Sale of the apartment without the consent of the spouse, whether or how the apartment can be sold without the consent of the spouse

From the point of view of the legislation in force, assets acquired by citizens during marriage are considered to be their common property.

Therefore, in the case of the sale of such real property, the written consent of the husband(s) to the transaction is required; in some cases, however, the document is not required, and the details and nuances will be discussed in the article.

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Why do you have to let the other half?

It should be noted immediately that the property regime of the spouses is regulated by chapter 7 of the Code of Criminal Procedure. Thus, all assets acquired by the couple during their marriage are joint property (art. 34 of the Code of Criminal Procedure and art. 256 of the Code of Criminal Procedure).

The right to own, use and dispose of property also applies to the spouse who does not earn money for good reasons (e.g. for household maintenance, child rearing, etc.).

Any action taken in respect of a common apartment must be by mutual consent of the husband and wife.

In the case of a transaction requiring registration at Rosreister or a compulsory certificate from a notary, a letter of consent from the second half would be required (art.

Moreover, for such a document, a particular form, notarized certificate, must be respected. It follows from the above rule that a husband or wife cannot sell an apartment voluntarily (except in certain cases).

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Consider in detail whether, as husband or wife, you can make a deal with a property purchased during marriage without the consent of each other, if one of you is the owner? There are a number of situations in which the consent of the other half to such a transaction can be avoided, but there are also cases that do not give such a right.So, there's no need to agree to the sale of a common dwelling under the following circumstances:

• If she was bought by her husband or wife before the formal legalization of the relationship and one of them was the owner.
• In the event of a privatization programme and the seller being the owner of the home, the couple ' s de facto joint funds have not been spent, since privatization involves the free transfer of the dwelling from the State to citizens (the participants in the privatization paid only for the issuance of documents).
• In the case of an apartment obtained under a contract of succession, the heir has the right to dispose of his own assets.
• If the property to be disposed of is a gift and has been issued to the seller (husband or wife) under the gift contract.
• Other cases in which family money was not spent on the acquisition of property.

If a marriage contract concluded between newlyweds states that a particular apartment is owned by one of them, then consent to the sale of such a dwelling will also not be required.

The main situations in which the written consent to the transaction from the second half is required are as follows:

• The apartment was purchased after marriage under a sales agreement.
• The abandoned dwelling was purchased under a contract of the man, under which the previous apartment was exchanged for another.
• Total real estate refers to the cooperative housing fund, with the spouses paying contributions.
• The couple purchased housing in the order of their share of the building.

In addition,In some cases, one of the couple may legally recognize the property of the second half of the joint propertyThis is possible if it is established that the cost of a particular facility has been significantly increased by the joint investment of husband and wife (art. 256, para. 2, para. 2).

When the written consent of the husband(s) is required, and when it is possible to do without it, consider in this video:

How do you make a deal if your husband or wife is against it?

So if the property is not jointly acquired, then there will be no problem selling it, because consent is not required, and the transaction will be done in a generally accepted manner.

Is it possible to sell property if the husband (wife) does not want to give his consent to the sale of the joint dwelling? In such a situation, the only solution would be to divide the common property and further dispose of his share.

The division of jointly acquired assets is regulated by article 38 of the Code of Criminal Procedure. This can be done both during family relations and after divorce on the initiative of one of the former spouses.

Thus, there are two main ways of dividing assets that were acquired during marriage (art. 38, para. 2-3):

• Through a peace agreement between husband and wife- Under such a document, spouses may agree to a share in the form of monetary compensation to be paid in favour of a participant who does not wish to consent to the sale.
• By filing a claim with the court(this option is used when there are disputes regarding the determination of the share of each of the participants in the common property).

When a dispute is resolved, the court shall decide which part of the total property shall belong to the plaintiff and the defendant; in the event that one of the parties is given a share of the dwelling which is higher than the amount due, it shall pay monetary compensation in favour of its second half; this is stated in paragraph 2, paragraph 3, of article 38 of the UK.

Thus, in summary, it should be noted that if there is no consent of the second half for the sale of a common apartment, the only way out is to divide the property; only after the allocation of a specific share to each of the spouses can it be sold.

Legal implications

Attention!Both the seller and the buyer of the apartment must understand that if one spouse sold the property without the consent of the other, such a transaction would be sufficiently risky and could lead to very large problems.

Thus, under article 35, paragraph 2, paragraph 3, of the Criminal Code, a person whose interests have not been taken into account in the removal of a common dwelling has the right to declare such a transaction null and void by filing a claim with a district court; this may be done within one year of the date on which the joint property member became aware of the circumstances.

In turn, the following legal consequences result from the recognition of a transaction as invalid (art. 167, para. 2, of the Criminal Code of the Russian Federation):

• The parties will have to return to each other the property transferred under the contract of sale, that is, the buyer will have to return the apartment and the seller will have to return the money received;
• Return what is received in monetary terms (if it is not possible to do so in kind).

In addition, if a division of jointly acquired property has not been made, the second half will be able to initiate legal proceedings for the allocation of the share due to it; the statute of limitations in such cases is 3 years (art. 38, para.

So,In practice, the sale of property without the consent of the other party is feasible.

However, the only reasonable way out of this situation to avoid problems in the future is to divide property and dispose only of its share or of the entire apartment (in the case of the purchase of the second party part), otherwise the seller as well as the buyer of the flat may face serious legal consequences.

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Sale of real property without spouse ' s consent

If you sell an object of real estate (any object - an apartment, house, room in a communal apartment, garage, land or garden), in most cases you require a notarized consent of the spouse to the transaction, a requirement laid down in the Family Code of the Russian Federation, which indicates that property acquired during marriage is considered jointly acquired by the spouses, and in fact belongs to both of them, even if it is legally issued for one person.

To dispose of property – to sell, rent, or give, to bequeath – the seller needs the consent of the second half, and in this regard the buyer needs to be vigilant and prevent the acquisition of the facility without the necessary document.

At the same time, in some cases, the spouse's consent to the transaction is not required, and the registration authority does not need it, so if you are later concerned about the lack of consent and you are afraid that your transaction may be challenged, you should know that there may be no cause for concern, which is what our legal experts say.

Oleg Klopov, member of the Kurganov and Partners Bar:

1. Property is owned by the spouses in the right to share (the apartment is privatized on both spouses) or joint property (the apartment is acquired during the marriage), and the property is settled by both spouses.

2. Real estate is acquired by the spouse before or during marriage as a result of a gift, inheritance or other free transaction, the property being the property of the spouse in question.

3. The specific immovable property, although acquired by common funds during the marriage, is transferred to one of the spouses by an agreement on the division of the common property of the spouses or by a court decision on the division of the property.

4. Real property is acquired by each of the spouses during the marriage during the period of separation, with the actual termination of the family relationship, in which case the property in question will not be subject to the legal regime of common joint property, but the court ' s decision to recognize the property as the property of the spouse is necessary.

5. Real property and any other property acquired during marriage, but the marriage contract transferred the property to the division of the separate property of each of the spouses.

In other cases, notarial consent is required under article 35, paragraph 3, of the Family Code of the Russian Federation.

Such consent may be given both for a particular dwelling with a specific address and for the purchase of the apartment by the spouse, and must be accompanied by a passport and a marriage certificate.

There may be situations in which it is not possible to obtain the consent of the other spouse to enter into a real estate transaction because of the long absence, unknown place of residence.

In such a case, the transaction may be concluded only if the other spouse has been found missing (art.

42, 43 of the Civil Code of the Russian Federation), as confirmed by the corresponding copy of the decision of the court that entered into force.

• If the spouse refuses to consent to a transaction with immovable property, it is more appropriate to apply to the court for the division of the joint property, after which the transaction can be processed without the consent of the other spouse.
• A spouse whose notarized consent to the transaction was not obtained has the right to request that the transaction be declared null and void within one year of the date on which he became aware or should have known that the transaction had taken place.
• By virtue of the provisions of article 35, paragraph 2, paragraph 2, of the Family Code of the Russian Federation, a transaction made by one of the spouses on the order of the spouses ' common property may be declared null and void by the court on the grounds of the absence of the consent of the other spouse only at his or her request and only if it has been proved that the other party to the transaction knew or ought to have known that the other spouse did not agree to the transaction.

The decision of the plenary of the Supreme Court of 5.11.1998 "On the application by the courts of the law in divorce cases" states that the three-year limitation period for claims for the division of property, which is the common property of divorced spouses (art.

38 UK) should be calculated not from the time of the dissolution of the marriage (the day of State registration of the dissolution of the marriage in the register of civil status at the dissolution of the marriage in the civil registry, but from the date of dissolution of the marriage in court, the day of the entry into force of the decision) but from the day on which the person became aware or should have been aware of the violation of his or her right (art. 200, para.

For this reason, the court may declare the transaction null and void in the absence of notarized consent of the spouse one year or more after the dissolution of the marriage, unless the spouse whose consent was not obtained knew or could have been aware of the violation of his or her right.

In this case, the notary must request a document confirming the dissolution of the marriage to verify that the property has been acquired after the dissolution of the marriage, thereby significantly reducing the risk of the transaction being declared invalid.

The registration case, which is kept in the Rosreestra archive, contains all documents handed over by the parties to the transaction when it is registered by the State (application, copy of the contract, extract from the home book, technical passport, etc.), and the buyer may request the seller to request a copy of the registration file to verify the spouse ' s consent to the disposition of real property in previous transactions.

Medina Kulshmanova, lawyer at Genezis Law Company:

- The law does not require the husband ' s notarized consent for the sale of real estate if sheis not generalIII. Such property may, for example, be classified as:received prior to marriage, obtained during marriage through gift, inheritance and other free transactions, and purchased during marriage from personal means.

If, however, a transaction for the sale of common property has been registered without the consent of the spouse, it should be borne in mind that a spouse whose notarized consent to the transaction has not been obtained is entitled to request the court to declare the transaction illegal and the consequences of the nullity of the transaction will be applied by the court.

If the buyer has acquired real property as a result of such an illegal transaction, it may ask the seller or the spouse of the real estate seller whether consent to the transactions is possible.

Information on the existence or lack of consent in previous sales is logical to ask the real estate seller.

If consent is not obtained, the contract for the sale of real property may be avoided, with the corresponding effects provided for in the contract.

Alexander Kostaniantz, Professor of the Higher School of Corporate Governance, RANHYGS, Honorary Advocate of Russia:

In this connection, if the State registrar determines from the documents submitted for public registration that the parties to the transaction have failed to comply with the legal requirements (notarized consent of the other spouse has not been obtained), a decision must be taken to suspend the State registration of the rights and, if the reasons preventing the State registration of the rights have not been eliminated, to deny the State registration of the rights.

A transaction made by one of the spouses on the order of the common property may be declared null and void by the court on the grounds that the consent of the other spouse has not been obtained only at the request of the other spouse and only if it is proved that the other party to the transaction knew or ought to have known that the other spouse did not agree to the transaction in question.

1. With respect to the remaining transactions involving common property, it is assumed that the spouse making the transaction is acting with the consent of the other spouse.
2. So,notarized consent of the spouse to the transaction not requiredIn the following cases:
3. - if real estate is purchasedNon-residential fund(The consent of the spouse is not required for non-residential premises);
4. - if real estate is acquired asjoint property(in accordance with the Family Code of the Russian Federation);
5. - if real estate is acquired asin-grid(For example, 1/3 to the spouse, 2/3 to the spouse);
6. - if real estate is sold that is owned only by that spouse(received by one of the spouses prior to the marriage as a gift, inheritance or other free transaction);
7. - if privatized property is sold to one of the spouses (when the other spouse has not acquired the right to use himself or herself, orwrote a refusal to participate in privatization.).
8. In any case, it is recommended that the agreement be notarized by the second spouse, since in the event of disagreement between the partners, the sale and the division of property in the event of a divorce, one of the spouses may require the court to declare the transaction null and void.
9. If the transaction was registered without the consent of the spouse, the transaction is classified as a risk and the purchase of property for which the second spouse ' s consent was not obtained is not recommended.
10. In order to reduce risks, it is recommended that the marital status of the parties to the transaction be checked and that notarial consent from the second spouse be required.

Executive summary

Thus, it can be concluded that the consent of the spouse is required if the object is purchased by joint money; if the seller has been given or given free of charge, or has inherited it, consent is not required.

However, knowing how to obtain ownership of the property by the seller must surely examine all the documents and determine the need for the spouse's notarized consent.

If you have any doubts, you should seek advice from a notary, a lawyer, or an experienced realtor.

Sale of the apartment without the consent of the spouse: characteristics of the transaction, necessary documents and consequences

Housing Law > Real Estate Formation > Sale of an apartment without the consent of a spouse: How to make a deal and avoid trouble

The sale of an apartment without the consent of the spouse is a real procedure, provided that the object was purchased prior to the marriage with the wife ' s personal funds or is owned by her pursuant to a marriage contract; in other cases, the transaction without the consent of the partner may be declared invalid and the seller faces a penalty.

If the apartment was acquired during the marriage, the second spouse also has the right to it.

Under the legislation of the Russian Federation, the property acquired by the spouses during marriage is common property; accordingly, when selling private property, they have general rights over it.

The consent of both spouses is required for the conclusion of transactions, even if the property is registered per person. 2 parts of Article 34 of the UK refer to property deemed to be common possession:

• A loan obtained through joint business activities.
• Non-earmarked State benefits and benefits.
• Driving and real estate items bought for general earnings.

All property is considered to be common, even if the spouses do not live together but are legally married; only through court proceedings can it be determined that the property is the property of the husband or wife.

When you need the second half's consent for the sale of real estate

The spouse's consent to the sale of property is a written document that allows the wife to dispose of the joint property under the law; the consent must be certified by the notary and has its own series and number.

A similar documentation process is needed if the apartment has been bought with the total money of a man and a woman, even if it is for a wife, the husband is also entitled to claim half of the dwelling, so that the notary will have to deal with the notary in the following cases:

• Property was acquired during the marriage.
• At the conclusion of the union, the husband and wife signed a contract providing for a share for one of the spouses, regardless of the entity to which the dwelling was issued.
• The apartment is in the status of privatization for both married men and women.

Notarized consent must be obtained before the sale transaction is concluded. Documentation must contain the following data:

• Date of issue of the certificate.
• The husband ' s personal data (FMI, date of birth, address of propiska and residence).
• The requisitions of the official relationship certificate.
• Detailed information on the site being sold (cadastral passport, exact location, available area of the site).
• Information on property rights.
• Personal signature of the spouse.

The notary will have to spend between 1,000 and 3,000 rubles to sign the consent, and only a fixed price for the certification of documentation has been established at the legislative level.

However, the cost of consenting and nuanced services depends on the terms of a particular office.

When there's no need for consent

If the apartment is served, the consent of the second half is not required

It is possible to sell property without the husband ' s agreement in the following cases:

• The apartment was purchased with the wife's own money before she entered into an official marriage.
• A contract had been concluded between a man and a woman to the effect that the spouse was the sole owner of the dwelling.
• The apartment was inherited by the woman's relatives.
• Real estate was issued under a gift contract.
• Housing was privatized for one partner, while the other wrote a written refusal.
• The woman purchased an apartment with material resources that were not part of the family budget.

In the above cases, the spouse has the right to make a sale of the property on his own.

When consent cannot be obtained

Sometimes it happens that it is not possible to obtain the husband ' s consent; this happens in the following cases:

• A man doesn't want to waste time processing documentation.
• The spouse is considered missing.
• The husband is against the sale of the dwelling.

The sale of real estate without the consent of the partner is real, but many difficulties and nuances will have to be faced.

The man is missing.

If more than five or five years have passed since the disappearance of the partner, the woman has the right to sell the property without his or her official consent, in which case the courts transfer the man ' s share of his or her wife ' s property, which may be involved in the sale of the immovable property.

But if a partner shows up after a while, and he is mistakenly declared dead, then his property rights will be restored to him.

Recourse to the courts

The most difficult situations can be solved through a court of law.

Real estate may be sold through a court of law if the spouse is unable to agree with the partner on the process; otherwise, the transaction may be cancelled and the woman will be required to pay the husband a financial compensation.

The sale through court is as follows:

1. The first step is to file an application for lack of contact with the debtor and the urgent need to transfer the property to other hands, and it is worth describing its request for the enforcement of the property.
2. Provide all the necessary documents, including personal details of the person to whom the sale took place, as well as information on the status and characteristics of the dwelling.
3. To prove that there's no connection to the landlord.

Once all the information had been provided, the proceedings were open and the process of processing the application could be prolonged for months and the husband would then be notified of the decision in writing.

Sale of an apartment that is not common

If the property is owned by a single person, it may be sold without the husband's agreement; this is when the dwelling was purchased before the marriage with the wife's personal money, or under the rules of the marriage contract, where it is stated that she is the sole owner.

The sale will require a copy of the marriage contract or documents to the effect that the real estate is not common; all documentation must be certified by the notary; therefore, it is not feasible to challenge the sale deal subsequently.

Recognition of a transaction as invalid

If the spouse has sold the dwelling without the consent of the parties, the husband has the full right to appeal the procedure within three years of the transfer of the property to other hands, which requires him to file an application with the court for disagreement with the decision.

If a transaction is declared invalid in court proceedings, the partners will expect the following consequences:

• Property rights will be revoked and the apartment will be re-owned by its partners.
• The buyer of the dwelling will be able to file a claim for the refund of the money that was spent on the purchase of the immovable property.
• The buyer has the right to pay for the portion owned by the man who did not take part in the transaction, after which the buyer will be able to sue the seller, obtain monetary compensation from him and the right to own the property.
• The seller may compensate the spouse in ignorance for the money; the transfer of property rights will then be considered valid.
• If forged documents were found, the transaction would be considered invalid, in which case a check would be made of the notary office where the illegal consent to the sale had been obtained and the final decision would then be made.

There's a lot of cases where the sale procedure is cancelled, so realtors don't recommend the purchase of apartments from sellers who can't give consent to the sale from the co-owner of the real estate.

Verification of the marital status of the parties to the transaction

For this purpose, information on the owner ' s acquisition of the dwelling is checked: it was bought during marriage or before entering it, how many people are required to own the dwelling, who is entitled to own the dwelling.

This is necessary to prevent fraud, and the seller will be required to submit a notarized declaration that he is unmarried and is the sole owner of the immovable property.

If the fraud is detected, the transaction is declared invalid and the buyer is awarded material compensation.

How to Formalize a Marital Consent

If a man agrees to transfer an immovable object to other hands, he or she will have to report to a notary office with the following documents:

• Passport.
• Marriage certificate.
• Documents confirming his right to own a dwelling.
• Exit from the EGRN with a valid timeline.
• A contract for the purchase of the apartment by the spouses.
• Information on the site for sale.

If a notary suspects the capacity of a citizen, he or she has the full right to request a medical certificate of his or her condition; such measures are most often applied to pensioners.

How long will it take for the sale process

The transfer of the dwelling to other hands is a serious and lengthy procedure that can last months, especially if the notarization process takes place after a potential buyer has been found.

Therefore, in order to speed up the process, it is best to make all the necessary inquiries and then put the object on the market. It is not necessary to worry about the duration of the spouse ' s consent. It is signed once and is recognized as valid for an unlimited amount of time.

Notarization

Since 2017, all multi-person real estate transactions must take place on the basis of a notary statement, which is necessary to reduce fraud.

When an application is submitted, the notary checks the relevant documents and then makes his decision; if a lie is discovered by the shareholders, the transaction will not be registered; if the spouse has provided forged documents and fraudulently sold the apartment, the penalty will be imposed.

If the immovable property is owned by the spouse, but during the marriage, significant changes have been made from the family budget, the man is entitled to claim half of the housing improvements spent.

If a woman sells a dwelling without her husband ' s agreement, he may appeal to the court and claim a share in the apartment equal to the cost of the facility ' s installation, after which the partner may appeal against the illegal sale procedure and claim material compensation.

The sale of an apartment in the common possession of the spouses is a serious process that can lead to unpleasant consequences. In order to avoid them, it is necessary to produce a document of the consent of the parties, which will help to sell the apartment quickly and without subsequent checks.

Is it possible to sell property acquired before marriage without the consent of the spouse, you can learn from this video:

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12 Sen 2023 Victoria M. 14

How to sell an apartment bought during marriage?

If the apartment is purchased after the marriage is registered, the second spouse ' s consent to the sale is considered to be a key feature of the transaction.
In fact, there are situations in which real estate can be realized without the permission of your husband or wife.

• The concept of joint property

1. Property acquired by spouses during marriage is their joint property.
2. The property acquired by the spouses during the marriage (the common property of the spouses) includes the income of each of the spouses from work, business and intellectual activity, their pensions, benefits and other non-special-purpose cash payments (amounts of material assistance, amounts paid in respect of loss of work due to injury or other damage to health) and the common property of the spouses are also movable and immovable goods, securities, pai deposits, shares in capital paid to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, irrespective of whether it is acquired in the name of the spouse or in the name of whom or by whom the money has been paid (art. 34).

According to the present law, marriage in law gives each spouse equal rights to all property acquired after the marriage, including the apartment, and it does not matter where it is registered.

It also doesn't matter what proportion of the income in the total budget goes to each half; even if one of them does not work because of child care or housekeeping, he is entitled to be given full consideration in the event of the sale of the apartment.

Return

:: In what cases is the property acquired during marriage not common?

However, the legislature provides for cases in which an apartment obtained by one of the spouses after the registration of the marriage is not common:

• Retrieving the estate by inheritance.
• Acquisition of an apartment for finance earned prior to marriage.
• A gift of real estate in the name of a husband or wife only.

All of these options will be discussed in detail below.

:: Inherited by one of the spouses

If the apartment was obtained by one of the spouses by means of inheritance, it is his or her personal property and cannot be divided (art. 256, para.

In this case, it doesn't matter on what basis the real estate was obtained, either by will or by law, the most important thing is to comply with all the requirements for the inheritance and registration of the property.

:: Purchase of housing with money earned prior to marriage

In order for the property to be considered joint, it must be acquired by means of common funds; therefore, if the apartment is purchased with money received prior to marriage, it will only be considered as the property of the spouse who acquired it.

However, the fact that only personal funds had been used should be documented; for example, if an apartment had been bought with money from property sold prior to marriage, it was necessary to produce a sales contract and financial documentation.

:: Donation of housing in the name of one of the spouses

As in the case of inheritance, the donated dwelling is the personal property of the recipient (art. 26, para. 2, of the Civil Code of the Russian Federation), in which case the owner of the dwelling may perform any transactions with him or her without agreeing with his or her husband/wife.

Return

How to sell an apartment bought during marriage?

An important condition for a sales transaction is the consent of the second spouse, but there are certain situations where notification and authorization are not required.

♪ Sell with the consent of the spouses ♪

This is the simplest and most profitable option because it guarantees that there is no risk of contesting the transaction; otherwise, the buyer risks being left without a dwelling and the seller without money.

In addition, the package of documents required for the registration of ownership includes notarized consent of the spouse to the sale, without which the registration will not take place unless there are valid reasons to do so.

♪ Sell without consent ♪

The sale of an apartment without the permission of the spouse is possible in the following cases:

1. The spouse refuses to give his consent; to acknowledge this fact, he must be given a written notice of the planned sale and the date of the notary ' s appearance by registered letter; if he does not appear within a month of the letter ' s dispatch, the transaction will be registered without his permission.
2. The spouse does not live in the place of the propiska and his actual whereabouts are unknown, and a judicial decision to declare him missing is required.
3. The apartment sold is the personal property of one of the spouses, which is documented (gifting contract, will, property-sharing agreement, etc.).

Return

:: How can you protect yourself?

There are certain ways in which the property can be disposed of in person, without the consent of the second spouse.

♪ Marriage agreement ♪

If the agreement is drafted before the wedding, it may give some freedom to engage in real estate transactions.

In order to do so, it is necessary to prescribe the right of a spouse to sell an apartment without the consent of his/her husband/wife or to transfer the dwelling to the full ownership of one of the parties in the event of a divorce, in which case the sale of the apartment will not require the participation of the other spouse in the transaction.

Buying an apartment with a reservation.

In this case, it is assumed that, at the time of purchase of real property, a contract is drawn up with the reservation that the second spouse does not claim the property to be purchased, which means that the apartment is transferred to the full ownership of only one of the parties and the consent of the other is not required for sale.

:: Splitting by shares

In order to divide the dwelling into shares, an appropriate agreement must be drawn up to determine the size of the parts to be transferred to each spouse, followed by a State registration of the ownership of the individual shares.

• This will allow the spouses to dispose of their own part of the property without the consent of the other party.
• Thus, there are various options for the management of an apartment purchased in a legal marriage.
• Return

Legal advice:

♪ You bought an apartment with your husband, your husband sold it after the divorce and didn't pay me half of its value, can you challenge the deal?

You can challenge it if your joint property (no marriage contract, will, gift contract, etc.) is declared null and void by applying to the court for proof that the joint dwelling was common.

The husband bought an apartment before the marriage, but I paid the loan because he wasn't working, and after the divorce, he sold it, was I entitled to a portion of the deal?

You are entitled to a portion of the money, even if the loan was not paid by you, because the debt was paid by the spouses, and you must apply to the court for payment of half of the money from the sale of the dwelling.

Return

Specialist Julia Pletnewa will talk about the sale of apartments purchased during marriage.

Published :Vadim Kalyuzhka, a specialist in the Topurist.RU portal

How transactions committed without the consent of the spouse are contested

28.01.19

M. Polectov / AK Poluktov and partners

In our practice, we have met many times with demands that a transaction be declared invalid on the basis that such a transaction was made without the consent of the spouse or that consent was flawed.

In most cases, the desire to make a transaction and take away a valuable asset arose from those who acted in bad faith, and the spouse simply claimed that he did not know about the transaction and did not consent to it.

For an honest counterparty to a transaction, the risks of losing the acquired property are very significant.

We'll figure out all the nuances of this kind of thing.

The root of the problem

In the Russian de facto legal system, there is a regime of hidden marital property: in the public register (e.g. the EGRN), one person may be the owner, and in fact there is another owner, his spouse, of whom the good-faith buyer may not know.

This is in no way contrary to the rule of article 8.1 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), according to which rights to property to be registered by the State arise from the moment the relevant entry is made to the public register.

After these words, there is a reservation, unless otherwise established by law.............................................................................................................................

Under the general rule of article 35, paragraph 2, of the UK, when one of the spouses performs a transaction on the disposition of the common property of the spouses, it is presumed that he acts with the consent of the other spouse; such a transaction may be challenged on the grounds of the other spouse ' s lack of consent only if the other party to the transaction knew or ought to have known that the other spouse did not agree to the transaction.

However, there is one exception to this general rule, article 35, paragraph 3, of the UK, according to which for the three types of transactions, a notarized consent of the other spouse is required, i.e. the presumption of consent of the spouse in these cases does not apply.

When a spouse ' s notary consent to the transaction is required

By virtue of article 35, paragraph 3, of the UK, the notarized consent of the spouse is required for the following transactions with the common property of the spouses:

1. Or it has to be a deal.on the disposition of property to which State registration is required.

These are not only real estate transactions, but also transactions involving shares in the statutory capital of a limited liability society (para. 3 of the Decision of the Plenum of the Supreme Court of the Russian Federation of 23 June 2015 N 25), the results of intellectual activities and the means of individualization (in some cases), small and certain other vessels of sea and inland navigation and aircraft.

The rights to motor vehicles and shares of the State are not subject to registration, and therefore notarial consent of the spouse is not required to deal with them.

1. Or it has to be a deal,for which a mandatory notary form is established by law.

This may be a rent contract, a pledge of a share in the SLD's statutory capital, an escrow's contract (except in cases of deposit of cash-free funds and non-documentary securities), an investigation contract, a custody transaction, a contract of transfer of a share in the SLD's statutory capital (with some exceptions), a contract of disposition or a pledge of a share in the common property right.

1. Or it has to be a deal,Mandatory State registration.

This may be a mortgage contract or a long-term lease agreement for non-residential accommodation (for a period of one year or more).

A distinction should be made between the concepts of.............................................................

For example, when a sale of a non-residential premises takes place, only the transfer of ownership of the premises is registered, but not the contract itself; such a contract is deemed to have been concluded from the time the parties sign it.

In the case of a sale of a dwelling or apartment, both the contract and the transfer of law are registered; such a contract is deemed to have been concluded from the time of registration and not from the time the parties signed it.

Maintenance requirements for a spouse ' s consent

Often, one spouse takes a notarized consent from the other spouse to dispose of any jointly acquired property without any particular particularity; the Rosreister accepts such consent and registers the transfer of the right.

In the future, a spouse who has given such general consent may attempt to challenge a transaction for the disposition of common property by invoking article 157.1, paragraph 3, of the Civil Code, which states: " In the prior consent to the transaction, the subject matter of the transaction to which the consent is given must be determined. "

As a rule, courts in such disputes refuse to extend the consent of the spouse to article 157.1 of the Civil Code and retain the transaction.

35 UK does not require the consent of a spouse to make a transaction on the disposition of the property of a particular immovable property to which it is granted, nor does it prohibit one spouse from giving consent to the other spouse to dispose of any property owned by them without specifying its specific list of assets (Order of the Presidency of the St. Petersburg City Court of 25 July 2018 N 44g-128/2018).

It is true that there are other practices in which article 157.1 of the Civil Code is recognized as general and article 35 of the Criminal Code as special. The following logic applies here: article 157.1 of the Criminal Code states that the provisions of this article shall apply unless otherwise provided by law or other legal act.

There is no provision in article 35 of the UK for the other (that the subject matter of the transaction may not be specified in the consent of the spouse) and, therefore, some courts apply article 157.1 of the Civil Code on the need to specify the subject matter of the transaction in the husband ' s notary consent and do not recognize the husband ' s general agreement.

Consequences of a transaction without the notarial consent of the spouse

The first thing to say is that transactions made without the notary consent of the spouse are controversial, so they are valid until the court declares them null and void (which is why their registration in Rosreister often takes place without problems).

As far as challenging such transactions was concerned, it was not all that simple and the practice of the courts was not uniform at the moment.

There are three rules to apply:

1. For transactions performed without the consent of a third party, para.art. 173.1 of the HC:

Since the law does not provide otherwise, a contested transaction made without the legally required consent of a third party... may be declared invalid if it is proved that the other party to the transaction knew or ought to have known that the necessary consent of such a person was not available at the time the transaction took place...

1. In the case of joint property at all (whether married or not) - paragraph 3art. 253 of the HC:

The transaction of a joint property participant relating to the disposition of common property may be declared null and void at the request of the other participants on the grounds that the participant who made the transaction did not have the necessary authority only if it is proved that the other party to the transaction knew or ought to have known about it.

1. In the case of joint property exclusively of spouses, paragraph 3art. 35 UK:

. A spouse whose notarized consent to the transaction was not obtained is entitled to request that the transaction be declared null and void within one year from the date on which he became aware or ought to have known that the transaction had taken place.

As can be seen, the first two rules of the Civil Code protect the interests of a good-faith buyer: if a registered owner sells an apartment without the necessary notarial consent of his spouse, but it is established that the buyer could not have known that the seller had a spouse, the court will retain the deal, in which case the spouse may be injured.

However, the third rule (article 35 of the UK) does not mention the figure of a good-faith buyer.

The question arises: How do all these three rules relate to each other, what and when should they be applied?

The first rule (art. 173.1 of the Civil Code) refers to the consent of the third party.

In addition, the first rule is similar in content to the second (article 253 of the Civil Code), so the first rule can be deleted and compared from our analysis only with article 253 of the Civil Code (which protects a good-faith buyer) and article 35 of the Criminal Code (which does not afford such protection).

There is a general rule: the special rule has priority over the general rule; the general rule applies to the part that is not covered by the special rule.

From these positions, article 35 of the UK clearly takes precedence over article 253 of the GC. But the question is: does article 35 of the UK completely replace article 253 of the GC or not?

There are two interpretation options:

1. These articles refer to the difference: article 253, paragraph 3, of the Civil Code refers to the condition necessary for the transaction to be declared invalid (if it is proved that the other party to the transaction knew or ought to have known that there was no consent), and article 35 of the Criminal Code also refers to the time within which the spouse may file an action to declare the transaction invalid.

In such an interpretation, the interests of the good faith purchaser are protected.

Let us say at the outset, this approach is more common in the legal literature than in judicial practice, perhaps because it is not clear why in such a case the legislator should have established a special one-year statute of limitations for such cases if the same period is already set in article 181, paragraph 2, of the Civil Code. Thus, in such an approach, the special rule does not establish anything new that is odd.

1. Paragraph 3 of article 35 of the UK completely cancels article 253 of the SC, since only in this case can a special rule of article 35 of the UK make sense.

In such an interpretation, the interests of a good-faith buyer are not protected at all and this is the approach that prevails in judicial practice.

In this case, the consequences of a transaction without the notarial consent of the spouse are fundamentally different depending on when the transaction was made on the disposition of the common property, either during the marriage or after its dissolution.

If the transaction was made during the marriagethat article 35 of the UK applies to a spouse who has not given a notary consent to the transaction may challenge it and take away property even from a good-faith buyer.

If the transaction with the common property took place after the dissolution of the marriageArt. 35 of the UK is no longer applicable, since the parties to the joint property were not married at the time of the transaction. Accordingly, no notarized consent of the former spouse was required.

253. The HC, by which the consent of the second party to the joint property is presumed, can be challenged only if it is proved that the buyer was not good faith, i.e. that he knew or ought to have known that the other participant in the joint property (former spouse) was against the transaction (Definition of the Supreme Court of the Russian Federation of 25.04).

2017 N 16-G17-4).

Conclusions for a good faith acquirer of the common property of the spouses

The acquisition of marital property from the former spouse (i.e. after the dissolution of the marriage) is reasonably safe.

However, the acquisition of marital property from one of the spouses during his or her marriage carries great risks.

Even if the seller gives a notarized statement to the buyer that he is not married, and his passport is not marked for the marriage, it means nothing.

This is often the case with fraudulent schemes.

An example of the practice: A national of Azerbaijan, Aliev T.I., in his home country, registered a marriage with a Russian citizen, Janichkina E.V., for which reason he acquired Russian citizenship. He then decided to sell a share of the OS that was acquired during the marriage.

After the deal, Janichkin E.V. showed up and successfully challenged the deal (Definition of the Supreme Court of the Russian Federation of 17 May 2018 N 305-EC17-20998).

the loss, but will it be fulfilled?

Special care must be taken when a transaction is made through a trustee, and it is desirable to request a notarized copy of the trustee ' s passport to at least check his marital status by passport.

There is no way to completely eliminate such risks.

Yes, the Single State Register of Civil Status has already been established and is being tested, and this will greatly reduce the risks, but you will still not know if your partner has a foreign marriage.