NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 4, 2024 No. 55-NP

About consideration on compliance of the Constitution of the Republic of Kazakhstan of Item 6 of article 37 of the Code of the Republic of Kazakhstan of December 26, 2011 "About scrap (matrimony) and family"

NAME OF THE REPUBLIC OF KAZAKHSTAN

Constitutional court of the Republic of Kazakhstan as a part of the Chairman Azimova E. A., Eskendirov A. K. judges., Zhakipbayeva K. T., Zhatkanbayeva A. E., Mussina K. S., Nurmukhanova B. M., Ongarbayev E. A., Podoprigora R. A., Sarsembayeva E. Zh. and Udartseva of Page F., with participation of representatives:

subject of the address Vashchenko A. A. - legal consultant Kokshenev E. B.,

The Ministries of Justice of the Republic of Kazakhstan - the vice-minister Mersalimova L. K.,

The Prosecutor General's Office of the Republic of Kazakhstan - the adviser to the Attorney-General Adamov T. B.,

The office of the Majilis of Parliament of the Republic of Kazakhstan - the manager of the sector of Department of the legislation Zhumagalikyza G.,

The office of the Senate of Parliament of the Republic of Kazakhstan - the assistant manager Department of the legislation of Sartayeva N. A.,

Institute of the legislation and legal information of the Republic of Kazakhstan - the chief researcher of the Turkish N.N.,

Institute of parliamentarism - the chief executive Kanatov A. K.,

the expert - Candidate of Law Sciences Omarova A. B.,

considered in open session the address about check on compliance of the Constitution of the Republic of Kazakhstan of Item 6 of article 37 of the Code of the Republic of Kazakhstan of December 26, 2011 "About scrap (matrimony) and family" (further - the Code).

Having heard the speaker - the judge of the Constitutional Court of the Republic of Kazakhstan Zhatkanbayeva A. E. and participants of meeting, having studied materials of the constitutional production, having analyzed regulations of the law in force of the Republic of Kazakhstan and certain foreign countries, the Constitutional Court of the Republic of Kazakhstan

established:

In the Constitutional Court of the Republic of Kazakhstan (further - the Constitutional Court) the address about consideration on compliance to Item 1 of Article 6, to Items 1 and 2 of Article 14, to Items 2 and 3 of article 26 of the Constitution of the Republic of Kazakhstan arrived (further - the Constitution) Item 6 of article 37 of the Code according to which to requirements of spouses about the Section of common property of spouses, marriage (matrimony) of which will be dissolved, is applied the three-year term of limitation period from the moment of annulment of marriage (matrimony).

Follows from case papers that during marriage by spouses real estate was acquired. Annulment of marriage took place in 2019 whereas the claim for apportionment of share in common property by collection from the defendant of sum of money is filed a lawsuit in 2023. Satisfaction of the claim with court it is refused based on regulation of Item 6 of article 37 of the Code, namely in connection with the expiration of limitation period - 3 years from the moment of annulment of marriage (matrimony).

According to the subject of the address, the specified provision of the Code infringes at its authority to dispose, acquired on legal causes during marriage (matrimony).

When checking constitutionality of the Code regulation specified by the subject of the address the Constitutional Court proceeds from the following.

1. According to the Constitution citizens of the Republic of Kazakhstan can have any legally acquired property in private property. The property, including inheritance right, is guaranteed by the law. Nobody can be deprived of the property, differently as by a court decision (Items 1, 2 and 3 Articles 26).

Everyone has the right to judicial protection of the rights and freedoms (Item 2 of article 13 of the Constitution) including the property rights.

The property obliges, use of it shall serve the public benefit at the same time. Subjects and objects of property, amount and limits of implementation by owners of the rights, guarantees of their protection are determined by the law (Item 2 of article 6 of the Constitution).

The constitutional court emphasizes that the relations connected with the property right cannot be regulated randomly, and shall be based on the principles of the constitutional state, including equality of all before the law and court (Item 1 of article 14 of the Constitution). The property right, as well as some other human rights, is guaranteed by the Constitution and rules of international law.

Are fixed by Articles 8 and 17 of the Universal Declaration of Human Rights (it is accepted by the resolution 217 A (III) of the General Assembly of the United Nations of December 10, 1948) the right of each person to ownership of property solely, and also together with others, the right to effective recovery in the rights by competent domestic courts in cases of violation of its basic rights provided to it by the constitution or the law.

2. The property acquired by spouses during scrap (matrimony) is their joint property if the contract between them does not provide that this property is equity property of spouses or belongs to one or in the corresponding parts to each of spouses on the property right (Item 1 of Article 223 of the Civil code of the Republic of Kazakhstan (General part) of December 27, 1994, further - group of companies).

The mode of joint property extends to any personal and real estate acquired during scrap (matrimony) and also recognized as that (Item 1 of Article 33 and article 36 of the Code) which owing to Articles 115, 116 and Item 2 of Article 191 of group of companies can be object of the property right of citizens irrespective of, on whose name from spouses it is acquired or which of spouses places money. It means that spouses have the equal rights on ownership, to use and the order of common property, the order it is possible only on their mutual assent (article 34 of the Code).

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info