Rights of former spouses to jointly and non-jointly owned housing
Provided that the spouses bought a house or apartment during the marriage, after the divorce they will both have equal rights to living space, i.e. everyone will have the right to own half the value of the property.
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The same condition is also true for a spouse who was not officially employed, but was raising children, maintaining a satisfactory state of life in an apartment or house, or had good reasons of another kind for lack of work and, as a consequence, income.
Jointly acquired property cannot be called that which was received as a result of a gift or inheritance, even though the procedure was completed while the spouses were married. Those. If one spouse inherited a house, then after the divorce there will be one owner of this house - the spouse who directly received the inheritance.
Disposal of personal property
When it comes to the personal property of a husband or wife, the owner of the residential premises is faced with the question of whether the former other half has the right to live in the apartment after a divorce. If the property was gifted, bequeathed or purchased by the husband/wife before the wedding day, such square meters are indivisible, and the owner has the right to evict the other half at the end of the divorce proceedings.
If the couple cannot come to an agreement voluntarily, then the owner has the right to appeal to a judicial authority and evict the former loved one by a court decision. On the one hand, everything looks smooth. But as soon as it comes down to it, many legal nuances become clear that do not allow the owner to take legal actions in relation to the ex-spouse.
For example, during all the years of marriage the family lived in a two-room apartment belonging to the husband. The marriage produced two minor children, who, like their mother, are registered in residential premises. After the divorce, the couple agreed that the children would stay with their mother, and the father would help them financially and take them away on weekends.
When a man asked his wife and young children to vacate the square footage, it turned out that minors have the right to live in the apartment after a divorce until they turn 18 years old. The situation was aggravated by the fact that the ex-wife does not have her own living space, and due to financial difficulties she cannot even rent a room. A legal issue arose here.
Rights of former spouses to privatized housing
Privatization is a transaction of donating real estate between the state and a citizen. All participants in the transaction are entitled to the rights to the received property. If the spouses were registered in an apartment given to them by the state on the basis of social rent, and managed to privatize it before the start of the divorce process, then the living space will be in shared ownership. Those. during the division, each of the people registered on the privatized area has the right to count on equal shares.
If during the privatization process the owner of the property is determined to be a single person, and the second spouse has not indicated a desire to participate in privatization or already has privatized property on his account, after the divorce only one spouse remains the owner of the living space - the one in whose name the privatization was registered.
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If a spouse who has not expressed any intention to be involved in the privatization procedure is registered as registered in a privatized apartment or house, he retains ownership of part of this apartment and the right to live in it. The right is lifelong. This fact can only be changed by a court decision.
If the second spouse is not listed as registered in a privatized apartment or house, then he does not retain any rights to living space after a divorce.
When the living space had already been assigned before the start of the marriage, and after it one of the spouses moved into the agreed upon apartment or house, the rights to housing after the divorce are retained by the spouse who was legally the rightful owner of the apartment before the start of the marriage. In such circumstances, even a child born in marriage does not receive the right to privatized living space.
Rights of wife and child to live in an apartment after divorce
Depending on the status of the property, the right of each of the former family members to it is largely determined. Any case must be considered individually, since each episode has its own peculiarities. Judicial practice in such cases is extremely diverse, since there are decisions both in favor of the plaintiff and in favor of the owner.
Privatized housing
If, as a result of the dissolution of marriage, one of the spouses remains in real estate, which is owned and privatized in the name of the second, then he has no right to locate, stay and use it.
A similar issue regarding the rights of a minor is resolved according to slightly different principles. It all depends on who the child’s place of residence is determined with in court or otherwise.
If he lives with a spouse who is not the owner, then he can stay in the apartment only at the invitation of the owner and for a time limited to communication with him.
The relationship between the ex-husband and wife does not affect their communication with their children according to the schedule or agreement.
If the apartment is privatized for all family members, then the right to use their share and common property remains with all participants.
Municipal housing
A separate option is living space provided under a social tenancy agreement. It may belong to the municipality or the state and is provided for use without corresponding ownership rights.
In this case, upon termination of family relations with the tenant, the second spouse does not lose the right to reside in the property and use it for its intended purpose. You don’t even have to sign an additional rental agreement, just split the utility bills. To do this, submit a corresponding application to the management company.
If the owner is a husband
If the spouse is the absolute owner, then after the divorce the wife will have to leave the apartment and stop using it.
If she does not do this peacefully, the husband has the right to go to court and force this to happen.
As a result, the illegal resident will be subject to forced eviction by the bailiffs.
According to Art. 31 of the RF Housing Code there are certain circumstances under which a spouse may retain the right to use an object for a certain time:
- inability to purchase or rent housing;
- the existence of an agreement between spouses defining the procedure for using the object.
Only the court can decide to grant the former spouse the right to stay in the second spouse’s apartment after a divorce.
As a result, the issue can be resolved either peacefully or in court. The court takes into account the existence of agreements between the spouses regarding the subject of the dispute and financial capabilities, as well as other circumstances.
The rights of former spouses to a refund for repairs and other reconstruction of housing
The spouse who was not favored by the law has the right to try to receive financial compensation as a share of the cost of housing for repairs or reconstruction, which he carried out at his own expense and effort. It seems possible to prove such a phenomenon only through court.
In this case, it is necessary to prove that the cost of housing has increased as a result of the efforts invested by the spouse who is not the owner of the divided living space. The compensation itself will be calculated based on the funds spent on repairs.
Thus, if one of the spouses provided or carried out major repairs to the living space, after which its value, for example, doubled, then during the divorce process he has every chance of receiving half the cost of this living space.
Evidence includes receipts for the purchase of building materials from that time period, preserved contracts with execution companies, acts of acceptance of work and any other papers that confirm that funds for repairs or reconstruction were taken from the own savings of the spouse, who is not the owner of the home. Other evidence includes bank statements, withdrawal receipts, etc.
Resolving the issue of municipal and state-owned housing
Along with those described above, there are often stories where a family lives in municipal housing. The only way out for tenants, eliminating the need to live in the same apartment after a divorce, is to contact the property owner with a request to exchange living space. Or one of the citizens will simply have to vacate the premises.
The situation is a little different when it comes to government housing. In the vast majority of cases, service housing is provided to military personnel and members of their families. In a situation where a husband and wife divorce, and housing is provided for a man in military service, the woman is obliged to vacate the premises and check out of it. However, if we are talking about children living in official housing, then they can stay until they reach adulthood, just like their mother. A woman can be forcibly expelled only in a situation where the offspring remain in the care of the father.
Right of joint property of spouses
The RF IC (Article 34) establishes that all property acquired by spouses during the period of marriage is their joint property. These include:
- all income received by the husband and wife for work and any cash payments, except those that have a designated purpose (for example, except for maternity capital and disability pension);
- movable and immovable property that spouses purchased with funds from the common family budget;
- bank accounts, securities;
- shares of enterprises.
Spouses have equal rights to these things. And in case of divorce, they divide them in half. Even if one of them did not work during the existence of the family, but was engaged in housekeeping and children. The rule of common property also applies to property that was purchased with joint money during the marriage, but was legally registered only in the name of one of the spouses.
There is also such a category of things as personal property. It can be purchased during marriage with joint money, but for the personal use of one of the spouses or children: clothing, electronics, musical instruments. Such things are not subject to division in the event of a divorce between spouses. The exception will be luxury items (antiques, jewelry) and fur products.
Also, in 2021, property received under a gift or inheritance agreement cannot be classified as joint property if it was registered in the name of only one of the spouses. Even if this happened during the period of marriage. And also the property that was acquired by everyone before the wedding (Article 36 of the RF IC).
Statement: reasons for starting the trial
Spouses are not always able to independently divide jointly acquired property. Disputes that arise are resolved in court. The reasons for contacting a government agency are:
- It is required to divide jointly acquired property;
- It is necessary to determine the rights to real estate purchased jointly;
- It is necessary to evict a wife from her husband's apartment after a divorce.
The court begins proceedings after receiving a request to evict the spouse. The person who filed the application must describe in detail the circumstances that gave rise to the filing of the claim with a request to be discharged. Documents confirming the truth will strengthen the man’s position. The plaintiff must attach papers to the application. The judge does not always approve the request to evict the woman. Divorce is a reason to find a competent lawyer. The specialist will tell the court's decision in advance and help the husband win in his confrontation with his wife. It will be easier to evict your ex-wife from your apartment.
Ownership of a privatized apartment
The rights to an apartment that has become property as a result of privatization are no different from the rights acquired as a result of the purchase and sale procedure, donation or inheritance.
According to Federal Law No. N 1541-1, every citizen of the Russian Federation has the right to participate in privatization if he has permanent registration in the privatized apartment. Its implementation is possible for everyone only once. Those. if a husband or wife previously participated in privatization (for example, parents’ apartments), then they subsequently lose this right. And then the apartment becomes the property of only one of the spouses.
Similarly, the spouse receives sole rights to the privatized living space if the second one issues a legal refusal (it will not have retroactive effect). A minor child also has the right to participate in privatization, even without permanent registration in the apartment being registered, on the grounds that it is being privatized by one of his parents.
How to divide an apartment during a divorce if it was privatized by the husband.
When drawing up most contracts (except for those created at the dawn of the signing of the law), each participant is allocated a share in the apartment. On its basis, during a divorce, the property will be divided.
Procedure for filing for divorce
Divorce occurs in accordance with the procedure established by law, with the receipt of supporting documents. By mutual agreement, if the couple does not have minor children together, you can contact the registry office for this purpose. Otherwise, the divorce will be formalized in court.
Moreover, as a general rule, such claims are filed at the place of residence of the defendant. At the same time, the legislation establishes circumstances when a divorce may occur at the plaintiff’s place of residence. For example, if you have small children or for health reasons.
Find out more about what you need to do to file for divorce.
Division of property if both spouses are owners
After being married for many years, spouses acquire a large number of things and buy real estate. If money from the family budget was used for acquisitions, then both husband and wife are the owners. The division of such property during a divorce is usually the simplest.
For this, the law defines two ways:
- Divide through court.
- Make a division by mutual agreement.
If the spouses agree on the distribution of ownership rights to property, then they can settle them without the intervention of judicial authorities. To do this, you need to draw up a separation agreement. This document regulates the distribution of ownership rights to jointly acquired property. The RF IC allows you to sign it both during the existence of the marriage and after the wedding.
The agreement must be certified by a notary. Such an agreement does not allow for the redistribution of ownership rights to personal property. To do this, you will have to draw up a gift agreement.
Property rights can be redistributed to any property, even not yet acquired, if a marriage contract is drawn up. But spouses can sign it only before the wedding and during the existence of the marriage. After a divorce, this is prohibited.
If the spouses cannot reach an agreement regarding the property, then they have the right to file a claim for division in court. Provided that the amount of claims is less than 50 thousand rubles, a statement of claim should be filed in the magistrate’s court, and if more, then in a court of general jurisdiction. You should contact the authority at the place of residence of the defendant. If for some reason this is impossible, then at the location of the property that is subject to division.
On our website you can see a sample statement of claim to the court for the division of a privatized apartment by spouses during a divorce.
Judicial practice shows that the division of joint property, as a rule, occurs in equal shares between spouses.
