How to protect yourself when buying real estate from spouses or from people after a divorce?

So, can buying an apartment from a spouse after a divorce be safe? Maybe.

If the seller prepares a statement from the notary from the spouse that he agrees to the sale of the apartment, then you can buy such an object. This document is called “notarized consent of the spouse for the sale of real estate.” Be sure to check this document by calling a notary.

Request this document in both cases: both if the spouses are currently married and if they are divorced.

It is also possible that during the divorce, an agreement on the division of property was signed and notarized, or the spouses initially entered into a marriage contract. If the spouses have it certified by a notary and he confirms this to you when you call, then such an apartment can also be purchased.

Property division

Is it possible to split

Can a military mortgage be divided during a divorce?
In most cases, this question should be answered in the negative, despite the fact that this is fundamentally contrary to the principles of family law and the concept of “jointly acquired property”? Why, if a serviceman purchases an apartment with collateral, is it not considered jointly acquired? First, let's figure out what is meant by jointly acquired property. The Family Code of Russia states that this is:

1. Income, for example, money or things received through barter, for any type of activity. The only exception is funds issued for a specific purpose.
2. Property that was acquired by spouses during marriage using common funds, for example, an apartment.
3. Debts on bills and loans.
4. Shares in a business acquired during marriage, such as a share in an LLC, as well as ownership of securities, such as bonds or stocks.

As you may have noticed, according to paragraph 1, if money is allocated for a specific purpose, and in our case it is transferred to a serviceman under a target program of the Ministry of Defense with the intention of improving his living conditions, then the purchase of real estate made with their help is not considered by law to be property that The spouses purchased it together.

The second important aspect, which is spelled out in the military mortgage legislation, establishes the following rule: the second spouse is not eligible to participate in the military mortgage lending program. It follows that he cannot be a party to the agreement and does not bear any responsibility if the terms of the mortgage agreement are violated, for example, in case of late payment of the loan. Therefore, the owner, and the sole owner, after full repayment of the mortgage, will be the military spouse for whom the transaction was executed.

However, there are loopholes in legal acts, therefore, when dividing an apartment under a military mortgage during a divorce, the wife’s rights to part of the property can only be respected if:

1. The share in the housing was purchased not under the army target program, but with the personal savings of the husband and wife.
2. The loan that was taken out to purchase the apartment was 100% repaid.
3. The mortgage was fully covered and the court found that the spouse, who was not serving in the Armed Forces, shared her personal funds to make timely payments on the mortgage.

How the section occurs (procedure)

Before the start of judicial disputes, at which the issue of divorce and a claim for the division of assets of the spouses will be considered, the traditional stages of legal proceedings must be carried out: payment of the state fee, filing a statement of claim, setting the date and place of the court hearing. It makes no sense to consider these stages of the process in detail. Much more important is how the judge evaluates the legal facts during the trial of the case, and by what criteria he makes certain decisions.

The legal facts considered by the court and the decisions made based on their assessment can be summarized in the table below.

«>

Rights of a spouse

In order to more clearly demonstrate what rights a husband and wife have when either of them participates in the savings and mortgage system of the Ministry of Defense, let us assume as an example that in our case the husband is a military man, and his wife is far from military life and works in the civil industry.

So, what rights will a husband serving in the army have under a military mortgage agreement?

1. According to the law, it is for him that the mortgage agreement will be drawn up. This means that after full fulfillment of the financial obligations assigned to him, the husband will become the sole owner of the home.
2. When divorcing a marriage, he does not have to prove in court that he was the one who repaid the loan. Since the husband is a party to the official military mortgage transaction, it is a priori considered that he and only he pays, unless otherwise proven.
3. If spouses have children who have not reached the age of majority, then the husband has a greater chance of keeping the children with him and raising them, since he has housing, and the ex-wife in most cases does not have her own apartment or house. Guardianship authorities usually take care that minors have good living conditions, so the presence of real estate in the husband’s possession can play a decisive role in a dispute about children.

Now let's talk about the wife's rights to real estate. As a rule, you can start talking about them only when the mortgage has been paid off and the spouse has a marriage contract that is beneficial for her, or she took an active part in repaying the debt and can prove this, for example, with bank statements, payment orders or other documents. In this case, during a divorce, she can claim part of the apartment according to the conditions reflected in the marriage contract or in family law.

How to obtain consent to sell real estate

When transferring ownership of real estate, the owner must obtain the consent of the former spouse even before state registration. The document is drawn up in writing and certified by a notary, since the transfer of rights as a result of sale and purchase is subject to state registration. To find out how and within what time frame you can challenge a purchase and sale agreement that infringes on the rights of your ex-spouse, contact a competent family law lawyer.

Expert commentary If one of the former spouses sold the apartment without obtaining the consent of the other, he can safely go to court. According to a court decision, most often the apartment becomes the property of the previous owners, and the funds must be returned to the buyer who did not have time to settle in the new place. In other words, the court declares the transaction illegal. It is worth noting that without legal support the process will drag on for several months. In addition, the seller may claim that he has already spent the proceeds. As practice shows, it is possible to return funds only in parts over many years.

Experts advise to foresee possible consequences in advance and entrust complex matters to real estate specialists. MIEL agency lawyers can speed up the registration process and help avoid unnecessary hassle.

Life story In 2021, I bought an apartment. I decided to tackle this issue myself, since I have minimal experience in these matters. Literally before concluding the contract, I learned that the owner had recently divorced. I casually asked him how his ex-other half felt about the sale, and at the same time I noticed how the seller suddenly became agitated. I decided not to continue to engage in amateur activities and turned to, which I don’t regret now. The firm's lawyer explained that buying an apartment from divorced spouses is a risky transaction (you need to require notarized consent from the seller). As it turned out, the owner of the two-room apartment I liked did not have permission from his wife. He refused the deal. How lucky I was to contact the agency! Firstly, I didn’t have to go through the courts afterwards, and secondly, the company offered me several options for apartments in Moscow and full legal support of the transaction. I strongly recommend that everyone ask experienced realtors to supervise the home buying process!

It is not always the owner of an apartment acquired during marriage who sells it without the consent of the ex-spouse, pursuing dishonest goals. The seller may simply not know the law. However, it should be remembered that in the real estate market there are often scammers who deliberately want to fool the unprepared average person, and do it simply masterfully. Learn about common mistakes when selling real estate.

Presence of minor children

The legal subtleties of the military mortgage agreement that we discussed earlier concern not only the property relations between husband and wife, but also the issue of residence of children under the age of 18 in the event of parental divorce.

If there are minor children, participation in court hearings by a representative from the guardianship authority is mandatory. His responsibilities include protecting the interests of children, as well as monitoring compliance with their housing rights.

Judicial disputes between parents should in no case worsen the living conditions of the child. A parent in the military service, in whose name a dwelling is registered under a military mortgage agreement, does not have the right to move the child to another residential premises where the living conditions are worse than in his previous apartment, or to voluntarily discharge him from the dwelling.

If the second spouse has children from another marriage and they have nowhere to live, the military spouse is obliged to register them in his apartment.

The court may prohibit the separation of former spouses after divorce if it is convinced that this will harm the development of the child and negatively affect his life.

In addition, the guardianship authority also ensures that the child receives his share in the home if maternity capital funds were used to repay the loan. As a rule, the calculation of the size of the share and its allocation occur immediately after the full repayment of the mortgage loan.

How is housing purchased with maternity capital divided?

When buying housing on credit, young families often use maternity capital. Is the apartment divided in the mortgage during a divorce in this case? In accordance with Part 4, Article 10 of the Federal Law of December 29, 2006 “On additional measures of state support for families with children” No. 256-FZ, such real estate is divided in equal shares between parents and children. Thus, when dividing housing, the share of the spouse with whom the minor remains after the divorce increases by the child’s share.

In such divorces, a considerable number of disputes arose. Explanations on this issue were given by the Supreme Court of the Russian Federation. Part of the real estate that was acquired by the family with their own or credit funds is divided in half between the ex-spouses. The share paid with maternity capital must be distributed between the husband, wife and their child (determination dated March 14, 2017 in case No. 4-GK16-73).

Upon divorce, children can claim part of the housing only if maternity capital was used to purchase it.

Registration

The borrower under a mortgage transaction has the right to freely register in residential premises pledged by the bank.

As a general rule, to register other persons, a serviceman who is a party to a military mortgage agreement is required to obtain the appropriate permission from the banking institution that issued the loan. In rare cases, some banking organizations allow close relatives to independently register in a mortgaged apartment, which in family law means the borrower’s parents, his children, grandchildren, spouse, grandparents, as well as sisters and brothers.

To register a person in his home, the borrower must complete the following sequence of actions:

1. Write a personal application to a banking institution with a request to register a close relative or another citizen of Russia in housing that is under collateral.
2. Attach additional documents to the application. In most cases, a passport will be sufficient. An exception is the registration of a spouse: a passport + certificate confirming the fact of marriage is required. The second exception will be the registration of children: to register them, you need to provide a certificate of their birth.

Arbitrage practice

One of the most typical categories of cases considered by the judicial authorities under a military mortgage agreement includes the following case.

The serviceman's family decided to improve their living conditions and, with the help of a targeted program of the Ministry of Defense, purchase a more spacious apartment with a better layout. As part of the savings-mortgage system, a spouse in military service was allocated the maximum amount of funds for the purchase of housing in the amount of 2.3 million rubles. Additionally, the couple invested their own money in the purchase, namely 2.8 million rubles. Thus, the transaction amount was 5.1 million rubles. There was no prenuptial agreement, and after seven years of marriage, the husband and wife decided to separate. The mortgage had not been repaid at the time of the divorce. How does the court resolve the case in such situations?

The judge immediately excludes from the subject of consideration the share of residential premises acquired through a mortgage loan. Thus, the fate of the share of the apartment, which costs 2.8 million rubles and is considered joint property, will be decided at the court hearing. Since there is no marriage agreement, the division will be in the proportion of 50/50 in accordance with the norms enshrined in the Family Code. This means that the court must make one of two possible decisions:

• Either divide the disputed real estate into two equal shares, each of which will be valued at 1.4 million rubles;
• Or oblige one of the spouses to pay this amount of money to the other spouse.

Will an apartment purchased with the money of one of the spouses be divided during a divorce?

During the divorce, the spouses decided to divide the apartment purchased during marriage under a shared ownership agreement. Deciding who would get the home turned out to be difficult: after all, the wife invested money from the sale of the home that belonged to her before marriage into the purchase. The Supreme Court decided whether it matters with whose money the joint property was purchased. Who will get the property if it was purchased during marriage, but with the money of one of the spouses? This issue was decided by the Supreme Court in the case of the Krasnovs*. They shared in court an apartment that they had bought during their marriage under a shared ownership agreement, but with the wife’s money. It was not immediately possible to prove that if a spouse invested money from an apartment that belonged to her before marriage into housing, then she has the right of ownership. Although the first instance agreed with the wife’s arguments, the appeal concluded that it does not matter how much money was used to pay for the joint purchase, and the apartment should be divided in equal shares. The Supreme Court put an end to the dispute.

The housing issue will be resolved in court

The Krasnovs bought a one-room apartment almost immediately after their marriage. The wife paid 1,720,000 rubles for the one-room apartment. after selling her own apartment for 2 million rubles. The purchase was to be transferred to her ownership after the developer received permission to put the residential building into operation. During the divorce, the spouses were unable to peacefully decide who would get the one-room apartment. The wife, who remained with her after the breakup, did not register the property rights, and the ex-husband decided to receive his share of the joint property through the court. To do this, he filed a claim with the Leninsky District Court of Novosibirsk, demanding recognition of his right of ownership of the property. There the applicant's demands were denied. Krasnova purchased housing with money received from the sale of premarital property, which means that the apartment does not belong to the common property of the spouses, the court concluded, having found no grounds for satisfying the claims.

However, the appeal, the Novosibirsk Regional Court, turned out to be more favorable to the plaintiff. In the appeal ruling, the regional court overturned the decision of the first instance and made a new decision, allocating each of the spouses a half share in the housing (case No. 33-7389/2015). The fact that Krasnova paid personal funds has no legal significance for resolving the dispute when nothing proves that the housing was purchased as personal property, Judge Elena Vlaskina indicated in the ruling. Since the wife did not provide evidence of a change in the legal property regime of the spouses, and the husband did not agree to this, joint property is presumed, and the apartment must be divided in half, the regional court considered.

Whoever paid gets the apartment

The wife challenged the decision of the appeal in the Supreme Court (case No. 67-КГ16-2), trying to uphold the decision of the first instance court. The cassation appeal was considered by the civil panel of the Supreme Court, which concluded: the applicant is right. In the ruling, the panel chaired by Judge Igor Yuryev recalled that it was precisely in accordance with Art. 34 of the Family Code refers to jointly acquired property of spouses, and clarified: in accordance with paragraph 1 of Art. 36 of the Family Code, property that belonged to each spouse before marriage is his property.

The resolution of the Plenum of the Supreme Court of November 5, 1998 No. 15 “On the application of legislation by courts when considering cases of divorce” helped to finally resolve the controversial issue. According to the explanations contained in Part 4 of Art. 15 of the resolution, property acquired, albeit during marriage, but with the personal funds of one of the spouses that belonged to him before marriage is not considered joint property. Consequently, the legally significant circumstance in the Krasnovs’ case was what funds, personal or general, were used to purchase the property.

Property acquired by one of the spouses during marriage through gratuitous civil law transactions (for example, by 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 definition says.

However, the appeal ignored the fact that the disputed apartment was purchased with money received from the sale of the wife’s personal property, the Supreme Court pointed out, therefore, the purchased “one-room apartment” cannot be considered joint property: it should go to the wife, the Supreme Court concluded.

As a result, the Supreme Court overturned the appeal ruling of the Novosibirsk Regional Court and upheld the decision of the first instance court.

* – the names and surnames of the participants in the process have been changed by the editors

Anna Kondratieva. Pravo.y

Share link:

Similar

Marriage contract

As for the marriage contract, many banking organizations pay close attention to it. If the family relations of the spouses were already regulated by a marriage contract before the conclusion of the military mortgage agreement, then the banks will insist on changing its terms.

Why do they do this? The fact is that banks make money by providing loans and want to reduce the risk of non-payment to a minimum.

According to the norms of the legislation on military mortgages, the Ministry of Defense mortgage lending program assumes that only one spouse in military service bears sole responsibility under the agreement for timely payment of the loan, and the second spouse does not have any legal obligations under the transaction.

Therefore, if suddenly the court during a divorce decides to transfer part of the housing pledged by the bank to the second spouse, then the bank does not have any legal leverage that could force this person to pay the debt, and legal norms do not allow him to be evicted from his only home prescribed in the Civil Procedure Code.

From this we can conclude: the bank insures itself against the loss of financial assets by requiring that the borrower under the military mortgage agreement be registered as the sole owner of the home in the marriage contract.

Interaction with the bank

If your obligations to the bank are not fully fulfilled, then you, unless otherwise stated in your agreement, must notify him of the impending divorce.

As a rule, banking institutions, despite the fact that they force spouses to enter into a marriage contract that is beneficial for banks, have a very negative attitude towards litigation that addresses issues of division of property acquired under a military mortgage and divorce. Often, banking organizations prevent divorce, citing in court a decrease in the borrower’s creditworthiness. In other words, they ask the court to preserve the marital relationship only because of their own uncertainty that the serviceman who bought an apartment under a mortgage agreement will be able to cope with the loan payments independently and without the help of his wife.

The legislative framework

The legal acts regulating the procedure for divorce and division of property, if one of the spouses is a party to a military mortgage agreement, include:

1. Family Code of Russia. It prescribes the procedure for how shares should be determined during the trial and indicates what property rights are allocated to minor children.
2. Civil Code of Russia. It establishes a detailed procedure for allocating a share in the joint property of participants in a marriage relationship.
3. Federal Law “On the Savings and Mortgage System of Housing for Military Personnel.” It defines the concept of “military mortgage”, the conditions for its provision, the rights and obligations of the parties to the agreement: the military personnel, the state and the banking institution, the procedure for terminating the transaction, and the responsibilities of the parties.
4. Federal Law “On Guardianship and Trusteeship”. It provides for a set of measures that guardianship authorities must take to protect minors and ensure that their interests are respected in the event of a parental divorce.

Features of the division of property after divorce

Couples going through divorce proceedings often cannot reach a consensus. Psychologists explain this by accumulated grievances and mercantile interests.

Far-sighted people prefer to resolve such issues in advance, when the marriage is still quite prosperous. They simply distribute ownership shares using a contract and get out of critical situations quite easily.

In practice, there are several ways to divide property; which one to choose, the couple decides for themselves:

• voluntary, to which spouses come on the basis of peaceful negotiations;
• voluntary, the basis for it is an official document - a marriage contract;
• conflict, when the husband or his significant other does not want to compromise, and the division of property takes place in court.

The most intelligent, painless way is the peaceful settlement of property issues. A prenuptial agreement is also good, but it only covers premarital, certain future property.

It is almost impossible to foresee the entire set of movable and immovable things in advance. There is one more vulnerable spot.

A marriage contract can be:

1. change;
2. cancel;
3. invalidate.

All these actions are possible if the court recognizes the interests of one of the spouses as infringed. What about those people whose marriage took place several decades ago?

In those days there were no contracts. Elderly spouses can also enter into an agreement, as a result of which each of them will receive a certain share of property, for example, an apartment. During a divorce, this will avoid unnecessary tension and hassle.

Most often, the division of marital property is done in court. Only in this way can justice be restored. Lawyers have long noticed a certain phenomenon - in a disintegrating marriage, one of the parties is almost always particularly intransigent and commercial.