When a serviceman divorces, the division of an apartment purchased on a military mortgage is the most pressing topic in court. That is why banks working with the military mortgage program strongly recommend drawing up a marriage contract when registering a civil mortgage agreement. Fortunately, this paper can be written and certified at any time , and not just before marriage.
Division of an apartment under a military mortgage during divorce, judicial practice
Since the existence of since 2004, hundreds of couples have gone to court because they were unable to reach an amicable agreement regarding the division of an apartment. Until recently, judges more often sided with the military personnel - participants in the Savings and Mortgage System (NIS).
Judicial practice: division of an apartment under a military mortgage with decisions in favor of the NIS participant
Property acquired jointly during marriage is divided in half - that which was acquired with common income .
Mortgage housing and loan debts, based on Article No. 34 of the Family Code of the Russian Federation , are recognized as common. But now we are not considering a regular mortgage, but a military one.
And it is repaid not from the common income of the spouses, but from the state and the serviceman’s pension contributions to the NIS.
According to the second part of Art. 34 payments with a designated purpose related to compensation payments are not joint property When applying for a military mortgage, the basis for the borrower’s agreement with the bank is a targeted housing loan (CHL). That is, the state pays for the serviceman’s loan specifically for housing.
This is written in the text of Federal Law No. 117, which talks about the savings-mortgage system. It turns out that CZZ is not the income of an NIS participant and cannot be jointly acquired property.
The Family Code of the Russian Federation also contains Article No. 36, which talks about what property is not recognized as joint:
- What belonged to each spouse before they married;
- What was received by one of the spouses as a gift, by inheritance or other gratuitous transactions during marriage (TsZZ - a conditionally gratuitous transaction if the serviceman complies with the terms of the contract).
Judges are guided by these laws when making such decisions:
If a serviceman does not take out a mortgage until a decent amount has accumulated in his account, then he may well do without a loan . Judge for yourself, the very first NIS participants in 2025 will receive money sufficient to purchase housing even in the capital region:
But the money can be used after three years of participation in the NIS. Now (from November 2014 to November 2017) this is an amount of 8,48,467 rubles . In some cases, this is quite enough to pay for the purchase of an apartment in its entirety. But for large cities, this money is only enough for the down payment ( 10-20% depending on the bank) on a military mortgage.
Please also take into account that the state does not pay for home insurance and various certificates and statements that may be needed when drawing up a contract. That is, for an apartment with a military mortgage, you will have to pay out the spouses’ common funds as well.
In the event of a divorce, a husband or wife who is not a member of the NIS has the right to compensation of 50% of this money. And if he or she spent his own money on repairs or reconstruction of the apartment under a military mortgage, he or she can demand the entire amount . But you must bring papers confirming these expenses to the court.
In some cases, judges decide that a mortgaged apartment cannot be recognized as personal property:
This spring, the Supreme Court of the Russian Federation found no reason to consider an apartment on a military mortgage to be the personal property of a serviceman:
After this, local courts began to refer to this precedent when dividing real estate under a military mortgage.
Judicial practice: division of an apartment on a military mortgage with children
According to the law, a child or children live with one or two parents on their territory (Article No. 54 of the RF IC) . If the mother does not have her own home, the children must be registered in the father's apartment.
True, the bank must agree to registration while the apartment is collateral. And the child will receive inheritance rights to the parent’s fully purchased property after the death of the owner - in the event of a divorce, children do not receive shares in the apartment.
This is what lawyers advise women who are divorcing military personnel and do not know what to do with the child’s registration:
Division of an apartment under a military mortgage in the event of a divorce
It would seem that there is nothing easier than filing for divorce, because in the modern world this is a fairly common practice.
All that is needed is to collect the relevant documents and take the application to the court, but what to do if the spouses took out a military mortgage during their cohabitation? A military mortgage during a divorce can cause numerous disputes and legal red tape, but if you approach the issue of property division correctly, problems can be avoided.
Divorce of spouses under conditions of military mortgage
A military mortgage can be provided to a serviceman regardless of whether he has a family, children or a spouse.
Unlike obtaining a loan under other programs, a military mortgage does not require the consent of the spouse, since the military personnel bears full responsibility for the loan.
There are also significant differences between the division of an apartment using a military mortgage, in comparison with the division of a credit apartment purchased under other programs.
Most banks understand the possible risks when issuing a military mortgage to spouses, and therefore require the signing of a marriage contract in order to avoid further misunderstandings and going to court.
According to the marriage contract, the wife does not claim ownership of the property, which becomes the property of the borrower, even sometimes after the loan is repaid.
Each marriage contract has its own costs, they are drawn up with the consent of both spouses.
The presence of a marriage contract answers the question of whether the apartment is subject to division. Any lawsuits by the spouse for the right to compensation will be meaningless.
The division of property and property can take place amicably between spouses if they agree to jointly pay off the mortgage, and then sell the apartment and divide it in half, or divide it between children in equal shares. A borrower who is a military serviceman on a voluntary basis can also sign a document to donate real estate to one of his children or his ex-wife, on a paid or gratuitous basis.
Rights of spouses to housing purchased under a military mortgage
The judicial practice of terminating a military mortgage during a divorce more than once encounters a situation in which both spouses consider the apartment their property, because it was acquired during marriage. The following have the opportunity to obtain a military mortgage:
- officers on contract service;
- military personnel who have the rank of warrant officer or midshipman;
- soldiers, sailors and sergeants who have been in service for at least 3 years;
- graduates of military universities who entered into their first contract for military service.
According to the Family Code, real estate under the military program is purchased with money from a targeted housing loan. According to this mortgage lending program, the state provides money to the military personnel on a repayable basis.
You can receive free funds only after the serviceman retires or retires due to disability. The reimbursable form of the CZZZ is given if a serviceman wishes to receive real estate before reaching retirement age.
The serviceman undertakes to serve in the Armed Forces of the country until a certain period of time, and for this, the state will pay a mortgage for him.
According to this agreement, an apartment under a military mortgage cannot be divided in half during a divorce, since it is not considered the common property of the spouses. The spouse of a military serviceman does not have the right to claim real estate purchased with the money of the Central Bank of Russia, but she has the right to receive monetary compensation.
The wife's rights to an apartment with a military mortgage are minimal, but she can receive a certain amount of money if she provides in court receipts and relevant documentation confirming that she made major repairs in the apartment using funds from the family budget or through her labor or contributed part of the money to the account loan repayment.
Special conditions for a military mortgage in case of divorce of spouses with children
A military mortgage in the event of a divorce between spouses and children does not provide for the division of the apartment between them. If the spouses divorced and young children remain with a spouse who does not have his own home, the child can be registered in an apartment that was purchased by one of the spouses using a military mortgage. This can only be done after the lien has been removed from the property.
The right to ownership of an apartment by a child comes into force after the death of the father through the inheritance of property.
How a military mortgage is divided during a divorce, if after some time the borrower died but still had children, the court decides.
According to the Family Code, after the death of a father, children become the heirs of his property, but if they are minors and are unable to pay off the remaining debt, the ex-wife of the deceased borrower can take over the responsibility for repaying the loan, with the condition that her children, after repaying the debt, will inherit the property.
Most banks provide for this point in the contract and require mandatory life insurance for the borrower. Sometimes the proceeds from the insurance company, in the event of the borrower’s death, are enough to pay off the debt, and the apartment is immediately transferred free of charge to his heirs.
How to divide a military mortgage?
To the question of whether a military mortgage is divided in a divorce, the answer can be unequivocal - no. The fact is that an apartment purchased with a military mortgage until the remaining debt is fully repaid is the subject of collateral, that is, it is untouchable and cannot be considered either the property of the bank or the property of the borrower. Only after full repayment does the property remain the property of the borrower.
Divorce with a military mortgage cannot be the reason for re-registration of the contract and division of property. The loan contract cannot be renewed under any circumstances, and divorce is no exception. The potential owner of the apartment is only the spouse whose name appears in the loan agreement.
In the court practice of dividing credit property, there are cases in which a loan for real estate was reissued to the spouse, and she became the owner of the property after full repayment of the debt, and all obligations were removed from the borrower, and he did not lay claim to the apartment.
A military mortgage in the event of a divorce between spouses and children does not provide for the right to re-register the contract, because a targeted loan is issued under the conditions under which the borrower undertakes to serve in the Armed Forces. Taking into account the fact that the spouse cannot replace her husband in the service and is not a military personnel, she does not have the right to assume the obligation to pay a military mortgage.
Accordingly, she cannot become the owner of housing purchased under the military state mortgage program.
If the marriage of military personnel had to be dissolved, they are obliged to inform the bank about this, since the terms of most contracts include a clause “notify of any changes in social status.”
Accordingly, if you do not notify the financial institution of your decision to divorce, a situation may arise in court in which the bank decides that you have violated the military mortgage agreement and will make completely justified demands for early repayment of the loan.
That is why, before changing your social status and starting to divide your apartment during a divorce, carefully re-read the terms of the loan agreement so that you do not end up without a spouse and without real estate.
How to divide an apartment using a military mortgage during a divorce: the rights of a spouse when dividing a serviceman’s property, judicial practice
Divorce always comes with its own challenges. This procedure becomes more complicated if it is necessary to divide jointly acquired property. In this case, many disputes arise; the parties are not always ready to make concessions. Family members do not always understand how the division of an apartment purchased with a military mortgage occurs and who gets the property itself.
Military mortgage – what is it in simple words?
This type of lending has a number of significant differences from a standard loan. The main feature is that a person involved in the military sector spends only part of his own money on a mortgage (and only if government subsidies for the purchase of real estate are not enough). This is possible thanks to the savings-mortgage system (NIS).
During service, the serviceman is assigned an account. It receives funds from the state budget every month. When your account has accumulated enough money to purchase a home, you can make a purchase. However, military personnel who have served for 3 years have the opportunity to obtain a mortgage on preferential terms.
The peculiarity of a military mortgage is that part of the loan is repaid from funds stored in an account in NIS, and the other part is from the personal savings of the person serving (if the cost of housing exceeds 2,500,000 rubles).
These mortgages come with longer repayment terms, preferential interest rates, and other incentives that make them more profitable than standard loans.
The wife's consent is not required to issue such a product (with the exception of the use of additional personal finances).
Is an apartment purchased with military mortgage subject to division
The main question regarding this problem is as follows: can real estate taken on such a loan be considered common property.
At the same time, there are two interpretations of this problem:
- real estate is not considered common, since it falls under the provisions of the first paragraph of Article 36 of the Family Code;
- real estate is jointly acquired property, since it is acquired during the common management of the household.
In 2018, when the Supreme Court determined that such real estate is considered community property because it was acquired during cohabitation. And although the FSO took the initiative to protect property from division, there are no serious changes in this issue in 2023. Ultimately, whether the property is divided depends on the finances used to purchase the apartment.
How is a military mortgage divided in a divorce?
An apartment under a military mortgage cannot be divided during a divorce, but only if it was purchased exclusively with NIS funds. In this case, the property remains with the serviceman (although there are “loopholes” in the laws that the other side of the divorce process can exploit). The situation becomes more complicated when other means were involved in the purchase.
Division of property between spouses is permitted in the following cases:
- NIS did not have enough money for the purchase, the couple used their own funds;
- part of the loan was repaid using maternity capital;
- the spouse retired from military service before the loan was repaid (no contributions are made to the NIS; the remainder of the debt is paid from personal money).
Another reason for termination is carrying out major repairs in the apartment at common expense. In all the points described above, housing is considered jointly acquired property.
Problems with partition
The procedure for dividing mortgage loans is highly complex. Spouses may have additional problems regarding informing a banking organization about an upcoming divorce. The presence of debts associated with utility bills further worsens the situation.
Utility debt
According to general rules, after a divorce, debts are divided between spouses in proportion to the shares of property that went to them. If the apartment remains with the spouse, then the debt will completely pass to him. The exception to this rule is the definition of real estate as general.
Informing the bank
Divorce with an outstanding mortgage affects not only the interests of the spouses, but also the financial institution that issued the funds. In this regard, it is mandatory to inform the bank about the upcoming procedure. This is required to correctly and timely make changes to your personal data.
If you do not notify the bank, it will have the opportunity to terminate the mortgage, as well as file a lawsuit to cancel the division procedure. In this case, there is a possibility of loss of property without refund.
Arbitrage practice
In the majority, the judge takes the side of the serviceman, takes into account the repayment of debt at the expense of the NIS and refuses to divide the property. Under these conditions, the apartment will remain with the husband; the woman, as well as the child, will have to look for another place of residence.
If we talk about the division of housing purchased partially with funds outside the NIS, such property will be divided between spouses. This applies to all cases described above. Meanwhile, in some conditions, dividing property is so difficult that the matter reaches the Supreme Court.
Another nuance taken into account by the judge is the signing of a marriage contract when taking out a mortgage loan (the requirement for its conclusion has become a common practice among domestic banking organizations). If this paper is available, the judge will follow the contents of the document.
In certain cases, a violation of the principle is possible when an apartment purchased entirely with NIS funds goes to the spouse. If citizens have lived together for a long period of time and have a minor child with whom the spouse has no place to live, the judge can divide even such housing. Such cases are particularly complex and are often accompanied by appeals.
Dividing an apartment using a military mortgage - how to divide a military mortgage during a divorce
Everything that a husband and wife have acquired over the long years of marriage is divided in half - no one questions this rule. Including real estate - even if it was purchased with a mortgage. The only caveat is that the rule applies only to civil mortgage lending. As for special government programs, for example, military mortgages, completely different rules of law apply here, radically opposite.
This article is devoted to a problematic issue for many married couples - is it possible to divide between husband and wife housing purchased (in whole or in part) with funds from the Russian Defense Ministry?
Military mortgage is a government program designed to provide military personnel with their own housing on preferential terms. The peculiarity of the program is that the loan debt is paid not with the funds of the serviceman, but with the funds of the Ministry of Defense of the Russian Federation.
The only condition for obtaining a mortgage loan is the serviceman’s participation in the savings-mortgage system (SMS) for at least 3 years. The serviceman's special account receives targeted funds to repay the mortgage loan.
To understand the principles of obtaining and paying off a military mortgage, in particular if a serviceman is married or intends to divorce, consider the following points:
- The maximum loan size under the state military mortgage program is 2 million 400 thousand rubles. If these funds are not enough to purchase housing, the serviceman’s own funds are allowed;
- The maximum mortgage term is 25 years. At the end of the loan agreement, the borrower must not be older than 45 years;
- The down payment must be at least 10% of the cost of the purchased property;
- Average interest rate – 12.5%;
- A loan agreement for the purchase of housing can be concluded directly by a military personnel. The spouse of a serviceman does not take part in the execution of the loan agreement and the fulfillment of its terms, and is not responsible for failure to comply with the terms of the agreement;
- Housing purchased under the military mortgage program is subject to collateral by the Ministry of Defense of the Russian Federation until the loan is fully repaid;
- After full repayment of the loan, the serviceman will be the sole owner of the purchased housing - regardless of registration or divorce;
- The loan agreement is not subject to renewal;
- In the event of a serviceman’s dismissal (with the exception of joining the reserve), the loan debt is repaid with one’s own funds;
- If housing is purchased entirely with funds from a targeted housing loan, property disputes are useless.
Let's consider the main legislative acts approving the right of joint ownership of spouses. First of all, Article 256 of the Civil Code of the Russian Federation, as well as part 1 of Article 34 of the Family Code of the Russian Federation.
These provisions of the law state that property acquired by a husband and wife is joint property.
However, already part 2 of Article 34 of the RF IC indicates an exception - cash payments for special purposes are not joint property.
That is, an apartment or other real estate acquired by a husband or wife with funds for a special purpose (namely, these are the funds allocated by the state under the military mortgage program) is not joint property, and therefore is not subject to division . In the event of a divorce, the apartment or other real estate will remain the property of the serviceman, who was purchased with funds from the Ministry of Defense of the Russian Federation.
So is it possible to divide “military” housing according to the principles of civil and family law? No, in this case the general rules for the division of joint property do not apply.
Typically, property disputes between husband and wife arise during the divorce process - before or after the payment of the military mortgage. If a dispute arises, you should go to court.
Unfortunately, judicial practice shows that the property claims of a military spouse to an apartment purchased under the NIS program are almost always rejected by the court. Achieving division is almost impossible.
Only a serviceman who has drawn up a military mortgage agreement is recognized as the sole owner of housing, and even then the right of ownership of housing acquired under the NIS program arises only after the loan has been fully repaid - until this moment it is pledged by the RF Ministry of Defense.
Does the spouse really have absolutely no chance of proving the right to a share of real estate? There are still chances.
- The size of a military mortgage is limited - in 2018 it is about 2 million 400 thousand rubles. Since it is almost impossible to purchase decent housing for that kind of money, especially in a big city, a soldier buys housing at a higher price. Consequently, family funds are used to repay the loan. As is known, property acquired with family funds is recognized as jointly acquired property, therefore, the spouse of a military personnel can claim half the amount of money invested in the purchase of housing or a share proportional to this amount.
- If a serviceman retires from the Armed Forces, he has to independently repay the military mortgage loan . If payments are made from the family budget, the spouse may claim a share proportional to half of the funds.
- In addition, the personal funds of the military spouse can be used to repay the loan (for example, received by inheritance or under a gift agreement, proceeds from the sale of personal property) - therefore, the spouse has the right to claim a share proportional to the personal funds invested;
- Funds (except for designated purposes) received by a serviceman or his spouse from third-party sources are jointly acquired property and are subject to division. If these funds are invested in housing, the housing is also subject to division in proportion to the investment;
- To repay part of the debt on a military mortgage, it is allowed to use maternity capital , therefore, the mother and children can claim a share in the acquired real estate.
Thus, there are some “loopholes” in the law, thanks to which it is possible to challenge the sole ownership of a serviceman and achieve, if not the division of the apartment into two equal parts, then at least the payment of monetary compensation proportional to the personal or family funds invested in the apartment.
To do this, you need to go to court with a claim, which must be accompanied by evidence of the investment of funds in the “common cause” (receipts for depositing funds into a credit account, gift agreements, bank account statements, receipts for the purchase of construction or finishing materials, receipts on the transfer of funds and other documents). Circumstances such as the presence and number of children, loan repayment period, length of marriage, etc. are also important.
- The court does not always take the position of the military borrower; sometimes it supports the spouse - however, the court is guided, of course, not by personal likes or dislikes, but by the circumstances of the case, confirmed by documents. The more convincing and varied evidence is provided to the court, the higher the likelihood of a positive court decision;
- Raising the issue of dividing housing before the loan is fully repaid is useless. Housing is subject to a double burden - Rosvoenipoteka (RF Ministry of Defense) and the bank;
- After repaying the loan and removing the encumbrance, the NIS program participant becomes the owner of the residential premises. Only after this are real estate transactions or litigation possible;
- If the cost of housing did not exceed the size of the housing estate, if personal or family funds were not invested in repaying the loan, the spouse or other family members of the serviceman do not have any rights to the purchased housing. The claims of a spouse can only extend to the extent of invested personal or family funds;
- The court takes into account the terms of the marriage contract regarding ownership and division of real estate (if one was concluded).
In conclusion, it must be said that a military mortgage is a state support program for military personnel aimed at providing housing and protecting housing and property rights from claims of third parties. No matter how unfair this may seem to the husband or wife of a serviceman, this advantage is fully justified - given the complexity, danger and responsibility of service in the RF Armed Forces.
But the husband/wife of a military man also has one pleasant “bonus” - they do not bear any obligations on the loan.
An apartment was purchased during marriage using a military mortgage, how to divide during a divorce
In the event of a divorce, jointly acquired property is divided between spouses, and this is no secret to anyone. However, if the property was acquired under a mortgage, then there are some peculiarities.
Moreover, mortgage lending can be carried out through different programs and types. In particular, the law provides for a separate mortgage for military personnel. Accordingly, dividing an apartment using a military mortgage has its own nuances.
How is property divided under a military mortgage during a divorce received by a husband who is a military man? What are the rules and what should you pay attention to? Read our article.
Divorce of a military family and division of mortgage housing
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The entire procedure will depend on the conditions under which the mortgage was issued. If during the marriage a serviceman took out a loan under a regular banking program, then the apartment is divided as standard - 50/50.
At the same time, the military mortgage program has its own characteristics.
The thing is that a loan for housing is formed from several sources coming to military personnel participating in the savings-mortgage system (NIS). Part of the payments is financed by the state.
In addition, a certain share of the serviceman’s pension contributions is also allocated to repay the mortgage.
Currently, there is conflicting judicial practice regarding the division of real estate during a divorce obtained under the terms of a military mortgage.
Some judges believe that the mortgage loan is repaid using targeted funds. And if so, then real estate is not included in common property (Part 2 of Article 34 of the Family Code of the Russian Federation).
However, court decisions have now begun to appear that indicate that the mortgaged apartment is divided in the usual manner.
Special conditions for a military mortgage in case of divorce
First, let's understand what a military mortgage is.
This is a special program for military personnel. And only the military of the Russian Federation can participate in it.
According to it, part of the payments is compensated by the state, while the serviceman opens a special account where subsidies are received.
However, those individuals who have been participating in the mortgage program for at least three years can count on government support. At the same time, the amount of assistance from the state is slightly less than two million rubles.
As we have already said, if spouses divorce, problems may arise when dividing the mortgaged apartment.
If the court decides to divide the property in half, then the military serviceman will still have to repay the military mortgage, since he is a member of the NIS. In this case, he has the right to compensation from his ex-wife in part of the paid loan.
In a word, during a divorce you need to study and anticipate all possible developments and, if possible, consult with a lawyer.
Based on the legislation, available documents and the latest judicial practice, he will tell you how to proceed correctly.
Difficulties in dividing property under a military mortgage, and what will the creditor bank say?
Do not forget that the bank is directly involved in the military mortgage program.
Therefore, the division of an apartment received under a military mortgage must take place with the consent of the financial institution. Moreover, the bank will take part in the upcoming trial as a third party.
Before dividing an apartment purchased with a military mortgage during a divorce, you should study the loan agreement. Most banks already include instructions in loan agreements on how to act in such situations.
Typically, loan repayments during a divorce are distributed between spouses in equal shares. However, a military mortgage is a special case. And after the divorce, the serviceman will pay the mortgage.
But, as we have already said, he can legally demand compensation from his wife.
It also happens that some banks require early repayment of the loan during a divorce. And the motivation is very simple - divorce reduces the guarantee of repayment of the mortgage loan.
How to divide property under a military mortgage according to the law
Each spouse is probably wondering how to legally divide housing under a military mortgage. Here it is necessary to take into account existing judicial practice.
If we speak from the position of the law, then the principle of dividing an apartment taken on a military mortgage is that the housing remains at the disposal of the serviceman who took out the mortgage.
Recently, courts have increasingly ruled that a mortgaged apartment is not considered the personal property of a serviceman. And if so, then the court can quite easily divide it in half.
It is also possible that other proportions may be awarded.
For example, this happens when small children stay in the apartment. Then the decision can be made in a ratio of 40 to 60 or even 30 to 70. However, each situation is individual.
The court may also award monetary compensation to the second spouse if part of the loan was repaid from his own funds. The same goes for repair costs. But in any case, all expenses must be documented.
Note to future/current NIS participants and their other halves: 5 rules you need to know
Below we present 5 basic rules that need to be taken into account when deciding whether to take out a military mortgage. Extra knowledge never hurts, as they say, “ignorance of the law is no excuse.”
In our situation, we mean civil liability, but in fact there are financial risks, you see, no one wants to be left with nothing after a divorce.
1. Achieving the required length of service
Now the savings mortgage system does not work for everyone. To become a member of the NIS, you must serve in different troops for a certain time. Usually it is three years.
2. Choosing the right bank
Today, various financial institutions participate in the military mortgage program. Each of them offers their own mortgage programs.
They differ in the term for which the mortgage is provided and the interest rate. Therefore, you should make a choice among several offers.
3. Study of judicial precedents
We have already said that the judicial practice of dividing military mortgages is quite contradictory. Therefore, before dividing a military mortgage, you should study not only the legislation, but also court decisions, including clarifications of the Supreme Court.
4. Legislation monitoring
Regulatory documents in the field of military mortgages periodically undergo important changes. In order not to miss anything, it is advisable to periodically study news and legal information.
5. Help from a lawyer
In some cases, resolving the issue of dividing a mortgaged apartment received by a military personnel is not easy. A way out of the situation can be found by seeking help from a specialist.
We have described 5 basic rules that are useful to follow when applying for a military mortgage or using it for some time.
Frequently asked questions regarding the division of an apartment purchased with a military mortgage
Below we have collected answers to the most frequently asked questions in the field of mortgages for military personnel. They are asked both by the borrowers themselves and their spouses.
How and who can divide property during a divorce
Naturally, after a divorce, spouses cannot always dispose of their property as they want. And usually this happens with the help of the court.
However, the property issue can be resolved peacefully. To do this, a marriage contract or an agreement on the division of property is drawn up by a notary.
Is an apartment subject to division under a military mortgage?
- If we literally follow the Family Code and the legislation on military mortgages, we can conclude that this housing is not subject to division.
- However, increasingly, courts in different regions are making opposite decisions when dividing a mortgaged apartment between spouses.
- Therefore, the ambiguity of judicial practice is widely used by both the mortgage holder and the second spouse, who intends to receive part of the apartment for himself as a result of the proceedings.
Is an apartment purchased with a military mortgage a common property?
If we proceed from the fact that the funds allocated by the state for military mortgages are of a targeted nature, then we can conclude that mortgaged housing is not common property.
In this regard, an analogy can be made with maternity capital. Real estate acquired with his funds is also not recognized as common property.
Are there any circumstances under which a military spouse is entitled to housing?
This happens when the court decides to divide the apartment. Otherwise, the spouse has very little chance of qualifying for housing (unless a separate clause is written down in the marriage contract).
However, a spouse can count on monetary compensation provided that they paid off part of the loan or paid for repairs to the apartment.
To do this, you should submit to the court bank receipts indicating the payer, as well as checks or acts for the purchase of materials or payment for the work of the construction team.
Should you notify the bank about your divorce?
Some unscrupulous borrowers do not want to notify the bank about changes in their marital status. Let's say right away that you shouldn't do this.
Thus, misleading the bank may result in serious sanctions. It is possible that a financial institution may try to take away the apartment.
Do not forget that the bank may make a requirement to repay the loan early, and in one payment. Therefore, it is better to follow all the rules specified in the mortgage agreement.
When can a wife claim a share of an apartment in a military mortgage?
This happens when the court considers that the disputed property still belongs to the joint property. Then the judge will decide in what proportion the disputed apartment should be divided.
A wife can apply for a mortgage even if the corresponding rights of the spouse are enshrined in the marriage contract.
What are the difficulties?
Several potential difficulties can be identified.
First of all, this is ambiguous judicial practice when determining the legal regime of an apartment in joint family property. And the possibility and procedure for dividing a mortgaged apartment directly depends on this.
Further, difficulties in dividing an apartment in a military mortgage may be related to the content of the relationship. It is possible that in connection with the divorce, the bank will impose additional conditions on the borrower for servicing the mortgage.
The presence of common minor children can also leave its mark. After all, under no circumstances should they be left homeless.
In a word, it is best to understand all the nuances of a military mortgage in cooperation with a lawyer. The lawyer will provide all the necessary legal support to both the serviceman and his other half.
How to divide an apartment during a divorce if it is on a military mortgage
Question: My ex-husband is a military man. During his marriage, he received a three-room apartment on a military mortgage. Now we are divorced, but the issue of division of property has not been resolved, the loan has not yet been fully repaid. Do we have the right to divide an apartment, and how does this happen in practice?
Answer: It is an indisputable fact that real estate purchased by spouses on credit is recognized as their common property and is divided according to generally established rules. However, this statement is true only for civil mortgage objects. In the case of the state loan program for officers, different rules of law apply.
A military mortgage (targeted housing loan) is aimed at providing housing for as many military personnel as possible. Its main feature is that the debt is repaid not with the borrower’s funds, but with the Ministry of Defense of the Russian Federation, which is the mortgagee.
Upon divorce, real estate acquired entirely through a military mortgage is not subject to division. Since until the debt is fully repaid, it is owned by the state.
An exception applies to housing, part of the cost of which the spouses made up for with their own funds.
In this case, it will not be the apartment that will be divided, but only the amount spent from the family budget on its purchase and (or) repairs and reconstruction.
- If maternity capital was added to the amount of the military mortgage, then a share in such real estate is also due to the ex-wife and children of the serviceman.
- When housing was purchased exclusively with funds from a targeted housing loan, neither the second spouse nor the children have rights to it.
The practice of partition in court
Based on the above, it is clear that it is impossible to divide housing purchased with a military mortgage. However, there is a possibility of receiving a monetary refund of the funds spent by the ex-spouse on the apartment.
To do this, the interested party files a claim in court. It must be accompanied by documents confirming the expenditure of personal funds on common real estate.
These can be all kinds of checks, receipts, receipts, notifications about the transfer of money to a bank account, etc. The court takes into account information about the number of children, their state of health, and the term of the loan.
The more evidence the plaintiff provides, the more likely it is that the court will take his side.
It is still possible to divide an apartment purchased under the military mortgage program. To do this, you should wait until full repayment and the end of the loan term (25 years). However, it is important to consider the three-year statute of limitations. Under this condition, division of property is permissible within three years after the divorce or the occurrence of circumstances that violate the property rights of the other spouse.
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