How is an apartment divided during a divorce if the property was purchased using a maternity capital certificate?

Payment terms under loan agreements

The Central Bank, in its letter dated March 27, 2021 No. IN-03-31/32, indicated that if the last day of the loan payment period falls on a non-working day, then the last date is considered such a non-working day (except Saturday and Sunday).
However, the Supreme Court pointed out that the Central Bank does not have such powers and its letters cannot be above the law. Failure to pay the payments stipulated by the contract during the period from March 30 to April 3, 2021 is not a delay in the fulfillment of obligations, and the postponement of the deadline for fulfilling an obligation to the next next business day cannot be considered as a violation of the deadlines for fulfilling obligations.

Possible solutions: how to divide property?

If the marriage is dissolved and division of real estate is necessary, the purchase of which was made using a subsidy, each spouse can claim only part of the area belonging to him by right of shared ownership (Federal Law No. 256).
The easiest way to divide the property is to sell it and give each family member a portion of the proceeds according to their share.

However, there are other options:

• payment of compensation to one of the spouses;
• provision of a share of housing in kind for use.

Is it possible through sales?

You can divide your home by selling it.

This option involves the following procedure:

1. housing purchased with assistance is sold;
2. the proceeds from the sale are divided among all members according to the share of each of them.

Example: A family consisting of a father, mother and two children purchased a three-room apartment with the participation of maternal capital, and each became the owner of a quarter of the property.

After the divorce, it was not possible to provide the ex-husband with the use of his part of the living space, and the wife did not have enough money to pay compensation for him.

Then the homeowners sell the apartment, after which the father receives a quarter of the amount, and the mother and children receive three quarters, which can later be used to buy a house or a smaller apartment.

Important! In the case of division of property purchased with a subsidy, the interests of the children must be respected, and only then the guardianship authorities will give written consent to the sale of housing.

Compensation for one of the spouses

With this solution to the issue, one of the spouses (usually the one with whom the children remain) continues to use the housing, but pays monetary compensation to the second in the amount of his share, and he, in turn, vacates the living space and does not claim it in the future.

Example: The cost of an apartment purchased with assistance by a family with two children is 4 million rubles. Of these, 2 million are subject to division between spouses, that is, the share of each of them is 500,000 rubles. This amount is received by the spouse who renounced his share in the apartment.

In addition to paying a share in cash, other methods of compensation are possible.

Examples:

1. The father leaves the children and his ex-wife for the use of an apartment purchased with a subsidy, along with his share. In this case, the spouses enter into an alimony agreement, according to which an amount equal to the value of his share in the housing is deducted from the father’s monthly alimony payments.
2. The ex-husband leaves the apartment purchased with the assistance of the benefit, leaving it to his wife and children, but at the same time he exchanges his share of the living space for a car belonging to the family.

Providing a share of housing in kind

This option involves the division of real estate, in which the former spouses agree to divide the living space in such a way that everyone gets their share in kind.

An example when it is appropriate to allocate a share in kind: A family owns two adjacent apartments, used as a single living space. In such housing, each of the spouses (taking into account who the children are staying with) is allocated a part of the living space as a separate object with its own entrance, kitchen and bathroom.

Penalty and writs of execution during the moratorium period

One of the consequences of the introduction of a moratorium is the cessation of accrual of penalties (fines and penalties) and other financial sanctions for non-fulfillment or improper fulfillment by the debtor of monetary obligations and mandatory payments for claims that arose before the introduction of the moratorium.

In addition, the introduction of a moratorium against the debtor also means that it is impossible for the creditor to obtain compulsory execution by presenting the writ of execution directly to the bank. However, it is worth considering that the moratorium applies only to the most affected sectors of the economy

8-921-903-17-16

Lawyer Alexey Lobanov

12 years of judicial practice

Maternity capital can be used to pay off loan obligations, for example, to purchase housing under construction or ready-made housing. At the same time, maternity capital has a special purpose, and it is not jointly acquired property and cannot be divided between spouses.

Alexey Lobanov

Head of Legal Bureau

Ask a Question

Based on the provisions of the Family Code, children must be recognized as participants in shared ownership of a real estate property; therefore, the determination of shares in the ownership of an apartment should be based on the equality of shares of parents and children in maternity capital funds spent on the purchase of such an apartment, and not on funds at whose expense it was acquired.

Question to the expert

Is the cost of the apartment the price for which it was bought?

No. The cost of the apartment, even if it is not completed, is determined using an independent assessment

The apartment is pledged. Is it necessary to obtain the bank's consent to transfer shares?

The presence of an apartment as a mortgage does not prevent the determination of the shares of children and spouses in the ownership of the apartment, since this circumstance does not require the consent of the mortgagee and does not affect the legal relations established by the mortgage agreement

What is maternity capital and how can it be used?

Maternity capital is a form of state financial assistance to families, provided in accordance with Federal Law No. 256-FZ of December 29, 2006 “On additional measures of state support for families with children.”
The fact of providing state support is reflected in a special document - a maternal certificate - confirming the family’s right to use public funds.

According to Art. 7 Federal Law No. 256, a family can spend the benefit only for the following purposes:

1. Formation of an insurance funded pension for the mother of a child.
2. Payment for necessary goods and services for a disabled child.
3. Preschool education of children in private kindergartens.
4. Education at all levels, including living in a dormitory.
5. Improving living conditions, namely:
   partial payment of the cost of purchased housing;
6. payment of a mortgage loan;
7. allocation of funds for the construction or reconstruction of residential real estate;
8. making a down payment when purchasing on credit.

What happens to the remaining shares?

After calculating the shares of children and the division of maternity capital, the spouses must decide (or the court will determine it) with what funds the remaining part was paid (personal money, personal loan, joint funds, etc.), or from what funds the loan was paid and will it be split in the future

Excerpt from the court decision

Ruling of the Supreme Court of the Russian Federation dated February 20, 2018 No. 11-КГ17-34

In this case, it is necessary to be guided by the principle of matching shares depending on the amount of their own funds invested in the purchase of housing by the parents (including funds belonging to each of the parents that are not jointly acquired), as well as maternity capital. Maternity capital should be distributed to parents and children in equal shares. Children's shares in the common property are determined in proportion to their share in maternal capital.

The essence of maternal capital

Maternity capital is expressed in the issuance of a special certificate to the mother at the birth of her second baby. In 2021, the amount has been increased to 466,617 rubles. You can spend money in the following ways:

1. Improve living conditions.
2. Pay for training.
3. Use it for the funded part of your mother's pension.
4. Compensate for part of the costs for children with disabled status.
5. Receive monthly payments for a child up to one and a half years old.

The main goal of the certificate is to improve the standard of living of children. This is monitored by the guardianship authorities and other relevant services.

If funds are used for purposes not specified in the list established by law, parents face liability.

What to do if maternity capital acted as a down payment for a mortgage

It is allowed to use funds from the certificate not only to purchase housing for cash, but also when applying for a mortgage loan. Often a large amount is used as an initial investment.

Even when applying for a loan, the basic rule is taken into account, which is that after repayment of the debt, housing should be registered not only in the name of the parents, but also in the name of minors. Therefore, each family member has equal rights to living space.

If spouses decide to divorce, then when dividing housing the following features are taken into account:

• mother and father have equal obligations on the mortgage, although their shares may differ;
• It is quite difficult to sell an apartment before the loan is repaid, since you will have to enlist the support of representatives of a banking institution and guardianship workers, and the sale price will be much lower than the market value;
• the sale of mortgaged housing is permitted only if the mother has other real estate in which the children will be registered, and the guardianship authorities ensure that the living conditions of minors do not worsen;
• one of the spouses can simply refuse their obligations for housing, so he is excluded from the number of borrowers, receiving some compensation, the amount of which depends on the part of the debt that has already been repaid.

Important! Sometimes citizens decide to jointly repay the mortgage, although the woman and children remain in the home, and after repaying the debt, they decide to sell the property and distribute the money.

What is a commitment

A notarial undertaking is an official document according to which a parent who has received a certificate and issued a mortgage in his name confirms his knowledge and undertakes to allocate a share of the property to his children when registering property rights. Without this, it is simply impossible to obtain maternity capital. The pension fund will not give permission. Next, the form of transfer of property becomes a deed of gift or an agreement. This procedure has several stages because initially the housing was registered in the name of one owner or both spouses, excluding children. In addition, at the time of purchasing an apartment or building a house, the second child may not have been born yet.

Based on the above, we can note a number of requirements in order to take advantage of the maternity capital social program. These include:

• The birth or adoption of a second child in the family;
• Previously issued certificate;
• Availability of a certificate of ownership;
• Documentary evidence that government assistance is actually used to pay off debt or pay for the purchase or construction of housing.

Voluntarily

If both spouses have come to a consensus that the living space can be divided voluntarily, on terms that are mutually beneficial, they should assess the property to be divided and include the apartment in it, excluding the children’s shares from the calculation. After they compile a list of property owned by each, you need to contact a notary. The algorithm of actions in this case will be as follows:

1. Former spouses present to the notary their passports, divorce certificate and a package of documentation for the apartment. The notary checks the documentation and issues an application form.
2. The parties to the agreement fill out an application in which they make a request to the notary to draw up an agreement on the division of property consisting of their shares.
3. Based on the application and attached documentation, the notary draws up a division agreement.
4. The parties to the agreement put handwritten signatures, about which the notary makes an certifying entry and enters the document details into the register of notarial actions.
5. A fee is paid for drawing up a notarial agreement in the amount of the cost of technical work and a notarial fee is paid. The duty is 0.6% of the value of the share of property of each participant in the division.
6. The division agreement is a document of title; on its basis, the share is allocated to the spouse who will not live with the children.

If the spouses have not yet divorced, then they present a marriage certificate, on the basis of which they are considered close relatives. For them, the duty is reduced to 0.3%.

The role of guardianship authorities

Many are interested in the need to coordinate the allocation of apartment shares to children with the board of trustees. However, when it comes to using maternity capital, such actions and approvals are not necessary. On the one hand, state assistance is issued for the birth and adoption of a child, but on the other hand, referring to the Civil Code of the Russian Federation, the board of trustees is involved only when it comes to transactions with the property of minors. That is, only with the permission of the guardianship authorities can you sell, donate, exchange, or rent out housing, the share of which belongs to a minor.

However, it should be understood that neither the parents nor other relatives of the child can enter into transactions with housing without the consent of the guardianship authorities, with the exception of its donation or gratuitous transfer in another way. At the state level, children's rights are carefully protected, and even in cases where, when selling a home, a family buys another living space, it is important that it meets all the requirements and is of equal or greater value.

As for funds, the board of trustees is involved in their distribution only in cases where parents are deprived of parental rights or died and minors were transferred to the state for maintenance.

For what cases is it relevant?

When using the maternity capital allocated by the state for any type of improvement of the family’s current living conditions, allocating shares of residential property to all children is a mandatory procedure. For example, buying an apartment or building a private residential building on your own land with the use of social assistance in the form of initial, subsequent mortgage payments or as part of the payment for purchasing an apartment without taking out a loan. Of course, when using the certificate in other areas, such as paying for education or increasing pension savings for the mother, we are not talking about allocating any shares to the children.

If the mortgage was issued before the birth of the second child, after which a certificate for maternity capital was received, which the family decided to use to pay off the debt, the title documents will need to be reissued. However, this is done after the Pension Fund approves such an investment. To do this, an agreement or a gift deed is drawn up at the notary's office.

The size of shares when allocating them to children is not regulated by law, therefore the mother or father, if the certificate is received in his name, can independently distribute the property among everyone at their own discretion and not necessarily in equal parts.

Who handles the distribution?

Regarding the allocation to children of the shares of real estate purchased with the help of maternity capital that are due to them by law, this distribution is handled by the recipient of the certificate. That is, if such a document and mortgage are issued in the name of the mother, it is up to her to decide how the distribution will take place. Moreover, if she is officially married, then the allocation of shares concerns not only the children, but also the husband, with whom it is possible to register co-ownership or shared ownership of the apartment. However, this rule does not apply to the spouse with whom the marriage was formalized after using maternity capital.

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Referring to the current Russian legislation, it is prohibited to exclude anyone from the agreement or deliberately not include anyone in the gift agreement. There is only one nuance that concerns the spouse’s children from a previous marriage. Such children are not allocated shares of property if they have not been officially adopted.

Considering that the allocation of shares of real estate to children cannot be avoided, it is worth taking care of this in advance by including children in all concluded contracts at once.

Is the maternity capital itself divided?

If, before the divorce, citizens did not exercise their right to maternity capital, then they still have a certificate issued in the name of their mother. During a divorce, the document remains with the woman, since she is its owner. In the future, the money may be used to increase her pension, purchase rehabilitation equipment for a disabled child, or purchase housing.

The division of this amount is not allowed. A man will be able to claim maternity capital only after the death of his mother or deprivation of her parental rights. In this case, the woman loses the right to government assistance, so the certificate is issued to the father of the children. The same applies to a situation where the mother has committed any crime against her offspring.

Division of property acquired during marriage during divorce

Many couples, thinking about divorce, are faced with the question of dividing an apartment purchased with maternal capital. When divorcing a marriage in which there are joint children and common property, they are guided by the norms of the Civil Code of the Russian Federation and the Family Code of the Russian Federation. Based on the law, property belonging to spouses, if it was acquired during the period of their cohabitation, as well as using the family budget, is divided into equal shares. In addition, when a family breaks up, the interests of the children must also be taken into account (

Disposal of real estate

In accordance with Art.
246 and 247 of the Civil Code of the Russian Federation, the disposal of real estate in shared ownership is carried out either by agreement of all its owners, or in accordance with a verdict passed by a court. Concluding a voluntary agreement, which stipulates all the nuances of using the divided living space, is the best option. It is better that the agreement be drawn up in writing and notarized , since this document will serve as evidence in case of violation of the established procedure by one of the parties. For example, in a three-room apartment, one room is allocated to the father, the remaining two are occupied by the mother and children, and the kitchen and bathroom are for common use in accordance with the agreed rules.

If it is impossible to reach an agreement between the owners of the divided housing on the issue of its use, a statement of claim is filed in court by the owner of the share who has claims.

Reference. If, after the court decision on the procedure for using the divided living space has entered into force, the defendant continues to violate the rules, the plaintiff can turn to the bailiffs, who will take measures to force the defendant to comply with the court decision.

Is it possible to give children shares in another apartment?

A fairly common situation is when an apartment purchased using maternal capital is sold without giving shares to the children (and spouse). As mentioned above, this is impossible if the capital is used directly during the purchase (then this is reflected in the purchase and sale agreement). If the mortgage was paid off with maternity capital, then, as a rule, this is not visible either in the contract or in bank papers. Even the Pension Fund of Russia (PFR, which transfers materiel capital funds when purchasing housing), admitted that it will not answer requests whether materiel capital funds were used to purchase a specific property.

Natalia Mikhailyukova

lawyer of the Russian Guild of Realtors

There have been cases when parents sold apartments purchased using maternal capital without giving their children shares. Some of these transactions were identified by the prosecutor's office and challenged in court. Even if the parent bought another, more spacious home and allocated shares in it to family members, he still formally violated the law. That is, a person who buys an apartment that the previous owner purchased using maternal capital and did not allocate shares to his relatives is at great risk. The transaction may be declared invalid.

However, lawyers note that judicial practice on the issues mentioned is just developing. It may also turn out that the court will not cancel the deal, but will consider that since the owner’s family members received their shares in the new apartment, then in fact the rights of the spouse and children have not been violated.