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Lyubov Duyko on family law in the studio of Radio Business FM

29 January 2014

Project “2023. Technologies in 10 years”. On cars, technologies and people. On what technologies will be waiting for us in the next ten years, in the studio of Business FM St. Petersburg – the hosts Andrey Solovyov and Yury Strofilov and their guests.

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Andrey Solovyov; Hi guys! This is “2023. Technologies in 10 years” and today we are having a very interesting talk with advocate and Partner Chair of the Council of Partners of Law Offices S&K Vertical Lyubov Duyko, and our topic will be family law. Andrey Solovyov and Yury Strofilov are the hosts in this studio. Hello, Lyubov!

Lyubov: - Hello!

Andrey : - Tell me please, if we discuss divorce, is it some psychological drama or still a bare business case on people dividing assets?

Lyubov: You should not separate both of those and one follows from another, usually

Andrey: - How often do people, roughly speaking, change their emotions for the assets or are ready to lose them and remain calm, or, vice versa, are ready to go till the end and to prove one of the partners and at the same time to lose real money?

Yury: - It seems to me that resentment here determines whether people are willing to lose money, but to win psychologically.

Lyubov: - Of course, they are ready. If in this case there will be a dispute concerning children, then the things can go completely different , because whatever grievances there may be, if the parties cannot agree on where their children will live, it may subsequently become a key issue determining the distribution of property.

Yury: - I think that children are the most psychologically vulnerable in the whole situation so there the business is at its minimum.

Andrey : - How often do really appreciate the interests of children in divorce proceedings ?

Lyubov: - Unfortunately, in the most harsh stage of the dispute, that is in the very beginning, the parties only think that they care about their children that they act in their interests and protect that, while in reality they often think about themselves and feed their own ambitions. In such cases it is children are paying for that. No one is 100 per cent right or 100 per cent wrong, but the child will be a victim in any case. In my practice, in the part related to children, I always put their interests as the first priority; if a client approaches me saying that he or she needs or wants to take their child through a court order, I firstly look at what the interests of the child are and what they should be and where the child would want to stay and only after that I can agree to take up the case.

Yury – Do you use a psychologist or you estimate what a person really wants by yourself?

Andrey : - Are the interests of children really taken into account in divorce proceedings ?

Lyubov:- There are some obvious characteristics by which you can get the picture, evaluate initially the condition and the attitude of the child, as well as how the parents interact in the family, to whom the child is attached, with whom the child likes spending time and who cares more about the child. However, if the child is minor and in a stressful situation he or she cannot deny refuse one of the parents and give preference to another, in such cases I always resort to the assistance of a psychologist who would test the parents, interact with the child and then give an opinion.

Andrey : - Only on the basis of this opinion you can make a decision?

Lyubov: - On the basis of this opinion, we can realize how we can help the family, what can we plead in court, what , order of communication, for example, we could come to and then go to a judge in order to determine the order of communication of the child with the parent who does not live with him. Naturally then the help of an expert is needed.

Andrey: - At some point, a child asks a lot of questions , why dad tells them more, at some point a child needs a affection of a woman and mother corresponds to this moment better.

Lyubov: The thing is that the expert opinion, the specialist’s consultancy, even the court judgment if it is rendered, it is rendered with an account taken of all circumstances and factual background, that will be at stake at that moment, therefore when experts and specialists study the child, then they naturally take in account the age, the relations within the family and gender. It should be a concise picture.

Andrey: - Please tell us what arguments does not the court take and what serves as a basis for the court judgment, except for the will of a child; cause if we are talking about the audience of Business FM, here the spouses are both independent and self-sufficient and they can provide equal opportunities for…

Yury: -...and a lot of arguments!

Andrey: - … the development of a child. From the standpoint of the "Letter of the Law", they are equal independent persons. What does a judge take into account, what arguments work, what does not work?

Lyubov:- To begin with, that in accordance with our laws, parents are recognized as possessing equal rights, so even if the mother earns less than Dad, it does not mean that it is somehow infringed rights, so even no matter how much the same social status or financial position of the parties, the court must objectively examine and weigh all the circumstances. Maybe one of them has more money, more opportunities, but at the same time, he or she cannot devote time or attention to the child, bring it up, parenting skills and the warm treatment to a child on a different level.

Yury: - Do I understand it correctly that one of the main arguments is the time we can devote to the child?

Lyubov:- No, the time that we can dedicate the child is certainly of great importance, but there are cases when a parent gives a child less time, but the baby is still attached to him or her more and the result of the interaction with the parent can bring more results, more benefits for the development of the child.

Andrey: - So the main argument is how useful each of the parent can be for a child?

Lyubov: - The main argument is the child's attachment to the parent and the totality of the factors that help the child to fully develop and grow up in an environment comfortable for him. Divorce should never be called a comfortable environment, since the child will suffer anyways. Again, what will be assessed is how that parent with whom the child will remain will not prevent contacts with the second half and it also has a value. Therefore, in the first place the priority is the interests of the child.

Andrey: - We're back in the studio and here with us is Lyubov Duyko, advocate and of the Partner Chair of the Board of Partners at the Law Offices of S&K Vertical, we are talking about family law.

Andrey: - Now could you comment for me please another issue. If you type "marital contract" and "prenuptial agreement" in Google you’ll get probably a dozen web-sites and half of them propose to enter into such a contract, and the second half of his challenge, if necessary, sometimes it's all the same places and they say: "Let us conclude and if something happens just contact us again and we'll fight!"

Lyubov:-. I would not advise even to contact such sites let alone contracting them. It is such a serious thing, and a serious process, an act to which you must prepare consciously. And you should not take the information on the sites and headlong run to sign anything, because in such documents there can be some intentional mistakes so that they could later be challenged in court.

Andrey: - Are there some standard forms of marital contract?

Lyubov:- As such, there is no template. In any case, when we deal with our clients what we do for them is always individual, we make a special document, which is prepared taking into account the views of the parties, the property in question, because in each case is different situation. There are situations where the parties came and agreed that all that is registered in the name of one of the spouses during marriage will, upon dissolution, remains with him or her, and the second one does not have any demands in that respect. In general, this is what is called separate property and essentially both after the divorce and during the marriage the parties are independent from each other, but here it is necessary to understand who and how will register the property especially in the case of acquisition for cash earned by the family.

Andrey:- Perhaps it makes sense then to contact a lawyer to draft a contract and then to another lawyer to reexamine this contract, how would you advise to act in such a situation and to remain calm and confident?

Lyubov:- And where’s the guarantee that you don’t need to go to a third lawyer! For me the most important thing is the client’s trust, and therefore if he or she came to me, there will be no need to re-examine the quality of my work.

Andrey:- You do understand, don’t you, that doctors are exactly the same and that the trust in the doctor is probably even higher ..

Lyubov: So if I, for example, choose a doctor and if I came to him, I will not go to another doctor. Same with a lawyer, especially when it comes to personal relationships, family relationships, relationships with children. I think that people should not try ten lawyers on the same issue when it comes to, say, divorce proceedings or on the content of children and how to take over the child. It is every time a complex psychological problem, every time you need to experience all of this, to tell this and interact in this regard. The main thing is to try to make the right choice and if you have set the trust with your client, then this is what it is necessary to keep and then there will be a quality work.

Andrey: - Is the service expensive: to draft a marriage contract? How much?

Lyubov:- It’s different everywhere.

Andrey: - What is the determining factor?

Lyubov:- It depends on how advocates work. Someone works on billing, that is “hour rates”someone else has a unified rate. But I can tell you that if someone works on a template basis, this may cost quite cheap. In principle, you can come to a notary and tell the notary what you want, and he or she will do the draft.

Andrey: - Then you will pay to the notary.

Yury: - Not expensive as said by the representative of the major Russian law offices sounds quite indefinitely, from zero to eternity.

Andrey:- Our audience is quite practical, could you please narrow the figures.

Lyubov: - I can tell the hour rate and then it well depend on the volume of property…

Andrey:- The middle ground? Average family, midlevel manager, average Russian company…

Lyubov: - I think midlevel represents a very small amount of property

Andrey:- Apartment, car, garage, country house and three Google accounts

Lyubov: - I think that would be 45 thousand Rubles and more

Yury: - Tell us please is there some specificity of a marital contract for the mentality of a Russian?

Lyubov: - Our contracts are mostly based on equality. You can hardly see a contract where 100 per cent goes to one person and zero to another. In other jurisdictions, in case if one of the spouses cheats another he or she would pay a fine

Andrey:- And do we have such provisions?

Lyubov: – No.

Yury: - Is it just not popular or prohibited by law?

Lyubov: - It is absent in law and I cannot imagine how to plead it in court

Andrey:- If we assume that the fact is determined. Do we have precedents, and if no, then why?

Lyubov: - Taking into account that we have no freedom of contract, we indeed can include such a provision and a court will then consider as to whether it is in conformity with law.

Yury: - Is it possible to enter into a marital contract only for the spouses in official marriage, or it can be done in unofficial relationship?

Lyubov:- The thing is that you can enter into a marital contract before the marriage, when you are just going to get married.

Yury: - Okay, and will it work if people live in unofficial marriage?

Lyubov:- It will work if you have an official marriage. There is no such notion as unofficial marriage, my friends. Where did you find it in our law? The only marriage we have is the marriage registered in specific state authorities, official marriage. Unofficial marriage is so far a free form of relationships which does not presuppose any legal consequences.

Yury: - Lyubov please tell us, do I understand this correctly that in separation of inherited property the court would take into account the fact of common living and the property will be separated in particular to the unofficial spouse that is to the person living together with the donor and keeps common household?

Lyubov:- First of all there should be a court decision, let’s start with that and this fact must be established in court in specified conditions, we have a whole list of what should be proved in such a process. But we are talking on something different, because our topic is not inheritance.

Yury: - I mean that the institution of marriage in case of divorce is different from the one in inheritance.

Lyubov: - Civil law provides for an opportunity to hold common household, have common property and, irrespective of the marriage, one can claim ownership over a part of property and as regards children, our children are equal without regard to the fact whether they were born in marriage or not, and their inherit after their parents in both cases.

Yury: - Could you please recommend something to the spouses who feel that their relationship is in dead end, what to do if so that not to get there?

Lyubov: - What is important is whether there are children and how everything will be going with children and without children. I would suggest at first, before all passion and quarrels to get solved the property issues in a calm manner and then find compromise on children and as to who and how will be supporting them and then, if it will be really necessary, to go to court.

Yury: I would rephrase a bit: is it advisable for a married couple who have no such contract to make it just in case anything happens in future?

Lyubov:- I do recommend that. I did it myself and don’t doubt it was worth it. This does not affect the relationship with the spouse, this a useful and good thing.

Yury: - If we try to ascertain the amount of people in marriage and the share of them with marital contract in Russia, what figure would you suggest and is it dependable as to a specific region?

Lyubov:- I think it’s less than 10 per cent and most of them live in Moscow, St. Petersburg, Yekaterinburg, big cities.

Yury: - Does it depend on the wealth of a client, that is the more wealthy the clients are the higher is the percentage of those who have a marital contract?

Lyubov:– Every person gets into such a period of life when he or she has something and earned something, so that there is something to regulate and manage, and then it is reasonable to go and do this document. Usually it is for the people who already have something. When you have nothing and there is nothing to regulate, then why do you need to spend money on a notary and a lawyer.

Yury: Lyubov, non-material assets are becoming more and more essential in our life.

Lyubov:- this is good

Yury: - Do they appear in marital contracts? As an example, spouses have a group in Vkontakte or in Facebook with a million of those who are signed in. In case of divorce you can hardly divide them in half, are they within marital contracts and divorce proceedings?

Lyubov:- In my practice there was no such appearance neither in contracts nor in courts. But this is an interesting question. I think that in the closest time, given the tendencies in social networks and intangible assets, I think it will become an issue.

Yury: -And is there what we can call the trend of marital contracts, has it come, is it diminishing or increasing? How can we assess this trend?

Lyubov:- I would like such a trend of marital contracts. This is beautiful, this is good, this is professional and this will really make life easier. Both for professionals and spouses. But people are still treating this with lack of trust and worries, especially people of older formation, whom there still, luckily, are a lot, therefore I think younger people deal with this document easier.

Yury: - In conclusion, we traditionally offer a series of small questions. We ask several questions and you are supposed to react on them quickly with yes or no or with minimal comments. Because our program is future-oriented, a decade forward, all our questions are connected with what will be in future. If you don’t mind let’s begin. First, please tell us will the amount applications for marital contracts become higher or lower in the coming decade?

Lyubov:- Higher

Yury: - Will content volume, that this the complexity of these contracts, grow or to the contrary it will be a template stuff?

Lyubov: - .Should grow.

Yury: - In ten years, statistically, will the children remain with mother or father or 50/50?

Lyubov:- 50/50

Yury: - Nowadays it’s more women?

Lyubov:- Yes.

Yury: - Marital contract will be concluded in half of cases in big cities?

Lyubov: - Yes, provided that there will be litigation too

Yury: - The amount of divorces will become higher than the amount of marriages?

Lyubov:- I hope not.

Yury: - More than a half of marriages will be unofficial?

Lyubov: This is how people live. This is reality already now.

Yury: - The last question is a traditional one. We are inviting experts in this studio. Whom of the experts you would like to listen to in one of the next broadcasts, what topic is the most interesting one for you personally?

Lyubov:- Given the coming Olympics I would like to hear the comments of the well-known respectful figure skating coach Alexey Mishin or Tatiana Tarasova.

Andrey:- Why not, interesting topic! Let’s try!.

Lyubov:- Thanks for interesting questions.

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