THE SUPREME COURT HAS RELEASED THE BANKRUPT'S EX-WIFE FROM A JOINT OBLIGATION

The Economic Board of the Supreme Court in December 2022 had to consider the bankruptcy of one of the former spouses for the obligations of the other. The lack of uniformity in such lawsuits led to the fact that the lower courts had previously introduced the bankruptcy procedure (restructuring), considering article 45 of the Family Code as the basis for joint and several liability for obligations (case no. A71-2503/2021).

The Temnikovs (Elena and Yuri) have been married since 1988. In 2013-2015, the spouse got into debt, having received loans from Natalia Davlyatova in the amount of more than 10 million rubles. According to the woman's claim, in November 2017, the court recovered 11.84 million from Yuri, and in 2018 the man was declared insolvent (case no. A71-7988/2018). After that, the Temnikovs divorced.

It was impossible to recover money from Yuri Temnikov. Davlyatova in court obtained from the district court recognition of the debt as a common obligation of the former spouses (in equal shares). After that, a bankruptcy lawsuit was filed against Elena Temnikova. At the same time, all judicial instances supported Davlyatova's statement, relying on the previous decision of the district court on the community of the spouses' debt to the creditor.

Elena Temnikova complained to the Supreme Court. In her opinion, she has no personal financial obligations to Davlyatova. At the same time, as the ex-spouse considered, it is unfair to take away any personal assets on account of the obligation taken by the ex-husband. It was this position that was eventually supported by the Economic Board of the Armed Forces of the Russian Federation, which overturned the verdicts of three judicial instances.

The Supreme Court considered that it was unreasonable to initiate bankruptcy proceedings in such cases. After all, we are talking about the recognition of a common debt and concerns the property acquired by the spouses in marriage, and not all personal property (premarital property or assets received as a result of donation). In this case, there is no joint obligation to pay the debt for both ex-spouses. We can only talk about replenishing the bankruptcy estate from the part of the property that was acquired in marriage.

Now, according to lawyers, creditors will need to seek a separate court decision on the recovery of assets of persons who were not directly involved in the transaction. Apparently, it will not be easy to turn the debts of one spouse into the obligations of both.

Now, experts emphasize, banks often require written consent from the second spouse in cases when the first one receives a loan. If a surety is issued in this case (that is, an independent obligation), then bankruptcy will be possible. But if a simple consent is issued, then it will clearly not be enough to initiate bankruptcy proceedings.

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