How to draw up a prenuptial agreement for a mortgaged apartment

One of them can be appointed by the bank as the main borrower, and the second as its co-borrower. This is done to increase the total amount of total family income, which allows you to buy more expensive housing with a mortgage.

The second spouse may not act as a co-borrower, but due to the fact that this property was acquired during the marriage, he can claim it equally with the one who paid the mortgage.

When people take out a mortgage, they don’t intend to get divorced, but anything can happen. Thus, during a divorce, a dispute arises regarding the distribution of the property of the spouses between them. To avoid a dispute arising within the division of a mortgaged apartment, it is recommended to conclude a prenuptial agreement for the mortgage.

At what point in time is it better to do this, so as not to be left with nothing, we will tell you in this article.

What is a prenuptial agreement and is it necessary?

A prenuptial agreement is a legal document that defines the rights of each spouse regarding the distribution of property between them.

So, if there is no marriage contract between the spouses, according to the law, in the event of a divorce, the property is divided between them in half. Not all property, but only that which was acquired by them during marriage.

Other distribution of property is possible only by court decision or mutual consent of the divorcing spouses. As a rule, reaching agreement on this issue becomes very difficult.

A marriage contract can be concluded before the marriage is registered or at any time after that.

The agreement must be concluded in writing and must be certified by a notary. Only in this form will the document have legal force.

Using a marriage contract has a number of undeniable advantages:

• If the borrower only assumes the obligation to pay the mortgage, he will receive a smaller loan amount from the bank;
• If there is a marriage contract, there will be no disputes regarding the division of property;
• When agreement between the spouses cannot be reached, the division of property is carried out by the court; With a prenuptial agreement you can save yourself from litigation.

The prenuptial agreement clearly separates all property and financial claims of the spouses. At the same time, the element of self-interest when entering into a marriage relationship is completely excluded.

When and why do you need a prenuptial agreement?

In general, it is recommended to always enter into a prenuptial agreement. No matter how good the relationship between a couple is, it can theoretically always deteriorate. As a result of divorce, people will have to go to court for a long time, dividing the property and obligations of the family.

But there are situations in which such a need is especially acute:

• If one of the spouses is against purchasing an apartment. Then, on the basis of the marriage contract, he will not have any rights to the property, but he will not participate in paying the mortgage either. Such a prenuptial agreement can be concluded at the mortgage planning stage, before submitting the application.
• When, when buying an apartment with a mortgage, the parents of one of the parties give money for the down payment. Then in the marriage contract you can indicate that this spouse, in the event of a divorce, will have a larger share of the housing than the one who did not participate in the acquisition of real estate. In this way, parents can protect their child and their invested funds.
• When one of the spouses has a bad credit history. If the bank is not very satisfied with his candidacy as a borrower or co-borrower, then the marriage contract will become a guarantee for the bank that all obligations under the transaction will be assumed by another person.
• If the spouses agreed in advance that in the event of a divorce, one person will not claim the apartment, and it will entirely become the property of the other. Then such an agreement can be documented using a marriage contract.

In addition, a prenuptial agreement will not be superfluous in a situation where one of the spouses wants to buy an apartment not for family purposes, but for his personal ones . This could be an apartment for his parents or children from another marriage, an apartment for the office of his company, etc. In this case, the second spouse has absolutely nothing to do with her.

A prenuptial agreement would be appropriate if one of the spouses has a criminal record or citizenship of another country.

How is the mortgage on an apartment purchased during marriage repaid?

The procedure for payments during divorce can be varied:

• With shared ownership, spouses pay the mortgage in proportion to their shares and divide the property after repaying the loan in the same shares;
• If the property under the marriage contract is established as separate, then only one spouse continues to pay the mortgage;
• If the property is shared, then both spouses continue to make payments, or one if the other refuses to do so.

One way or another, the bank doesn’t care who exactly will pay off the mortgage payments. The main thing is that they arrive on time and in full.

Features of concluding a marriage contract

There are strict requirements for concluding a marriage contract, because it is a real legal document. We have already decided whether it is possible to conclude a prenuptial agreement for a mortgaged apartment.

But what features this agreement will have during the period before and after marriage should be considered in detail.

Prenuptial agreement for mortgage before marriage

So, it often happens that a person takes out a mortgage before marrying his wife or husband. After marriage, the second spouse pays the mortgage loan equally with the first, but the first spouse remains the sole owner of the home.

In this case, a marriage contract allows you to protect the rights of someone who, from a certain point in time, also began to participate in the payment of obligations.

In such a situation, the prenuptial agreement will need to accurately spell out all the relationships between the spouses regarding the servicing of the mortgage agreement and indicate the shares to which they can claim in the event of a break in the relationship.

Prenuptial agreement for a mortgage during marriage

You can immediately divide the shares in the apartment between the spouses in the contract or leave the main borrower as the owner, but indicate that the second one also has the right to receive part of the property in the event of a divorce.

A prenuptial agreement doesn't just cover mortgages . It can be concluded in relation to any type of property, including those in credit relations.

If spouses decide to enter into a prenuptial agreement after a divorce, they will not succeed . After all, the Family Code strictly states that such an agreement is possible only at the stage of planning official marriage relations or in the process of their implementation.

After a divorce, property will be divided by agreement or through the court. It is important to note that the decision to divorce comes into force only after a month. The division of property will have to wait a long time.

When the spouses do not have a marriage contract, the division of property will be carried out by the court based on a separate statement of claim. The process is slow.

How to draw up a prenuptial agreement for a mortgaged apartment?

A marriage contract can only regulate property and financial issues. For example, issues of raising children, dogs, or personal relationships cannot be divided into such an agreement. These clauses will not have legal force.

A marriage contract can be concluded for a specific period, after which the spouses can extend it or enter into a new version.
A property division agreement is not an analogue of a marriage contract. The first regulates the ownership of the property that the spouses have at the time of its signing. The second can divide property not yet acquired.

Many people are interested in the question of where to draw up a prenuptial agreement for a mortgage for one spouse . You can do this at home by downloading the agreement form on the Internet. You can seek help from lawyers to comply with legal procedures. One way or another, after this you will still need to go to a notary’s office.

The marriage contract must contain the following information:

• Everyone's responsibilities to pay off the mortgage costs;
• Shares of spouses when paying the first installment;
• Responsibilities of the parties to invest in property (repairs, improvement of living conditions);
• Responsibility of everyone in case of failure to fulfill documented obligations;
• Options for dividing property after divorce depending on the reasons for separation.

Naturally, the document must contain the details of each spouse and their signatures. Without this, not a single notary will certify your document.

The cost of a prenuptial agreement will depend on whether the spouses draw it up themselves or turn to third-party companies for it. Certification of a marriage contract by a notary in 2023 costs 500 rubles. If you entrust the drafting of a separate property agreement after a divorce to lawyers, the costs can reach several tens of thousands of rubles.

A marriage contract for a mortgage with Sberbank or any other credit institution can be terminated at any time by mutual agreement of the parties. Also, the agreement will cease to be valid if one of the parties ceases to comply with its provisions.

A prenuptial agreement when applying for a mortgage loan solves a large number of future problems. Even if the likelihood of their occurrence is negligible, a prenuptial agreement is justified in any situation. This document acts as a guarantor of the protection of the rights and interests of each party.

Marriage agreement for a mortgage apartment

There are several ways to get an apartment - get a mortgage, use maternity capital, take out a bank loan or buy in installments. Of the above solutions, a mortgage is not the simplest or most profitable solution. Purchasing living space with a mortgage is typical for family people who want to acquire their own property and live separately from their parents. However, today no one is immune from divorce and dividing a mortgaged apartment will bring many problems (the rights and responsibilities of spouses in this case are the same). To protect yourself, a marriage contract is drawn up.

Is it possible to draw up a marriage contract for an apartment with a mortgage?

A prenuptial agreement is a document that defines a couple's agreement regarding property and finances. It is possible to draw up a prenuptial agreement for a mortgaged apartment.

According to Article 43 of the Family Code of the Russian Federation, the opportunity to draw up and sign a marriage contract at any time is available by mutual consent of both spouses.

This document shows the procedure for determining the shares of each spouse and you can establish the procedure for repaying the debt.

Something to remember! An agreement between spouses cannot be concluded after divorce according to Article 41 of the Family Code of the Russian Federation . The procedure is carried out either before state registration or at any time during the marriage.

If you have a mortgage on your apartment, drawing up a marital agreement simplifies the divorce process. Some banks will not issue a loan without such a document, since there are real risks for the banking institution to lose its funds in the event of a divorce.

The marriage agreement acts as a written guarantee of security that obligations to the bank will be fulfilled in full by both spouses.

The advantages of concluding a prenuptial agreement are to facilitate the divorce process when dividing a mortgaged apartment and to clarify the obligations of the spouses to repay the mortgage loan, if deviated from which one of the participants may begin legal proceedings.

Disadvantages in the absence of a prenuptial agreement are expressed in a smaller amount of the loan issued by the bank or in unfavorable conditions for couples without co-borrowers. The co-borrower acts as a guarantor of the fulfillment of obligations to the banking institution when the borrower evades or due to circumstances is unable to make mortgage payments.

In what cases is a prenuptial agreement necessary for a mortgage?

As mentioned above, a prenuptial agreement is a bastion of security for the two parties involved in this procedure - the bank and the married couple. Let's consider cases in which it is advisable to draw up a marriage contract for a mortgaged apartment in order to avoid misunderstandings during the divorce process:

Unequal status of husband or wife in the social and financial sphere

Today, a particularly common situation is when one of the spouses works and the other does not. Payments on the mortgage loan will be made by the naturally working spouse, and the marriage contract will protect him in the event of a divorce from claiming rights to the living space of the unemployed spouse.

The bank refused to provide a loan to one of the spouses

A dubious biography or credit history calls into question the financial reliability of a citizen. The fact that the other spouse is a model of integrity does not matter. The marriage contract divides the rights and responsibilities of both spouses and the bank gives permission to purchase a mortgaged apartment.

If one of the spouses is against taking out a mortgage to purchase an apartment, then drawing up an agreement gives the banking institution a guarantee that the loan will be repaid independently under any circumstances.

The amount of income cannot be documented

This situation can happen if wages are given in an “envelope”.

One of the couple may have sufficient income, but does not have a way to confirm it, and the other spouse is officially employed, but his salary is not enough to make payments on the loan for a mortgage apartment.

The creation of a marriage contract will solve this issue, where the borrower can be a person with an official job. The real payer will be the unofficially employed person and his rights must be properly protected in the agreement in the event of a divorce.

Registration of a mortgage before state registration of marriage

If an apartment was purchased with a mortgage before marriage, then it becomes the property of the citizen who formalized its purchase. Acquiring real estate during marriage changes its status to community property. The prenuptial agreement will allow you to specify who made the contribution, who made the payments, and whose property the mortgaged apartment will belong to after the divorce.

The above cases may result either from the decision of the banking institution or the spouses in general.

Procedure for registering a marriage contract

The procedure for drawing up an agreement between spouses for a mortgage apartment is as follows:

• rationally weigh the possibilities of repaying the loan;
• find out the conditions for providing mortgages in different banks;
• contact a notary to draw up an agreement.

Entering information about the apartment being purchased with a mortgage, banking institution and information about the loan is also necessary if the marriage contract is drawn up at the time of taking out a mortgage.

Among the documents required to draw up a marriage agreement for a mortgaged apartment with a notary are the passports of the parties, a marriage registration certificate, documents related to the property being purchased, and a receipt for payment of the state duty.

The cost of notary services will be around 5,000 rubles. This includes the price for the consultation and the state fee (500 rubles).

Sample contract

The prenuptial agreement for a mortgage apartment must contain the following information:

• determination of the borrower and co-borrower;
• display of the share of the purchased mortgage apartment - separate, joint or shared;
• size and conditions for payment of the down payment;
• an indication of who pays the principal of the loan and who pays the interest;
• the amount of income used to repay the loan;
• liability of the spouse for evasion or inability to make payments;
• procedure for dividing a mortgaged apartment and debt during a divorce, etc.

A notary will help you draw up an agreement for a mortgage apartment, taking into account the interests of both parties.

Termination or contestation of a spouses' contract for a mortgaged apartment

The grounds for declaring an agreement for a mortgage apartment invalid are:

• there is no legal certification of the marriage agreement;
• the agreement was signed by an incapacitated citizen;
• the signing took place as a result of intimidation, threats, violence;
• the document infringes on one of the participants.

The bank or one of the spouses may initiate legal proceedings to challenge the agreement. If you purchase an apartment with a mortgage, the bank's consent is required to terminate the marriage contract. You should be notified of the upcoming procedure in advance.

How to correctly draw up a prenuptial agreement for an apartment purchased with a mortgage during marriage

A prenuptial agreement will help you avoid such extremely undesirable consequences of divorce.

How does a prenuptial agreement help when buying an apartment with a mortgage?

Young couples, due to the fact that they need to live somewhere, often take out a mortgage on apartments, and in the process of paying it off, try their hand at family life.

But early marriages tend to break up, and in order for a person to have the opportunity to use the time spent to his advantage, he has the right, along with the experience gained, to take back part of his money that he or she personally invested in the apartment.

However, for this it is also necessary to conclude a marriage contract, since otherwise the mortgaged apartment will be considered joint property and will be divided, as a result of which each of the former owners will receive equal shares.

Main advantages

The advantages of this document are obvious:

1. Firstly, it gives confidence that if love leaves, there will be a chance to start all over again with another person.
2. Secondly, the funds invested in the apartment will not be lost even partially.
3. Thirdly, after a divorce, the bank may behave strangely and assign responsibility to only one of the credited persons if the second cannot be found. A typical example: after a divorce, the husband left for another country, and the wife was faced with a choice - either pay for the entire apartment or refuse the mortgage through the courts. Naturally, she won’t be able to afford the loan alone, so most likely the bank will simply return the money she deposited and sell the apartment.
4. Fourthly, quite often ex-spouses, in order not to waste time and money, act as follows: they leave the apartment in which they lived together, returning to their parents or renting something cheaper, and renting out the mortgaged property rent Then they will be able to sell this apartment and buy it cheaper. Thus, a significant part of the loan is repaid by itself. However, there is also a nuance here. Without a prenuptial agreement, the amount of monthly rent that the tenants will pay will go to the divorced people in equal shares, which may not be fair if the funds were not contributed equally before the divorce.

Besides this, there are many more advantages to a prenuptial agreement.

In what cases should it be necessary to conclude

Since this document almost always provides undeniable advantages, it is recommended to conclude it in all cases without exception. However, people often avoid even the topic of a marriage contract because:

1. We are sure that their love is eternal.
2. They are afraid of condemnation from relatives and gossip about doubts about their feelings.
3. They simply do not think about the consequences due to inexperience.

But if the spouse or relatives stubbornly oppose its conclusion, the following arguments can be made for them:

• If spouses do not want to believe in the possibility of divorce , unfortunately, it will not be possible to convince them. However, it is important to remember that a prenuptial agreement is useful not only for those divorcing, but also brings benefits in the process of family life. For example, it establishes in advance who should pay how much and helps distribute responsibilities.
• Wage difference. Even if the spouses do not divorce and the feelings do not go away, but at the family council the question of selling the apartment arises, the decisive vote should go to the one who contributed the most money for it.
• If a mortgage is taken out before marriage , the conditions before and after the bank will be different. The responsibilities of the parties will also differ, and in the event of a divorce, funds contributed before marriage will be returned in proportion to the investment, and after marriage - equally.
• If young people do not buy an apartment themselves, but contribute to their parents’ funds , disagreements may occur between the parents of the groom and daughter-in-law - this is normal, because there is no love between them. In addition, there is always a risk that one of the parties will lose solvency, and the money will have to be divided.

How to draw up a marriage contract for a mortgage

The procedure for concluding a marriage contract consists of 3 stages: determining the conditions, competent drafting and certification by a notary. However, it can be issued at any time before the divorce.

If the couple took care of it before the legalization of their relationship, the contract will come into force immediately on the day of the wedding in the registry office, or at any other time after it, if this is specified in the document. The contract can also be drawn up after marriage, but its effect will only apply for the period from its conclusion until the divorce.

As for the period after the dissolution of ties, the family code prohibits the drawing up of any marriage contracts during this time.

The legislative framework

In this matter, one should be guided by four main legislative acts:

Compilation procedure

The first stage should be approached especially carefully, since it is decisive. It is necessary to think through the situation on several levels:

1. Financial question. It is necessary to clearly clarify who can and will pay how much on the loan and for the down payment. If the contribution amounts will change at any time, this should also be written down so that in the event of a divorce it is possible to divide the money proportionally.
2. The nature of the distribution of property after a proposed divorce. How do spouses want to divide their property together? Depending on who contributed how much, should the wife get the majority of it in either case or equally or in any case? This needs to be clarified once and for all, because once a document is notarized, it will no longer be possible to cancel it.
3. After determining the transfer of shares in the general case, it is necessary to select the conditions under which these shares will change. This may include manifestations of adultery, assault, and others, at the discretion of the spouses.
4. You need to write down all the points on paper in a draft version so as not to forget anything.

At the second stage, you need to draw up the agreement correctly. No court will accept even the most well-drafted contract if it is called incorrectly. According to the law, namely Chapter 8, Art. 40 of the Family Code of the Russian Federation, this document is called a “Marriage Agreement”, not a contract, but an agreement, which is very important.

The body of the contract is subject to less stringent requirements, but it must contain all the data necessary to describe the situation. A well-drafted document in compliance with the form will help to significantly simplify legal processes.

The form must indicate the following:

• Full passport details of those getting married.
• The above terms and conditions of the contract.
• The date of entry into force, in the absence of which it will be considered the day of marriage.
• A link to the mortgage loan agreement and its number.
• Signatures of the parties.

By law, a marriage contract must be certified by a notary, since it is this procedure that deprives the document of retroactive force. He must personally verify the legal capacity of the parties, after which it will be almost impossible to challenge the contract.

Upon completion of the 3rd stage, the procedure ends, and there is no need to register the agreement with the registry office, and there is no need to pay tax for this. But the notary’s work will have to be paid, in accordance with Art. 333.24 of the Tax Code of the Russian Federation, the amount of tax on certification is 500 rubles.

In addition to the main function, a notary can help with drawing up a document, but this service is not free. On average, in Moscow and the region it will cost 8 - 10 thousand rubles.

• You must be very careful when drafting a contract, because if one of the conditions is violated, the document may be declared invalid.
• If necessary, the contract can later be changed or terminated altogether.
• Here you will find a detailed list of conditions that can be additionally included in the marriage contract.

Marriage agreement for a mortgage apartment: sample design

In accordance with the norms of Russian legislation, after the dissolution of a marriage relationship, all jointly acquired property is divided equally between the spouses. If a married couple wishes to divide property in a different way, then they need to draw up a prenuptial agreement.

According to the law, a marriage contract is allowed to be drawn up both before entering into an official marriage relationship and during married life.

Is it possible to draw up a prenuptial agreement for an apartment with a mortgage?

A prenuptial agreement is a written agreement between a husband and wife regarding the distribution of financial resources and property between them. The execution of such agreements is often used when applying for a mortgage loan.

The text of the document can describe the rules for distributing shares of property to each of the spouses, as well as establish what percentage of the loan each of them will pay.

If there is a prenuptial agreement for a mortgaged apartment, in the event of a divorce, it will be easier for the husband and wife to resolve a controversial property issue.

The execution of marital agreements is regulated by the Family Code of Russia. You can download the law from the link. According to the text of this legislative act, a marriage contract is concluded either before the conclusion of official relations or during marriage. According to the law, after the end of the divorce process, it is impossible to conclude a marital agreement.

If you have a mortgage on your apartment, it is recommended to draw up a prenuptial agreement, and in some credit institutions this is not a recommendation, but a mandatory condition.

The presence of a marital agreement provides the bank with guarantees that even after the divorce, the loan debt will be paid by both spouses.

Another advantage of drawing up a marriage contract is that the husband (wife) has guarantees that the second spouse will fulfill his obligations under the mortgage apartment in full.

In what cases is it necessary?

In some financial institutions, when taking out a mortgage loan, a prenuptial agreement must be drawn up. If such a clause is not necessary, then spouses should think about some situations in which the presence of a marital agreement will facilitate the divorce procedure.

Cases in which a marriage contract is necessary:

• The different position of the spouse in the financial or social sphere. In a situation where only one of the spouses works in the family, the obligation to repay the loan will be assigned to the working person. Accordingly, in the event of a divorce, drawing up a prenuptial agreement for a mortgaged apartment will protect the spouse from the non-working spouse claiming rights to housing;
• Refusal of a banking institution to provide a mortgage loan for an apartment. If a credit institution doubts the creditworthiness of one borrower, it is possible to issue a mortgage loan to the other spouse. In this case, the application will be approved by the bank if a marriage contract is drawn up. The text of the document will indicate the division of rights and responsibilities of husband and wife in relation to the mortgaged apartment;
• There is no consent for a mortgage loan for a home. When there are disagreements between spouses regarding the registration of a housing mortgage, one of the spouses has the right to apply for a loan only for themselves. To obtain a loan, you must draw up a marital agreement, which describes that all obligations under the mortgage will be assigned only to him. The second spouse will have nothing to do with paying off the debt or claiming rights to a share of the apartment;
• There is no way to determine income from securities. This situation also requires drawing up a prenuptial agreement. Execution of the document is necessary in cases where both spouses want to take out an apartment on a mortgage, but one of them has high income (not official), and the second has official employment in accordance with the Labor Code of Russia. The text of the marital agreement must state that a mortgage loan is being issued to the officially employed spouse, and in fact the second spouse, who has high income, will pay the debt. You should also register the share of ownership of the apartment for each spouse. In the event of divorce proceedings, both husband and wife will have housing guarantees;
• The mortgaged premises were purchased for housing and before the marriage was properly registered. In this case, residential real estate will belong only to one of the spouses in whose name it is registered. But housing purchased during marriage automatically becomes joint property. So that in the event of a divorce it does not belong in equal shares to the husband and wife, a marriage contract should be drawn up, which describes who made the down payment, who paid the debt, and so on.

If the apartment was purchased with a mortgage, a prenuptial agreement should be drawn up. Drawing up a deed for a mortgage apartment means providing guarantees to both the credit institution and the borrowers.

Procedure and rules for drawing up a marriage contract

The Family Code stipulates the rules for drawing up a marriage contract when purchasing a mortgaged apartment:

• the conclusion of a written agreement is possible only between legally capable people whose age exceeds 18 years;
• the marital agreement must be notarized;
• the text of the document must be clear and precise, corrections are not allowed, all digital values ​​​​are written in words, abbreviations of words are not allowed;
• registration of the document is possible if there is an official marriage relationship;
• At the end of the written agreement, personal signatures of both parties - husband and wife - must be affixed.

Drawing up a marriage contract between husband and wife for a mortgaged apartment requires the following algorithm of actions:

• make a joint decision to take out a mortgage;
• decide on a credit institution that provides the most favorable mortgage conditions;
• draw up a marriage contract (on your own or with a notary);
• have the text of the document certified by a notary office.

To notarize a marital agreement, you need to collect a package of documentation:

• ID card of husband and wife;
• papers on the conclusion of an official marriage union;
• title deeds for existing property. For example, a purchase and sale agreement, a technical passport for a vehicle;
• a check confirming payment of the state duty;
• other papers at the request of a notary office specialist.

If the spouses do not provide a receipt for payment of the state fee, they will be denied notarization. The amount of the duty is determined in accordance with the tax law of Russia.

According to the text of the Tax Code, the fee for certifying a marriage contract for a mortgaged apartment is 500 rubles. The price may be significantly higher if the spouses require the document to be drawn up by a notary.

Sample agreement

According to the law, the prenuptial agreement for a mortgaged apartment must contain mandatory clauses, including:

• document's name;
• Date of preparation;
• details of the husband and wife (passport information);
• marriage certificate data;
• subject of the contract. In this case, a mortgaged apartment;
• rights and obligations of husband and wife;
• responsibility for improper performance of one’s duties;
• nuances of the validity period of the document;
• additional points by decision of the parties;
• signature of a man and a woman;
• certificate of a notary office specialist.

In the above contract structure, special attention should be paid to entering the following information:

• the person who is the main borrower of the mortgage loan;
• the amount of the first payment and by whom it was made;
• conditions for the distribution of debt repayment obligations in the event of divorce;
• rules for dividing mortgage real estate in the event of a divorce;
• the procedure for making changes, provided that children are born;
• redistribution of property shares upon the birth of children;
• information about the purchased apartment - area, number of floors, number of rooms, etc.;
• information about the banking institution that issued the loan;
• other nuances relating to a mortgaged apartment.

By mutual agreement of the married couple, they have the right to include any information in the marriage contract, but provided that it does not contradict Russian legislation. For example, it is prohibited by law to include terms for settling personal relationships in the text. It is allowed to indicate only the rules of relationships in the spheres - material, monetary and property.

To draw up an agreement for a mortgage apartment, it is recommended that you familiarize yourself with the example presented. You can download a sample marriage contract here.

How to terminate or challenge a contract between spouses?

Russian legislation has provisions indicating the possibility of terminating almost any agreement; a prenuptial agreement for a mortgaged apartment is no exception. To terminate or challenge any document, reasons are required.

The following may be grounds for invalidating an agreement:

• the document has no legal significance, in other words, it does not contain a notarization;
• one of the parties who entered into a marriage contract for a mortgaged apartment is an incapacitated person;
• the spouse signed the agreement as a result of unlawful influence - intimidation, threat, violence;
• the text of the contract contains provisions that infringe on the rights of the husband or wife.

Important! It is possible to challenge the contract only if one of the above reasons exists and only in court. Before applying to the court, you should notify the banking institution of your intentions.

It is possible to unilaterally terminate a marital agreement on a mortgaged apartment in three cases:

• when the husband (wife) died;
• the spouse has been declared incompetent by a court order;
• one of the couple is missing. Provided that there is a court ruling about this fact.

How to draw up a prenuptial agreement for a mortgaged apartment

Advantages of a prenuptial agreement when resolving property issues

The benefits of a marriage contract are obvious to all parties to the transaction:

1. The borrower and his spouse have the opportunity to come to a mutually beneficial agreement . In case of divorce, the document states who will continue to repay loan obligations to the bank;
2. The bank knows from whom to demand fulfillment of obligations under the loan agreement, which increases its loyalty towards clients.

The law clearly establishes that property acquired during marriage must be divided when a couple divorces. By mutual agreement, the couple can stipulate other conditions of the division in the contract, and the document will receive legal force.

An important point is that the conditions should not violate the rights of the other half, putting it in a deliberately disadvantageous position. If desired, such a contract can be challenged.

Pros and cons of a prenuptial agreement when obtaining a mortgage loan

The advantages of this solution are obvious:

1. People quickly come to an agreement and, if necessary, are ready to make concessions, so drafting the text and design takes a minimum of time;
2. It can be drawn up both for a legally married couple and even before marriage, which will make it possible to determine the fate of real estate at any time.
3. Minimizes the likelihood of conflicts during the divorce process;
4. Determines who will repay the remaining debt on the loan.

However, a contract for an apartment purchased before marriage has a number of disadvantages:

• In Russia, citizens have a negative attitude towards this format of contracts. It is not customary for us to discuss the nuances of the division of property before marriage;
• You have to pay for notary services. Without his signature and seal, the contract has no legal force;
• Current regulations may be amended, rendering certain clauses of the contract invalid. You will need to again spend time revising the text of the document and pay a notary;
• It is difficult to predict all the nuances.

A prenuptial agreement for a mortgaged apartment after receiving a mortgage is practiced much more often than concluding a contract before marriage.

This approach is partly explained by the fact that both parties do their best to protect themselves and correctly distribute rights to property. This is the only way to resolve a dispute if one party wants to take out a housing loan, and the other does not agree to such conditions.

The nuances of concluding a prenuptial agreement before marriage

In such a situation, each spouse retains ownership of the real estate and other property he owned before marriage. When marrying a person who already has a mortgage, it is important to understand that it will be difficult to prove your right to part of this living space.

In court, when resolving such conflicts, documentary evidence of the second spouse’s contribution to the first spouse’s mortgage is taken into account. However, if the couple decides, in the marriage contract they can add other provisions regarding the process of repaying the previously issued loan.

For example, the borrower will indicate that he will pay for a mortgage received before marriage only from personal funds, and not from the family budget. Consequently, the other party must agree with this state of affairs. In such a situation, during a divorce, it is almost impossible to declare your right to a share of the apartment.

The second option is to indicate that the parties pay off the debt from the general budget. Then the contract should specify who will get what part of the apartment in the event of a divorce.

In the end, everyone wins: after separation, the second spouse will not have to pay the debt on a loan that he did not take out. The title borrower protects himself from possible claims of the ex-spouse. Or vice versa - everyone receives a share of the property in proportion to their personal contribution to the repayment process.

When is a prenuptial agreement necessary?

In some cases, drawing up a contract can be a real salvation for the parties:

1. Husband and wife have different incomes . There are often situations when the husband works and the wife takes care of the household. In such a situation, the man completely repays the loan debt, therefore, he wants the object to go to him;
2. The bank refused to issue a loan to one of the spouses . The reason for this may be a damaged credit rating or insufficient income. A well-drafted prenuptial agreement will give the bank guarantees;
3. The husband is categorically against a mortgage . The contract will have to indicate that the second spouse will make payments, regardless of the circumstances. In this case, the bank will determine the final maximum loan amount without taking into account the income of the second spouse. Such an apartment purchased during marriage will not have to be divided;
4. If the mortgage is issued before entering into an official marriage. The text of the document will indicate who makes the down payment, who pays the monthly payments, and who gets the apartment in the event of a divorce.

These are basic situations when a prenuptial agreement is needed . His goal is always the same - to protect his own interests, which becomes especially important given the divorce statistics. It is not possible to conclude a contract after a divorce, so a decision on the advisability of such a document must be made before submitting an application to the registry office.

How to draw up, what to take into account and where to register a contract?

The document must be drawn up in writing and must be signed by both parties.

There is a sample document in our article below, but the content of such a contract is not template - i.e. each couple can add other items by mutual agreement.

You should immediately decide who will become the owner of the property or how the shares will be divided upon divorce.

It is imperative to think through and protect the interests of minor children, otherwise the spouses’ contract may be declared void.

The text of the document should include the following provisions:

• Who will act as a borrower to the bank and become the owner of the purchased brand new apartment. Will shared ownership be practiced?
• Who will make the down payment on the loan? If these are both spouses, then in what amount?
• Whose responsibilities include making monthly contributions . Perhaps the couple will decide to split: the body of the debt is paid by one spouse, the cost of insurance and interest on the contract - by the other;
• What sources of income are planned to be used to pay off debt . Perhaps this will only be the salary of one spouse, the second will support the family at this time;
• What is the procedure for dividing real estate and debts directly if a couple decides to divorce;
• Are there circumstances that may affect the contract and require changes to be made?

If the couple decided to draw up such an agreement directly in the process of obtaining a mortgage, it is logical to include in it more specifics about the property: its technical characteristics, cadastral number and total area. You can also write down the name of the bank and the terms of the loan. Find out how to draw up a marriage contract correctly in this article.

It is best to seek help from an experienced lawyer. The price of such a service starts from 500 rubles - this is the cost of the state duty, which you will have to pay in any case. As for the cost of specialist services, it all depends on the region. On average, lawyers charge 5,000 rubles for certifying a contract and providing consulting services.

You should have the following documents with you:

1. Newlyweds' passports;
2. Marriage registration certificates;
3. About the ownership of the purchased object.

An agreement without a notary's signature and seal is considered invalid.

What is the procedure for concluding a contract?

If the spouses decide to draw up an agreement, they need to follow a simple algorithm:

1. Approach the issue of obtaining a loan rationally. Decide how the debt obligations and the apartment itself will be divided after the debt is paid off;
2. Find out what conditions large banks offer and choose the best option for yourself;
3. Find a notary with whom to conclude the agreement.

The advantage of such contractual relations is that the couple can dispose of the property differently if it suits both and does not violate the norms of current legislation.

For example, it is logical to register an apartment purchased during marriage as common property. But if there is only one person as the borrower, he used personal money for the down payment, and he will also pay off the debt, such an apartment is specified in the contract as private property.

The process of drawing up a marriage contract for real estate is complex. Therefore, a couple who wants to get a mortgage loan and immediately draw up a contract should think through all the points. Then contact a competent lawyer who will help you write down all the agreements and nuances on paper.

Download a sample marriage contract for a mortgaged apartment

It is not recommended to use ready-made templates; it is better to use it as a sample, which can be supplemented in accordance with the characteristics of a particular family.

It is also not advisable to enter into a contract only on the creditor’s terms, since the bank acts only in its own interests. Please note that a document signed under threat of intimidation or violence is invalid.

The parties must be legally capable and their decision must be voluntary.

Why does the bank require a prenuptial agreement for a mortgage?

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Marriage agreement when buying an apartment: contents and features of drafting

A prenuptial agreement when purchasing an apartment establishes the rights of spouses to housing purchased after marriage. The document is drawn up with the mutual consent of the spouses and notarized.

What is a prenuptial agreement when buying an apartment and why is it needed?

In accordance with legal norms, all material property that was acquired after marriage is considered common to both spouses. Consequently, in the event of a divorce, the purchased property will have to be divided in half.

This procedure for dividing property is not always fair. Sometimes only one spouse earns money to buy a home, so an equal division of the apartment will be unprofitable for him. The solution to the problem will be a marriage contract that ensures a clear establishment of property rights.

The main provisions indicated in the document

Any prenuptial agreement when purchasing an apartment contains information about how the property will be divided after divorce. It also stipulates the likelihood of transferring living space to minor children with the right of one of the parents to live in it until the children turn 18 years old.

If the concluded contract infringes on the rights of one of the spouses, the document can be challenged in court.

Judicial authorities will annul a marriage contract when purchasing a home if it:

• Not certified by a notary.
• Signed by an incapacitated person.
• Contains conditions that contradict current legislation.

Rules for drawing up a marriage contract

Spouses who wish to enter into a prenuptial agreement can act independently. In this case, after drawing up the document, they need to contact a notary office so that the contract receives legal force.

However, it is better to use the services of a lawyer who will indicate to the parties their rights and obligations and help them correctly formulate their requirements. In addition, the notary, if necessary, will confirm that the husband and wife left their signatures voluntarily. In the future, neither spouse will be able to say that they were subjected to moral pressure or were under the influence of drugs.

Before concluding a marriage contract, spouses need to prepare a package of documents:

• Marriage certificate.
• Passports of both parties.
• Documents on the ownership of housing.

Most often, the preparation of a marriage contract is preceded by the purchase of living space. If the parties draw up a contract before purchasing real estate, they will be required to:

• Preliminary agreement for the purchase of an apartment.
• Loan agreement (when obtaining a mortgage).
• Equity participation agreement (when purchasing housing in a new building).

In the marriage contract, the spouses must indicate the cadastral number, address and total area of ​​the apartment.

The main requirement for each spouse is to personally sign the contract. The assistance of representatives or intermediaries is unacceptable here.

Features of drawing up an agreement for a mortgage apartment

After purchasing an apartment with a mortgage, a married couple has to repay their loan obligations for quite a long time. The debt must be paid to the banking organization even in the event of a divorce. The prenuptial agreement determines to whom the debt is assigned upon divorce, and to whom the living space will ultimately go.

A prenuptial agreement when purchasing apartments with a mortgage loan contains answers to the following questions:

• Who should make the down payment?
• Who will pay the monthly loan amount established by the bank?
• Who should pay for utilities?
• How will these financial responsibilities in the family change after the birth of a child?
• Who owns shares in the apartment and to what extent?
• What compensation will the second spouse receive in a divorce?

Sometimes a banking institution directly requires, especially Sberbank, that spouses enter into a prenuptial agreement. This condition is imposed by the bank if:

• One of the spouses has a negative credit history.
• The wife or husband does not want to take out a mortgage.
• The mortgage loan was issued before the marriage, but is repaid through joint efforts.
• The apartment is registered as joint ownership

A married couple who has drawn up a marriage contract saves themselves from conflict situations related to the establishment of property rights after a divorce. This document allows for the fair distribution of the spouses' real estate in the event of divorce.