Family law: what requirements must a prenuptial agreement meet?
Marriage contract in accordance with Art. 40 of the RF IC defines the property rights and obligations of spouses during marriage and upon its dissolution. The rights and obligations provided for in such an agreement may be made dependent on the occurrence or non-occurrence of certain conditions, as happens when concluding ordinary civil transactions. One of these conditions may be the betrayal of a spouse.
When including such a condition in the document, it is necessary to take into account that, in accordance with clause 3 of Art. 42 of the RF IC, a marriage contract cannot:
- limit the legal capacity or capacity of spouses;
- the right to go to court for protection;
- regulate personal non-property relations of spouses, the rights and obligations of spouses in relation to children;
- provide for provisions limiting the right of a disabled, needy spouse to receive maintenance;
- contain other conditions that place one of the spouses in an extremely unfavorable position or contradict the basic principles of family law.
Consequently, the listed rights and obligations cannot be made dependent on the terms of the marriage contract, including the terms providing for the consequences of adultery. That is, adultery cannot be the reason for restricting the right, for example, to file a claim for division of property or visiting certain places, a ban on communication with children, refusal to provide maintenance to a disabled spouse, etc. At the same time, this article of the RF IC does not limit the action marriage contract to the regime of joint property of the spouses and can change it. However, in this case, one of the spouses cannot be placed in an extremely unfavorable position, for example, the condition according to which the spouse, as a result of committing infidelity, loses all jointly acquired property can be declared invalid (see the Appeal ruling of the Moscow City Court dated April 30, 2013 in case No. 11-17943).
Read more about prenuptial agreements in the legal instructions: Marriage agreement - what do you need to know?
PSYCHOLOGY OF MARITAL CHEATY
Adultery is one of the unpleasant attributes of family life. They were, are and will be - this triangle is as old as the world! But this doesn’t make the mental pain of the person being cheated on any less. Usually, the news of betrayal is a strong shock, which not everyone can survive.
In this regard, we recall the famous experience of the famous Georgian psychologist Dmitry Uznadze. He took a pair of monkeys, separated the male with a grid, and placed another one with the female. And when the female yielded to the advances of her new lover, her “legitimate” male watched their intercourse through the bars... A day later he had a heart attack. When the female cheated not behind bars, but behind an impenetrable wall (that is, the male did not see the very fact of betrayal), the experiment did not affect the male’s health in any way. I don’t think we are much different from monkeys in these matters.
However, in modern society the attitude towards this problem is quite contradictory. Various researchers, consultants, doctors express all sorts of opinions about adultery, considering extramarital affairs (extramarital sex) a natural and typical phenomenon for our reality, which should be accepted as such and try to adapt to it. Some supporters of “alternative channels of emotional and erotic communication” are trying to prove that well-concealed extramarital affairs do not harm the marriage in any way and, on the contrary, contribute to its “ease” and integrity, making the family happy and strong.
Moreover, adultery, in particular male infidelity, is considered as a kind of effective psychotherapeutic remedy, thanks to which many men successfully overcome life crises. Often they rush into love affairs precisely at the moment of a personal crisis, usually caused by failures in the professional sphere, a feeling of dissatisfaction with work or some circumstances.
Such a romance acts as a support, a psychological crutch: it helps to again believe in oneself, one’s own capabilities, and the new woman willingly agrees to listen to the complaints of a failed man about life. If the husband had not started an affair at this time, such therapists believe, the family might not have been able to withstand the emotional stress: the wife would have become irritable, harsh, and finally snapped - and the couple’s slow “drift” into oblivion would have begun.
For centuries, the culture of different nations has shaped customs and morals, norms of relationships that form the basis of requirements for the behavior of all family members, and primarily for the behavior of spouses. Some peoples have a rather ambiguous attitude towards adultery: in some it is customary to punish the unfaithful wife, while in others, on the contrary, the husband is subject to social sanctions.
According to the Italian historian Marco Polo, women of the Arab Assani tribe have every right to “walk to the left” every fourth day. In the Mariana Islands, an unfaithful wife is kicked out of the house, all her property is taken away, and her lover is most often simply killed. A more severe punishment awaits the womanizer husband: all the women in the area pounce on him and torment him until he gives up the ghost or, at best, becomes crippled. In Grand Bassam (Africa), a traitor, in order to atone for his guilt, must give his other half a gold ornament. And the wife’s lover must work as a servant in this family for some time. The Ashanti tribe treats an unfaithful wife more harshly: the husband... bites off her nose. Therefore, to stay with your nose intact, it is best to live in Borneo, because it is easiest to get a divorce there. For spouses, instead of proving that they do not get along in character, it is quite enough to state that they heard the singing of a bird at night, which brings misfortune in family life.
At the same time, one very important feature is striking: since ancient times, excessive severity in behavior was required exclusively from women. The narrow scope of women's freedom was limited to such an extent that she was not only denied the right to express any feelings for a man who was not her husband, but she was generally considered a thing, the property of her husband. We find evidence of a similar attitude towards women among the ancient Germans in the description of Tacitus.
A wife was usually bought by giving gifts to her family. And they treated her accordingly. The infidelity of wives was punished very severely by their husbands. “Having loosened the traitor’s hair and stripped her naked, the husband, in the presence of relatives, drives her out of his house and, whipping her with a whip, drives her throughout the village. No matter how beautiful, young and rich she may be, she will never find a new husband,” says Tacitus.[3]
Well, how can one not think here about how tenacious these “traditions” were. In the description of domestic family life of the last century we find the following: “Despite the fact that male infidelity is much more common, only the wife’s infidelity is condemned and punished. The punishment was that the husband harnessed his wife to a cart or sleigh instead of a horse, forcing him to carry him, and at the same time beat his wife with a whip. Or he tied his wife to a shaft by her braids and drove the horse to gallop.”[4]
Many centuries have passed, but, unfortunately, in many of our families the semi-wild morals of our ancestors are still preserved: a disdainful attitude towards women and the idea that “only a man is the king of nature” can allow himself “liberties on the side.”
Of course, such a double morality will not bring happiness to the family if the man and woman do not understand one important truth: you need to take care of, respect the feelings of the other, learn to understand your neighbor, accept his pain, take his place; learn to think not only about yourself, your feelings and grievances. And then there will be harmony and mutual understanding in the family. In the meantime, unfortunately, we very often have to deal with the problem of extramarital affairs - this unpleasant companion of marriage.
How to deal with adultery? A question to which there is unlikely to be an answer that satisfies equally those who engage in extramarital affairs and those who do not cross forbidden boundaries. Moreover, on this issue, despite the eternity of the problem, which has existed as long as the family has existed, there is still no serious scientific literature. Concepts of treason
and
fidelity
are subjective in nature, that is, each partner of a married couple and the married couple as a whole has the right to determine their attitude towards them.
Evidence of this is such a type of extramarital entertainment as swinging
- a temporary exchange of marriage partners for the variety of sexual relations by mutual agreement of the spouses.
One should also keep in mind this type of sexual extramarital relationship, such as incest.
. Some researchers do not classify it as adultery and find a completely plausible explanation for this. For example, A. Lippius believes that incest as a sexual relationship with a close blood relative cannot be classified as treason.
“Everything happens within the circle of a family, whose members are initially bound by the bonds of family love. According to sex therapists, brother and sister most often unite during adolescence. It is clear that we are not talking about treason here. Let's change the situation. Brother and sister grew up, each with their own family. The memory of family, of a happy childhood will bring them closer. If they have actively had sex before, then there is a high percentage of the likelihood that sometimes they will want to immerse themselves in “memories”. But even in this case, it cannot be said that he will cheat on his wife, and she on her husband.
The scientific literature has noted cases where in large families children were born from incest, whose parents were involved in raising them. Sometimes sex occurred between father and daughter and simultaneously between mother and son, mother and daughter. In these cases, the family creates its own closed world. There are no strangers here and, therefore, we cannot talk about treason.
Incest is a multifaceted phenomenon. Sometimes drunk fathers force their daughters to do this. In this case we are talking about a crime. However, this has nothing to do with treason.”[5]
We come across facts of extramarital sexual love quite often in our everyday life. It is useless to refer to real figures indicating the prevalence of female and male infidelity. It is important to know that the influence of extramarital contacts and relationships on marital relationships is largely determined by the stage of development of the marriage at which the infidelity occurred. Any type of betrayal is fraught for spouses with an acute or protracted emotional reaction from the deceived partner if the erotic adventures of their other half become known to him. A prolonged extramarital affair, in addition, can threaten the marriage by creating emotional dependence of the unfaithful spouse on his new chosen one. The psychological characteristics of these and other problems associated with adultery will be discussed in this section.
How to include an infidelity clause in a prenuptial agreement?
The legislation does not contain instructions on the wording that can be used when drawing up a marriage contract. Often, to describe life situations, the occurrence of which entails unfavorable consequences for one of the spouses, the formulation “misbehavior” is used. This can mean not only adultery, but also the commission of other actions, for example, alcohol abuse, domestic violence, etc. The legality of using such wording is confirmed by materials of judicial practice (see, for example, the Decision of the Temryuk District Court of the Krasnodar Territory dated November 21, 2014 in case No. 2-2399/2014).
The consequences associated with committing treason may include the following:
- recognition of part of the common property of the spouses, registered in the name of one spouse, only as the property of this spouse;
- recognition of part of the common property of the spouses, registered in the name of one spouse, as the property of the other spouse;
- recognition of the common property of the spouses or part of it as shared property, establishing a smaller share for the spouse who committed adultery.
- recognition of the common property of the spouses or part of it as shared property, establishing a smaller share for the spouse who committed adultery (see, for example, the Appeal ruling of the Moscow City Court dated December 18, 2014 in case No. 33-40935/2014).
According to the explanations of the Supreme Court of the Russian Federation, in order to determine property as jointly acquired, it is necessary to establish the moment of occurrence of the material and legal grounds for the acquisition of such property and the sources of payment for it.
Divorce - what you need to know?
REASONS FOR MARITAL INTERFALTY
Extramarital affairs are usually associated with a variety of reasons of a psychological, social, everyday, neurophysiological, emotional, intellectual and moral nature. In each individual case and for each specific person, be it a man or a woman, these reasons are subjective in nature, determined not only by specific accidents and circumstances, but also by the personal characteristics of the partners. In addition, the reasons for cheating may also be due to gender differences.
related to the peculiarities of the psychology of gender. Let's look at this category of reasons in more detail.
In the public consciousness, a kind of double standard is still preserved in relation to extramarital affairs between men and women. In particular, the view of male infidelity as a kind of prank, a physiological need, the satisfaction of which is possible (and even necessary!) with any partner, is quite common, since negative sexual energy accumulates, and its excess leads to health problems.
Men often hold more liberal views in relation to themselves than in relation to women, showing themselves to be supporters of traditional double standards - behavior that is “permissive” for men and “forbidden” for women. They do not consider one-time episodes of their infidelity to be treason at all.
Women usually make the same demands on themselves and men. The modern woman still retains her position as a homemaker. Women are more categorical about extramarital affairs, prohibiting them for both sexes.
There are many reasons for men to cheat. Here are the most common ones.
Reasons and motives for male infidelity
1. Increased sexual need
in most cases, not associated with any emotional and spiritual aspects of communication, which is usually satisfied with unfamiliar partners or in short-term, fleeting relationships with long-time acquaintances, co-workers, wives of friends, etc.
2. Temporary absence of wife
– her departure on a business trip, vacation, for treatment, etc. Separation from her spouse is often regarded as sufficient grounds for searching for a temporary replacement.
3. The impact of “random” circumstances.
Alcohol intoxication, especially its mild degree, increases sexual desire and weakens internal inhibitions. Many men consider drinking alcohol in company as a direct cause of extramarital affairs. However, it would be more correct to regard this condition as a circumstance conducive to adultery.
4. Love for another woman
. Sex in this case is a self-evident detail in the complex mechanism of human relationships built on love.
5. Initiative and perseverance of a woman
. In this case, the male “code of honor” does not allow him to offend a lady with a refusal, or to admit his “inability” himself. In modern conditions, this reason for male infidelity is also due to the following circumstance. In large cities, more than 30% of women in adulthood are not legally married, but are ready to enter into sexual relations with a man, and at the same time consider a man, regardless of whether he is married or not, to be their lawful prey.
According to psychologists, the majority of modern single women intend to (and do) enter into a relationship with a married man if they like him, although twenty years ago many of them preferred loneliness to a relationship with a family man. A similar study of the intimate lives of unmarried 35-40 year old women in Warsaw and Krakow, conducted in 1998 by Andrzej Kubiak, showed that 75% of them are or have previously been in a sexual relationship with a married man. According to information received from married men, many of them did not even think about cheating, they would prefer to remain faithful to their wives, but they are not able to refuse the “adventure” if the “adventure” itself comes into their hands.
6. Self-affirmation.
Men's pride is consoled by the number of sexual victories that they vitally need. This is especially typical for those men who were unable (unable, did not want) to realize their career ambitions. Having not achieved the planned successes in life, they try to compensate for their professional failure and professional failure with achievements in the sexual sphere. Such men are more likely to cheat not only on their wives, but also on extramarital partners, of whom they may have several at the same time: they visit one of them frequently, meet with another occasionally, and meet with a third on a strict schedule, for example, once a month. Research by psychologists shows: the more successful a man’s business is in the professional sphere, the less prone he is to cheat.
7. Revenge
(for humiliation, for treason). Entering into an extramarital affair occurs during quarrels with his wife, in the heat of the moment, or out of a desire to take revenge and assert one’s freedom and independence.
8. Desire for a change of impressions
, the desire for a variety of sensations, feelings and impressions. In family life, boredom seems to set in. This means not only the repetition of conversations, the lack of spiritual stimuli, but most often the monotony in intimate (sexual) life. A man in extramarital contact with another woman is looking for a change of impressions, the charm of novelty and unknown sensations; sometimes he is driven by simple curiosity and a thirst for additional pleasures.
9. Reward yourself for success.
A similar motive for betrayal is characteristic of the category of wealthy men that has emerged in Russia in the last decade. For a man, self-affirmation through the manifestation of his business and professional qualities is very important, so he devotes a lot of strength and energy to his career. Sooner or later, great success comes to a purposeful and persistent man, for which he decides to reward himself with a mistress.
Sometimes such men cannot stand the role of winner in all areas of life. And this instills fear in them. On a subconscious level, they are afraid of the revenge of evil demons for their successful fate. By starting an affair and making sure his wife finds out about it, the husband deliberately destroys the family. Failure in one area of life - in this case, in family life - gives them the opportunity to withstand success in another, professional, business and love, because he feels free, not bound by any prohibitions or obligations. This “rewarded state” continues until the man once again enters into a legal marriage.
Along with the indicated reasons for male infidelity, we can note some more features of husbands prone to cheating
. The man makes “leaves to the left” without looking back, unerringly relying on his own strength. If his wife, for example, finds out about his sexual adventures, then he will have the patience to calm her down with gifts or assurances of marital fidelity in the future. At the same time, he understands that he will not fulfill any of the promises. In addition, men are relatively free to make decisions regarding such a delicate matter as extramarital sex. The overwhelming majority of them play extramarital games of their own free will, even in cases where they pursue mercantile interests. The behavioral thesis “life is so short and is given only once” justifies any of their adventures, although most unfaithful husbands consider their marriage to be quite successful, while cheating wives regard it as unhappy.
Female infidelity
- This is an escape from a marital relationship that does not suit her. Women in marriage are disappointed that the husband does not provide adequate emotional support, does not devote any time or attention to his wife, does not express love and does not help in household chores, so she seeks support on the side. American psychologist K. Baldwin noted in this regard that women outside of marriage are not looking for sex, but for emotional protection and support, but they are forced to pay for this with their bodies.
What reasons most often prompt a woman to cross the forbidden line of legal marriage? As mentioned above, what comes to the fore here is something that is purely secondary for men: dissatisfaction in marriage. The much greater weight of love for an extramarital partner as a motive for an extramarital affair is quite consistent with this: a woman dissatisfied with marriage seeks serious affection in extramarital relationships, counting on emotional warmth, since she feels lonely in the family.
Suffering from a lack of attention to herself, a woman at the same time dreams of a brave, persistent man who will truly love her, and therefore she takes longer to betray her than a man, painfully thinks about her relationship and worries about it, looks closely for a very long time to a man before becoming his mistress. Extramarital sex for a woman acts as a strong emotional connection, to which she is often driven by deep psychological reasons.
How to invalidate the condition of treason?
To be declared invalid, the terms of the marriage contract must either violate the prohibition of paragraph 3 of Art. 42, paragraph 2 of Art. 44 of the RF IC or there must be grounds for declaring it invalid on the general grounds for challenging transactions, for example, Art. 168, 177-179 Civil Code of the Russian Federation. In the Ruling of the Supreme Court of the Russian Federation dated January 20, 2015 N 5-KG 14-144, the plaintiff asked the court to invalidate clause 1.4 of the marriage contract, according to which in the event of divorce on the initiative of one spouse or as a result of his unworthy behavior (adultery, drunkenness, hooliganism) actions, etc.) property acquired during marriage and related to the common joint property of the spouses becomes the property of the other spouse. As grounds for recognizing the condition as invalid, the plaintiff pointed out both the nullity (Article 168 of the Civil Code of the Russian Federation) and the contestability of this transaction (clause 3 of Article 42, clause 2 of Article 44 of the RF IC).
The Supreme Court of the Russian Federation indicated that the court, when considering such a requirement, establishes:
- circumstances related to the conclusion and signing of a marriage contract;
- what kind of property status each party acquires as a result of fulfilling the terms of the marriage contract;
- whether the terms of the marriage contract, which changed the statutory regime of joint property of spouses, place one spouse in an extremely unfavorable property position compared to the other.
6 reasons to contact a divorce lawyer
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The main essence of female infidelity
Some psychologists believe that for men, cheating is a natural process. Simply put, they follow nature, often striving to conquer as many representatives of the opposite sex as possible. A woman by nature does not have such a desire. They have another desire - to choose the best man. Simply put, in men's adventures the decisive factor is quantity, for women it is quality that matters.
If a woman meets a man on her way who is superior to her current lover, then she will give her heart to the successful representative.
Moreover, her husband can be a worthy person - he provides for the family, devotes time to her, takes care of the children. But the female sex is missing something, she is looking for this unknown something on the side, among other men.
Situations often occur when a wife cheats on a decent man, but does not leave him. What motivates her, why does she choose this path? What are the motives for female infidelity? Let's look into this rhetorical question.
Should we forgive a woman's infidelity?
This question arises among men who love their wife, but are tormented by the fact of betrayal. It is difficult to find a single answer for every situation. But let's consider it from the point of view of the psychological state of a man.
The husband is confused, embittered, depressed. If the infidelity is forgotten and the family tries to return to their usual way of life, it is unlikely that everything will be the same as before. Forgiveness for betrayal is difficult to achieve. In most cases, a man who has forgiven his wife becomes weak and pliable in the woman’s eyes. Such men are not respected, they wipe their feet on them and continue to cheat on them.
Thus, to the question of whether it is worth forgiving, the answer is unequivocal - it is impossible. Why to preserve your inner peace and dignity.
