property, the court, in accordance with paragraph 4 of Article 38 of the Family Code of the Russian Federation, may divide only that part of property which had been their joint property by the time of termination of keeping joint house.
The court considers that in order to make a correct decision it is necessary to establish since what time the parties actually ended their family relationship. In accordance with the requirements of the Family Code of the Russian Federation, elements of family relationship are: keeping joint house, joint budget, joint household items, mutual support of each other, including material support, living together, intimate terms, joint decision of different issues of vital activities of the family, as well as other actions witnessing assistance in consolidation of the family and its wealth.
In accordance with Articles 12, 56 of the Code of Civil Procedure of the Russian Federation, civil actions shall be considered based on competitiveness and legal equality of the parties, each of which shall prove the circumstances to which it refers and on which it bases its requirements and objections.
The court finds that the claimant (both during consideration of the case by Justice of Peace and in the instance of appeal) did not submitted convincing evidence that actual marital relationship continued between the parties as of the moment of acquisition of disputed real estate objects.
Decision of Justice of Peace of judicial district No XX, according to which the marriage was dissolved, says that marital relationships between the parties were ended in July 20XX. The court considers that this court decision has pre-judicial force for consideration of the dispute, and is not cancelled or changed in accordance with the established procedure.
Based on explanations of the claimant herself given during consideration of the case on dissolution of marriage (both by Justice of Peace and in the instance of appeal), we may see that the claimant confirmed the fact of termination of marital relationship since July 20XX and did not submitted evidence to the contrary. Based on petition on dissolution of marriage of the claimant of January 20XX submitted to Family court of XXXXXXXXXXXXX, we may see that the respondent discontinued to fulfill lawful obligations of the spouse, in particular, related to joint residence, discontinued to render financial assistance. Based on own petition of the claimant submitted to the address of the prosecutor’s office in November 20XX, we may see that as of the moment of delivery of this petition the claimant agreed with the affirmation that “an opportunity to salve the marriage is lost”.
The court considers that position of the claimant with regard to period of termination of family relationship is inconsistent, because it contradicts to her own affirmations given earlier. Whereas position of the respondent was always the same, XXXXXXXXXX always affirmed that marital relationships were actually ended by the parties in July 20XX.
The court thinks that testimony of witnesses on continuation of family relationship by the parties until 20XX – 20XX, as well as testimony of witness XXXXXXXXXXXX on continuation of family relationship by the parties until 20XX – 20XX, may not be taken as the basis for satisfaction of claim, because they contradict to own affirmations of the parties with regard to period of termination of marital relationship. Besides, none of the witnesses gave testimony confirming that as of the moment of purchase of disputed real estate objects (May 20XX, March 20XX) he met the XXXXXXXXXXX and, hence, may testify family relationship or their elements between the parties. The court takes into account that witnesses met the parties only episodically and did not see the XXXXXXXXXX during the specified periods of time. Major part of evidence of the above witnesses, which the court has no grounds to suspect, refer to the earlier period – 20XX – 20XX – and has no major significance for consideration of the dispute.
The court thinks that the claimant did not prove availability of elements of family relationship in the disputed period.
The court takes into account that, in fact, due to specific character of this marriage (citizens of Russia and United States) the parties since the moment of their marriage have never lived together and saw each other only periodically on the territory of European states. Their marriage was actually “guest marriage”, which does not impair its validity. However, no evidence was presented to the court proving that as of May 20XX and March 20XX the parties continued to see each other with the intention to continue their family relationship.
After examination of passports of the parties and marks on entry and departure the court comes to a conclusion that during the disputed period (20XX, 20XX) the parties did not meet each other and were not present in any country together.
Ho evidence has been submitted that during the specified period the parties had joint budget, joint household items or rendered mutual support to each other, including material support. On the contrary, based on explanations of the parties (including the claimant herself), we may see that since July 2001 XXXXXXXXXXXX has stopped rendering material support to XXXXXXXXXXXX. There is no information about keeping joint house or budget.
Tax returns submitted by XXXXXXXXXX for 20XX – 20XX on behalf of both spouses may not be considered by the court as evidence of keeping joint budget, because XXXXXXXXXXX herself confirms the fact that these tax returns were made by her spouse in her absence and that she did not sign them. Besides, the court takes into account that these tax returns refer to the earlier period of time than the disputed period.
The court takes into account that XXXXXXXXXXXX did not know about acquisition of disputed real estate objects, because XXXXXXXXXXX did not inform her about it (this fact is confirmed by the claimant), which also, in the opinion of the court, is an indirect evidence of the fact that during the disputed period the parties did not recognize themselves as spouses. Based on correspondence between the parties, and also correspondence between the respondent and his attorney, we may see that during the disputed period relations of the parties had conflict character and actually related to solving of procedural issues of dissolution of their marriage.
The court takes into account that in the specified period of time the respondent already entered into relations with other women. The parties did not solve any joint issues related to vital activities of the family in this period of time.
Arguments of the claimant about availability of joint debts in view of loan agreements concluded by XXXXXXXXXXXX in the course of foundation of Aphrodite gallery in XXXXXXXXXXX also may not be taken by the court, because under these agreements the respondent is not a debtor but a creditor. Besides, the court considers that legal relations covering activities of Aphrodite gallery shall be regulated by the law of XXXXXXXXX , on the territory of which this legal entity is situated. The Parties may not be deprived of the opportunity to solve property disputes with regard to this gallery and their shares therein, including also by judicial process.
The court takes into account that Justice of Peace determined legally relevant circumstances correctly, used correct rules of the law, gave correct evaluation of the submitted evidence. Evidence seized by the court during consideration of the case in the instance of appeal does not deny conclusions of Justice of Peace with regard to this case.
Thus, the court comes to a conclusion that there are no grounds to revoke the above decision of Justice of Peace.
Based on the above, in accordance with Articles 328, 330 of the Code of Civil Procedure of the Russian Federation, the court
Decision of Justice of Peace of judicial district No XXX of June XX, 20XX on a civil action of XXXXXXXXXXXXX against XXXXXXXXXXXXXXX on partition of property – shall be affirmed, petition for appeal of XXXXXXXXXXXXXXXXXXXXXXXXXXX shall be dismissed.
This decision may not be disputed according to cassational procedure, but may be disputed in Saint Petersburg city court in the order of judicial supervision.
Stamp: [TRUE COPY, Judge, Secretary]