Негативные последствия презумпции общности долгов супругов при разделе имущества

Abstract

The authors investigate the problem of debt division at divorce of spouses. The existing approach of the courts is not unambiguous: on the one hand, the legislator considers debts sovereign, on the other hand, joint and several liability may arise for debts, but in the latter case the debtor spouse must prove that the borrowed funds were spent on the needs of the family. The joint and several liability of a bona fide spouse for the obligations of the debtor spouse in bankruptcy remains a controversial issue. Studying the materials of domestic law enforcement practice, the authors see in the work of courts a pro-creditor position in the resolution of these disputes, which contradicts the principles of the Constitution of the Russian Federation and procedural law. Scientific novelty of the research consists in the fact that in defending its position a bona fide spouse in court can determine the absence of formalized documents in proving family expenses. The authors also managed to conclude that the presumption of community of debts is in conflict with the presumption of community of family expenses and recommend the legislator to introduce a mandatory written consent of a bona fide spouse as guarantor, which, in their opinion, will level the vicious presumptions of community of debts and consent of the second spouse to the emergence of a credit obligation.