Is it possible to sign a person out of an apartment without his presence if he does not live in it and does not pay? And how to do it legally? OWN

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Any divorce process is always accompanied by the division of joint property. If such property is a living space, then it is also divided equally. What if the apartment belongs to one of the spouses, for example, the wife? And the second one doesn’t want to lose the right to use this apartment after the divorce?

Former spouses can sort things out endlessly, but regarding the right to use housing after a divorce, the law speaks clearly and clearly: the spouse who is not the owner of the residential premises, after the divorce, loses the right to live in the apartment of the second spouse-owner.

Is it possible to evict an ex-husband from an apartment?

This question may arise before a woman after she has divorced her husband, no matter how much time has passed since the date of divorce. After all, some married couples coexist quite peacefully in the same living space. And in some cases, husbands themselves leave the apartment to their ex-wife, not wanting to waste their time and nerves. This question can be answered in the negative only in two cases:

the husband was the owner of the apartment (or its share) before marriage, and when living together, did not draw up a deed of gift for his wife;
the husband inherited an apartment, regardless of whether this happened before legal marriage or not.

In other words, if during the marriage the wife only had the right to use her husband’s apartment, then the ex-husband will not be evicted.

Example. In 2010, Zuev V.P. entered into marriage with Gaeva I.R. and from that time on they began to live in a rented apartment. After 5 years, Zuev V.P. received an inheritance in the form of a four-room apartment and the couple moved into it. In 2021 Gaeva I.R. decided to divorce her husband, filed a claim in court for divorce and division of jointly acquired property, including an apartment. Zuev V.P. filed a counterclaim against his wife to evict her from the apartment due to the loss of grounds for residence and the court fully satisfied his demands, citing the fact that property received during marriage in accordance with the rules of inheritance law is not jointly acquired.

In all other cases, the ex-husband can be evicted under certain circumstances. It is better if this happens voluntarily, but often you still have to contact the judicial authorities.

How to write out without personal presence:

Owner

The owner of an apartment is its full owner , who has the right to use, own and dispose of his property in full.

If one of the residents of the square decides to expel a citizen without the consent of the owner, then this is practically impossible.

Firstly , because only its immediate owner can claim rights to the living space, and secondly , because there is no consent of the owner.

Is it possible to check out of an apartment without the presence of the owner? The law provides for cases when deregistration occurs without the owner’s knowledge . For example, if the apartment owner is completely or partially incapacitated, the guardian makes decisions for him. Of course, they should be for the benefit of the owner.

If the guardian proves that it is necessary to discharge a person because he has not lived in the premises for a long time, does not pay for its maintenance, and therefore causes harm to the owner, then the court will most likely take such a statement into account.

The same thing happens if the owner is a minor citizen . In this case, the decision to discharge an outsider is made by the legal representative.

Just a tenant

How to discharge a person from an apartment without his presence and is it possible? If you want to deregister a tenant in his absence , then you need to contact the court (we described how deregistration from apartments occurs in court here).

To apply, you must have evidence of his non-residence at the place of registration, as well as an application.

“They checked me out of the apartment without my knowledge!” Common situation? But this is quite possible. Unfortunately, it is not possible to discharge a tenant through the passport office in such cases , even if you justify all the statutory reasons for discharge prescribed in Article 90 of the Housing Code:

the registered person does not participate in paying utility bills;
the registered person does not appear at the place of residence for a long time.

Reasons

In order to evict your ex-spouse from the apartment, you simply need to actually get a divorce. After all, in accordance with part 4 of Art. 31 of the Housing Code of the Russian Federation, the termination of family relations already entails the loss of the right to use the apartment by the former spouse. However, this statement is true only if the owner of the apartment is the wife.

If the apartment is municipal, then the following reasons may be grounds for eviction of the spouse:

his absence for a long time, actual residence at a different address;
use of the apartment for other purposes;
amoral behavior;
systematic long-term non-payment of utility bills (over 6 months);
intentional damage or destruction of residential premises, its parts and communication systems.

All the grounds listed above apply not only to former spouses who were officially married, but also to couples who cohabited (the so-called “civil marriage”).

Methods

There are two main ways to evict your ex-spouse from an apartment:

voluntarily;
forcibly.

Naturally, the first option is preferable for a woman, since she will not have to waste time and money on the procedure for eviction of her ex-husband in the courts. However, men do not always “leave gracefully.”

By forced eviction, we mean an appeal to the authorities, which will already take measures for expulsion and eviction (court, FSSP, Department of Internal Affairs of the Ministry of Internal Affairs of the Russian Federation, etc.). These methods include:

if the owner goes to court with a claim to recognize her ex-spouse as a person who has lost the right to use the apartment, having received a positive court decision, sends a copy of it to the Department of Internal Affairs of the Ministry of Internal Affairs of the Russian Federation (previously this service was called the Federal Migration Service of the Russian Federation) and removes the spouse from the registration register;
if the apartment is transferred into the ownership of third parties (under a contract of sale, gift, etc.), who in turn turn to the judicial authorities and evict the ex-husband of the previous owner who is illegally living there;
if a married couple lived in an apartment owned by third parties under a lease agreement, then after its expiration the woman has the right to enter into a new lease agreement with the owners only for herself and evict her husband;
if the ex-spouse was temporarily registered in Russia and his period of stay has expired;
If the spouses, upon entering into a marriage, drew up a marriage contract and it specified the conditions for using the apartment after a divorce, then disputes are resolved in accordance with its provisions.

As you can see, there are a lot of ways to evict your ex-spouse from an apartment after a divorce. The list above is not exhaustive, so it is always better to seek advice from experienced lawyers, as many cases are individual and have no common analogues.

Example. Gruzdev V.P., after divorcing his wife Gruzdeva G.N., refused to move out of the apartment she owned. Gruzdeva G.N. turned to a lawyer who helped her draw up a statement of claim, collect the necessary documents and represented her interests in court, proving during the hearings that the ex-husband of his trustee does not have the right to use the apartment and is subject to eviction. However, despite the court decision Gruzdev V.P. did not want to voluntarily leave the apartment. Then the lawyer, acting on behalf of Gruzdeva G.N. appealed to the FSSP, whose employees ensured the forced eviction of the ex-husband from the apartment.

Arbitrage practice

Proceedings in court have a different focus. Regular evictions are resolved as usual. If the case involves minors or there are alimony obligations, the court examines life situations.

Often the disputes are as follows: divorce of spouses who have a minor child . It is logical to assume that the baby will be left with the mother. For example, if her ex-husband evicts her from his apartment, the court will delay the procedure. Most likely, the property owner will be required to provide the mother and child with alternative living space. The second option is to allow the mother and child to live in the apartment of the former spouse until the child reaches adulthood. The third and most common is that the mother and child move to another apartment, and the father pays the costs of its maintenance (rent, mortgage payments).

Example: The court received an appeal from Kuchin regarding his wife. The couple was planning to file for divorce, and the owner of the apartment wanted to evict his future ex-wife in advance. The woman was six months pregnant, so the court did not even consider the case. According to the provisions of the law, the husband does not have the right to initiate a divorce during the wife’s pregnancy and until the child turns one year old (Article 17 of the RF IC). Repeated requests to evict the pregnant wife from the apartment were also rejected. Even if eviction were possible, the court would prohibit evicting a pregnant spouse from an apartment without an alternative place of residence.

How to evict your ex-husband from your apartment?

The most difficult and time-consuming option for evicting a former spouse from an apartment is to appeal to the judicial authorities. Let's figure out how to do this correctly and get a positive result.

Procedure and procedure

Let's consider the algorithm of actions that must be performed in order to evict the ex-spouse:

Try to resolve this issue with your spouse out of court. Send him a demand for eviction (can be sent by registered mail with notification or delivered in person). Even if this attempt is unsuccessful, you will have evidence for the court that you wanted to resolve the matter peacefully.
Go to court with a statement of claim to evict your ex-spouse from the apartment.
Get a court decision. If it turns out not to be in your favor, then bring the complaint to a higher authority within the period established by law.
Apply with the court decision to the Department of Internal Affairs of the Ministry of Internal Affairs of Russia, where you can file an application for deregistration.
Send the defendant an eviction notice indicating specific deadlines for vacating the living space, as well as the removal of all things (including large furniture, animals, etc.).
Contact the FSSP with an eviction application, wait for the bailiffs and say goodbye to your ex-husband.

Not all points of this algorithm are mandatory and in each specific situation it is necessary to consider all the nuances and features of a particular dispute.

Example. Borkov I.P. cohabited with Kotkina D.V. and lived in her apartment. Since Borkov I.P. was a citizen of Georgia and lived in Russia with a temporary permit, then Kotkina D.V. registered him in her privatized apartment. After the actual termination of the relationship, Kotkina repeatedly asked Borkov I.P. leave her apartment, but he refused, citing the fact that he had no housing in Russia. Kotkina filed a lawsuit. In accordance with the decision of the authority Borkov I.P. had to move out of the apartment within 10 days, which he did.

Statement of claim

A statement of claim for eviction from the apartment of a former spouse is drawn up in accordance with the norms enshrined in the Code of Civil Procedure of the Russian Federation. As a general rule, it is sent to the district court of general jurisdiction, which serves the territory in which the defendant lives. The claim must indicate:

the exact name of the judicial authority to which the application is submitted;
personal and contact information of the plaintiff and defendant;
document's name;
link to the document establishing the ownership of housing;
the grounds for which the former spouse is subject to eviction;
requirements and their motivation;
date, signature of the person filing the claim;
list of documents attached to it.

The claim is executed in triplicate - to the judge, the defendant and the plaintiff.

Documentation

In order for the statement of claim to be accepted by the judge for proceedings and not left without consideration, it is necessary to collect the necessary package of documents. Depending on the situation, the list of certificates may vary, but most often it is necessary to provide the following:

plaintiff's identity card;
certificate of registration of ownership of the disputed housing;
extract from the house register;
certificate of divorce;
demand for eviction and response to it (if any);
receipt of payment of duty in favor of the state;
other documents that confirm the validity of the requirements.

This is a mandatory list of documents that the court needs; if additional information is needed, the court may request them itself or oblige one of the parties to the dispute (or both) to present them at the next hearing.

Timing and cost

It is impossible to say exactly when the court will decide to evict your ex-husband from the residential premises that belong to you, since everything again depends on the specific situation: who is the owner of the property, the grounds for eviction, the financial and physical condition of the spouse, his agreement with the requirements or not. The entire process can take from several weeks to several months, and in particularly complex cases, even years.

Another mandatory condition for the claim to be considered by the court is the payment of the state fee. Since the claim for eviction of a former spouse is material, but cannot be assessed in monetary terms, the amount that will have to be paid is 300 rubles.

The plaintiff must pay it; this can be done in the following ways:

pay at the cash desk of any bank;
through the Gosuslug website;
non-cash payment through terminals installed in the courthouse.

Stage No. 2 - Let's go to court

You can go to court immediately after sending the documents to the defendant and a third party (the above stage). The trial usually lasts from 2.5 to 5 months. Although the law states a maximum of 2 months - clause 1 of Art. 154 Code of Civil Procedure of the Russian Federation.

Submit a statement of claim and other documents to the court.
I remind you once again that only one of the owners can submit an application and participate in the trial, but not all of them have to. Whoever is the plaintiff will file. A claim can also be filed by a lawyer/lawyer under a power of attorney.
You need to go to court at the location of the apartment - Art. 24 and art. 28 Code of Civil Procedure of the Russian Federation. Because the defendant is registered in this apartment. Usually in large cities these are district courts, in small towns and villages - city courts.
If one of the plaintiff owners is under 14 years of age, one of the parents/guardians must participate in the court instead of him - Art. 28 Civil Code of the Russian Federation. If he is from 14 to 18 years old, he must also be present together with one of the parents/guardians - Art. 26 Civil Code of the Russian Federation.
First, you need to get the details for paying the state fee from the court office. Usually they hang on an information stand. They rarely give details as a separate receipt. The state duty is 300 rubles (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation). You can pay it at any bank.
Then you need to submit to the reception (expedition) of the court: 1) prepared documents from the first stage; 2) inventory and checks sent to the defendant and a third party (copies); 3) original receipt with payment of state duty.
As a result, the court employee will put a stamp on a copy of the plaintiffs’ statement of claim with the date of acceptance and the entry number.
Sample of a stamp confirming the acceptance of a statement of claim
The judge will review the documents and set a date for the preliminary hearing..
Within 8 - 10 days from the date of filing the documents, the judge will consider the statement of claim and decide what to do with it next - accept, reject or leave without movement (clause 1 of Article 133 of the Code of Civil Procedure of the Russian Federation).
If everything is in order, a preliminary hearing date will be set. Usually it will take place 15 - 35 days after the application is accepted. The court will send by registered mail to the plaintiff-owner, the defendant-ex-husband (at the place of registration) and the third party a summons about the time and place of the preliminary hearing - clause 2 of Art. 113 Code of Civil Procedure of the Russian Federation.
It is better for plaintiffs not to wait to receive a summons, but after 10 days, ask the appointed judge for the date of the preliminary hearing. Judges usually see citizens on Monday and Thursday. The name of the judge can be checked at the reception (expedition).
Conducting a preliminary meeting.
A preliminary hearing is preparation for the trial (Article 152 of the Code of Civil Procedure of the Russian Federation). In it, the judge listens to the parties' demands and reviews the submitted documents. If there are not enough documents, the judge will indicate which ones.
If the plaintiffs do not know about the defendant’s property, I advise them to petition the court to request information from Rosreestr. The court will request an extract from the Unified State Register for the full name of the defendant - about the rights of an individual to the real estate objects he has.
After this, a court date will be set. It takes place 15 - 35 days after the preliminary one. Subpoenas are again sent to all parties.
Conducting a court hearing.
At the beginning of the court hearing, the judge will announce the requirements for the claim. Then he will listen to each of the parties or their representatives, additions, testimony of witnesses and other third parties, and ask questions for clarification.
What should plaintiffs do? The plaintiffs must be told at the court hearing that the ex-husband, as a former family member, has lost the right to use the apartment and his registration prevents him from using it freely. I wrote at the beginning of the article which articles of the law to rely on - link.
If your ex-husband lives in an apartment, you need to prove that he has somewhere to live. For this purpose, I indicated the need to order various extracts from the Unified State Register of Real Estate.
There may be several court hearings. By law, the defendant must be notified twice. Therefore, if he does not come to the first meeting, a second one will be scheduled. It will pass 10 - 30 days after the first one. If he doesn’t come to the second meeting, the judge will consider the case without his participation - Art. 167 and art. 233 Code of Civil Procedure of the Russian Federation.
The court's decision is announced .
After the judge considers all the demands and arguments of the parties, he will make and announce his decision - Art. 193 Code of Civil Procedure of the Russian Federation. If the ex-husband (defendant) was present at the court hearings, the court decision will be in person. If you were not present, the decision may be either in person or in absentia - at the discretion of the individual judge.
Pick up a copy of the court decision in its final form from the court office . Usually it is ready in 10 - 14 days. Although there should be a maximum of 5 days - clause 1 of Art. 214 Code of Civil Procedure of the Russian Federation. You can find out about its readiness by calling the court office. The defendant will be sent a copy of the decision by registered mail to the address from which it was written.

Nuances and difficulties of evicting an ex-husband:

Above, we examined the general provisions for eviction of a spouse with whom the marriage relationship has been terminated from housing. Now it is necessary to consider the features of some of the most common situations.

From a council apartment

It is worth understanding that a municipal apartment is the property of local authorities, so you cannot simply discharge your spouse at will; you must go to court, as well as to the municipality. Let's consider two options.

Ex-husband is registered

In this case, it is quite difficult to evict the husband if he does not violate the duties of the tenant, since the state protects the constitutional rights of citizens to housing. You can contact local authorities and draw up an application for the allocation of two separate residential premises, but in practice this is almost impossible to achieve. The best solution to the problem would be to resolve the dispute voluntarily.

Not registered

Here the situation is much simpler. You can read in detail about how to evict a person who is not registered in it and who is not the owner from an apartment here. After all, the ex-husband is no longer a member of the family and is actually a stranger.

From a privatized apartment

It is in this case that the most important question is whether the ex-husband is the owner of at least part of the apartment. Let's consider both options.

Owner

If the ex-spouse is the sole owner of the apartment, and it was purchased before marriage or received as an inheritance (regardless of the time of inheritance), then there is absolutely no chance to evict the former lover. If the husband is a co-owner of the apartment with his ex-wife, or the apartment was purchased during marriage and, by a court decision (or personal agreement), was divided between the spouses, then the husband can be evicted from the apartment only if his share is bought out from him.

At the same time, it does not matter whether the husband is registered in the apartment or not - in Russia the inviolability of private property is ensured, and no one can be deprived of it except in cases provided for by law (confiscation, sale at auction to pay off debts, etc.).

Not the owner

If the husband is not the owner of the privatized apartment, then the court can make a decision to evict him. Regardless of whether he is registered in the apartment or not, after a divorce he loses the right to use residential premises belonging to his ex-wife, since he actually ceases to be a member of the family.

Legal assistance

Legal issues often baffle people. It’s one case if the case is resolved at the pre-trial stage, and a completely different one when you have to go to court. Preparing the grounds, collecting documents, determining jurisdiction, drawing up a claim, speaking in court - all this leaves its mark on the success of eviction of the ex-spouse. It is simply unrealistic to do a huge amount of work alone.

A free consultation with lawyers on our portal partially relieves you of information processing.
By contacting us, you will be able to understand what to do - our lawyers have experience in handling housing cases, which means they will help you even in the most complex dispute. The consultation aims to analyze the situation from start to finish, prepare a legal opinion, draw up an algorithm of actions, select a sample statement of claim, and decide on a package of documents. You can learn this and much more from a conversation with our lawyer. Attention!

Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

That's why FREE expert consultants work for you around the clock!