IN THE NAME OF THE RUSSIAN FEDERATION
Saint Petersburg June XX, 20XX
Magistrate of Court division # XXX, Saint Petersburg, XXXXXXXXXXX,
In presence of Secretary XXXXXXXXXXXXXXX,
Upon having considered in open hearing in the premises of the Court division located at: XXXXXXXXXXXXXXXXXXXXXX, Saint Petersburg, a civil matter
In the action of XXXXXXXXXXXXXXXXXXXXXX against XXXXXXXXXXXXXXXXXXXXXXXXXXXXX for division of common property, by transferring to XXXXXXXXXXXXXXXXX apartment XXX in building number XXX on XXXXXXXXXXXXXX Prospect in Saint Petersburg and by transferring to XXXXXXXXXXXXXX apartment XXX in building number XXX on XXXXXXXXXX Prospect in Saint Petersburg, and for collection from XXXXXXXXXXXXXXX in favor of XXXXXXXXXXXXXXX of 1/2 cost of apartment # XXX in building number XXXXXXXXX on XXXXXXXXXXX Lane, Saint Petersburg, and legal expenses,
Established as follows:
The applicant, XXXXXXXXXXXXXXXXX applied to Court division # XXX, Saint Petersburg, with action against XXXXXXXXXXXXXXXX, for division of the spouses` common property where she asked the court to divide apartment XXX in building number XXX on XXXXXXXXXX Prospect in Saint Petersburg, by transferring XXXXXXXXXXXXXXX apartment # XXX in building number XXX on XXXXXXXXXXXXXXX Prospect in Saint Petersburg and by transferring XXXXXXXXXXX apartment XXX in building number XXX on XXXXXXXXXXXX Prospect in Saint Petersburg, by acknowledging the right of ownership to apartment XXX in building number XXX on XXXXXXXXXX prospect, Saint Petersburg, by XXXXXXXXXXXXX who lost his right of ownership to apartment XXX in building XXX on XXXXXXXXXXXX Prospect, Saint Petersburg, and motivated her claim by the fact that on July XX, 20XX, XXXXXXXXXXXXXXXXXXXXX, citizen of the Netherlands, and XXXXXXXXXXXXXXXXXXXX (maiden name – XXXXXXXXXXX), citizen of Russia, had their marriage registered in Helsinki Magistracy, Finland.
On May XX, 20XX, the marriage between XXXXXXXXXXXX and XXXXXXXXXXXX was annulled. On October XX, 20XX A.Y. XXXXXXXXXXX became aware that her ex-husband XXXXXXXXXXXXXX owned apartment XXX in building XXX on XXXXXXXXXXXX Prospect, Saint Petersburg, purchased on May XX, 20XX, during the period when he was officially married to the applicant. The applicant, XXXXXXXXXXXXXXX is not aware of the present domicile of the defendant, accordingly, she brought an action where the disputed property is located, which is within the territorial jurisdiction of Court division # XXX of Saint Petersburg.
The applicant, XXXXXXXXXXXXXXXXXXX appeared for the preliminary court hearing, confirmed her stated claims in full and, to justify her attitude, explained to the court that during the period of the registered marriage her husband purchased real property, whereof she became aware only on October XX, 20XX, and, accordingly, applied to court with an action for division of jointly acquired property. The fact that her ex-husband XXXXXXXXXXXXXX was able, during the period of marriage, to purchase and then sell real property in Saint Petersburg without obtaining her consent attests to his repeated violations of the RF legislation.
In the course of preparing the case for consideration in open hearing, on May XX, 20XX, the applicant, XXXXXXXXXXXXXXX brought, subject to Article 39 of the RF Code of Civil procedure, a statement of action, where she asked the court to:
1. divide the common property, namely: apartment XXX in building XXX on XXXXXXXXXXXXX Prospect in Saint Petersburg, be transferring:
a. apartment XXX in building XXX on XXXXXXXXXXXXX Prospect, Saint Petersburg, to XXXXXXXXXXXXXX,
b. apartment XXX in building XXX on XXXXXXXXXXXXX Prospect, Saint Petersburg, to XXXXXXXXXXXXXX,
2. collect from XXXXXXXXXXXXXXXX in favor of XXXXXXXXXXXXXXXXX 1/2 cost of apartment # XXX in building number XXX on XXXXXXXX Lane, Saint Petersburg.
3. collect from XXXXXXXXXXXXX in favor of XXXXXXXXXXXXXXX all legal expenses.
The applicant, XXXXXXXXXXXXX, duly notified of the date and place of proceedings, did not appear for court hearing, and submitted to court an application with a request to postpone hearing of the case, but did not provide the court with documents specifying valid excuse for non-appearance, or the necessary grounds for postponing the hearing in court.
The magistrate` s decision on hearing of the case in absence of the non-appearing applicant was fixed in the minutes.
Applicant`s representative, XXXXXXXXXXXXX, though duly notified, did not appear for preliminary court hearing, and provided no documents specifying valid excuse for non-appearance.
Applicant`s representative, XXXXXXXXXXXXX, acting pursuant to power of attorney dd. XX.XX.20XX certified by notary and issued for the period of three years appeared for court hearing, and insisted upon his clarified statements of claim. To justify his position, he explained that disputed property had been purchased during the period of registered marriage, the spouses periodically met in various countries, including Saint Petersburg, and he believes that his client`s claims should be satisfied.
The defendant, XXXXXXXXXXXXX did not appear for court hearing, and submitted an application to the court where he stated that he did not admit the claims and asked to dismiss the action in respect to all claims. He also confirmed the powers of his representative, K.M. Krasnova, asked to consider the case in his absence, but with obligatory presence of one of his representative.
The representative of the defendant XXXXXXXXXXXX acting pursuant to a power of attorney certified by notary appeared for court hearing, did not admit statements of claim, and, to justify her attitude, explained to the court that in fact the spouses did not live together but just met. The magistrate of Court division # 34 delivered a decision in the action of XXXXXXXXXXXXXXX against XXXXXXXXXXXXXXXX on annulment of marriage that was appealed in XXXXXXXXXX District Court and came into force on May XX, 20XX, and that established that conjugal relations with XXXXXXXXXXXXXXXX had ceased in July 20XX, and since that time the parties had lived separately and had had no common household. That is why all the property purchased by her client since July 20XX is solely the defendant`s property and cannot be divided).
The court, upon hearing the opinion of the applicant`s and defendant`s representatives who appeared for court hearing, holds that it is possible to hear the case in absence of the non-appearing parties, pursuant to Article 167 of the RF Code of Civil Procedure and considering that the case was repeatedly postponed, the applicant repeatedly brought a petition for postponing the matter, the applicant did not submit to the court documents confirming that there was valid excuse for non-appearance, and the defendant requests to consider the case in his absence since he lives in the USA.
Having heard the parties` attitudes, and having studied the evidence in their aggregate, and having accepted for proceedings the statements of claim clarified by the applicant XXXXXXXXXXXXXX and her representative XXXXXXXXXXXXXXX, in the action of XXXXXXXXXXXXXXXXX against XXXXXXXXXXXXXXXXX for division of common property, namely, apartment XXX in building XXX on XXXXXXXXXXXXXXXXX Prospect, Saint Petersburg, by transferring:
a. to XXXXXXXXXXXXXXXX apartment XXX in building XXX on XXXXXXXXXXXXXXX Prospect, Saint Petersburg,
b. to XXXXXXXXXXXXXXXX apartment XXX in building XXX on XXXXXXXXXXXXXXX Prospect, Saint Petersburg,
for collection from XXXXXXXXXXXXXXXXXX in favor of XXXXXXXXXXXXXXXXXXXX of 1/2 cost of apartment XXX in building number XXX on XXXXXXXXXXXXX Lane, Saint Petersburg
for collection from XXXXXXXXXXXXXXX in favor of XXXXXXXXXXXXXXXXXXX of all legal expenses,
the court holds that the said claims are not subject to satisfaction in full volume on the following grounds.
Disputable legal relations between the parties shall be considered subject to rules of the RF Civil Code and RF family Code.
Materials of the case suggest that the applicant XXXXXXXXXXXXXXXXX (maiden name – XXXXXXXXXXX), citizen of Russia, concluded official marriage with XXXXXXXXXXXXXXXXXXXXXXXX, citizen of the Netherlands, on July XX, 20XX in Helsinki, which is confirmed by a copy of the marriage certificate. The parties have not children in this marriage.
On May XX, 20XX, the marriage between XXXXXXXXXXXXXXXXXXXXXXX and XXXXXXXXXXXXXXXXXXXXXXXX was annulled, which is confirmed by the following documentary evidence:
Copy of the decision passed by the magistrate of Court Judgement XX, Saint Petersburg, dd. XX.XX.20XX, in the action of XXXXXXXXXXXXXXXXXXXXX against XXXXXXXXXXXXXXXXXXXXXXXXX for divorce, according to which the marriage between XXXXXXXXXXXXXXXXXXX, citizen of the Netherlands, and XXXXXXXXXXXXXXXXXXXXXXXXX, citizen of Russia, registered on July XX, 20XX in Helsinki magistracy, Finland, was annulled. The Judgement came into force on May XX, 2005.
Copy of the appeal ruling of XXXXXXXXXXXXXXXXX District Court dd. XX.XX.20XX, in the complaint of XXXXXXXXXXXXXXXXXXX, according to which the decision of the magistrate in the action of XXXXXXXXXXXXXXXXXXXXX against XXXXXXXXXXXXXXXXXXXXXXXX for divorce was upheld, and XXXXXXXXXXXXXXXXX`s appeal was dismissed.
And copy of the divorce certificate.
In accordance with an Agreement dated May XX, 20XX, sellers XXXXXXXXXXXXXXXXXXXX and others sold to the buyer XXXXXXXXXXXXXXXX (the surname in Russian has an extra letter “e” in the middle) common real property belonging to them by right of joint shared ownership, namely, apartment XXX in building number XXX on XXXXXXXXXXXXXXXXX prospect, Saint Petersburg, at the price of XXXXXXXXXXXXXX.
The fact that this apartment under number XXX is a single real property is confirmed with the apartment passport issued by Saint Petersburg City Authority for Real estate Inventory and Appraisal which specifies that this apartment with the living area equal to 139.50 sq.m. has one lavatory and one bathroom. The inventory cost of the apartment in prices of year 2004 is equal to XXXXXXXX rubles.
In accordance with an agreement dated March XX, 20XX, seller XXXXXXXXXXXXXX sold to XXXXXXXXXXXXXXXXXXXXX apartment XXX in building XXX in XXXXXXXXXXXXXXX Lane, Saint Petersburg, at the price of XXXXXXX rubles. The inventory cost of the apartment as of XX.XX.20XX amounts to XXXXXXXX rubles.
In accordance with an agreement dated XX.XX.20XX, the seller XXXXXXXXXXXXXX sold three-room apartment # XXX in building # XXX in XXXXXXXXXXXXXXLane, Saint Petersburg, at the price of XXXXXXXXXXXXXXX rubles to XXXXXXXXXXXXXXXXX.
While purchasing and alienating apartment XXX in building XXX in XXXXXXXXX Lane, Saint Petersburg, XXXXXXXXXXXXXXXXXXX submitted an application signed by him in person to the Head Authority of Federal Registration Service in Saint Petersburg and Leningrad region where he specified that on March XX, 20XX he was not officially married.
Having analyzed the evidence obtained in the matter, and reviewed title documents requested for and entered into the record, and issued for the real property making part of the disputed property, the court established that apartment XXX in building XXX on XXXXXXXXXXXX Prospect, Saint Petersburg, belongs by right of ownership to XXXXXXXXXXXXXXXXXXX (the surname in Russian has an extra letter “e” in the middle), and apartment XXX in building XXX in XXXXXXXXXXXXXXX Lane, Saint Petersburg, belonged to XXXXXXXXXXXXXXX by right of ownership prior to alienation, and the action was brought against XXXXXXXXXXXXXXXXXXXXXXXXXXXX to whom the applicant was officially married.
Given this, the court obliged the applicant to specify more exactly the proper defendant, and clarify certain claims in part of division of the common real property, - apartment XXX by transferring to XXXXXXXXXXXXXXXX apartment XXX in building XXX on XXXXXXXXXXXXXX Prospect, Saint Petersburg, and to XXXXXXXXXXXXXXX – apartment XXX in building XXX on XXXXXXXXXXXXX Prospect, Saint Petersburg, lodged by the applicant in breach of Item 1 Article 39 of the Family Code, since the apartment is regarded divisible in kind only in case it has two separate entrances or can be refurnished to that effect. The apartment can be divided in kind if it is possible to provide each co-owner not only with separate living space but also separate utility rooms (kitchen, bathroom, lavatory), besides, the court cannot go beyond the limit of claims that were not lodged by the applicant.
The applicant`s references contained in explanations that the defendant`s given name and surname can be translated into Russian differently cannot be accepted by the court, since legal proceedings in the Russian Federation are effected in Russian and based on the RF legislation.
An obligation to prove the fact of the parties` registered marriage, marriage annulment, structure and cost of property purchased while married, subject to the general rule concerning distribution of obligations to provide evidence, in accordance with Article 56 of the RF Code of Civil Procedure, shall be imposed on the applicant.
The court believes that the applicant and her representative had an opportunity to exercise their rights and obligations provided for by Articles 35 and 56 of the RF Code of Civil Procedure, to provide the court with reasons and evidence confirming validity of the applicant`s claims, in connection with which the court repeatedly assisted in collection of documentary evidence, suggested that the applicant and her representative should provide trustworthy and acceptable evidence in the action and clarify statements of claim, and provided time for that by repeatedly postponing court hearings, however the applicant and her representative did not use their right, and since the court cannot determine on its own the proper defendant in these court proceedings, subject to Articles 40, 41 of the RF Code of Civil procedure or go beyond the limit, or independently change, the claims, the court dismisses the applicant`s claims.
Besides, the court dismisses the applicant`s action subject to Item 4 Article 38 of the RF Family Code, according to which, if spouses lived separately upon factual termination of family relations, property acquired by each spouse during such time is not their common property but the property of such spouse.
As it follows from the appeal ruling of XXXXXXXXXXXXXX District Court dd. XX.XX.20XX, passed in reply to the complaint lodged by XXXXXXXXXXXXXXXXXXX, in accordance with which the magistrate`s Judgement in the action of XXXXXXXXXXXXXXXXXXXXX against XXXXXXXXXXXXXXXXX for marriage annulment was upheld, and XXXXXXXXXXXXXXXXXXX appeal was dismissed, and which defined legally significant circumstances, namely, factual termination by the parties of family and conjugal relations, separate living since July 20XX, which was not contested by the applicant.
Court conclusions have prejudicial character and shall not be proved again in hearing of other civil cases where the same persons will participate. Thus, property acquired by each spouse at that time is the property of such acquiring spouse, since XXXXXXXXXXXXXXXXXXXXXX (the surname in Russian has an extra letter “e” in the middle) purchased apartment XXX in building XXX on XXXXXXXXXXXXXXXX Prospect, Saint Petersburg, on May XX, 20XX, and XXXXXXXXXXXXXXXXXXXXXXXXXX purchased apartment XXX in building XXX in XXXXXXXXXXXXXX Lane, Saint Petersburg, on March XX, 20XX.
Upon marriage annulment former spouses shall be entitled to lodge a claim for division of property, and their right is subject to three-year limitation of action, subject to Item 7 Article 38 of the RF Family Code.
In compliance with explications of the Resolution adopted by the Plenary Session of the RF Supreme Court, the three-year period for division of property starts from the moment when the person became aware or should have become aware of the violation of their right.
In court hearing on 09.06.2008 the defendant`s representative claimed that the applicant XXXXXXXXXXXXXXXXX had missed the limitation period and referred to the testimony of defendant`s representative, XXXXXXXXXXXXXX in the same open hearing on XX.XX.20XX to the effect that the spouses had acquired the disputed property in common.
The current legislation establishes the limitation period for applying to court for protection of a violated right for the purposes of securing stability of civil turnover.
In accordance with Article 199 Item 2 of the RF Civil Code, expiry of the limitation period referred to by either party to the dispute, is a reason for the court to dismiss the action.
Request of the defendant`s representative for application of the consequences of limitation period omission made before the court delivered the decision is unjustified and cannot be used by the court as the reason to dismiss the action, since the marriage was annulled on May XX, 20XX, and the three-year period expiries on May XX, 20XX, while the applicant brought the action for division of property on April XX, 20XX, that is within the limit of the three-year period established by law. Besides, the applicant XXXXXXXXXXXXX referred in the action and in preliminary court hearing, to the fact that she had become aware of violation of her right only on XX.XX.20XX, after she had obtained a certificate from the Authority of Federation Registration Service in Saint Petersburg and Leningrad region.
In the course of case consideration, the applicant XXXXXXXXXXXXXX increased the amount of her claims by including in the disputed property apartment XXX in building XXX in XXXXXXXXXXXXX lane, Saint Petersburg, however, she did not pay additional state duty and lodged claims for collection of legal expenses from the defendant that cannot be satisfied by the court in case the applicant`s action is dismissed, in compliance with Article 103 of the RF Code of Civil procedure. Given the above, and subject to Article 333.19 of the RF Tax Code, part 1 Item 1, and Article 333.20, part 1 Item 10 of the RF Tax Code, in connection with increase by the application of the amount of claims in the course of proceedings, the applicant shall pay upon delivery of the decision the missing amount of state duty equal to 20 000 rubles, based on the calculation provided by the applicant together with the action, based on the average cost of housing in the Central district in Saint Petersburg (98.76 sq.m. – total housing area)/ 2*32650 = 1 612 257 rubles).
In conformity with Articles 194-199 of the RF Code of Civil procedure, the court
That the action of XXXXXXXXXXXXXXXXXXXXXX against XXXXXXXXXXXXXXXXXX for division of common property, by transferring to XXXXXXXXXXXXXX apartment XXX in building XXX on XXXXXXXXXXXXX Prospect, Saint Petersburg, and to XXXXXXXXXXXXXX – apartment XXX in building XXX on XXXXXXXXXXXX Prospect, Saint Petersburg, and for collection from XXXXXXXXXXXXXXXXX in favor of XXXXXXXXXXXXXXXXXX of 1/2 cost of apartment XXX in building XXX in XXXXXXXXXXXXX Lane, Saint Petersburg, and for collection of legal expenses, shall be dismissed.
That the state duty shall be collected from XXXXXXXXXXXXXXXXXX in favor of the state in the amount of 20 000 (twenty thousand) rubles.
The decision can be appealed according to the appeal procedure in XXXXXXXXXXXXXXX District Court, Saint Petersburg, within 10 days via the magistrate.