Dmitry Sibilev commenting at PRObankrotstvo

In order to recognize the an individual entrepreneur's debts as a common obligation of the family, the applicant must prove that the funds received were spent specifically on family needs, and not on a personal business.

An individual entrepreneur (while married) entered into contracts, but poorly fulfilled obligations under the contract. The customer collected damages, penalties and moral compensation and filed an application (in the enterpreneur's bankruptsy case) to recognize the debt of the individual entrepreneur as a common obligation of the spouses, indicating that the individual entrepreneur was engaged in entrepreneurial activity and made a profit from it together with her spouse (Article 34 of the Family Code of the Russian Federation).

* - Recognition of the bankrupt's obligations as common with the spouse means that the creditor has the right to demand performance from the spouse, including at the expense of his personal property. The general limitation period applies to such a claim.

• the amount of the debt can be qualified as income received from the joint entrepreneurial activity of the spouses, but only after finding out for what purposes the funds received by the entrepreneur were spent: on the needs of the family or on the needs of the individual entrepreneur in the course of his entrepreneurial activity;
• the burden of proof lies on the creditor filing the claim;
• the fact that the spouse has the status of an individual entrepreneur with similar types of activities does not indicate that he necessarily participated in the performance of these works and derived profit from it together with his spouse.

• to establish clear criteria for recognizing the obligations as spouses' common,
• to reduce the risks of abuse by creditors,
• to ensure a fairer resolution of this category of disputes.

"In such disputes, it is advisable to apply increased requirements for evidence on the part of creditors, aimed at confirming that the disputed funds were used for family purposes (for example, purchasing housing, children's education, treatment), and not for entrepreneurial activity," Dmitry explained.

In his opinion, such an approach serves to protect the property rights of the second spouse and contributes to tightening the requirements for evidence on the part of creditors, including the need to provide documents confirming the targeted use of funds.

"... It is necessary to pay special attention to determining the legal nature of the obligation that the creditor seeks to impose on the debtor's spouse. This is important to avoid the situation of shifting all the debts of the debtor to the spouse, including those obligations for which he is not responsible,” the lawyer added.