How is an apartment purchased with maternity capital divided during a divorce?

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A maternity capital certificate is currently considered the most effective form of government assistance for families with two or more children. This amount can be used to improve living conditions (buying a house, paying off a mortgage). If the parents divorce, this money is also included in the division process when it is used to purchase housing. Let's figure out how a house bought with maternity capital is divided during a divorce.

Is an apartment purchased with maternity capital divided during a divorce?

Maternity capital is a type of state assistance, expressed in monetary terms and issued after the birth of the first or second child in the family. As a rule, these funds can be used to pay for the child’s education, create the most favorable living conditions, and so on.

Expert opinion

How to divide an apartment purchased with the participation of matkapital: explanations from the Armed Forces

The couple went to share an apartment between themselves and their two children, which they purchased mainly with their own money, but maternal capital also helped. The courts were faced with the question: to divide the housing equally into four parts or to recognize the children’s right only to a small “piece” of the share purchased with maternal capital. The Supreme Court made its choice, and commentators blamed the legislator for the gap in the rule of law.

How to take into account maternity capital funds when dividing an apartment between family members was answered by the Supreme Court in one of its recent cases. Maternity capital is divided equally between parents and children. Therefore, if part of the housing is paid for through benefits, children have the right to a share of this “piece”. At the same time, they cannot claim the part that their parents paid (for example, with the help of a loan taken out during marriage). This follows from definition No. 4-KG16-73.

Thus, the Supreme Court resolved the case of the former spouses of the Ivanovs*, who shared in court an apartment in Lobnya near Moscow between themselves and two children - a common minor son and an adult son of his wife from his first marriage. Housing priced at 3.7 million rubles. They acquired it through savings and credit, and maternity capital in the amount of 341,698 rubles also helped. Therefore, Ivanov Sr. believed that adults should get 9/20 shares, and children should get 1/20. His ex-wife, on the contrary, insisted that the shares should be equal - everyone should have 1/4 of the apartment.

The Lobnensky City Court decided to take into account maternal capital funds and recognized the right of each parent to 48/100 of the share, and for the children - to 2/100 (2-511/2016 ~ M-257/2016). But the Moscow Regional Court did not agree with this (33-16242/2016). He recalled the wording of the norm that regulates such situations:

Residential premises purchased using maternity capital funds are registered as the common property of parents and children, with the size of shares determined by agreement (Part 4, Article 10 of the Law “On Additional Measures of State Support for Families with Children”).

Since the Ivanovs did not agree on the distribution of shares in advance, the amount of maternity capital does not matter in the total cost of housing, the Moscow Regional Court decided. Therefore, the shares must be distributed equally among family members - 1/4 each. Moreover, this is more in the interests of the children than the decision of the first instance to allocate them only 1/20, the appeal noted. The Supreme Court did not agree with this and reminded that maternity capital is distributed equally between parents and children, and the younger ones do not have the right to the common property of the elders. With this justification, the Supreme Court overturned the appeal ruling and upheld the first instance decision.

How practice “painted over” the legislative gap

The whole problem lies in an incorrectly formulated provision of the law: it does not say whether the shares should be distributed to the entire residential premises or only to that part of it that was purchased with funds from maternal capital, says Natalya Bakhtina, lawyer at the Yuka Bar Association. Faced with a legal gap, the courts made different decisions: some distributed shares in the right to all housing, others - only to a part, says Bakhtina.

In 2021, the Supreme Court supported the second approach in two reviews of judicial practice, continues project manager Anna Burdina. The Supreme Court reasons logically, but the proportion of children may be so small that it is unlikely to be necessary to talk about priority protection of their interests, notes National Legal Advocate Alina Zelenskaya. At the same time, she says, if housing is purchased only with maternal capital, it is divided equally between parents and children.

“In the Ivanovs’ case, one can argue about the fairness of the judicial act from the point of view of resolving a family conflict. Or about the feasibility of the decision,” says Burdina. “But these questions are more likely to be addressed to the legislator, who incorrectly formulated the norm.” There could be fewer disputes if the spouses determined in advance the shares of the children by agreement or provided for some kind of mandatory compensation for them in the event of divorce and division of housing, Burdina believes. However, as the example of the Ivanovs shows, in practice the spouses cannot adequately agree, she admits.

Evgenia Efimenko, Pravo.Ru

How an apartment purchased with maternity capital is divided during a divorce

If maternity capital funds were used to purchase new residential real estate, then during a divorce, the disputed apartment can be divided.

No.	Section options	Comments
1	Sale of residential premises and division of proceeds between all family members based on the principle of equality	This case provides some nuances. For example, the sale of housing for the purchase of which funds from maternity capital were used for the birth of a child is possible only after the approval of the guardianship and trusteeship authorities. And only after they are convinced of the inviolability of the legally protected rights of children during the specified operation.
2	Payment of compensation for the share of one of the spouses	If a husband and wife decide to refuse the possibility of selling an apartment, then in this case one of the spouses has the right to receive compensation in the form of other property commensurate with the latter’s share of the divisible apartment, for example, a car, furniture, expensive equipment, and so on. The specified compensation can also be expressed in monetary terms.
3	Allocation of shares of disputed housing in kind, that is, division of an apartment into two	This section is practically impossible due to the fact that in order to carry out this procedure, newly created premises must have separate entrances, bathrooms, kitchens and other similar premises. In most cases, dividing apartments in this manner is not feasible. The most likely opportunity for implementing this method is the division of residential real estate, which previously consisted of two apartments and has all the prerequisites for compliance with the building rules and regulations established by law during its actual division.

Features of the division of residential real estate under mortgage during a divorce

In conditions of fierce competition, banks willingly make concessions to borrowers, allowing the resale of collateral. However, this option cannot be applied to a mortgage using a mother’s certificate.

The ban is based on limiting real estate transactions involving government programs, where the main participants are children.

IMPORTANT! Conducting legally significant transactions with housing purchased with the participation of maternal capital is unacceptable until shares have been allocated for all family members, including each child. How to allocate shares to children after paying off the mortgage with maternal capital is written in detail in another article.

In the case where the spouses decide to divorce before the debt obligations to the bank are closed, a number of restrictions are imposed on an apartment with a mortgage with maternity capital during a divorce.

IMPORTANT! Real estate transactions involving mother capital are preceded by obtaining permission from the banking structure, guardianship and trusteeship authorities, if there are minors in the family. How to obtain guardianship permission, read the article - Mortgage guardianship

The guardianship authorities will not give permission to carry out purchase and sale transactions using funds from the state treasury, as well as to rent out part of the housing, even if the former unit of society has collapsed. You will have to agree orally or in writing to pay upcoming fees.

Recommended article: Uralsib Bank Mortgage: programs, conditions, documents

Therefore, dividing the mortgage with maternity capital is the only correct way out in this situation. For the division of property in a mortgage with maternity capital, the legislation of the Russian Federation provides several options:

One of the spouses renounces his share in the apartment or house in favor of the children or the other spouse. In this case, he is paid compensation in cash equivalent to the cost of his part.
Monthly contributions are made according to existing conditions, and the division of square meters occurs after the removal of encumbrances and the allocation of obligatory shares.
The general payment schedule is divided into 2 new ones, where each of the former spouses pays their part. The division of an apartment in a mortgage with maternity capital occurs after full repayment of the debt.
The collateral property is put up for auction (the procedure is indicated in). After the sale, part of the money goes to pay off the debt to the bank. The remainder of the finances is divided equally between the ex-husband and wife.

IMPORTANT! If the spouses have decided to divorce before repaying the mortgage with the participation of maternal capital, they will first have to completely pay off their debt obligations to the bank. Only then will it be possible to allocate shares and divide the real estate property on the grounds established by the legislation of the Russian Federation.

How to divide an apartment purchased with maternity capital during a divorce

The most appropriate and appropriate way to divide residential property during divorce proceedings is to enter into a voluntary agreement between the spouses.

Important! According to practice, this document reflects the fact that common children remain in the care of the spouse. While the husband is preparing a donation agreement for his part of the apartment for the common children, receiving in return other commensurate property, for example, a garage.

In addition, the agreement may stipulate the husband’s ability to transfer his share of the disputed real estate, in exchange for release from the obligation to pay alimony.

Both versions of the agreement must be drawn up in writing and subsequently sent to the judicial authorities.

Once the document has been reviewed for compliance with the rights of minors, subsequent division of property will be carried out in accordance with the provisions of the specified agreement.

If the conclusion of a voluntary agreement due to certain circumstances is impossible, the division of the disputed housing is carried out through judicial proceedings.

In any case, division of children's shares is not permitted. The only thing that can be done with them is to sell them in agreement with the guardianship and trusteeship authorities or exchange them for equivalent or better real estate residential property.

At the same time, the division of an apartment that was purchased with a mortgage, but part of it or the full amount was closed with the help of maternity capital, also has its own characteristics.

Voluntary section

This option involves concluding an agreement by agreement between husband and wife.

According to it, the latter determine the methods and procedure for dividing a jointly acquired apartment obtained with the help of maternity capital.

Depending on the requirements and wishes of each spouse, this document may contain signs of the unequal nature of the division.

Procedure

In order to divide property through a voluntary agreement, a husband and wife must adhere to the following algorithm of actions:

The parties to the transaction determine the list of property, including housing, which will be subject to further division.
The spouses negotiate the procedure for dividing the disputed apartment, as well as the size of the shares going to each of them. In some cases, compensation may be established for part of the real estate owned by one of the members of the couple.
Direct drafting of a text version of the agreement.
Certification of the document by a notary, as well as payment of the state fee.
Re-registration of property rights to a divisible apartment in accordance with the conditions specified in the transaction.

Documentation

In order to carry out the procedure of notarization of an agreement on the division of property, the notary must provide passports or other identifying documents of the spouses.

In some cases, it may be necessary to request a home value assessment report.

Due to the fact that maternity capital funds were used to purchase the apartment, the notary officer will additionally need to submit documents confirming the use of the agreed state assistance in accordance with its intended purpose.

Sample list:

passports of spouses;
children's birth certificates;
documents for the apartment;
obligation to partition;
text of the agreement;
receipt of payment of the registration fee (when submitting the registration agreement).

Price

According to Art. 333.24 of the Tax Code of the Russian Federation, the amount of the state fee charged for notarization of an agreement is 0.5% of the transaction amount.

At the same time, this tax has certain restrictions, namely, from 300 to 20,000 rubles.

Together with these spouses, you will have to incur additional costs for notary services. And also for carrying out the procedure for re-registration of property rights to newly created shares of the disputed real estate.

The fee for re-registration of property rights in Rosreestr for each spouse will be 2,000 rubles.

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

A fine of five times the cost of goods for each month and other changes to the law “On the Protection of Consumer Rights”

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

Trial

This option is an alternative to concluding an agreement. It is used if the husband and wife could not find common ground in the survey of the residential real estate section.

According to practice, the court makes a decision to divide the disputed apartment in equal shares between the spouses.

Taking into account the fact that maternity capital funds were used to purchase such real estate, division can only be made in relation to parental shares. Since spouses cannot claim the shares of children.

Procedure

In order to effect a legal division, a husband and wife must take the following steps:

Conduct an assessment of the property subject to division, which includes the disputed apartment.
Prepare all the necessary documentation for applying to the judicial authorities, as well as draw up a statement of claim.
Pay the state fee and send the claim to court.
Take part in the consideration of the claim based on the essence of the stated requirements and wait for the court to make an appropriate decision.
Take all necessary actions to comply with the orders reflected in the court decision. If one of the spouses evades fulfillment of these requirements, the interested party has the right to suppress these actions by contacting the executive service authorities.

In the future, after receiving a court decision, the parties to the dispute will have to register the disputed housing again, in the shares determined by the court. Registration is also possible forcibly through a writ of execution.

Statement of claim

This document must be drawn up in accordance with the requirements of Art. 131 of the Code of Civil Procedure of the Russian Federation and must contain the following information:

name of the judicial authority;
personal data of the plaintiff and defendants such as full name, residential address, contacts;
price of the statement of claim;
the circumstances that served as the reason for going to court, information about the pre-trial settlement of the dispute, as well as the procedure for the use of disputed property by spouses in force at the time of consideration of the claim;
the plaintiff’s position regarding the fair division of residential real estate, confirmed by the norms of current legislation;
evidence and arguments in defense of claims;
a formulated demand for division;
list of attached documents;
signature and date of preparation.

Sample statement of claim for division of an apartment purchased with maternity capital

In this case, it is difficult to provide a universal template, so you can use the basic template of a claim for division of property. In any case, it is better to enlist the support of an experienced lawyer before going to court.

Documentation

In order for the statement of claim not to be sent for revision, the following package of documents must be attached to it:

copies of passports of the parties to the case;
copies of claims for all participants in the process;
confirmation of payment of state duty;
certificate of divorce;
documents confirming the use of maternity capital funds for their intended purpose;
child's birth certificate;
report on the estimated value of the disputed apartment;
other documents that are essential for a full and comprehensive consideration of the case on its merits.

Documents are provided in copies, but the originals must be brought to court in case they need to be shown to the judge.

Price

Taking into account the fact that this category of claims is of a property nature, the applicant must pay the state fee.

According to Art. 333.19 of the Tax Code of the Russian Federation, the amount of the state duty is calculated based on the total amount of the claim price.

The amount of this tax cannot be less than 400 rubles or more than 60,000 rubles.