Division of property acquired before marriage

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Often, during a divorce, the husband and wife do not know how to properly divide the property acquired before marriage. If in jointly acquired property the shares of spouses are usually 50%, with objects purchased before the relationship was officially consolidated, the situation is different.

What is subject to division after divorce?

The property regime of spouses is legal and contractual. In the first case, we are talking about common joint property. The peculiarity of the contractual regime is that the husband and wife, before or during marriage, independently establish the conditions for the disposal of property.

The answer to the question of what property is subject to division can be found in Art. 38 of the Family Code of the Russian Federation. This category includes common joint property, which includes things and objects acquired during marriage.

Since relations between spouses develop differently, the division of property acquired during marriage can be carried out voluntarily or compulsorily (through the court).

What cannot be divided

In addition to common property, there is also personal property, which is not subject to division. This includes:

1. Items transferred into possession under an agreement of gift, inheritance and as a result of other gratuitous transactions.
2. Exclusive rights to intellectual property.
3. Prizes, awards.
4. Personal items with some exceptions.
5. Targeted benefits and financial assistance.
6. Funds paid as compensation for moral damage.

To determine what is not subject to division of property during a divorce, an important aspect should be taken into account: property acquired before marriage is classified as personal property, although there are exceptions to this rule. For example, jewelry and other luxury items are subject to division regardless of who used them.

If the spouses were legally married but did not live together, the court may recognize everything acquired during this period of time as the personal property of the husband or wife, provided that he or she bought the item with his or her own income.

Another example: one of the spouses arbitrarily wastes common funds, does not work, and unlawfully alienates property. The court has the right to reduce such a person’s share in the common property or even deprive him of things. The second spouse must prove that the husband or wife did not have income for unjustified reasons. In such cases, marital property arises that is not subject to division during divorce.

Property acquired before marriage

By getting married, a husband or wife does not lose the right to property acquired by them personally. An item belongs to a specific person who disposes of it at his own discretion.

In Art. 36 of the Family Code specifies what separate (personal) property of a husband and wife is. This rule also answers the question of what property is considered acquired before marriage. According to this document, such property includes everything that was purchased or accepted as a gift by the spouse before the formalization of the relationship.

Division of an apartment purchased before marriage

The property of each spouse is recognized as joint property if it can be established that during the marriage, due to common efforts or as a result of the work of the husband/wife, investments were made that significantly increased the value of the property. For example, a major renovation or refurbishment of the premises was organized.

Division of an apartment purchased before marriage is not provided if the market value of the property has simply increased, but no real improvements have occurred in the housing.

It is quite difficult to prove that the apartment has been significantly improved. When considering a dispute, the court takes into account:

• photographs of the premises;
• appraisers' opinions;
• receipts, for example, for the purchase of building materials;
• witness statements.

Lawyers are often involved in such cases, because winning a dispute and defending interests on your own is not easy. If you correctly state your position and collect enough evidence, the answer to the question of whether a wife can sue her husband’s apartment purchased before marriage will be positive.

Rights of a registered husband or wife

Let’s imagine a situation where the husband already has housing before marriage. After the wedding, the wife is registered in the apartment. When it comes to divorce, the question arises whether the registered person owns the rights to the property.

Based on Art. 31 of the Housing Code, it is not difficult to come to the conclusion that family members of the owner have the right to use the residential premises, but not dispose of them. If the husband is the owner of the apartment and the wife is registered, the property is not divided during a divorce. With the exception of the situation provided for in Article 37 of the Criminal Code.

Registration does not make a citizen the owner of real estate, it only confirms the fact of his residence at a specific address.

Repairs using joint funds

Since the property wears out during operation, the owner of the apartment carries out work to improve living conditions. As a rule, the family budget is used for this. In this case, during a divorce, property that already existed before marriage, but was improved with common money, is subject to division.

Improvement involves significant changes that will lead to an increase in the value of the property on the real estate market - major repairs, redevelopment, purchase of new equipment, and so on.

In court, the contribution to the apartment is confirmed by receipts and photographs of the living space. This helps to better understand how the spouses participated in home improvements.

Children's interests

In a family with children, the division of property acquired before marriage takes into account the rights of minors. When resolving a dispute through court, the presence or absence of living space of the second parent, the state of the child’s health and other important points will be important.

If a minor lives only with his mother or father, this parent is allocated the majority of the property upon division (Article 39 of the Family Code). The interested party reflects such nuances in the statement of claim. The requirements specified in the document must be justified.

Apartment on credit

A mortgage issued before marriage by either spouse does not belong to jointly acquired property. The division of property acquired with a mortgage before marriage is not provided for by law, but provided that the other party is a co-borrower.

When a relationship breaks down, many citizens do not know what fate awaits their property. In Art. 34 of the IC defines “jointly acquired property”. Based on the provisions of the article, we can conclude that one of the spouses has the right to demand compensation for expenses associated with paying the mortgage. Disputes are resolved in court.

Money spent after marriage registration is part of the family budget. Due to this, the wife’s rights to a mortgaged apartment purchased before marriage arise.

Although such situations occur in judicial practice, it is not always possible to prove the fact of joint contribution of funds. The chances of winning the dispute increase if the plaintiff decides to use the services of a lawyer and carefully collects documentary evidence of payment.

Section of a privatized apartment

Residential premises that were received as a result of the gratuitous transfer of municipal property are considered personal. Then the question arises whether the spouse has the right to the husband’s property acquired before marriage. The answer is negative. The right of ownership remains with the citizen who initially received possession of the property.

An exception to the rule is investing in improving housing conditions. In this case, the amount of money spent on repairs or reconstruction plays an important role. Based on this, the share of the second spouse is calculated.

To challenge ownership, you will still have to go to court.

When an apartment was given out at work, the moment of transfer of ownership of the property is key. Before marriage, ownership of the premises belongs only to the spouse who received the property; if during marriage, to both.

Housing purchased before marriage with common money

Situations arise when, even before the official consolidation of the relationship, a couple acquires real estate using common capital. The transaction is accompanied by the preparation of a supporting document. It must clearly indicate that the property was acquired jointly before marriage, and common money was used to purchase it.

In the future, this document will serve as proof of the overall investment. It will also ensure that when controversial situations arise, the court will take into account the rights of both spouses.

As a result of the transaction, common joint property is actually formed even before the official registration of the relationship. Upon dissolution of the union, housing purchased outside of marriage using common funds is subject to division.

Marriage contract

To avoid solving problems through the court, it is worth deciding in advance what will happen to the property acquired before marriage. To do this, the spouses sign a marriage contract. This can be done when formalizing the relationship or at any time during family life. The parties discuss property issues on a voluntary basis.

At their own discretion, spouses determine how property acquired outside of marriage is divided. The terms included in the text must take into account the legal rights and interests of both spouses.

The marriage contract should define:

• to whom, in the event of a divorce, ownership of housing acquired during marriage is transferred;
• how the spouses intend to divide the property;
• how the husband and wife will distribute joint income for repairs.

A prenuptial agreement is a guarantee that there will be no disputes over whether property acquired before marriage is subject to division. The document can be drawn up using a sample downloaded from the Internet, but it is better to use the services of a lawyer. The contract is signed in the presence of a notary.

Registration of living space for the second spouse

Sometimes citizens are interested not only in how to divide property, but also in how to transfer part of it. Registration of an apartment in the name of a spouse after a divorce does not happen often, but similar examples occur in legal practice. Most often they involve a voluntary decision by a couple to divide property.

To register an apartment in the name of a spouse after a divorce, the other party must present documents confirming the sale or donation of the share. Based on this, square meters are registered in the name of the citizen. To speed up the process of concluding a deal, you can contact a lawyer.

Selling an apartment purchased before the wedding

The sale of real estate purchased before marriage occurs according to the usual procedure:

1. Drawing up a preliminary sales agreement.
2. Drawing up the main purchase and sale agreement.
3. Certification of the document by a notary.
4. Signing of the agreement by the parties.
5. Money transfer.

Sometimes, in order to sell property acquired before marriage, you need to obtain your spouse's consent to the transaction. Without documentary evidence, it will not be possible to sell square meters. Written consent must also be notarized.

If the apartment is a person’s personal property, the transaction’s approval from the spouse is not required.

It is important to consider how the property was acquired before the formalization of the relationship. If this was done with the common money of the future spouses, the sale of an apartment purchased before marriage is carried out under conditions under which the income from the transaction is divided equally. Another course of action may be specified in the prenuptial agreement.

The same procedure applies if, during family life, the husband or wife made significant investments in property, due to which the market value of the residential premises increased significantly. In this case, the sale of personal real estate is carried out at the request of its owner, and the sale of property acquired outside of marriage, but with common money, is subject to obtaining consent from the other party.

conclusions

The dissolution of a marital relationship is often accompanied by property disputes. When deciding them, you need to focus on the Family Code and judicial practice. Significantly simplifying the situation is signing a marriage contract. If there is no voluntary agreement on the division of property, the right to part of the property can be proven through the court.

What rights does a husband have to his wife’s apartment that belonged to her before marriage?

As avid romantics say: “Love is when two halves unite and become one,” so, marriage is a legal variation of this phrase.

After both spouses put their signatures in the civil register, they become one, and in the event of a divorce, all property is divided in half.

In our article we will tell you in detail what exactly during a divorce is subject to inevitable division between the spouses, and what remains the sole property of each of them. And also, what rights does a husband have to his wife’s apartment acquired by her before marriage?

Regime of personal and joint property of spouses

The regime of joint property of spouses is established by the civil and family codes of the Russian Federation, as in Art. 34 of the RF IC and clause 1 of Art. 256 of the Civil Code of the Russian Federation states that property acquired by spouses during marriage is their common property.

RF IC Article 34. Joint property of spouses.

1. Property acquired by spouses during marriage is their joint property

2.

Property acquired by spouses during marriage (common property of spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose (amounts of material assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, and others). The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds.

3. The right to the common property of the spouses also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income.

Civil Code of the Russian Federation Article 256. Common property of spouses

That is, all property acquired by spouses using common funds is common, and accordingly, upon divorce, is subject to division in equal parts. Such property includes the following:

• Income of each spouse from: labor, entrepreneurial and intellectual activities;
• Pensions;
• Benefits;
• Other monetary payments that do not have a special purpose;
• Acquired from the common income of the spouses: movable property, real estate, securities, shares, shares in capital, etc.

In addition, even if one of the spouses does not work and does not receive any income, according to the legislation of the Russian Federation, all the same, the income received by at least one spouse is considered common, accordingly, property acquired with these funds will be considered joint and will have to be divided during a divorce in half.

However, the law also defines property that is not subject to division (clause 4.5 of Article 38 of the RF IC). These include:

• Items acquired for the use of minor children, such property is transferred to the spouse with whom the child will live;
• Funds contributed by spouses in the name of common minor children;
• Also, the court may not take into account the property acquired by each spouse during the period of termination of family relations before the dissolution of the marriage.

Clause 2, art. 256 of the Civil Code of the Russian Federation establishes the exclusive right of ownership for each of the spouses to the property acquired by them before marriage.

So, if each of the spouses, before marriage, owned any movable or immovable property (house, apartment, cottage, car, etc.), then such property is not subject to division during divorce.

The same rule applies to property that was received by one of the spouses during the marriage as a gift or by inheritance. Such property is also not subject to division and is the individual property of the spouse who received this property.

But not everything is as simple as it seems; there are moments in which the second spouse still has the right to claim a share in the ownership of property acquired by the other spouse before marriage. We'll talk about this later.

The husband's rights to his wife's apartment acquired by her before marriage

As a general rule, all property acquired by spouses before marriage is in no way taken into account during a divorce and is not subject to division.

However, there are circumstances where this rule can be challenged. For example, a husband has the right to claim a share in the ownership of his wife’s apartment if he has carried out such manipulations as a result of which significant improvements have occurred in the living space and the cost of the apartment has increased significantly.

Such manipulations are usually classified as:

• Major renovation of residential premises. In this case, such work is carried out as a result of which the unsuitable housing is brought into proper shape, and deficiencies that threaten the life and health of the residents are eliminated.

However, the concept of a major overhaul is based only on practice. The legislator does not provide such a definition.

• Refurbishment. This concept includes the complete replacement of any communications in the room. For example, a complete replacement of the apartment’s heating system, connection to the water supply, etc.
• Reconstruction. As a result of reconstruction work, the layout of the premises changes significantly, the number of rooms and even its area changes.

Such changes lead to an improvement in the appearance of the apartment, and therefore significantly increase its value.

None of these manipulations carried out with residential premises can be done without a large amount of material investments. This fact is the basis for recognizing the apartment as joint property.

After all, all the money received by the spouses during the marriage is common, and accordingly, repair work is carried out at the expense of the common budget, this gives the husband the right to claim a share in the ownership of his wife’s apartment. The same applies to repair work, for which the spouses took out money on credit. The loan is repaid from common funds, and accordingly, each spouse has a claim to ownership in this home.

So, to summarize the above, in order for a husband to be able to claim part of the property in his wife’s apartment, the following conditions must be met:

• Construction work must be carried out;
• The cost of the apartment should increase significantly;
• Construction work was paid for with general funds.

All of the above will need to be provided with evidence in court, only in this case the property will be given the status of jointly acquired property and it can be divided in the event of a divorce.

Evidence confirming the significance of the construction work performed in the home

• One of the problems that arises when establishing the status of joint property is the lack of evidence that the work was carried out during the marriage for common funds and through the personal participation of the spouse claiming a share in the ownership of the apartment.
• Simply telling the court about this orally is not enough; documentary evidence is required.
• Such evidence may be:

• Witness's testimonies;
• Checks and receipts for payment for construction materials and services;
• Agreements for the provision of repair and construction work with organizations;
• Other documents confirming the participation of spouses in repair and construction work.

In some cases, a forensic examination may be carried out, as a result of which information will be obtained about the nature of the work and the time of its implementation.

Only if there is sufficient evidence, the apartment will be recognized as common property and can be divided between spouses in equal shares.

The husband’s rights to his wife’s apartment acquired before marriage, if he is registered in it

1. A husband's registration in his wife's apartment does not give him the right to claim a share of ownership in the apartment.
2. Registration gives the husband the right only to use a share in the apartment provided to him during the marriage.

3. In case of divorce, the wife will be required to prove that the apartment was purchased by her before marriage and is only her property. To do this, you will need to provide the following documents to the court:

• Contract of sale of an apartment;
• Donation agreement;
• Certificate of inheritance.

The presence of these documents will completely deprive the husband of the right to claim a share in the ownership of his wife’s apartment.

Extracting a husband from his wife's apartment

The removal of a husband from his wife’s apartment can be done in two ways:

1. On a voluntary basis. In this case, the husband independently contacts the relevant authorities, where he will be discharged from the apartment in accordance with the established procedure.
2. Forcibly. In this case, the wife will have to apply to the court. Provide irrefutable evidence of the indivisibility of the apartment (indicated in the section above). After which the court will decide to remove the husband from the apartment.

To avoid such troubles, we recommend that if you have any expensive property, you sign a marriage contract.

Thanks to this contract, in the event of a divorce, it will immediately be clear which property will go to which of the spouses.

In addition, as new property is acquired, the marriage contract can be supplemented with additional clauses, which will significantly simplify and speed up the divorce process.

Division of property purchased before marriage

They are transferred to the spouse who directly used them during the marriage. The criterion of individual use does not apply to such valuables as a car, home appliances, etc. A separate paragraph mentions the right to the results of intellectual work. Thus, the author himself is given the right to own the finished work. However, funds received from sales during marriage are included in the family budget, which means they can be divided during a divorce. Also exceptions to sole appropriation are jewelry and luxury items.

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Content:

• Does a wife have the right to her husband’s apartment purchased before marriage?
• The Supreme Court explained how to divide an apartment purchased with the money of one of the spouses
• Is it possible to divide property acquired before marriage?
• Is an apartment purchased before marriage divided during a divorce?
• Property purchased before marriage
• Can the deceased’s apartment purchased before marriage go to his spouse?

Does a wife have the right to her husband’s apartment purchased before marriage?

VIDEO ON THE TOPIC: How to divide property paid by one of the spouses before marriage, but registered during marriage?

Civil marriage and inheritance The apartment was taken out on a mortgage before marriage, how is it divided during a divorce? The answer to this question is regulated by the laws of the Russian Federation. A mortgage that was issued before marriage in the ownership of one of the spouses is not jointly acquired property.

If the mortgage was taken out before marriage, then after the divorce this property will not be subject to division. Here we are considering a situation where the other party is not a co-borrower. But, as with most property issues, there is a pitfall.

And it is spelled out in Article 34 of the Family Code of the Russian Federation. It describes the definition of jointly acquired property. The spouse can also obtain through the court the right to property in this housing. This is due to the fact that the money that was spent after registering the relationship was already part of the general family budget.

Next, the court makes a decision on each specific precedent. The situation becomes somewhat more complicated if the mortgage was issued for a shared construction project, that is, for housing that was purchased during the construction process before the marriage, and was rented out after the relationship was registered in the registry office.

That is, a certificate of state registration of rights was already issued during marriage. Here, the likelihood that the court will protect the property rights of the second spouse increases.

Another situation in which the court can make a similar decision is if the husband purchased an apartment with a mortgage before marriage, continued to make payments after marriage, and the wife was on maternity leave at that time, or did not have a constant income for other valid reasons.

As a result, here are some tips: Life is dynamic and unpredictable, so before the wedding you should protect your property from attacks. To do this, draw up a marriage contract. Don't throw away your mortgage receipts. In case of divorce, seek professional legal help.

Try not to bring this issue to court. In case of divorce, an apartment purchased before marriage is divided according to the law. Upon divorce, spouses can divide acquired property.

This can be done by agreement or as a result of a trial. The type of property plays a key role in determining the amount of property to be divided.

According to the law, there are two options: One of the main issues of concern to Russians going through divorce proceedings is the following: The motivation for this fact is that only property that was purchased after the official registration of the relationship becomes joint.

True, the law clarifies the rule: Often a couple lives together and maintains a common household. In this case, the apartment will not be divided during a divorce. The second partner can claim half of the paid mortgage value.

True, there are exceptions to this rule. If the husband was the owner before marriage, but the money for the down payment was shared, and payments were made jointly, the couple lived as a family, although they did not register the relationship, then if the other half can prove in court that the apartment belongs to joint property, the apartment will be recognized as such.

Is renovation the solution? But to apply this rule, it is necessary that within the period after marriage: Significant repairs have been made. Common money or money from both spouses was used. Division of property in divorce: Property purchased by spouses during marriage is, as a general rule, divided in half upon divorce.

But in practice it turns out that there are many exceptions to this rule. The marriage is dissolved, but there is common property. What to do? Let's say the spouses have already divorced, but the property has not yet been divided. They have three years to do this. To file a claim in court, you must obtain extracts from the Unified State Register of Real Estate (USRN) for all real estate objects.

This document is issued to any person through the MFC. In order to order an extract, you must have a passport with you, indicate the address of the property and bring a paid receipt of state duty in the amount of rubles. If you do not have other documents for the property, for example, a purchase and sale agreement, then the court will accept the claim only with an extract from the Unified State Register.

This extract contains information about the cadastral value, with which you can calculate the amount of state duty. Also, in order to file a claim, you need a divorce certificate, a court decision on divorce and some minor documents (an extract from the house register, a technical passport for the apartment, etc.).

The court is already considering the issue of divorce and division of property at the request of one of the spouses. How to build protection to preserve your property?

When thinking through your line of defense in court, you should decide which property you are willing to part with on the condition that you receive monetary compensation, and which is worth fighting for.

The defendant has the right to object in court and file a counterclaim in which he will offer his vision of how to divide the property. As part of the process, you will need to present to the court the missing documents regarding the joint property. However, the defendant must remember that some documents in court may well harm him.

One or both spouses have personal premarital property. Who can claim what? If you have real estate purchased before marriage, it does not matter whether you lived together before marriage or not, then such real estate is not subject to division between spouses after divorce.

The exception is mortgage housing, but this will be discussed below. There is real estate received during marriage through inheritance, privatization, donation and other gratuitous transactions.

Can it be divided? Real estate received through gratuitous transactions is the personal property of a spouse. It does not matter whether the person was married at the time of taking ownership or not.

Free transactions are those transactions that do not require joint investment of marital money to purchase real estate. Examples of receiving real estate free of charge: Exceptions are apartments received at the place of service, work, apartments under a annuity agreement for life with a dependent.

Dividing a mortgage is crazy complicated, right? The division of mortgage housing inspires such fear in many couples that sometimes people do not get divorced for years just because of this.

The third party is always the relevant bank. In court, the parties determine the format for dividing the apartment: During the court proceedings, pay the mortgage, even if one of the spouses refuses to pay, then you will recover half of the amounts paid from him.

If an apartment was purchased with a mortgage before marriage, and the loan was paid for it already during the marriage, then, depending on the amount, you can either allocate a share to the second spouse or recover monetary compensation in the appropriate amount.

You can also sell a mortgaged apartment, and the bank’s consent is not necessary for this. How to divide an apartment, the cost of which was partially paid with maternity capital?

The corresponding demands must be presented to the court. How to divide a house that was built by spouses jointly, but on the personal land plot of one of the spouses? The case when a joint house was built during marriage on the personal land plot of one of the spouses is not the easiest, but it can be solved. True, even in this case you will have to go to court.

A spouse who is not the owner of the land, but has the right to half of the house, can establish in court a limited right to use the land - an easement. Or buy part of the land from your ex-spouse.

In the latter case, you can become the owner of the house, in all others - not. What to do if one of the spouses borrowed money during marriage to buy real estate, and returned the money to the lender from the sale of their own premarital property?

Real estate purchased during marriage with borrowed funds is joint property. There is only one exception to the general rule: In this case, during the division in court, it is necessary to present evidence and a causal relationship between the payment of the debt and the sale of the property.

Is it true that not all property needs to be divided during a divorce? Since the practice of marriage contracts has not yet taken root in Russia, divorce remains not only sad, but also troublesome.

If it was purchased with money before marriage in a new building, and at the time of receiving the certificate of ownership the person was already married, then the basis for recognizing personal property is not the moment of acquisition, but the moment of payment for it.

Who has the right to an apartment if it was purchased before marriage? If all the evidence provided by the plaintiff is confirmed, then the distribution of property purchased before marriage will be made in accordance with the general norms of the legislation that governs these events - the parties will receive equal parts of the apartment. To prove ownership of an apartment, you must provide the relevant documents. The primary basis for the right to an apartment before marriage will be a deed of sale or other equivalent document, a will, a gift agreement.

The Supreme Court explained how to divide an apartment purchased with the money of one of the spouses

But marriage cannot be an obstacle to a husband and wife owning and managing personal property - real estate, cash savings, a car, a business.

In this article we will look at what property the law calls personal, and whether personal property can be divided between a husband and wife during a divorce. Divisible and indivisible property So, according to the law of Art.

During a divorce, joint property is subject to division into equal parts. At the same time, the law makes a reservation:

Is it possible to divide property acquired before marriage?

Free from mobile and landline Free multi-channel telephone If you find it difficult to formulate a question, call the free multi-channel telephone 8, a lawyer will help you 1.

When dividing property, how can I take away from my ex-husband the equipment I purchased before marriage? Hello, I bought equipment: a computer, a refrigerator, a TV, a camera, etc.

How can I now pick up my things and prove that they are mine?

The federal number is free to call for all regions of Russia!

How to keep property purchased before marriage? And how can I ensure that ownership of the house remains with me? Yes, it will. In accordance with the law, all property acquired by spouses during marriage is their common joint property.

And if no action is taken, then, as a general rule, a house acquired during marriage will be registered as the common joint property of the spouses.

Moreover, if you, in the event of a deterioration in relations with your spouse, want to restore justice and prove that the house was purchased only with your funds and is your personal property, it is not at all a fact that you will succeed.

When making decisions on such claims, courts prefer to assume that the property is joint until proven otherwise, and it is quite difficult to prove that the same funds that you received from the sale of the apartment were used to purchase the house, even if the transactions took place at the same time.

In order to avoid such a development of the situation, the law has provided for such a basis for determining the rights of spouses to property acquired during marriage as a marriage contract. In it, you and your spouse can determine the fate of any property, both acquired during the marriage and previously owned by each of the spouses.

Is an apartment purchased before marriage divided during a divorce?

Conclusions What is subject to division after divorce The property regime of spouses can be legal and contractual. In the first case, we are talking about common joint property. The peculiarity of the contractual regime is that the husband and wife, before or during marriage, independently establish the conditions for the disposal of property.

Civil marriage and inheritance The apartment was taken out on a mortgage before marriage, how is it divided during a divorce? The answer to this question is regulated by the laws of the Russian Federation.

Non-joint property: Deciding who will get the housing turned out to be difficult: The Supreme Court decided whether it matters with whose money the joint property was purchased.

The purchase was to be transferred to her ownership after the developer received permission to put the residential building into operation. During the divorce, the spouses were unable to peacefully decide who would get the one-room apartment.

The wife, who remained with her after the breakup, did not register the property rights, and the ex-husband decided to receive his share of the joint property through the court. To do this, he filed a claim with the Leninsky District Court of Novosibirsk, demanding recognition of his ownership of the property.

Is it possible to divide an apartment purchased before marriage? Before making an entry in.

Is an apartment purchased before marriage divided during a divorce? In accordance with the law, after the divorce of spouses, jointly acquired property is subject to division. As a rule, real estate and material assets are divided between former spouses in equal shares.

Accordingly, the property that was owned by someone before the wedding does not fall under division after the divorce. But this issue is not as clear-cut as it might seem at first glance.

It is necessary to understand all the nuances and answer the question that concerns many people divorcing a marriage: Real estate and material assets that belonged to each spouse before marriage are his personal and remain assigned to him even if the union is dissolved.

However, there are a number of exceptions to this rule, which are few in number, but may become a controversial issue during legal proceedings during the division of property. Before marriage, the newly acquired apartment was subject to significant repairs and reconstruction.

Can the deceased’s apartment purchased before marriage go to his spouse?

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Is property acquired before marriage subject to division?

Divorce includes not only the preparation of official papers and the return of the maiden name, but also the unpleasant procedure of dividing everything that the spouses own. If everything is more or less transparent with jointly acquired values, then the division of property acquired before marriage is often accompanied by legal proceedings. In order to keep the ex-spouse what belonged to him before marriage, you need to carefully study the legislation.

The best option to save your nerves in the event of a possible divorce is to enter into a prenuptial agreement! It includes all the nuances of dividing both property purchased during marriage and what was pre-marital property.

In Russia, the popularity of prenuptial agreements is low, perhaps due to the local mentality and the sacred belief that marriages are concluded once and for life.

However, the divorce statistics of the last decade are depressing; more than 23 of the prisoners' unions break up.

Indivisible property, according to Article No. 36 of the RF IC (Clause 2.Article 256 of the RF Civil Code), is considered to be:

• property (houses, apartments, valuables, savings, etc.) that was owned by the spouse before the day of consolidation of the marriage;
• things received during marriage on the basis of an unfavorable deal (gifts, property inherited);
• items purchased for personal use with the exception of luxury and jewelry;
• results of creative, intellectual activity (patents, publishing contracts, etc.).

It would seem that everything is simple, but there may be exceptions to this list. The articles of the family and civil codes do not clearly define what is considered a luxury item.

In one family, a mink sheepskin coat for 100 thousand rubles is an unprecedented, priceless acquisition, in another - “week-old”, natural, everyday clothing.

According to a special scenario, everything that is considered luxury and does not depend on the right of primary ownership is divided. This list includes:

• precious, semi-precious stones, metals and products made from them (including jewelry);
• objects of art, antiques;
• things made from valuable fur;
• unique products that cannot be essential items and satisfy everyday needs.

The existing myth that jewelry that women wear on themselves or buy in the hope of providing support in the event of a divorce is not shared is nothing more than an everyday misconception. It is enough for the spouse to present receipts, evidence that the money for the acquisitions came from the general family budget, and the court will issue a decree on the shared division.

The law does not stipulate how the division of property that was owned by one of the spouses occurs. A priori, it is not divided, but there are a lot of nuances that you need to know and keep in mind so that during a divorce you are not left with nothing.

Not only property purchased (inherited, gifted) before marriage, but also after divorce is considered indivisible. That is, if a husband (wife) bought an island in the ocean the next day the certificate was issued at the registry office, then it is his property, outside of marriage.

Important! In order not to raise the issue of dividing premarital property, you need to have clear evidence of the timing of its acquisition. The reasons for the acquisition are taken into account - purchase, privatization, gift, inheritance.

Donated property, as inherited by law or will, as a result of privatization, is also not divided, even if this happened at the time of marriage.

Throughout your life, it is recommended to keep documents confirming the timing and basis of purchases:

• purchase and sale agreements;
• papers confirming donation, inheritance, privatization;
• all checks, receipts, bank statements.

It would be a good idea to enlist the support of witnesses. Moreover, it is better if they are from among the uninterested people: sellers, neighbors, bank employees. They listen less to relatives and friends of the husband or wife. And certainly in court they will not take into account unfounded statements that are not supported by documents.

Any law, if you interpret it correctly, can be turned to your advantage and made an exception. Thus, real estate, being owned by one of the spouses before marriage, is subject to division if significant amounts are invested in it during the period of family relations.

A simple example: a Khrushchev-era apartment, being owned by the wife, was refurbished at the expense of the husband during the marriage according to the latest fashion.

During the divorce, the spouse presented checks, statements for building materials, payments for contractors and announced the final amount of investments, based on which the apartment’s value had increased significantly. In this case, he has the right to his share of the investment.

There are frequent situations when money from the sale of property that belonged to one of the spouses before marriage is used to buy an apartment (cottage, car). During a divorce, the second spouse claims this, arguing that it was a joint acquisition.

If evidence of the movement of funds has been preserved, the court will take the side of the one who originally owned the property. The “deceived” person retains the right to live in the apartment or use the car, but has no rights to them as the owner.

Even the registration of the second spouse does not give him the right to divide the living space in accordance with Art. 36 IC RF. But if during the marriage the husband (wife) sells the property and makes a new purchase for themselves or relatives, the real estate acquires the status of divisible property.

• Therefore, if a spouse insists on selling everything that was in the premarital property of the other half in order to make improvements in their life together, or, arguing that it is “unnecessary” or difficult to maintain, it is better not to agree.
• Either transfer the received amount to the account of close relatives (mother, father) or keep documents confirming that this particular money was allocated to the family budget thanks to the sale of personal, premarital property.
• If a person took out a loan or mortgage before marriage, but the amounts of payments were made already during the period of family (legal) relations, the second spouse can file a claim in court, on the basis of which the funds will be returned to him from the person to whom the property is assigned.
• In other words, the owner-spouse must return the former spouse’s share of payments, since he has nothing to do with the acquired property.
• After the death of one of the spouses, fundamentally new laws come into play, regulating the rights of inheritance of the property of the deceased that belonged to him before marriage.

In this case, the widow (widower) according to Art. 1142 of the Civil Code of the Russian Federation lays claim to the property as a first-priority heir on an equal basis with the children and parents of the deceased spouse.

The entire inherited object is divided in equal shares between legal successors.

Moreover, everyone is called upon to divide property, including children from previous marriages and civil relationships, if there is a corresponding record of relationship in the birth certificate.

The widow (widower) can present evidence in court that he invested significant amounts in the premarital property of the deceased. Often the court considers this as the only basis for notarization of the right to property.

If the deceased has drawn up a will in favor of his spouse, approving him as the sole heir of his premarital property, then the dispute usually ends there.

Information is taken into consideration that the husband’s (wife’s) apartment previously belonged to relatives, was purchased as a wedding gift, or was inherited after death from one of the owner’s relatives.

Living in a civil marriage gives fewer rights to property, both jointly acquired and premarital. It is possible to receive the “premarital” property of a cohabitant after his death if the deceased leaves a will.

The basis for certification of the right may be the incapacity (disability) of a dependent cohabitant who has lived in a civil marriage for more than a year. But he must pay 0.6% of the amount of the share ownership assigned by the notary.

If you have any questions, our duty lawyer is ready to advise you free of charge ↓

Division of marital property, what you need to know

Good afternoon In this article we will talk about the division of joint property of spouses. So, let's begin.

According to Art. 60 of the Family Code of Ukraine , property acquired by spouses during marriage belongs to the husband and wife by the right of jointly acquired property, regardless of the fact that one of them did not have a good reason (study, housekeeping, child care, illness, etc. .) independent earnings.

There are 2 ways to divide jointly acquired property:

1. Voluntary: spouses voluntarily divide jointly acquired property. When dividing movable property (for example, furniture, household appliances, etc.), the agreement can be oral; when dividing real estate, a written form of the agreement and its certification by a notary is mandatory.
2. Judicial: if it is not possible to resolve the issue of division of property voluntarily, the only way remains is to apply to the court with a statement of claim for the division of the jointly acquired property of the spouses.

•        We will dwell on the judicial method of dividing property in more detail.
• If you nevertheless decide to go to court for the purpose of dividing property acquired during marriage, you need to collect the following documents (this list of documents is approximate and is individual for a particular situation - it must be discussed with your lawyer when drawing up a statement of claim to the court) :
•    — copies of pages of your passport (1, 2, registration) and identification code — 2 copies;
•    — copies of the marriage certificate (if the marriage is not dissolved) — 2 copies;
•    - copies of the court decision or certificate of divorce (if the marriage is dissolved) - 2 copies; 

   - copies of documents for jointly acquired property (house, apartment, etc.) - 2 copies;

   — a statement of claim (which will be drawn up for you by a lawyer) for the division of jointly acquired property in two copies;

       If you do not have the opportunity to provide documents for jointly acquired property, for example, your spouse hid (hid) documents for an apartment (house) from you so that you would not go to court, do not despair, this problem can be solved. In this case, you should raise the question of requesting these documents from your spouse before the court.

When filing a claim for the division of jointly acquired property, a court fee is paid in the amount of 1% of the value of the property, but not less than 243 UAH. 60 kopecks (minimum court fee for filing claims in 2014).

Regarding jurisdiction ( which court to file a claim in ) - when dividing movable property, the claim is filed at the registered place of residence of the defendant (your husband or wife). When dividing real estate, a claim is filed based on the location of the real estate.

And if you are registered in the Avtozavodsky district of the city of Kremenchug, your spouse is registered in the Kryukovsky district of the city of Kremenchug, and during your marriage you purchased (built) a house on the territory of one of the villages of the Kremenchug district, and want to divide it, the claim should be filed in Kremenchug district court.

Also, you should pay attention to the following practical points :

         — being married is not a basis for refusing a claim for division of property. You can divide property without dissolving your marriage;  

— the limitation period (the period during which you can go to court to protect your rights) in cases of division of property is 3 years from the date of divorce. If the marriage is not dissolved, the statute of limitations does not apply. That is, if you are married, you can go to court with a claim for division of property at any time;

- if a woman and a man live in the same family, but are not married to each other or in any other marriage, the property acquired by them during their cohabitation belongs to them by the right of jointly acquired property, just like the spouses;

- in the case of division of jointly acquired property, parts of the property of the spouses are equal .

According to the Family Code of Ukraine, the court may deviate from the principle of equality between spouses if minors or disabled children (disabled groups 1-3) live with the wife (husband), provided that the amount of alimony they receive is insufficient to ensure their physical , spiritual development and (or) treatment. But in practice such examples happen extremely rarely.

        — when dividing the property of spouses, debts and loans that arose in the interests of the family are also taken into account. That is, debts are also divided.

        - if, during the division of the property of the spouses, it is established that one of the spouses sold (donated) it at his own discretion against the will of the other spouse and not in the interests of the family, not for its needs, or hid it, the value of such property is taken into account during the division. For example, if you purchased a car during marriage, and your husband (wife) sold it without your knowledge, the court will order 1/2 of the market value of the car at the time of consideration of the case from your husband (wife) in your favor.

       — according to the decision of the Constitutional Court of September 19, 2012, the property of a private enterprise is jointly acquired property of the spouses and, accordingly, is subject to division.

Before this decision was made, according to the Resolution of the Plenum of the Supreme Court of Ukraine dated December 21, 2007.

the property of a private enterprise and an individual entrepreneur was not jointly acquired; the other spouse had only the right to a portion of the income received from this activity.           

Also, it should be noted that it is the individual private property of the wife (husband) and, accordingly, is not divided . According to Art. 57 of the Family Code of Ukraine, the individual private property of a wife (husband) includes:

1. Property acquired by her (him) before marriage;
2. property acquired by her (him) during marriage, but on the basis of a gift agreement or as an inheritance;
3. property acquired by her (him) during marriage, but for money that belonged to her (him) personally (must be supported by documents, for example, an extract from a deposit deposit made before marriage);
4. housing obtained during marriage through privatization (except for the period from February 8, 2011 to June 12, 2012);
5. land received during marriage through privatization (except for the period from February 8, 2011 to June 12, 2012).

      Also, individual private property includes things for individual use, including jewelry, even when they were purchased with common money; bonuses; personal insurance payments, etc.              

       In addition, the court may recognize as the individual private property of the wife (husband) the property acquired by her (him) during their separate residence in connection with the actual termination of the marriage relationship.     

        This article analyzes the main aspects of the division of marital property. I would like to draw your attention to the fact that each situation is individual and requires an individual approach and analysis, and therefore legal advice.

        Good luck in your endeavors!

                                           Sincerely, lawyer Akimov Valery Viktorovich

                                          Contacts: Kremenchug, st. Pervomaiskaya, 39, room. 9                                                                                  

                                                         (room "Legal consultation"), tel.: 097-59-03-625,

email: [email protected]