Response to a claim for the division of the spouses' common property
Medeu District Court of Almaty
Judge M.M. Amirov.
The plaintiff:
M- Arhin Munarovich
The defendant:
NLNazarbekovna
IIN: .....
Almaty, Medeu district, st. Zh..., ave. D...k,
House number ..., sq. 38
Phone:8 701 ..
Representative of the defendant:
....
IIN ...
City of Almaty,
Bostandyk district
Nurly-Tau
Ave ...
1902B, 4B, 19th floor
phone: +7 ...
e-mail: ....
REVIEW OF THE CLAIM
on the division of the spouses' common property
Case No. 7517-25-00-2/14020
The Medeu District Court of Almaty is considering the claim of M. A.M. against me on the division of the spouses' common property.
I do not fully agree with these claims, and I consider the claims to be unfounded, illegal, and unsatisfactory due to the following circumstances.
The circumstances of the dispute:
In accordance with paragraph 1 of Article 17 of the Marriage (Matrimony) Family Code, the dissolution of marriage (matrimony) in the registration authorities is carried out with mutual consent to the dissolution of marriage (matrimony) of spouses who do not have common minor children, and in the absence of property and other claims to each other.
The marriage between the parties was dissolved voluntarily, on September 13, 2019 by mutual consent of the parties, at the time of the dissolution of the marriage, the plaintiff did not have any property claims against me, as a result, the registration authority issued a certificate of divorce.
At the end of six years, M- A.M. filed a lawsuit with the court for the division of common property, namely for a half of the non-residential premises located at the address: Almaty, Zholdasbekov St., Dostyk ave., 89/2, sq. 38.
I believe that the claims are not subject to satisfaction, because upon the dissolution of the marriage on a voluntary basis, an agreement was reached between the parties on the division of jointly acquired property.
The proof of the absence of property claims in the event of a marriage is the plaintiff's statement to the Department of the Civil Registry Office of the Akim of the Medeu district of Almaty dated August 12, 2019. In this appeal, Mr. M. clearly states his position that he has no material claims against me (a copy of the plaintiff's statement will be attached to the materials after receiving a response from authorized body).
In addition, M.A.M. expressed a desire, as a division of joint property, to receive a land plot located in Almaty region, Zhambyl district, Ungirtas district, Sarybastau village, mkr. DAEWOO-1, building 31.
At the same time, M.A.M., after the dissolution of the marriage and the transfer to him as a division of property on a voluntary basis, on November 5, 2020, sells, with my permission, an apartment building with a plot of land at the above address for 2,000,000 tenge (a copy is attached).
Also, Mr. AA. on the same day, November 5, 2020, a land plot with an area of 0.2500 hectares was sold for personal subsidiary farming, located at the address: Almaty region, Zhambyl district, Ungtrtas rural district, Sarybastau village, MD-on DAEWOO-1, uch. 33.
This real estate was purchased by me with the bank's credit funds on May 7, 2012 (I attach the bank loan agreement).
Having sold the specified property, M- AA did not divide the common property in the form of ½ of the parts from the transaction and, as an ex-spouse, does not return to me what is due under the transactions, in this regard, I also have the right to file claims for recovery of the amount under the purchase and sale agreements from the jointly acquired property.
Further, I ask the court to pay attention to the fact that at the time of consideration of the claim, M- A.M. is the owner of a land plot located at the address: Almaty region, Zhambyl district, Uzynagash village, Uzynagash village, Otau St., 72. accordingly, the plaintiff's arguments that he does not have his own housing and lives in a rented apartment do not correspond to reality, since M- A.M. is the owner of an apartment building located at the above address.
In addition, upon the dissolution of the marriage, M-A.M. received a 2013 Hyundai Accent car, registration number 209ANA02, in white, as a division of common property.
It is necessary to explain to the court that during the marriage period, I transferred 10,000 US dollars to Mr. AA for the purchase of horses, for the development of farming, however, it is not known where the money went, because, due to the abuse of alcoholic beverages, Mr. AA's farm fell into disrepair.
M- AA. during the entire period of marriage, being able-bodied, he actually did not work anywhere, did not participate in the life of his family, children and grandchildren, constantly caused scandals, which in fact was the reason for the dissolution of the marriage.
However, taking care of my ex-husband, I took measures to ensure that Mr. AA had a decent pension, I voluntarily transferred funds to his retirement account, currently the plaintiff has not a minimum, but a decent pension, above the subsistence level.
I ask the court to take into account the fact that Mr. A.A. has a personal dislike for me, and his actions are expressed in regularly slandering me in front of our sons.
The plaintiff in his lawsuit indicates that, having sold a 3-room apartment in 2004, he bought a small house in Taugula, and built a house, which he later presented to his eldest son.
Meanwhile, this land plot and house building were acquired by me during the marriage period, the proof of my arguments is a contract ... WE NEED A CONTRACT
In addition, for an objective consideration of the dispute, I consider it necessary to inform the court that Mr. A.A. regularly expels our son's entire family from this house in the middle of the night, as a result of which the whole family has to come to my younger son, with whom I now live.
In accordance with the norms of art. 209 of the Civil Code, property owned by two or more persons belongs to them by right of common ownership. The property may be jointly owned with the definition of the share of each of the owners in ownership (shared ownership) or without the definition of such shares (joint ownership). Common ownership of property is shared, except in cases where the law provides for the formation of joint ownership of property.
In accordance with the Normative Resolution of the Constitutional Court of the Republic of Kazakhstan dated December 4, 2024 No. 55-NP, "On reviewing paragraph 6 of Article 37 of the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage (Matrimony) and Family" for compliance with the Constitution of the Republic of Kazakhstan, it follows that, in accordance with paragraph 1 of Article 8 of the Code, The statute of limitations does not apply to claims arising from marital and family relations, except in cases where the time limit for the protection of a violated right is established by the Code. In such a case, the Code recognizes the application of a three-year limitation period to the claims of spouses for the division of common joint property upon the dissolution of their marriage (matrimony). The specified period begins from the moment of the dissolution of the marriage (matrimony) of the spouses.
The limitation period is a period of time during which a claim may be satisfied that has arisen from a violation of a person's right or a legally protected interest (paragraph 1 of Article 177 of the Civil Code). Accordingly, the limitation period is assumed to apply only when a dispute arises between the plaintiff and the defendant about a right that the parties could not resolve on their own and referred it to the court. The absence of a dispute means the absence of the very possibility of applying the statute of limitations as such.
Paragraph 6 of Article 37 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) to the family" is set out in a new wording: a three-year limitation period applies to the claims of spouses on the division of the common property of spouses whose marriage (matrimony) is dissolved (the phrase: "from the moment of dissolution of marriage (matrimony)" is excluded).
In other words, the legislator has not abolished the very concept of "application of the limitation period", i.e. the party must understand that his right was violated and when it was violated, based on which, the court has the right to apply the limitation period and refuse to satisfy the claims.
M- AA. since the dissolution of the marriage, i.e. since 2019, he has constantly demanded to share the only thing that I have left, this salon, i.e. since 2019, M- believed that his right had been violated, accordingly, by going to court after 6 years, he demands ½ of the property.
In addition, I ask the court to take into account clauses 1.3 of Article 43 of the Law of the Republic of Kazakhstan "On Legal Acts", since by virtue of this article, the normative legal act does not apply to relations that arose before its entry into force. Laws that impose new responsibilities on citizens or worsen their situation are not retroactive. Laws that establish or strengthen liability are not retroactive.
I believe that the NP of the Constitutional Court of December 4, 2024 worsens my situation, since M.A.M. received his half of the jointly acquired property upon the dissolution of the marriage, and is currently trying to deprive me of my only property.
I believe that in the case under consideration, the application of paragraph 20 of the Regulatory Decree of the Supreme Court No. 5 dated 04/28/2000 "On the application of legislation by courts when considering cases of divorce", in the old version, namely: during the three-year limitation period for claims on the division of property that is common joint property, the marriage (matrimony) of which is dissolved (paragraph 6 of Article 37 of the Code), should be calculated at the dissolution of marriage (matrimony) in court – from the date of entry into force of the decision, at the dissolution of marriage (matrimony) in the registration authorities, foreign institutions of the Republic of Kazakhstan – from the date of registration of the dissolution of marriage (matrimony) in the book of registration of acts of civil status.
Based on this rule, which is valid for the period of divorce, and the marriage was dissolved by the parties at the registration authorities on September 13, 2019, I believe that the deadline for filing claims for the division of joint property by Mr. A.M. has been lost.
In accordance with paragraph 1 of Article 162 of the Civil Code, the limitation period for disputes related to the invalidity of a transaction on the grounds provided for in paragraphs 9 and 10 of Article 159 of this Code is one year from the date of cessation of violence or threats under the influence of which the transaction was made, or from the day when the plaintiff learned or should have learned about other circumstances that are grounds for invalidating the transaction.
I ask the court to apply the limitation period and dismiss the claim due to missing the deadline.
Regarding the arguments of the plaintiff with reference to art. 36 of the KBS.
So, according to According to this article, the property of each spouse is recognized as their common joint property if it is established that during the marriage (matrimony), investments were made at the expense of the common property of the spouses or the property of the other spouse or the labor of any of them, which significantly increased the value of this property (major repairs, reconstruction, re-equipment, etc.).
The plaintiff did not provide such evidence, since all payments under the loan agreement of Kazkommertsbank JSC were made exclusively by me. As confirmation of my arguments, I provide the court with copies of bank agreements. Mr. M., in turn, never invested his money either when signing the purchase agreement or when paying off the loan.
The arguments of the claim that earlier privatization transactions and further purchase and sale transactions allowed the acquisition of disputed real estate are not true, since in all previous transactions, Mr. M. acted only as a spouse consenting to these transactions. For all my loan obligations, M.A.M. acted only as a co-borrower.
According to the purchase and sale agreement dated April 25, 2003, with the consent of the plaintiff, I purchased a non-residential building, part of Lit. "A", with a total useful area of 34.6 sq.m. and the right to a land plot of 0.0024 ha, shared ownership, the area of the whole land plot of 0.1317 ha, located at the address: Almaty, Dostyk Ave. 89/2 house, No. 38.
The price under the agreement was 3,900,000 tenge.
Meanwhile, M.A.M. provided the court with an analytical certificate as evidence, indicating that the value of the disputed property is 70,694,000 tenge.
I consider these arguments to be unfounded and refuted by the Report VAV-F25-0043/ALM dated February 11, 2025, produced by the expert appraiser of BAB Assessment LLP Bakirov A.B.
So, according to the specified Report, the cost of non-residential premises located at 89/2 Dostyk Ave., Medeu district, Almaty, sq. 38 at the time of assessment on February 11, 2025 is 13,057,014 tenge, but not 70,694,000 tenge.
In accordance with paragraph 3 of Article 15 of the Law "On Valuation Activities", the appraiser is obliged to: prevent the preparation of an unreliable assessment report.
However, the analytical report submitted by the plaintiff dated March 31, 2025 does not meet the criteria of reliability, objectivity, reasonableness, and cannot be accepted by the court as evidence.
Regarding the stated requirements.
Thus, the plaintiff initially filed a claim: to divide the joint ownership of the plaintiff and the defendant and determine the plaintiff's share in the total joint ownership in the amount of ½ of the immovable property.
From the meaning of these requirements, it follows that M- A.M. requires the court to allocate a share in kind, meanwhile, the disputed non-residential premises is one room with a total area of 36.4 sq.m., consisting of 2 rooms with one entrance, respectively, it is not possible to divide the premises into a half share in kind, I believe, that the claims are unlawful and unfounded, and are not amenable to satisfaction.
According to Part 1 of Article 16 of the CPC, a judge evaluates evidence according to his inner conviction, based on an impartial, comprehensive and complete examination of the evidence available in the case in their entirety, guided by the law and conscience.
By virtue of art. 225 of the CPC RK, when making a decision, the court evaluates the evidence, determines which circumstances relevant to the case have been established and which have not been established, what are the legal relations of the parties, what law should be applied in this case and whether the stated claim is subject to satisfaction.
In accordance with art. 224 of the CPC RK, the court's decision must be lawful and justified.
Also, in accordance with Article 109 of the Code of Civil Procedure, the court awards the Party in whose favor the decision was made, on the other hand, all court costs incurred in the case.
According to paragraphs 11-1 and 12 of the NP of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 9 "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases", "when considering cases in accordance with Chapters 12, 13 of the CPC, the court is obliged to resolve the issue of the distribution of court costs between the parties in accordance with the requirements of Chapter 8 of the CPC. At the same time, the court should take into account the amount of assistance provided by the representative, including those related to the preparation and execution of the statement of claim. Such expenses shall be reimbursed in accordance with subparagraph 9) Articles 108 of the CPC. The list of costs in the form of court costs related to the proceedings provided in Article 108 of the CPC is not exhaustive. Other expenses are subject to recovery if they are deemed necessary by a reasoned court decision. Such expenses may include expenses incurred prior to the initiation of proceedings to formalize the representative's powers; to obtain evidence recognized by the court as relevant and permissible.; related to compliance with the pre-trial dispute settlement procedure, determining the price of a claim, and paying for the activities of a private bailiff in the execution of a court ruling on securing a claim."
Due to the claim, I was forced to seek legal assistance and incurred the cost of legal services in the amount of 400,000 tenge for drafting the claim and ensuring participation in court, which is confirmed by the contract for the provision of legal services for No. 36-06/2025 LC dated 06/28/2025 and the receipt cash order.
Based on the above, in accordance with the requirements of current legislation,
ask:
1. To dismiss the claim of M. A.M. to N. L.N. on the division of the spouses' common property in full.
2. To collect from M.A.M. in favor of N. L.N. representative expenses in the amount of 400,000 tenge.
3. To cancel the seizure of immovable property of N.L.N., imposed by the court ruling of 26.06.2025.
Appendix: a copy of the purchase and sale agreement dated 04/25/2003
A copy of the evaluation report
Copies of bank agreements
A copy of the real estate certificate
A copy of those passports
A copy of the land purchase agreement.The plot
N.L.N. 07/11/2025
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