The legislation of the Russian Federation has 2 regulations that establish the rules for regulating family relations between spouses and the procedure for dividing property assets upon divorce:
- Civil Code of Russia.
- Family Code of Russia.
In the RF IC, the division of property of spouses during a divorce is spelled out in more detail. It sets out the following standards:
- On the types of legal regimes for the common assets of participants in family relationships.
- About what is meant by jointly acquired property of spouses in the Family Code.
- On the list of material assets related to the personal property of the wife and husband.
- On the procedure for dividing joint assets by peace agreement or in court.
What articles of the Insurance Code and the Civil Code regulate the division of property
| Civil Code of the Russian Federation |
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| Family Code of the Russian Federation |
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Civil Code of Russia
Article 244
A wife and husband can own common assets on the basis of joint or shared ownership.
Joint ownership of a thing is formed if the spouses own it without dividing into shares. According to the Family Code, it is established by default for all property acquired by a married couple.
Shared ownership of a thing is formed if the spouses have determined their shares in it. It can be established in a marriage contract for all the assets of the participants in the family union or for part of them.
Article 250
If spouses have shared ownership with relatives or third parties of any property, for example, an apartment, then upon dissolution of the marriage relationship they cannot freely sell their shares in order to divide the proceeds.
As required by law, they must first invite other owners to exercise their right of first refusal. In case of their refusal or lack of a written response within one month after receipt of the offer, the right to pre-emptive purchase is lost. After this, spouses wishing to sell their shares are free to choose a buyer.
Article 252
The division of property of the Civil Code of the Russian Federation is regulated in Article 252. It establishes the right of owners who own shares in an asset to divide it in two ways:
- By mutual agreement.
- In court.
The division of an item that is in the mode of shared ownership occurs in the following ways in order of priority:
- The share is allocated in kind, except in cases where this will lead to damage to property or is prohibited by law.
- Transfer of funds to the owner of a share as payment for its cost by other share owners.
- Sale of property and division of the proceeds among all owners in proportion to the size of their shares.
Article 254
When dividing joint property, the following rules should be taken into account:
- Before the division, you must first determine the size of the shares of the joint owners.
- The asset is divided equally between the owners. The amount of shares can be changed by agreement of the spouses, a marriage contract or the norms of the Family Code.
- The methods for dividing things in order of priority are specified in Article 252 of the Civil Code.
Family Code of Russia
Article 33
According to Article 33, by default, the wife and husband own assets acquired during the marriage as joint property.
Russian legislation allows 2 modes of ownership of participants in a marriage union.
Article 34
Under the jointly acquired property of spouses during a divorce, the Family Code understands the material assets acquired by the spouses during the period of their registered marriage. These material assets include:
- Cash and other income acquired by the wife or husband from hired work, entrepreneurship or investment.
- Financial resources received from the use or sale of literary works, films, industrial designs, patents for inventions and other results of mental activity.
- Benefits or pensions of each spouse.
- Funds that do not have a special purpose. These include, for example, money received as part of financial assistance. This does not include financial resources received by the spouse under the military mortgage program for the purpose of purchasing an apartment or other residential real estate, as well as maternity capital.
- Immovable or movable assets.
- Deposits transferred to banking institutions.
- Bonds, bills, shares and other securities.
- Shares in housing construction cooperatives or mutual investment funds.
- Shares in legal entities, for example, in the authorized capital of an LLC.
When classifying material assets as joint property of participants in a family union, the law does not attach importance to the following facts:
- Who bought a common item.
- To whom is the property registered under the contract?
- Who is the property or car registered to?
It should be noted that a wife who did not transfer money to the family budget has the right to claim half of the total assets if she:
- She was raising a young child while her husband was earning money.
- She was a housewife and was involved in maintaining the family home.
- She was unable to work due to disability.
Article 36
The things specified in Article 36 that are not subject to division upon dissolution of marriage include:
Exclusive rights held by one of the spouses to the results of intellectual activity, for example, the right to a trademark or authorship.
Assets that a spouse inherits upon the death of the decedent or receives under a gift deed. It should be noted that, according to the law, it does not matter how exactly the participant in the marriage came into possession of the inherited property:
- Personal items, which include shoes, hygiene items and clothing. Exceptions to this rule include luxury items and jewelry.
- Material assets acquired by one of the spouses before the official entry into marriage.
- Medicines and equipment intended for medical purposes, such as a blood sugar monitor or orthopedic supplies.
- Maternal capital.
- State awards.
It should be noted that the legislator in the Family Code does not define luxury goods. This is because luxury is a subjective concept. Classifying an item as luxury depends on:
- The total earnings of the wife and husband.
- The total price of the disputed property.
For example, if the price of the claim is 400 million rubles, then a watch worth 300 thousand rubles. are unlikely to be recognized as luxury. However, if spouses share joint assets valued at 700 thousand rubles, then the wife’s fur coat is worth 90 thousand rubles. is likely to be considered a luxury item.
Article 37
Family law allows the transfer of an asset from the regime of personal property of one of the spouses to joint ownership if the following conditions are met:
- Money or efforts of a spouse who is not its owner were invested in the thing.
- The value of the asset calculated by the appraiser has increased compared to the original cost.
Possible actions aimed at increasing the price of property include:
- Major home renovation.
- Redevelopment of residential premises.
- Car tuning.
- Car overhaul, for example, replacement of the chassis or engine.
- Re-equipment of production lines.
- Real estate reconstruction.
Article 38
The division of property is regulated by Article 38 of the Family Code, which determines that spouses can divide common things between themselves:
- During marriage.
- After the termination of the marriage within the statute of limitations, which is three years. The Supreme Court of Russia clarified that this period begins to run from the moment the interested party learned that the division of joint assets was carried out in violation of the law. However, this period cannot be more than ten years. These ten years are counted from the day on which the rights of the person concerned were violated.
According to the Family Code, division of property during divorce is allowed in 2 ways:
- By mutual consent of the wife and husband, for example, through a prenuptial agreement or an agreement on the division of property.
- In the absence of an agreement, the property is divided in the magistrate or district court in the manner prescribed by the Civil Procedure Code.
The text of the separation agreement is not allowed to include the personal property of each spouse, for example, a car inherited by the wife.
If the spouses were unable to peacefully divide their joint property, the dispute is referred to a judicial authority.
The court, based on the circumstances of the case and the requirements of the law, independently determines the size of the shares transferred to each participant in the marriage union.
It must be borne in mind that if spouses have a common child, then they do not have the right to include assets belonging to him in the list of property divided during the divorce process.
Article 39
It establishes 3 options for determining the size of the share transferred to each spouse after dividing assets:
Divide material assets in half.
Divide according to the agreement written in the marriage contract or in the agreement on division of property.
Divide by decision of a judicial authority, which may award an increased share to one of the spouses if:
- After the divorce, he will live together with the children and raise them.
- The property is necessary to meet the needs of a minor child.
- The other spouse did not want to work, do business, or otherwise earn money.
- The other spouse spent money recklessly, such as excessive sports betting, or caused direct damage to joint assets, such as selling marital property to buy alcohol.
If the spouses took out loans during the marriage, then the debt obligations are distributed automatically in proportion to the shares that were awarded by the court, or according to an agreement between the spouses, enshrined in the agreement on the division of assets.
Article 41
It defines the procedure for concluding a marriage contract. A prenuptial agreement, in addition to the asset division agreement and court proceedings, is another way of dividing marital property.
Mandatory conditions for conferring legal force on a contract are:
- Composition in writing.
- Certification by a notary, which costs 500 rubles.
- Before the official registration of marriage. It is given legal force after the marriage is registered.
- Until the issuance of a certificate of termination of marriage. If the contract is drawn up after the marriage, it comes into force immediately after being certified by a notary.
Article 42
It establishes the rules that determine the content of a marriage contract permitted by law.
The law allows spouses to regulate only property relations. Thus, the marriage contract allows the following:
- Change the property regime of the spouses to separate or shared. Changing the legal regime is allowed both for individual assets and for all property as a whole.
- Determine which spouse will own the things acquired in the future.
- Register material assets that are subject to division and will be transferred to each participant in the family union upon separation. Determine family expenses and the amount of money each spouse should spend to cover them.
- Indicate whether spouses have responsibilities for mutual maintenance, for example, if one of them loses his job.
In a marriage contract, under the threat of being declared invalid in court, the following aspects of joint life cannot be regulated:
- Personal non-property relations between wife and husband.
- Restrict the right to seek protection from government agencies and courts.
- Limit the legal capacity of the parties to the contract.
- Refuse parental responsibilities and rights prescribed in the Family Code in relation to young children.
- Place one of the participants in a family union in bondage or disadvantage.
Arbitrage practice
During the trial, the ex-wife adjusted her claims against her husband. She gave up the garage in favor of her ex-husband without compensation and asked to divide the disputed apartment in half.
In turn, the defendant filed a counterclaim with the court, in which he demanded to recover 189 thousand rubles from his ex-wife. in his favor, transfer the garage to the plaintiff as personal property and divide the apartment equally.
The ex-wife admitted a debt for utilities in the amount of 81 thousand rubles. She motivated her refusal to recognize the other part of the debt by the fact that the money spent by her husband on home renovations was transferred to the executors without her consent. Thus, he does not have the right to recover money from the plaintiff, since she was against these expenses.
The witness, who carried out repairs in the housing of the defendant and the plaintiff, explained that he discussed the repair work with his husband and did not agree on anything with his wife.
Another witness stated that he personally sold the defendant the material needed for the repairs. At the time of the sale, his wife was not with him. He knows nothing about her consent or refusal to purchase.
Having studied the circumstances of the dispute under consideration, the judicial authority came to the following conclusions:
- It is necessary to transfer the garage to the defendant free of charge, because this does not contradict the position of the parties and the law.
- Since the renovation of the common housing was carried out by the defendant after the official termination of the marriage and without the consent of the plaintiff, the costs of repair work cannot be recovered from the ex-wife.
- The plaintiff is obliged to transfer 81 thousand rubles to the defendant. for utilities.
- It is necessary to divide the joint residential property equally.
Joint property of spouses during divorce
The legislation distinguishes two concepts related to the property of spouses upon dissolution of a marriage: personal property and jointly acquired property. But not always a married couple can distinguish between these concepts, against which disputes arise, and the only correct solution is to file a claim in court for the legal division of acquired property. To understand what the essence of these concepts is, how it applies to each of the spouses, what is subject to division and what exceptions there are - we will discuss all this in more detail.
The full list of property that can be classified as jointly acquired is set out in more detail in Article 34 of the RF IC.
Real estate
Any real estate acquired during marriage with funds earned by both or one of the spouses is considered joint property, regardless of who is the owner according to the documents. Real estate includes:
- Land plot.
- Apartment.
- House.
- Buildings for various purposes.
Movable property
This category of property of spouses includes:
- Vehicle.
- Electronics.
- Appliances.
- Furniture items.
- Decorations.
- Luxuries.
- Securities.
As for jewelry, there is no clear definition in the law whether they will be considered personal items or property of the spouses. If the jewelry was bought as a gift, then it is individual property, and if in the form of an investment, then it will be considered joint property.
Cash
The family budget consists of the following income items:
- Money earned from your main and additional jobs.
- Income from business activities.
- Interest on investments.
- Money placed in bank accounts, including deposit accounts.
- Benefits, pension.
- Material aid.
- Awards.
- Various types of compensation.
- Other one-time payments.
Also, do not forget about debts acquired during marriage. They, like income, are subject to division during the divorce process and are common.
This issue causes the most controversy. If one of the spouses earns more, then he believes that he not only can spend more, but also claims a larger share in the jointly acquired property. However, it is not.
The law says that even if the wife or husband does not work, they have the same rights.
An exception is the case when one of the spouses did not work for an unexcused reason or spent the family budget on thoughtless purchases, as a result of which the court may decide to reduce his share in the joint property. This rule is enshrined in Article 39 of the Family Code.
What cannot be considered joint property?
Personal belongings, including property, cannot be classified as joint property, since it was purchased or received as a gift without using funds from the family budget. A complete list of personal belongings is set out in Article 36 of the Family Code.
Acquired before marriage
Everything that was purchased before marriage with the personal money of one of the spouses is considered his property and is not subject to division.
This includes movable and immovable property, jewelry, equipment and other material assets.
A separate question arises when a mortgage was issued before marriage, and during the period of marriage it was repaid from joint money. In this case, the property can be divided according to the shares of participation in its repayment.
Received as a gift
Things that were received as a gift by one of the spouses from relatives, friends, colleagues free of charge are considered personal property, and therefore (based on the provisions of the law) are not subject to division during a divorce.
As for an apartment, house or vehicle donated during marriage, they must be transferred officially, that is, on the basis of a gift agreement, so that after a divorce the second spouse cannot claim a share of the property.
Inherited property
Just as under a gift agreement, a spouse can receive property by inheritance, as a result of which it is his personal property. No one can claim this property during his lifetime.
Property for free transactions
In life, sometimes there are cases when we receive things, money or services for free. This will also not apply to jointly acquired property. An example would be:
- Money earned from your main and additional jobs.
- Income from business activities.
- Interest on investments.
- Money placed in bank accounts, including deposit accounts.
- Benefits, pension.
- Material aid.
- Awards.
- Various types of compensation.
- Other one-time payments.
Also, do not forget about debts acquired during marriage. They, like income, are subject to division during the divorce process and are common.
This issue causes the most controversy. If one of the spouses earns more, then he believes that he not only can spend more, but also claims a larger share in the jointly acquired property. However, it is not.
The law says that even if the wife or husband does not work, they have the same rights.
An exception is the case when one of the spouses did not work for an unexcused reason or spent the family budget on thoughtless purchases, as a result of which the court may decide to reduce his share in the joint property. This rule is enshrined in Article 39 of the Family Code.
Personal belongings, including property, cannot be classified as joint property, since it was purchased or received as a gift without using funds from the family budget. A complete list of personal belongings is set out in Article 36 of the Family Code.
Acquired before marriage
Everything that was purchased before marriage with the personal money of one of the spouses is considered his property and is not subject to division.
This includes movable and immovable property, jewelry, equipment and other material assets.
A separate question arises when a mortgage was issued before marriage, and during the period of marriage it was repaid from joint money. In this case, the property can be divided according to the shares of participation in its repayment.
Received as a gift
Things that were received as a gift by one of the spouses from relatives, friends, colleagues free of charge are considered personal property, and therefore (based on the provisions of the law) are not subject to division during a divorce.
As for an apartment, house or vehicle donated during marriage, they must be transferred officially, that is, on the basis of a gift agreement, so that after a divorce the second spouse cannot claim a share of the property.
Inherited property
Just as under a gift agreement, a spouse can receive property by inheritance, as a result of which it is his personal property. No one can claim this property during his lifetime.
Property for free transactions
In life, sometimes there are cases when we receive things, money or services for free. This will also not apply to jointly acquired property. An example would be:
- Interest-free loan.
- Donation.
- Money from sponsors.
- Property received as a result of the provision of services.
Personal items
This includes all items of personal daily use:
- Shoes.
- Cloth.
- Accessories.
- Items for professional purposes.
- Jewelry that is regularly worn by a spouse and that was not purchased for the purpose of investing family money.
Property owned by children
Property and items of use that legally belong to minor children or that were previously transferred by parents as a property share cannot be divided during a divorce. This category includes:
- Clothes, shoes.
- Toys.
- Books.
- Cash deposits.
- Gifted or inherited property in the name of children.
Everything that belongs to the children is transferred to the parent with whom they remain to live after the divorce, until the children reach adulthood. The father or mother do not have the right to divide property among themselves, nor dispose of it at their own discretion without the consent of the guardianship and trusteeship authorities.
Purchased during marriage with personal funds
Very often, spouses classify as jointly acquired property absolutely everything that was acquired during the marriage. However, it is not. If the item was purchased with personal funds earned before entering into a marriage, then it will also be considered personal property and, accordingly, will not participate in the division.
Awards, winnings, help
Items of intended personal use are also not subject to division, namely:
- Orders
- Medals
- Awards
- Prize
- Material aid
- Gratitude
- Other.
This can be achievements in any field - science, culture, sports, as well as targeted financial assistance, for example, in connection with loss of ability to work or damage caused.
Money received in the form of gratitude can be spent on purchasing property, and then it will also not be considered jointly acquired.
This can also include winning a lottery, but only if the lottery ticket was purchased with the personal funds of the spouse.
In what cases is personal property considered joint?
We have figured out what is jointly acquired property, but in practice there are often dual situations when it seems that the personal property of one spouse was improved at the expense of the second spouse or with his participation. Also, a change in the legal regime of property can be made through:
- Conclusion of an agreement, namely the signing of a marriage contract and division of property at the discretion of the spouses.
- In a judicial body by filing a statement of claim for the purpose of appropriating part of personal property after considering the relevant evidence and dividing it as joint.
Article 37 of the Family Code states that property acquired by a wife and husband must be divided equally after a divorce, unless otherwise specified in the marriage contract. There is also an amendment about the possibility of claiming the personal property of a spouse in court.
In court, personal property can be classified as joint property if during the marriage it was improved from the family budget.
This happens in practice when a family lives in the husband’s apartment and during their married life they have made major repairs or redevelopment, as a result of which the value of the real estate has increased compared to the original one.
In this case, the second spouse may demand the return of the invested funds or the determination of his property share.
To represent your interests in court and prove that you took part in improving the property, you need to acquire documentary evidence, namely:
- Receipts, checks
- Inquiries
- Invoices
- Account statements
- Warranty cards
- Sales and purchase agreements
- Other.
Therefore, if, after the divorce, you have disputes about what belongs to jointly acquired property and what to personal property, and how it should be divided, then it is best to seek help from a lawyer. If this does not help to fairly divide the jointly acquired property, then it is necessary to go to court. However, before going to court, you need to prepare an evidence base.
What is considered jointly acquired property during a family divorce?
What may apply to jointly acquired property?
Everything acquired from the beginning of the official marriage to the filing of an application for its dissolution is common, jointly accumulated property. First of all, these could be:
- movable and immovable objects of a certain value, shares, shares, bank deposits, contributions to any commercial organizations;
- a constant source of income from the main activities of the spouses - these can be payments received from a state or private organization (employer) or from the result of entrepreneurial activity;
- various social benefits, pension payments;
- a source of income that is compensation for something related to loss of ability to work or financial assistance;
- any jointly acquired property, regardless of which spouse it is documented in.
Based on the above points, it becomes clear that any property that is acquired jointly and at the same time common is divided exactly in half. Both the machine and the food processor need to be separated.
Features of the division of property related to movable
The division of movable property during a divorce is carried out in accordance with the relevant articles of the country's Civil Code. It is considered that these are jointly acquired objects that are not classified as real estate, that is:
- any type of transport;
- large and small household appliances;
- financial resources;
- insured securities;
- furniture elements;
- home stuff.
In this category, only property that is not associated with objects on the land plot is subject to division upon divorce. This property is jointly acquired if it was acquired during marriage. Divided according to the principle of equality for each spouse.
Property acquired before the stamp in the passport, as well as which was initially in the use of one party, is indivisible and is not considered jointly acquired. This could be something given as a gift or passed down from generation to generation.
Items for personal use remain with their owner, even if they are acquired jointly.
Property classified as “movable” is divided equally between both parties, regardless of the share of investment of financial resources.
In cases where the owner does not want to sell the car, then under any circumstances he is obliged to share - to pay the required amount. According to the Family Code, the figure established by the norms of fifty percent of jointly acquired property can be changed. This depends on the presence of children in the family who have not reached the age of majority.
Other circumstances of property division
The procedure for dividing property is strictly step-by-step. The first step here is to determine the shares of property of each spouse.
The problem that often arises between couples after divorce can be resolved through joint efforts and in a non-conflict atmosphere. To do this, the parties must have a peaceful conversation and discuss what, in their opinion, is subject to division and, conversely, is individual property.
The process by which property is divided must take place strictly according to the principles established by law, that is, the obligatory condition is that each person receives fifty percent of the jointly purchased property during the marriage.
Property is divided in any other way that does not contradict the law. One of the spouses, most often a man, can leave full ownership of a house or apartment to his ex-wife and children. Its object of use is considered to be transport.
Another option is that the jointly acquired property is sold in its entirety, and part of the money received is transferred to an individual account in any bank.
As it became clear, this is the most optimal option for resolving a rather acute problem for most families associated with the division of joint property.
The trial takes place within stricter limits, sometimes with an unpleasant final decision for the former spouses. The formalization of the agreement provided by both parties is in writing.
Marriage agreement and court proceedings
In recent years, the popularity of drawing up contracts called prenuptial agreements has increased greatly. This is due to the fact that a document drawn up even before the official marriage helps to avoid many problems with property acquired jointly.
When applying to the court for help, you should remember that the property is divided exactly in half, taking into account the share of the minor child. You can file a statement of claim, indicating in it the order of division required by the party. The items to which the other half is entitled are indicated, as well as what remains in inviolable possession, including donated property.
- one of the parties interested in this, and in any period - after the divorce, during its period, during the marriage;
- a representative of a financial institution due to the obligatory collection of part of one of the parties.
Today, many young couples take out an expensive vehicle on credit, however, after deciding to divorce, a number of problems arise. You can divide a car purchased in this way in various ways.
The first is to give movable property to the husband/wife. To do this, you need to fill out certain documents at the organization where the loan was issued.
This is necessary for the complete transfer of use rights, including the implementation of monthly payments for the acquisition established by traffic.
In situations where the owner of the vehicle refuses to transfer ownership, the car is taken back and the required portion of the money is given to the other party. You can close the debt yourself, while the spouse is obliged to repay the amount spent.
Any other debt, for example, a consumer loan, is also divided in half. There are exceptions to the rule - these are cases when personal transport is the only possible way to earn a living.
One of the parties is awarded movable property, and the other - immovable property, but only by court decision.
Property donated during marriage
The donated property is not subject to any division between the parties, and the time of affixing the stamp in the passport does not matter. The owner can evict the ex-husband/wife at any time, even if there is official registration in the given premises. The fact of donation is considered completely legal if it is executed in accordance with all established rules. There are exceptions where a gift is not considered individual property. These are cases when a deed of gift is drawn up by one of the spouses, the second must confirm his consent in writing; if not, the transaction is not considered valid.
Confirmation from parents whose children have not reached the age of eighteen and have given any type of real estate as a gift is required. If a parent gives a house/apartment to a child, the agreement of the second representative is not necessary. In cases where part of the real estate is donated, confirmation is required from the owners of the remaining shares.
What property acquired during marriage is not subject to division between spouses?
Disputes about the division of property acquired during marriage after divorce are considered complex and lengthy. In general terms, everyone knows the rules of such division - property acquired during marriage is distributed in half between the former spouses. But behind the simple formula there are a lot of pitfalls that may be unfamiliar to citizens.
As the Supreme Court of the Russian Federation analyzed one of these decisions on the division of joint property, not everything acquired during the marriage can be divided equally.
The subject of analysis by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation was the process of dividing a one-room apartment. Their marriage lasted three years.
It was concluded in September, and a month after the wedding, the wife signed an agreement with the developer for shared participation in the construction of a house, in which she was to receive a one-room apartment.
The Supreme Court explained which parent the child will remain with after a divorce
A month later, this transaction passed state registration. Judging by the court materials, the wife had her own apartment before marriage, which she sold a month after the wedding, and invested the proceeds in the construction of a one-room apartment.
After the marriage broke up, her ex-husband came to court with a claim for the division of jointly acquired property.
The plaintiff argued his demands as follows: at the time of consideration of the dispute, the ownership of the one-room apartment was not registered with his ex-wife. They did not enter into any agreement on the division of common goods.
But after the divorce, the wife has sole use of this one-room apartment, and since it was purchased during marriage, it means that he, as a spouse, has full right to half of the living space.
The district court rejected the claim. The court decided that the ex-wife purchased the apartment with money received from the sale of property that she had before marriage. Therefore, the one-room apartment does not belong to the common property of the spouses. The ex-husband challenged this decision.
Property purchased during marriage will not be common, but with personal money that the spouse had before the wedding
The appeal sided with the plaintiff and did not agree with the decision of the district colleagues. She canceled it and decided to divide the one-room apartment in half.
In her opinion, the very fact of paying money from the sale of personal property as payment under an agreement for participation in shared construction does not have legal significance for the correct resolution of the dispute “in the absence of evidence of an agreement between the parties on the acquisition by the defendant of the disputed property as personal property.”
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with this decision and the division of the apartment.
The high authority reminded colleagues of Article 34 of the Family Code. It states that property acquired during marriage is considered joint property.
The article lists in detail what belongs to such common property - the income of each spouse from labor, entrepreneurial or intellectual activity. The pensions, benefits and other payments they received that did not have a designated purpose.
By the way, money for special purposes - financial assistance, compensation for loss of ability to work and other similar payments - is personal property.
What is purchased from joint income will also be common property. These are movable and immovable things, securities, shares, deposits, shares in capital contributed to credit institutions or commercial organizations. This list ends with the words “and other property acquired by the spouses,” regardless of in the name of which of them it was acquired or registered and which of the spouses contributed the money.
And Article 36 of the Family Code lists what cannot be divided. This is property that belonged to each before marriage, as well as what each of them received during marriage as a gift, by inheritance and “through other gratuitous transactions.”
There was a special plenum of the Supreme Court, which considered complex issues regarding claims for divorce (No. 15 of November 5, 1998).
At this plenum, the following explanations were given: property, although acquired during marriage, but purchased with the personal funds of each spouse that belonged to him before marriage, is not considered joint property.
And “things for individual use, with the exception of jewelry and other luxury items,” will not be shared.
From all that has been said, the Supreme Court draws the following conclusion: a legally significant circumstance when deciding the issue of classifying property as the common property of spouses is the money with which it was purchased, personal or common, and under what transactions, compensated or gratuitous, one of the spouses acquired this property during marriage.
Property received by one of the spouses during marriage through gratuitous civil law transactions (inheritance, donation, privatization) is not the common property of the spouses. The acquisition of property during marriage, but with funds that belonged to one of the spouses personally, also excludes such property from the regime of common joint property.
The Supreme Court emphasized that in our dispute, the appeal had such an important, “legally significant” circumstance as the use of funds that personally belonged to the ex-wife to purchase a one-room apartment, “erroneously left unattended.”
The proceeds from the sale of the old apartment were legally the personal property of the defendant, since they were not earned jointly during the marriage and could not be the common income of the spouses.
The Judicial Collegium for Civil Cases of the Supreme Court especially emphasized that the period between receiving money from the sale of an apartment before marriage and payment under the agreement for shared participation in construction was only five days. So, in accordance with Article 34 of the Family Code, the one-room apartment purchased with this money could not in any way be recognized as the common property of the spouses.
Is not joint property
Recently, the most common case when dividing an apartment between spouses is the division of an apartment purchased with a mortgage. This case is complex, as it depends on many factors that are determined individually in each situation.
First of all, the division of a mortgaged apartment depends on the date when the purchase and sale agreement for the apartment itself was concluded and the date when the loan agreement secured by the mortgage was concluded with the bank.
On the second, from the date when the mortgage, as an encumbrance on the part of the bank, is removed and the loan for the apartment is fully repaid.
If the agreement with the bank was concluded during the marriage and the loan was fully paid before the divorce, then the apartment is subject to equal division. The fact of purchasing real estate with a mortgage fades into the background and is not taken into account when dividing property acquired during marriage.
- Therefore, we will consider the case where the mortgage was issued before the marriage or when the mortgage was not paid.
- Let's take a look at the most important points.
- It is very important to document and confirm the cost of the apartment under the contract, the amount paid by the owner-spouse before the date of conclusion of the contract and the amount paid after the marriage.
- Once these amounts are determined, we can calculate the spouse's share.
The share will be equal to half of what was paid on the mortgage during the marriage. For example, if an apartment costs 1 million, before the marriage the spouse paid 500 thousand, and after the marriage another 500 thousand were paid, then the second spouse’s share is 250 thousand (half of what was paid during the marriage) of 1 million, i.e. one quarter. Accordingly, during a divorce, the second spouse has the right to claim one-fourth of the property rights.
But this calculation does not take into account a number of nuances. Thus, the calculation does not take into account the procedure for distributing interest for using a loan, and the costs of insuring the transaction are not taken into account.
The sources from which the early repayment of the mortgage occurred are also important. So, if money from the sale of real estate that is the property of one of the spouses as a result of a gratuitous transaction (donation, inheritance, etc.) was spent to repay the mortgage, then the shares in the mortgaged apartment will be revised taking into account all amounts spent to repay the mortgage, first of all documented by the spouses.
Another important fact in determining the share in a mortgaged apartment is the collection of the penalty and the periods for which the penalty is collected. In connection with the above, two conclusions can be drawn.
A partially paid mortgage is not considered jointly owned, provided that it was paid before marriage or after divorce.
Division of property during divorce: Are jointly acquired debts divided?
Sergei Novoselov, a lawyer at Pravoporyadok LLC , told us whether ex-spouses retain responsibility for debts incurred during their marriage after a divorce .
— Sergey Lvovich, the family code states that during a divorce, spouses divide jointly acquired property. What is the fate of the debt and credit obligations of one or another spouse in this case? What regulations regulate this?
- According to Art. 33 of the Family Code of the Russian Federation, the legal regime of the property of spouses is the regime of their joint ownership, unless otherwise established by the marriage contract. Therefore, property acquired by spouses during marriage is their joint property. According to paragraph 2 of Art. 34 of the RF IC, the common property of spouses includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions received by them, benefits, as well as other monetary payments that do not have a special purpose.
The common property of the spouses also includes movable and immovable things acquired at the expense of the common income of the spouses, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether , in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds. In the event of a divorce and the division of the common property of the spouses and the determination of shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by an agreement between the spouses. According to paragraph 3 of Art. 39 of the RF IC, joint debts are also subject to division, which include debts to the bank that issued the loan.
The court proceeds from the assumption that loan money taken by one of the spouses during their life together is spent on the needs of the family, therefore they become the common joint property of the spouses, and therefore both spouses are responsible for repaying the debt. (Bulletin of the Supreme Court of the Russian Federation. 1992. No. 8. P. 13). Therefore, debt obligations are distributed between spouses in proportion to the shares awarded to them.
— During a divorce, how are the credit obligations of the spouses distributed if one of the spouses is the guarantor of the other under the loan agreement?
— In a situation in which one of the former spouses is the guarantor of the other under a loan agreement, one should assume that after the divorce both parties become debtors to the bank.
— According to the law, after a divorce, former spouses must repay the loan in equal shares if the borrowed funds were spent on the needs of the family. Tell us what the law considers the needs of a family?
— The needs of the family are material and spiritual values that the family as a social unit needs and the receipt of which is reimbursable.
— The following situation is possible: after a divorce, one of the spouses demands that the other spouse also be obliged to repay the loan, arguing that the borrowed funds were spent on family needs; the other spouse does not agree with this. In this case, who is supposed to provide evidence of what specific purposes the loan was spent on: for family needs or for personal purposes? What kind of evidence could this be?
— It is difficult to prove that the loan taken by the ex-spouse was not used for the needs of the family, since it is necessary to prove that the family did not need such a loan.
Such evidence may include certificates of income of former family members, the presence of bank accounts indicating the amounts of money in them at the time of receiving the loan, and other evidence.
For example, an ex-husband, secretly from his loved ones, took out a loan for a tourist trip, which he carried out alone. In this case, the court may impose debt obligations on him after the divorce.
— Who bears the debt burden after a divorce if the spouses took out a mortgage loan during the marriage?
— In connection with the growth of mortgage lending, the issue of dividing real estate and debt obligations is relevant. The bank that issued the loan does not care at all which of the co-borrowers - former spouses - will make payments. The main thing the bank cares about is collecting the amount due.
As a rule, banks act as third parties in civil proceedings and petition for the dismissal of claims regarding the division of mortgage debts. In this case, the reference is to mortgage lending agreements, which, as a rule, state that a change in the legal regime of the spouses does not terminate their joint and several obligation to the credit institution.
Repayment of the loan by one of the spouses is considered the fulfillment of the obligation by both spouses. In such a situation, the spouse who paid off the mortgage loan has the right to file a lawsuit against the former family member, demanding compensation for part of the paid debt.
The subject of proof will be the question: who made the payments? The only exception can be the mutual consent of the parties to the division of a bank account, in which each of the former spouses will contribute their part to their own account.
— Probably, in many ways the problem of distributing credit obligations between spouses would be solved by concluding a marriage contract. What can be stated in it regarding the credit obligations of the parties? What options might there be?
— In many ways, the issue of distribution of debt obligations after divorce can be resolved by a prenuptial agreement, that is, a notarized agreement.
A marriage contract can be concluded at any time during a marriage and comes into force from the moment of its registration.
Credit organizations welcome the presence of prenuptial agreements, since such a document indicates which of the spouses will pay debt obligations in the event of a family breakup. It is advisable to include the following conditions in marriage contracts:
— Each of the spouses is responsible for the obligations assumed to creditors within the limits of the property belonging to him. If this property is insufficient, the creditor has the right to demand the allocation of the share of the debtor spouse, which would be due to the debtor spouse during the division of common property, in order to foreclose on it.
— A spouse is not liable for transactions made by the other spouse without his consent.
According to statistics, more than half of marriages eventually break up. The decision to take out a loan must be deliberate, since in the event of a divorce, the loan becomes a “suitcase without a handle”: it’s hard to carry and impossible to leave.
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