Establishment through the court of shared ownership of the apartment between mother and son, determination of shares in payment of utility bills between the mother and the son’s family, determination of the procedure for using the apartment.

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The division of property after divorce is regulated by the Family Code, as well as the Civil Code. In addition, Federal laws and a number of by-laws may be involved in this procedure. The division of real estate during a divorce, if there are children, is also based on the specified legal documents. They allow the interests of minor citizens to be fully taken into account when determining the right to own and use property, both their own and their parents’, even after divorce.

Children's rights to real estate during parental divorce

The division of jointly acquired property in the RF IC is devoted to Art. 38, according to which all property falling within this definition must be divided in equal shares between husband and wife. However, the presence of minor children in such a family may slightly change the size of the allocated shares. Departure from equality of shares is allowed under Art. 39 RF IC.

The court's decision on the division of property in 2021 will actually be affected not so much by the presence of a child as such, but by the material property status of the spouse with whom this child will live after the divorce.

This means that if the mother, with whom the child remains after the divorce, no longer has any housing and does not have a high income, then when dividing the apartment, a large part should go to her. But this will be her part, and not the children, if they were not initially allocated shares in this real estate.

Division of a mortgaged apartment during a divorce, purchased with parents’ money

Example

Determination of the Investigative Committee for civil cases of the Moscow City Court dated ……… 2010.

Judicial panel for civil cases of the Moscow City Court consisting of:

after hearing in open court on the report of judge T.V. Knysheva. case on cassation appeals M.B.E. and representative M.O.B. by proxy P.E.V. on the decision of the Timiryazevsky District Court of Moscow dated April 16, 2010, which decided:

in satisfying the claims of M.O.B. refuse. Claims of M.B.E. partially satisfy. Determine for M.O.B. ownership of ... share of the apartment at the address: ... Determine for M.B.E. ownership of ... a share of the apartment at the address: ... In satisfaction of the rest of the claims of M. B.E. refuse, set:

M.O.B. filed a lawsuit against the defendant M.B.E. on the determination of shares in the right of common ownership, she asked to divide the apartment at the address: ..., allocating 4/5 shares of the apartment to her, and 1/5 shares of the apartment to the defendant, referring to the fact that ... there was a marriage between the parties, from this marriage there is a son, ... born, during the marriage in December 2006, they purchased an apartment for common joint ownership at the address: ... To purchase an apartment from City Mortgage Bank LLC, the spouses executed a loan agreement in the amount of ... US dollars for 182 months. According to the loan agreement, she and the defendant are co-borrowers and bear joint liability under the loan agreement; therefore, the obligations under the loan agreement must be fulfilled by the parties jointly. ...the marriage between the parties is terminated. In this regard, she asked to make a division of jointly acquired property, in the form of determining the share of each spouse in the apartment purchased by them under a mortgage agreement, and to determine her share of 4/5, since by a court decision the child’s place of residence after the divorce was determined with the mother, with alimony was collected from the defendant in favor of the plaintiff, however, the defendant does not fulfill his alimony obligations. The defendant does not maintain a relationship with his son and does not take care of his son. In addition, she indicated that a significant part of the funds for the purchase of the apartment was invested by her. To do this, her mother sold an apartment in Lipetsk on December 15, 2006 and transferred all the funds from the sale of the apartment to her, therefore she (the plaintiff) believed that she made significant financial investments with her personal property to purchase the apartment, and taking into account the fact that the child must live with her after the divorce, she has grounds to demand in court an increase in her share in the disputed residential premises.

M, B.E. filed a counterclaim against M.O.B. on the determination of shares in the right of common property, division of debt under the loan agreement, asked to divide the said apartment, assigning each party 1/2 share of the apartment, explaining that by a court decision the marriage between the parties was dissolved, and on the basis of current legislation the property of the former spouses is divided equally , and also asked to recognize the debt obligations that the spouses have to the bank LLC "City Mortgage Bank" as equal, and to divide the debt equally between the former spouses.

M.O.B. and her representative supported the claims, asked to satisfy them, and asked to dismiss the counterclaim. M.B.E. and his representative against the claim of M.O.B. objected, counterclaims were supported.

The representative of 3 persons LLC "City Mortgage Bank", European Principal Assets Limited did not object to the division of the spouses' property acquired during marriage, but objected to the division of the obligation to repay the loan. The court ruled the said decision, which M.B.E. is asking to cancel as illegal. and representative M.O.B. by proxy P.E.V. on the grounds of cassation appeals.

After checking the case materials, hearing M.O.B. and its representative by power of attorney P.E.V., M.B.E., and his representative by power of attorney B.M.V., representative of 3 persons LLC "City Mortgage Bank", European Principal Assets Limited by power of attorney P .I.A., having discussed the arguments of the cassation complaints, the judicial panel does not find any grounds for satisfying the cassation complaints and canceling the court decision, rendered in accordance with the circumstances established by the court and the requirements of the law.

When deciding to refuse to satisfy the claims of M.O.B. and partially satisfying the claims of M.B.E., determining for M.O.B. and M.B.E. ownership of ... a share of the apartment at the address: ..., for each, the court correctly determined the circumstances relevant to the case and, in accordance with the requirements of the law regulating controversial legal relations, correctly resolved the dispute that arose.

Recognizing the apartment in respect of which the dispute was filed as the common property of the spouses, the court reasonably proceeded from the fact that this apartment was acquired during the marriage using the common funds of the spouses, by concluding a loan agreement No. ... dated December 22, 2006, according to which M.O .B., M.B.E. (borrowers) were provided with a loan in the amount of ... US dollars for a period of 182 months for the purchase, repair and improvement of an apartment at the address: ... According to clause 1.6 of the Agreement, all actions related to the execution of this agreement on behalf of the joint borrowers are carried out by an authorized person on the basis of of this Agreement, Mr. M.B.E.

As follows from the case materials, on December 22, 2006 between Vas.V.G. and M.O.B. and M.B.E. An agreement for the purchase and sale of an apartment was concluded at the address: ... The agreement states that the apartment is purchased by the buyers as a common joint property at the expense of credit funds. On December 29, 2006, the parties were issued a certificate of state registration of the right to this apartment.

Since the apartment was acquired during the marriage, the court correctly came to the conclusion that this apartment is property jointly acquired by the spouses during marriage, and in accordance with Art. 39 of the RF IC correctly divided it in equal shares.

The court checked the arguments of M.O.B. that a significant part of the funds for the purchase of an apartment, namely ... rubles, was invested by her with money received in the council from her mother, who sold her apartment in Lipetsk on December 15, 2006, and that she reasonably rejected it, indicating that M.O.B. no admissible evidence has been presented to reliably confirm this fact.

The panel of judges finds no grounds for recognizing this conclusion as incorrect.

How is the child's share divided?

If a child has a share in the property in an apartment or other real estate, then in the event of a divorce this part remains with the child. It is not included in the amount of property that is divided between spouses. Parents will not be able to establish their rights to it either in court or by agreement.

A child can receive a share in an apartment both through inheritance and in the case of using maternity capital, as well as by agreement between the parents.

If the child is underage

If at the time of divorce the child has not reached the age of majority, then the parent with whom the minor child remains is responsible for the safety of the property that belongs to him. The guardianship and trusteeship authorities are required to monitor this process. They have the right to impose a ban on any housing transaction if they see it as an infringement of the rights of the child.

For example, if spouses decide to sell an apartment during a divorce in order to further divide its value, then regulatory authorities may impose a ban on the transaction or declare it illegal in court after the fact. If permission to sell is given, then the parents will be required to document the funds received from the sale of the child’s share. Such money can only be spent on his needs, but not on the needs of his parents.

If there are two or more children

If a family has two or more children who have their own share in the property, then this fact will not affect the division process itself. Those. everyone will have to get their share. The apartment, with the consent of the guardianship authorities, can be sold, and then a new one can be purchased with the proceeds, with shares allocated to everyone. Or, one of the spouses will remain living in the shared apartment with their children, and the other will be paid compensation for his share. In this case, this very part of the housing will be recognized as the property of the spouse remaining in the apartment, and the children’s shares remain unchanged.

How to influence the size of apartment shares if you have children?

If there are grounds (in the opinion of the plaintiff or defendant) for increasing the share in the common property due to the presence of minor children, this must be reflected in the statement of claim. Or a counterclaim if the defendant insists on increasing the share. However, just having children is not enough.

As an example of arguments that may have serious significance for the case, the following evidence and circumstances can be cited:

Non-participation of the second spouse in the maintenance of children, which is confirmed by a certificate of alimony arrears.
Refusal of the spouse to participate in raising the child (established by the guardianship and trusteeship authorities).
The difficult financial situation of the parent with whom the children live (confirmed by a certificate of income).
The child has illnesses or disabilities.
The presence of an objective opportunity for the spouse to devote maximum time and attention to the child (for example, a free work schedule).

If there are no problems with proving one or more situations from the list above, then the court with a high degree of probability may decide to increase the share in the common property of the spouses.

It is not allowed to deprive the second spouse of a share in property solely on the basis of having joint children and leaving them with the other spouse. This is possible if the second spouse spent family funds without receiving his own income, led an immoral lifestyle and created conditions that threatened the normal development of the family.

The role of guardianship and trusteeship authorities

According to Federal Law No. 48, parents can carry out transactions with real estate in which shares are allocated to minor children only with the consent of the guardianship and trusteeship authorities. The duty of such a body is to certify the fact that in the event of a transaction, a minor child will not be infringed on his rights.

If he gives permission to sell the apartment, then only on the condition that the child will be allocated an equal share in the new housing or the proceeds will be deposited into his bank account.

The rights of a minor child to an apartment when dividing property between parents.

To protect the rights of the child, the guardianship authorities, together with the Prosecutor's Office, have the right to appeal transactions regarding real estate owned by the child. If the court finds it invalid, then according to Art. 167 of the Civil Code of the Russian Federation, the sold part must be returned to the ownership of the minor owner.

If the apartment was purchased with a mortgage

It is most difficult to divide apartments during a divorce if they are mortgaged. If the loan for such real estate is fully repaid, then no special problems should arise. Such housing, if it is joint property, will be divided based on Art. 38 and 39 of the RF IC, i.e. in certain shares between all owners.

If such an apartment belongs to one spouse legally (for example, the mortgage was issued and fully repaid before marriage), then after the divorce it will be recognized as his property.

And if the mortgage debt has not yet been repaid, then there are several options for division. And all of them must be pre-approved by the bank where the mortgage loan was issued, because... Until the debt is fully repaid, the apartment is collateral, and the spouses cannot dispose of it in full.

The division is especially difficult if there are minor children in the family, and even more difficult if money from maternity capital was contributed as a loan contribution.

Most likely, the spouses will first have to completely repay the mortgage debt, and then only divide the apartment. In such situations, a scheme is also practiced in which the apartment is sold, the proceeds go to pay off the debt, and the remaining money is divided in certain shares between the spouses. But if there is a child, then the guardianship authorities may not give their consent to the sale of such an apartment.

Alternatively, the bank will allow you to divide the balance of the debt between the spouses, and each of them will independently pay their part. Upon completion of payments, the apartment will be divided in shares established by law.

If the apartment was purchased with maternity capital

Federal Law No. 256 determines that maternity capital, in particular, can be spent on improving the family’s living conditions. And the same Law establishes that if real estate is purchased with this money allocated by the state, then it is divided in equal shares among all family members. This means that if the capital was given out after the birth of the second child, then during the divorce the apartment should be divided into 4 equal parts.

In this case, it does not matter what other funds and in what quantity were invested in the purchase.

If the acquisition of real estate took place with the participation of only a certain amount of maternity capital, then such property is divided in equal shares among all family members.

This rule cannot be changed either by the terms of the marriage contract or by the clauses of the property division agreement.

Privatized apartment

According to Federal Law No. 1541-1 “On Privatization”, if an apartment was privatized during the marriage by both spouses, then it becomes their common shared property. If during privatization one of the spouses officially refused to participate in it, then the apartment will be recognized as the property of only one of the spouses and, accordingly, will not be subject to division after a divorce.

Should the interests of children be taken into account?

Not really

Minor children under 14 years of age must be included in the privatization agreement, regardless of their place of registration and residence. Only on the grounds that this living space is being privatized by his parents. This means that part of the apartment is their property after privatization. And during the division, this share remains with the children.

All transactions on such real estate are carried out by parents as legal representatives, but only with the consent of the guardianship authorities.

If the child is registered in the apartment

Permanent registration at the place of residence does not give ownership rights, but only fixes the right to reside in a specified territory. Therefore, the presence of registration cannot in any way affect the division of the apartment in 2021. The parent with whom the child remained after the divorce will probably be allocated a larger share in the property. But not because of registration, but because of the presence of a minor child. Registered children have the right, even after a divorce, to live in the apartment where they are registered until at least 18 years of age.

Property rights of children

The property rights of minors are regulated by Article 60 of the Family Code of the Russian Federation. According to it, the child has the right to receive maintenance from his parents, in the manner and amount established by Section 5 of the Family Code of the Russian Federation. Moreover, the amount and order of maintenance does not depend on whether the parents are legally husband and wife or not.

The amounts due to the child (alimony, pensions, benefits) are at the disposal of the parent (or person replacing him) with whom the child lives. The money should be spent only on the needs of the child.

With regard to the right to housing, the child, according to the law, must be registered at the place of residence of one of the parents. He is a family member and therefore enjoys the same rights to the premises as anyone else registered at that address. But, according to paragraph 4 of Article 60 of the Family Code, the child has no right to the parents’ property. Children and parents who live together must use each other's property only by mutual consent.

Is it possible to register an apartment for children?

Russian legislation does not establish age restrictions for the possibility of obtaining ownership of real estate. Therefore, a minor child can become the owner of an apartment upon the following transactions:

participation in housing privatization;
apartment purchase. Naturally, it is carried out by the parents, but the child may be indicated as the owner;
inheritance of real estate;
receiving housing under a gift agreement.

Starting from the age of 14, a child receives the right to sign documents on these transactions, but only with the consent of official guardians.

On our website you can download a sample deed of gift for real estate.

Agreement on the division of an apartment in the presence of children

The decision on the division of real estate may not necessarily go through the court.

Spouses have the opportunity to enter into an agreement that will regulate the right to own and use common property (Article 38 of the RF IC). This document can be drawn up both during the existence of the family and after its collapse. Notarization is required.

The agreement specifies how and in what shares this or that property will be divided during a divorce (or marriage).

The main thing is that this document does not contradict the law. So, if a child has ownership rights to a share in real estate, then by agreement it cannot be divided between the spouses. Otherwise, the document will be considered void.

On our website you can download a sample settlement agreement on the division of property between spouses.

How is real estate divided?

The main stumbling block in divorce is the division of joint housing. The court determines into what parts the apartment or house will be divided, taking into account the financial condition of each spouse, and with which parent the children will remain. If the apartment was purchased on credit or with a mortgage, then the payments are divided into two.

How to agree on the division of real estate

If the family has a vehicle, it is also subject to division between the spouses. It doesn’t matter who uses the car, the court offers to sell the vehicle and equally divide the money from the sale.

Arbitrage practice

Judicial practice in cases of division of real estate in the presence of minor children in 2021 is very extensive. It shows that interested parties should approach the issue of dividing an apartment with a mortgage or purchased in a building that has not yet been built with special care.

In any case, the judge primarily takes into account the interests of minor children.
Therefore, it will request documents from the bank and other involved structures. For example, there is no point in hiding the fact of contributing maternity capital. All the same, this information will be at the disposal of the judicial authority. The division of property during a divorce is not a pleasant procedure. The presence of minor children in the family can make it even more difficult. Therefore, it would be useful to get qualified advice from a lawyer before starting the process, who will tell you how to act to protect the interests of the child in such a situation.

Proportion of minor children

Respect for the interests of minor children and the rules for dividing joint property of parents are regulated by articles of family law. Paragraph 4 of Article 60 of the Family Code of the Russian Federation states that children do not have the right to the jointly acquired property of their parents and vice versa, unless otherwise specified in the marriage contract. However, in such a law there is a certain loophole in which it is possible to take into account the interests of children.

Paragraph 2 of Article 39 of the Family Code of the Russian Federation states that under certain circumstances (the spouse did not work for an unexcused reason or spent the family budget to the detriment of the interests of the children), the court has the right to deviate from the equality of shares of spouses with joint children.

Children's right to property after their parents' divorce
In this case, the parent with whom the minor children remain has every right to demand that the judge take into account their interests. However, the court does not allocate a part of the spouses’ common property to the children, but increases the share of the parent with whom the child remains after the divorce. When considering the issue of dividing jointly acquired wealth, the court takes the side of the spouse with whom the child remains.