The property acquired by the spouses during the marriage is their common joint property.
I. filed a lawsuit with the court, arguing that he had been married to G. since June 05, 2004, which was dissolved on March 16, 2012. During the marriage, joint property was acquired in the form of an apartment on Embankment Street in Aktobe (hereinafter referred to as the disputed apartment). He asked to determine for him a half share in the specified property. By the decision of the Aktobe City Court dated February 05, 2013, I.'s claims were satisfied, and the plaintiff's share in the disputed apartment was determined in half of the part. By the decision of the Appellate Judicial Board for Civil and Administrative cases of the Aktobe Regional Court dated April 01, 2013, the court's decision remained unchanged. By a decision of the cassation judicial board of the same court dated July 23, 2013, the decision of the appellate judicial board was changed, G.'s share in the disputed apartment was increased to 3/4 of the share, and plaintiff I.'s share was reduced to 1/4 of the share. In the petition, the applicant requested to cancel the decision of the cassation judicial board while upholding the decision of the appellate judicial board, pointing out that the conclusions of the cassation judicial board did not correspond to the factual circumstances of the case, since the deviation from equality of shares in the common joint property of the spouses was applicable only if there were certain conditions that were not established in the case. In her response to the petition, defendant G. requested that the contested judicial act remain unchanged and the petition be dismissed.
The Supervisory Judicial Board of the Supreme Court upheld the decision of the cassation Judicial Board of the Aktobe Regional Court, and dismissed the petition of plaintiff I., stating the following. As can be seen from the case file, the parties have three young children from living together, and they have purchased a three-room apartment at the above address. By the decision of the Aktobe City Court dated March 16, 2012, the marriage between I. and G. was dissolved. Plaintiff I. applied to the court to determine a half-share in the above-mentioned apartment on the grounds that the disputed apartment is the common property of the spouses. In satisfying I.'s claims for determining a half share in the apartment, the court of first instance proceeded from the requirements of paragraph 1 of Article 38 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), according to which the property acquired by the spouses during marriage is their common joint property. Defendant G. stated in court that she had three young children from this marriage, who remained dependent on her after the dissolution of her marriage with I. The disputed two-bedroom apartment with a total area of 85 square meters was purchased as part of the State Housing Construction Program for 2008-2010 on a mortgage loan, the area of the housing being sold was determined for them as a young family with two children at that time, and therefore, she asked for the determination of her share in the disputed property, taking into account the interests of three young children. The Court of cassation, changing the decision of the appellate judicial board, increased G.'s share in the disputed apartment to 3/4 of the part, and the share of the plaintiff I. reduced to 1/4 of the part. At the same time, the cassation judicial board motivated its conclusions by the fact that the children are fully supported by the defendant, since due to lack of work, plaintiff I. does not provide financial support to the children, also does not bear the costs of maintaining the apartment and paying off the loan received by the parties in Zhilstroysberbank for the purchase of the specified housing under the State Housing Construction Program. According to paragraph 2 of Article 38 of this Code, the court has the right to depart from the beginning of equality of the spouses' shares in their common property based on the interests of minor children and (or) based on the interests of one of the spouses, if the other spouse did not receive income for disrespectful reasons or spent the spouses' common property to the detriment of the interests of the family without the consent of the second spouse. Therefore, the court of cassation, referring to the above-mentioned provision of the law and concluding that there were circumstances that were grounds for derogation from the beginning of equality of the spouses' shares in their common property, correctly considered it necessary to increase the share of defendant G., with whom three young children, born in 2004, 2007 and 2010, live in order to ensure their housing rights. In such circumstances, the board considered that the contested judicial act was lawful and justified, and there were no grounds for satisfying the petition. there is no evidence because the court of cassation did not commit significant violations of substantive or procedural law.
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