Review of judicial practice on property disputes between ex-husband and wife

Not all couples are destined to live happily ever after. When spouses fail to peacefully resolve the issue of property, property is divided through the courts. The consideration of disputes takes place according to the norms of the Family Code.

The division of property can be addressed to the magistrate's court if the amount in dispute does not exceed fifty thousand rubles. The division of property is established by the jurisdiction of the Civil Procedure Code.

Features of the division of property between spouses

Living together in marriage means that the spouses lead a common household. If the husband worked and the wife took care of the house or raised children, the acquisitions are considered common.

Other conditions, such as how to divide real estate and other property, can be determined by the husband and wife in a marriage contract. For example, spouses may determine that the property becomes separate property. The document receives legal force after certification by a notary office.

If the spouses manage to resolve the issue peacefully, an agreement on division of property is signed. The agreement specifies all essential aspects.

How to file a claim for division of property in a civil marriage?

It is not very difficult to file a claim for the division of property acquired during the period of cohabitation. However, before preparing a claim, it is necessary to determine the requirements of the claim. As stated above, a civil marriage is not regulated by the norms of family law, and therefore, in the issue of division of property in a civil marriage, the question initially arises of proving that the property is joint. The next question is the issue of recognition of ownership of a part of such property, and then either the allocation of a share, or payment of the cost of the share, etc.

The claim is drawn up in compliance with the general requirements of procedural law and must contain an indication of the court to which it is filed, information about the plaintiff and defendant, indicating full names, addresses, and telephone numbers. Also, information about the defendant must be indicated on the date and place of birth, place of work, if known, and, as stated in Article 131 of the Code of Civil Procedure of the Russian Federation, one of the identifiers (SNILS, INN, passport series and number, OGRNIP, driver's license series and number certificates, vehicle registration certificates).

A statement of claim for division of property after a civil marriage must contain:

• description of the property and participation in the acquisition of each member of the dispute
• a list of attached documents confirming the facts of depositing funds
• list of witnesses who can confirm joint management of the household and budget
• list of requirements, which indicates all acquired property in a civil marriage, which is claimed by the party, in prices according to supporting documents
• directly in the text of the claim all the circumstances of the case related to cohabitation and the acquisition of property are set out in detail
• The claim can also include information about witnesses who can confirm certain facts related to the acquisition of property.
• this document must contain references to the rules of law, an indication of the specific requirements that the plaintiff declares, a list of documents attached to the claim
• in support of the plaintiff’s arguments, at the end of the document there must be a signature, an explanation of the signature and the date indicated.

ATTENTION : an important point in preparing a claim is the correct formulation of the stated requirements. Order filing a claim in court with the help of our lawyer for civil marriage disputes

Determining the value of property

The division of the spouses' common property is made after the market price of the property has been determined. The assessment is carried out by an expert. The claim may indicate the cadastral price. If the other party has objections, the cost of housing is determined by an expert examination. The assessment procedure is determined by the Law “On Valuation Activities”.

Reasons to have your property appraised:

• find out the amount of duty. The payment amount directly depends on the value of the property.
• clarify the amount of compensation payments. The property valuation will show the real price. Compensation is paid for an equitable division of property.

Nuances of litigation

If the division of property is carried out through the court, then the following nuances must be taken into account:

1. Determination of the composition of common property. The list of jointly acquired property is determined by the plaintiff. If the defendant does not agree with the list, he can file an objection to the claim.
2. Conducting an assessment. One of the parties to the proceedings may request a forensic examination. This will allow you to establish the value of the property.
3. Percentage of shares. According to current legislation, property between former spouses is divided 50/50. However, the share of one of them can be increased. For example, if a minor child remains with the spouse.

Typical mistakes of parties in court

The parties make a number of mistakes in court that you need to familiarize yourself with:

1. The husband demands to leave him most of the house that was built during the marriage. He argues that the wife did not work and did not invest money in the family budget. However, it later turns out that the wife was engaged in housekeeping and raising children. The spouse's demands will not be accepted by the court.
2. The wife took out a mortgage before marriage. She contributed part of the funds before the relationship was legitimized, and the remaining amount after. In court, the ex-wife demanded that the apartment be awarded to her, but the judge recognized it as joint property. This is due to the fact that the citizen repaid part of the debt already during marriage, which means that funds from the family budget were used.
3. The wife demands that most of the property be awarded to her, since a minor child remains with her. However, the court will not take such an argument into account. This is due to the fact that children do not have the right to claim property owned by their parents.

Payment of compensation upon division of property

There is property that is difficult to divide. For example, when it comes to a vehicle. In this case, the spouse who receives the car must pay monetary compensation to the other.

How long does the trial last?

Such cases can be considered for several months. The trial will be significantly delayed if the spouses file objections.

How much will it cost to divide property through court?

If we talk about the amount of the state fee for filing an application, it will depend on the cost of the claim. The minimum duty amount is 400 rubles, the maximum is 50,000 rubles.

Example of determining the value of property

The Kuznetsov couple decided to divorce. During their marriage, the wife and husband acquired property: an apartment, a car, a dacha and a plot of land. Kuznetsova calculated that her share was one and a half million rubles. The man did not agree with his wife’s demands. The appraisal company drafted a different response.

Examination report

• the price of an apartment on the market is one million rubles;
• the car costs five hundred thousand;
• the price for a country house with land is seven hundred thousand.

Bottom line. The total value of property acquired during the period of marriage was two million two hundred thousand rubles. Each party is entitled to a share of one million one hundred thousand rubles.

Based on information from the Technical Inventory Bureau, a different cost is determined. The apartment costs seven hundred thousand, the car costs three hundred thousand. The price for a country house and land plot is five hundred thousand.

The result of the assessment: the price of the property is one million five hundred fifty thousand rubles. Each party's share was seven hundred and fifty thousand.

Examples of claims and court decisions

Judicial practice on the division of property is varied. Let's look at a couple of examples.

Example 1

The court considered the wife's claim for division of property along with the divorce proceedings. The wife asked to award her:

• half of the apartment;
• half the cost of the vehicle the couple sold 3 years ago;
• half of furniture and consumer electronics.

As a result, the wife received half of the furniture and consumer electronics. This is due to the following circumstances:

1. My husband's parents were involved in purchasing the apartment.
2. The car, sold 3 years ago, also belonged to my husband’s parents. And the spouse’s claims were refused because the statute of limitations had passed.
3. Furniture and consumer electronics were purchased by the spouses during their marriage and with common money.

Example 2

At the time of marriage, the husband had a one-room apartment, which he sold after legalizing the relationship. The couple added additional funds to the existing amount and purchased a three-room apartment.

According to the documents, the husband was the owner of the new home, since the wife agreed with this. Two years later, the wife wanted a divorce and demanded that she be awarded half of the apartment. As a result, the wife received only a quarter of the cost of housing. This is due to the following circumstances:

1. After conducting examinations, it turned out that the cost of a three-room apartment was twice as high as the sold one-room apartment. It follows from this that the spouses jointly own only half of the home.
2. The second half belongs to the husband, since he contributed his own money to buy the three-ruble note.
3. As a result, the spouse can claim to receive ¾ of the apartment, and the wife – a quarter of the cost of housing.

Duty calculation

The payment amount depends on the price of the property. The division of property in court is not carried out until a receipt for payment of the fee is presented.

Table for calculating the amount of duty

Division of debts during division of property

As you know, rights give rise to responsibilities, therefore, having property rights, spouses also have various obligations.

As a rule, the common debts of the spouses and the rights of claim are distributed by the court between the spouses in proportion to the shares awarded to them (Article 45 of the RF IC).

Obligations may arise between spouses both before marriage and during marriage. They can be general, but can only apply to one of the spouses:

• premarital obligations;
• obligations that arose during marriage, but which the spouse entered into by disposing of his own and not common property;
• obligations inextricably linked with a person, for example, for compensation for harm caused to life and health (tort), alimony obligations.

For all of the above obligations, the spouse is liable exclusively with personal property. If personal property is not enough to fully repay debts, creditors have the right to demand the allocation of the debtor's share in the common property to foreclose on it (Article 255 of the Civil Code of the Russian Federation).

Debts incurred during marriage are recognized as common obligations of spouses . These include:

• joint obligations or debts, in which only one spouse is the debtor, but they arose in the interests of the family (improving living conditions, maintaining children, purchasing household appliances, repairs, etc.);
• tortious obligations, when the spouses committed actions that caused harm to third parties;
• obligations arising from unjust enrichment;
• obligations for which spouses are responsible jointly, for example, paying utility bills.

For joint debts or obligations, spouses are liable with common property in proportion to the shares awarded to them. However, there are often cases when the common property is not enough to pay off debts, then each of the spouses bears joint liability with their property .

Quite often situations arise when spouses develop debt obligations that extend over a long period of time. These could be loans for the purchase of certain things, car loans, or mortgages. If a debt or loan was taken out before marriage, then the spouse who took it will be obliged to repay it. The second spouse is not responsible for these debts .

Loans incurred after marriage will be required to be repaid by both spouses, regardless of which of them entered into the loan agreement, if it is proven in court that the loan money was used in the interests of the family.

Expenditures in the interests of the family include repairs in a shared apartment or the purchase of household appliances. Moreover, it should be noted that debts acquired during marriage are distributed between spouses in proportion to their shares.

In the case where the loan was taken to satisfy exclusively the personal needs of one of the spouses, for example, the purchase of personal items, improvement of personal or inherited property, the responsibility for repaying it arises only from the spouse for whom the loan was issued.

Currently, car loans have become widespread. It should be noted that if a loan is taken out for the purchase of a car or other indivisible property, then the debt is recognized by the spouse in whose name this property is registered. And the second spouse in court has the right to demand compensation for his share in the property purchased on debt. As for the balance of the debt, it is distributed according to shares.

The issue of distribution of debts and property rights to real estate arising from mortgage obligations is quite relevant in our time. Thus, an apartment or residential building purchased with a mortgage is divided equally between spouses. In this case, it does not matter with which spouse the loan agreement was concluded. The spouses will have to repay the mortgage loan in proportion to the shares awarded to them. Sometimes credit institutions express disagreement with receiving an apartment secured by collateral in shared ownership. But in judicial practice, this fact does not significantly affect the decision in the case. It is important to note that the court does not care whether the second spouse acted as a guarantor when applying for a mortgage or not.

Rules for filing a claim

Disputes worth more than fifty thousand rubles are considered in the district court. As a general rule, the application is filed with the court at the place where the defendant lives.

The statement of claim is sent to the court office at the place where the property is located. When several objects are divided, the claim is filed at the location of one of them.

Important! The parties have the right to independently determine where to divide property during a divorce, if it is necessary to dissolve the marriage, or to obtain payments for children.

The legislative framework

The basis of any legal process is the current regulations. Representatives of the third branch of government stand up for the law, which is often difficult for those getting divorced to understand. Before seeking protection from a person wearing a robe, you should study the following documents:

• Articles 34 – 39 IC, interpreting the procedure for dividing property
• Resolution of the Plenum of the Supreme Court No. 15, adopted on November 5, 1998, interpreting the enforcement of paragraphs of the SK.

Attention: in the process of considering a specific situation, the court may rely on other regulations. The above are the main ones.

Experts unanimously agree that the best solution is the consent of the parties. This is proven by the following rules identified in the process of considering many cases:

• former partners spend energy, nerves and money on conducting the process;
• as a result, they receive a document: indicating what property now belongs to whom;
• not taking into account: the preferences of the parties;
• methods of its isolation in nature;

After studying the results of often months-long battles, people begin to look for a way to divide property during a divorce without a trial. Sometimes they try to change the received decision. But it was so easy to agree from the very beginning, but it’s too late.

Important: a court verdict can only be changed after a retrial.

And this is again a waste:

• strength;
• time;
• funds.

Let's look at an example. The Radugins decided to divorce. They acquired little property:

• motorbike;
• automatic washing machine;
• a few pieces of furniture.

But they managed to give birth to two children.

Due to legal illiteracy, both refused to resolve the issue amicably, that is, to draw up an agreement on the division of property, taking into account the children.

Radugina filed a lawsuit in court.

The court considered all the circumstances, consisting of the following (the main ones are listed):

• children stay with mother;
• will actually live with her parents;
• furniture and a washing machine (automatic) are installed in the house of the ex-spouse’s parents, where he will continue to live.

The court's verdict was as follows:

1. The value of the goods for which the claim is filed is small. Taking into account the fact that the minors will live with their mother, she is left with a more valuable item - a motorcycle. It can be sold or rented out, thereby increasing the amount of money to support children.
2. The rest goes to Radugin.

Thus, the wife found herself in possession of an item she did not need. And the husband still had things necessary, from the point of view, to support the children.

The nuances of drawing up a statement of claim

The answer to the question of how to win a property division court depends on two factors:

• correct preparation of the statement of claim;
• availability of evidence.

7 main points of the claim:

1. Name of the judicial authority.
2. Last names, first names and patronymics of the parties.
3. The essence of the violations.
4. Circumstances of the case.
5. Evidence of the plaintiff's position.
6. Amount of claim.
7. List of applications.

Advice. Do not forget to attach to your claim a receipt confirming payment of the fee. Otherwise, the judge will issue a ruling to dismiss the claim.

Answer the following questions in your claim:

• are you married?
• Are you asking to dissolve the marriage?
• what property are you asking to be allocated in your favor;
• reasons for this section option.

At the end of the claim, you need to make a link to the articles of the Family Code and indicate your requirements.

General rules for the division of joint real estate

In accordance with the Family Code of the Russian Federation, everything that the spouses bought during their official marriage with money from the common budget becomes joint property, which, upon divorce, is divided in half between them. The circumstances of to whom the rights to housing are registered or from whose account the money was transferred under the purchase and sale agreement are not taken into account. Moreover, a non-working wife who took care of the house and children during the marriage will have equal rights to the immovable property.

The law specifies what can be acquired as joint property, and the list includes real estate.

In fact, the apartment is divided according to the following algorithm:

1. First, each spouse is recognized with the right of individual ownership of half of the home, that is, a nominal division occurs. If there is a compromise between a couple, this is formalized by a notarial agreement, without - in court. According to the rules for the division of marital property, the apartment can be transferred to one of the spouses, and the other spouse can receive commensurate monetary compensation or other property of equal value. Only the owner will retain the right to reside in the apartment;
2. After the allocation of a share in the apartment, during the divorce of the spouses, the object is divided into two independent ones or a joint sale.

Often, simultaneously with a dispute over housing, spouses want to divide the repairs made during their family life. To the question of how repairs are divided, the answer is clear: restoration improvements to real estate in themselves are not an object of common property, and therefore are not subject to division in a divorce.

Here is an illustrative confirmation of this. After the divorce, the husband went to court with a demand for the division of the joint apartment and the repairs made in it: suspended ceilings, glazing of the loggia and interior doors. The court refused to divide the repairs, explaining that these improvements are inseparable elements of the home and are not independent objects of ownership. In addition, the repair work was carried out by mutual agreement for the comfort of the whole family (Appeal ruling of the Krasnoyarsk Regional Court dated June 29, 2016 in case No. 33-8476/2016).

Attachments to the statement of claim

The following attachments are also attached to the application:

• several copies of the claim. The number of copies depends on the number of persons who take part in the division of property during division;
• calculation of the cost of claims;
• power of attorney, if the interests of the party are represented by a lawyer;
• evidence of claims;
• a receipt confirming payment of the fee for the division of joint property of the spouses.

The claim specifies the date of purchase of the property and the cost. You can separately indicate how much the price for each piece of property is for the division of the property of the spouses. The claimant has the right to apply for interim measures.

Important! You can ask the judge for interim measures if you believe your opponent will take steps to give away the property or sell it.

Case N41-КГ15-11. On the division of jointly acquired property.

Laws and codes » Family Code of the Russian Federation » Section IV. Rights and responsibilities of parents and children » Chapter 11. Rights of minor children » Article 60. Property rights of the child » Case N41-КГ15-11. On the division of jointly acquired property. SUPREME COURT OF THE RUSSIAN FEDERATION

DEFINITION

dated July 14, 2015 N 41-KG15-11

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, consisting of:

presiding Klikushin A.A.,

judges Vavilycheva T.Yu. and Yuryeva I.M.

considered in open court the case on the claim of Kemenchizhi I.P. to Kemenchizhi G.Yu. on the division of jointly acquired property

on the cassation appeal of Irina Petrovna Kemenchizhi against the decision of the Zimovnikovsky District Court of the Rostov Region dated March 14, 2014 and the appeal ruling of the judicial panel for civil cases of the Rostov Regional Court dated July 22, 2014.

Having heard the report of the judge of the Supreme Court of the Russian Federation T.Yu. Vavilycheva, the explanations of I.P. Kemenchizhi, her representative - lawyer S.G. Grigoriev, who supported the arguments of the cassation appeal,

Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation

installed:

Kemenchizhi I.P. appealed to the court to Kemenchizhi G.Yu. on the division of jointly acquired property, indicating that the parties were married and have a son, Kemenchizhi D. <…> year of birth. During the marriage, real estate was acquired - a residential building and a plot of land. Kemenchizhi I.P. asked to make a division of the specified property, departing from the beginning of the equality of shares of the spouses, based on the interests of the minor child.

By the decision of the Zimovnikovsky District Court of the Rostov Region dated March 14, 2014, the claims of Kemenchizhi I.P. to Kemenchizhi G.Yu. Partially satisfied, the joint property of the spouses was divided.

For Kemenchizhi G.Yu. ownership of a 1/2 share in the ownership of a residential building with a total area of ​​<...> sq. was recognized. m, including living area <…> sq. m, located at the address: <...>, while the share in the ownership of Kemenchizhi I.P. is reduced. up to % share.

Changes were made to the Unified State Register of Rights in the entry on the right of Kemenchizhi I.P. for this residential building, her ownership in the amount of a % share is indicated, as well as a record of the ownership of Kemenchizhi G.Yu. for this house in the amount of 1/2 share.

For Kemenchizhi G.Yu. ownership of a % share in the ownership of a land plot with an area of ​​<...> sq. m, located at the address: <...>, while the share in the ownership of Kemenchizhi I.P. is reduced. up to 1/2 share. Changes were made to the Unified State Register of Rights in the entry on the right of Kemenchizhi I.P. for this land plot, her ownership in the amount of 1/2 share is indicated, as well as a record of ownership of Kemenchizhi G.Yu. for this land plot in the amount of 1/2 share.

By the appeal ruling of the judicial panel for civil cases of the Rostov Regional Court dated July 22, 2014, this court decision was left unchanged.

In the cassation appeal, the applicant raises the question of transferring it with the case for consideration at a court hearing of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation and canceling the above court decisions due to a significant violation of substantive law.

By the ruling of the judge of the Supreme Court of the Russian Federation, Vavilycheva T.Yu. dated May 25, 2015, the applicant’s cassation appeal with the case was transferred for consideration at a court hearing of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation.

Having checked the case materials and discussed the arguments of the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds that there are grounds for canceling the appealed court decisions provided for in Article 387 of the Civil Procedure Code of the Russian Federation.

The grounds for canceling or changing court decisions in cassation are significant violations of substantive law or procedural law that influenced the outcome of the case and without eliminating which it is impossible to restore and protect violated rights, freedoms and legitimate interests, as well as the protection of public interests protected by law ( Article 387 of the Civil Procedure Code of the Russian Federation).

Such violations of substantive and procedural law were committed by the courts of first and appellate instances.

As established by the court, the parties were married, which was terminated on February 25, 2013, and have a child - Kemenchizhi D. <...> year of birth (case sheet 9, 10).</…>

During the period of marriage, on the basis of a purchase and sale agreement dated January 20, 2006, the Kemenchizhi spouses acquired ownership of a land plot with an area of ​​<...> sq. m. m and a residential building with an area of ​​<…> sq. m, located at: <…> (ld. 12, 14).

Resolving the dispute and determining the parties' shares in the property jointly acquired during the marriage to be equal, the court of first instance proceeded from the fact that Kemenchizhi I.P. no evidence has been presented confirming the existence of exceptional circumstances with which the law connects the possibility of derogating from the beginning of equality of shares of spouses in their common property, and in particular, infringing on the interests of a minor child.

The appellate court agreed with the conclusions of the trial court, citing the fact that the circumstances indicated by the plaintiff about the child’s illness, the child’s residence with her, the father’s failure to participate in the maintenance and upbringing of his son, and the presence of alimony arrears cannot serve as a basis for deviation from the principle equality of shares of spouses in their joint property.

The judicial panel also indicated that the determination of the parties’ shares in the disputed property does not limit the rights of their son to use this property, and therefore the rights of the child during the division of home ownership in equal shares will not be affected and there are no grounds for increasing the plaintiff’s marital share at the expense of the child’s interests .

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds that the conclusions of the courts of first and appellate instances are based on incorrect interpretation and application of the rules of substantive law governing controversial legal relations.

According to the general rule established by paragraph 1 of Article 39 of the Family Code of the Russian Federation, when dividing the common property of spouses and determining the shares in this property, the shares of the spouses are recognized as equal.

According to paragraph 2 of Article 39 of the Family Code of the Russian Federation, the court has the right to deviate from the beginning of equality of shares of spouses in their common property based on the interests of minor children and (or) based on the noteworthy interest of one of the spouses, in particular, in cases where the other spouse did not receive income for unjustified reasons or spent the common property of the spouses to the detriment of the interests of the family.

In accordance with the explanations contained in paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 15 “On the application of legislation by courts when considering divorce cases”, when dividing property that is the common joint property of spouses, the court in accordance with paragraph 2 of Article 39 of the Family Code of the Russian Federation may, in individual cases, deviate from the beginning of equality of shares of spouses, taking into account the interests of minor children and (or) the noteworthy interests of one of the spouses.

As follows from the content of the above provisions of the law and explanations, the court has the right to deviate from the beginning of equality of shares of spouses in their common property if there are several reasons. However, the law does not require a combination of these grounds. In particular, such an independent basis is, first of all, the interests of minor children.

Deviation from the beginning of equality of shares of spouses in their common property based on the interests of minor children is also consistent with the constitutional principle enshrined in Part 2 of Article 7, Part 1 of Article 38 of the Constitution of the Russian Federation.

The law does not contain a list of the interests of minor children that deserve attention, taking into account which the court has the right to deviate from the beginning of equality of shares of spouses in common property.

The specified reasons (circumstances) are established in each specific case, taking into account the evidence presented by the parties. In this case, these reasons and the evidence presented in support of them must be assessed by the court in their entirety (Part 4 of Article 67 of the Civil Procedure Code of the Russian Federation), citing the reasons why this evidence was accepted to support the court’s conclusions, or rejected by the court (Part 4 of Article 198 of the Civil Procedure Code of the Russian Federation). procedural code of the Russian Federation).

Referring to paragraph 2 of Article 39 of the Family Code of the Russian Federation, precisely taking into account the interests of the minor disabled son Kemenchizhi I.P. and asked to increase the size of her share in the property jointly acquired with Kemenchizhi G.Yu. property.

At the same time, she motivated her demand by the fact that the minor son of Kemenchizhi D., <...> year of birth, is a disabled person who needs a separate room for living and studying, taking into account the existing diagnosis - mental retardation of a mild degree of complex genesis with behavioral disorders and 2nd degree restrictions (cannot classify objects according to characteristics and identify opinions, spatial and temporal concepts have not been formed, inadequate style of interaction with peers, at the age of 15 she is studying in the 2nd grade program), the plaintiff does not have any other living quarters and she needs to support the child’s financial resources, taking into account the interests of the child his standard of living even after the division of property and the dissolution of the marriage between his parents is at the same level. In addition, Kemenchizhi I.P. drew the court's attention to the fact that in the event of the division of the disputed property without deviating from equality of shares, she would be able to purchase only a one-room apartment without a land plot; accordingly, she and her disabled son would have one living room for two, and therefore he would not be able to fully engage in studies, taking into account that he is in individual home study, and also relax.

Article 195 of the Civil Procedure Code of the Russian Federation establishes that a court decision must be lawful and justified.

Paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 19, 2003 No. 23 “On the Judicial Decision” clarifies that a decision can be considered legal in the case when it is made in strict compliance with the norms of procedural law and in full compliance with the norms of substantive law.

The decision is justified when the facts relevant to the case are confirmed by evidence examined by the court that meets the requirements of the law on their relevance and admissibility, or by circumstances that do not require proof (Articles 55, 59 - 61, 67 of the Civil Procedure Code of the Russian Federation), as well as when it contains exhaustive conclusions of the court arising from the established facts.

According to Part 2 of Article 56 of the Civil Procedure Code of the Russian Federation, the court determines what circumstances are important for the case, which party must prove them, and brings the circumstances up for discussion, even if the parties did not refer to any of them.

Meanwhile, making a decision to refuse to increase the share of Kemenchizhi I.P. in property jointly acquired by the spouses, the court actually left the arguments presented by the applicant without attention, the circumstances relating to the interests of a minor child living with the plaintiff, the court in violation of part 2 of Article 56 of the Civil Procedure Code of the Russian Federation when dividing the common property of the spouses, taking into account the arguments of Kemenchizhi I. P. were not identified as legally significant for the correct resolution of the dispute, they were not included in the subject of evidence in the case and did not receive a legal assessment by the court.

Rejecting the cited Kimenchizhi I.P. In support of the claim, arguments supported by relevant evidence, the courts of the first and second instances did not provide reasons why the circumstances indicated by the plaintiff cannot be classified as worthy of attention, with which the law associates the possibility of deviating from the equality of shares of spouses in common property.

According to parts 1 - 3 of Article 67 of the Civil Procedure Code of the Russian Federation, the court evaluates evidence according to its internal conviction, based on a comprehensive, complete, objective and direct examination of the evidence available in the case. No evidence has predetermined value for the court. The court evaluates the relevance, admissibility, reliability of each evidence separately, as well as the sufficiency and interconnection of the evidence in its entirety.

As the Constitutional Court of the Russian Federation has repeatedly pointed out, the assessment of evidence and the reflection of its results in a judicial decision is one of the manifestations of the discretionary powers of the court necessary for the administration of justice, arising from the principle of independence of the judiciary, which, however, does not imply the possibility of the court evaluating evidence arbitrarily and in contradictions with the law (Resolution of the Constitutional Court of the Russian Federation of June 5, 2012 No. 13-P).

These legal requirements were not met by the courts of first and second instance.

The appeal court's reference to the absence of grounds for increasing the marital share at the expense of the child's interests, since the determination of the parties' shares in the disputed property does not limit the rights of their son to use this property, is based on an erroneous interpretation of paragraph 2 of Article 39 of the Family Code of the Russian Federation.

In itself, the court’s consideration of the interests of children when determining the shares of spouses in common property does not affect the attitude of children to this property, since paragraph 4 of Article 60 of the Family Code of the Russian Federation enshrines the principle of separation of property of parents and children.

As stated above, Kemenchizhi I.P. did not raise the question of allocating the child from the property jointly acquired during the marriage with Kemenchizhi G.Yu. property of an independent share, but about increasing its share in the common property of the spouses upon its division on the basis of Article 39 of the Family Code of the Russian Federation. At the same time, the courts did not take into account that the defendant has arrears in paying alimony, which, together with the division of the spouses’ property, will lead to a deterioration in the child’s financial situation, since the property that he could previously freely own and use may become inaccessible to him or access to it is significantly limited, which acquires special significance for him as a disabled person who, for health reasons, needs additional care, requiring corresponding material costs.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds the violations of substantive and procedural law committed by the court of first instance and not eliminated by the court of appeal to be significant, affecting the outcome of the case, without the elimination of which it is impossible to restore and protect the violated rights and legitimate interests of Kemenchizhi I.P. and her minor son.

Taking into account the above, the Judicial Collegium believes that the decision of the Zimovnikovsky District Court of the Rostov Region dated March 14, 2014 and the appeal ruling of the Judicial Collegium for Civil Cases of the Rostov Regional Court dated July 22, 2014 are subject to cancellation and the case is sent for a new trial to the court of first instance.

When reconsidering the case, the court should take into account the above, taking into account all the circumstances established in the present case and in compliance with the requirements of substantive and procedural law, resolve the dispute regarding the division of jointly acquired property.

Guided by Articles 387, 388, 390 of the Civil Procedure Code of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation

determined:

the decision of the Zimovnikovsky District Court of the Rostov Region dated March 14, 2014 and the appeal ruling of the judicial panel for civil cases of the Rostov Regional Court dated July 22, 2014 are canceled and the case is sent for a new trial to the court of first instance.

How are improvements that cannot be separated divided?

In practice, it can be difficult to divide the jointly acquired property of spouses. For example, a couple bought an apartment. We did some renovations and installed built-in furniture. The nuances of dispute resolution are determined by judicial practice on the division of property.

An example from the practice of the Gagarinsky District Court of Moscow

The crux of the matter. The parties were married for six years from 2004 to 2010. Until this time, a woman was in a marriage union with another man. The land and house were purchased during the first marriage. During the divorce, the spouses had disputes over the division of property.

Court findings

1. Purchases that the husband and wife made during the marriage become joint property (Article 34 of the Family Code).
2. Separate property is property that a husband and wife received before the relationship was officially registered. Separate property also includes property received by each party as a gift or inheritance.
3. The court of first instance found that the house was built by the woman together with her first husband. Also during the first marriage, major home improvement work was carried out. During the period of marriage with the plaintiff, only minor improvements were made to the house and surrounding area.
4. Witnesses confirm that the landscaping work was done by the defendant together with the first spouse.
5. Evidence of the defendant’s position: witness statements, audio and video recordings, documents.
6. There is no reason to trust the testimony of the plaintiff's witnesses. There is no evidence that witnesses from the plaintiff's side entered the house. In addition, the witnesses have discrepancies in their testimony.
7. Expert testimony and documents confirm that during the period of their marriage the parties carried out work and purchased things in the amount of 220,398.86 rubles.
8. Furniture and things purchased for the plaintiff’s child are not subject to division.
9. The court accepts that the parties equally participated in the purchase of furniture and household appliances. Therefore, the plaintiff is entitled to compensation in the amount of 146,363.68 rubles.
10. There are no grounds to demand from the defendant the gifts made by the plaintiff, since there is no evidence that the donated items are in the possession of the plaintiff.

Final verdict

The house and land remain the property of the defendant. The plaintiff is given some pieces of household furniture, other acquisitions made during marriage, as well as monetary compensation in the amount of 146,363.68 rubles.

Judicial practice on the division of property between a wife and husband after a divorce shows that winning a dispute is not easy. To prove inseparable improvements, evidence must be provided. The set of evidence used in court divorce was determined by the Civil Procedure Code.

Key evidence in the trial:

• receipts, checks;
• witness statements;
• video and audio recordings.

When dividing marital property, judicial practice shows that all types of evidence provided for by law are used.

Decisions on the division of property are based on the provisions of the Family Code. Purchases made during the period of marriage become common property. Gifts made by a husband to his wife are community property when dividing property.

Example. The Vasilev couple decided to divorce. During their marriage, the man gave his wife a mink coat, as well as a ring and earrings with diamonds. For the purpose of dividing property between spouses, items given to the wife will also be considered joint property.

The court decision on division shows that acquisitions registered in the name of a child are not subject to division. For example, parents bought a wall for their child to play sports and made a financial contribution. Acquisitions remain the children's property and are not shared.

The concept and features of civil marriage

Despite the fairly common phrase “civil marriage,” such a concept is not enshrined in any way by current legislation. By default, it represents the usual cohabitation of two people, during which they can also acquire certain property, including real estate and other valuables.

This type of cohabitation is not protected in any way by the state, therefore, if people decide to separate, the process of dividing property will immediately create additional problems and serious difficulties.

In accordance with the provisions of the Civil Code of the Russian Federation, all property acquired by two persons during cohabitation, in the absence of an officially concluded marriage union, can be divided into two main categories:

• Separate property. Under this regime, certain material assets will belong to the person who made their purchase or payment;
• Joint shared ownership. This category includes all things that were purchased with general funds.

Consequently, if during the cohabitation a woman did not work, but, for example, took care of the house, while the man’s responsibilities included providing them with financial support, she will not be able to claim absolutely to receive certain values ​​in the event of division.

Existing judicial practice also shows that if a woman has unofficial earnings that cannot be documented, it will also be practically impossible to obtain a certain share of the property.

How are liabilities divided?

The debts of the spouses are also common. If during the period of marriage the couple took out a loan for a car, then the money will have to be returned to the bank through joint efforts.

In judicial practice, the debts of the wife and husband are divided according to Article 39 of the Family Code. The amount of debt depends on the size of shares awarded to each party.

Important! Debt obligations are recognized as general if the money was spent on family needs.

The rule when marital debts are recognized as common was established by paragraph 2 of Article 45 of the Family Code. The party claiming division of debts must prove that the money was used for the benefit of all family members.

Special cases

Having children

If a couple living in an unregistered marriage has a common minor child, then its presence does not affect the procedure for dividing property between them. A parent living with a child after separation from the other parent cannot receive the increased share provided for by the Family Code, since civil marriage is not regulated by family law.

However, this fact does not mean that a child born in a civil marriage does not have the right to alimony payments or cannot be the heir of his parents. These rights of a minor are closely related to the establishment of paternity or maternity.

Possible options for legal regulation of the situation are indicated in the table.

After death

A cohabitant does not have the right to legally inherit the property of a common-law partner, since he is not the official spouse of the deceased. At the same time, inheritance of property by will is allowed if the deceased cohabitant indicates the other partner as his heir.

Jointly owned

If the partners in a civil marriage have in their hands a document from the registration authorities that confirms the division of the disputed item into shares, or a written agreement on the determination of shares, then the following methods of dividing property are possible:

• One cohabitant demands to allocate a share, and the second cohabitant wants to keep the property intact. The person who wishes to divide the disputed asset has an advantage under the law. The other party intending to keep the item is obliged to transfer monetary or other compensation.
• One partner wants to receive his share in kind, for example, to exchange a house for 2 apartments, and the second partner intends to pay compensation to the first. In this case, the resolution of the dispute depends on the party wishing to allocate the share. The law does not allow forced payment of compensation without the consent of the party intending to divide the property. However, if the cohabitant’s share in the disputed asset is small, then his consent to the transfer of compensation is not required.

Unregistered property

This chapter will discuss the rules regarding the division of disputed assets that are not registered with government agencies, such as real estate or a car. Such property includes, for example:

• Furniture.
• Appliances.
• Jewelry.
• Luxuries.

Upon separation, they will go to the cohabitant who proves that he purchased them with personal funds. Evidence may include:

1. Purchase and sale agreements.
2. Bank statements.
3. Receipts or store receipts.
4. Invoices for the disputed property with the signature of the cohabitant.

If the evidence presented by the parties to the lawsuit confirms that the property was acquired jointly, then the court establishes the shares of each partner in the disputed asset depending on the amount of funds invested in the purchase. Next, there are two possible section options:

1. Transfer of an item into the ownership of one of the cohabitants, who is obliged to transfer compensation to the other partner.
2. Sale of an asset and division of proceeds in proportion to the size of the shares.

How is a penalty imposed on the property of spouses?

If the husband or wife does not have enough funds to pay creditors, foreclosure occurs on the jointly acquired property.

2 conditions for collecting debt from common property

1. The debtor's real estate and funds are not enough to repay the debt.
2. The fact is confirmed that the parties have joint property.

Provided that the conditions are met, recovery from the common property is permitted. If the other party objects, the creditor has the right to buy the debtor's share from the debtor spouse at market value.

How to divide an apartment purchased under a shared participation agreement in housing construction (DDU)

An agreement for participation in shared construction is a method of purchasing an apartment in which a citizen finances the construction of an apartment building with his own money, and after commissioning receives one of the residential premises as personal property. Thus, until the construction of the house, the shareholder has the right to demand that the developer transfer the apartment, and after the transfer he has the right of ownership to it.

The object of joint rights of spouses during shared construction will be: common right of claim - before the delivery of the house, a finished apartment - after registration of rights to it. For an apartment according to the Duty Code, divorce is a reason to divide both. The completed apartment will be divided according to general rules, and for the division of abstract rights you will have to negotiate with the developer to change the terms of the contract.

The peculiarity of purchasing an apartment under a shared participation agreement is the long period of construction of the house, often measured in years. This has given rise to several divorce situations, the resolution of each of which depends on whose money was paid for the apartment.

Option one: the spouse paid for the construction of the apartment before marriage, and registered ownership after. In this case, he will be the sole owner, since he did not pay from the family budget.

Option two: the spouse registered home ownership after the divorce, but the money under the agreement was paid jointly during the marriage. The husband and wife will have equal rights to such an apartment, regardless of the time of registration.

Option three: part of the funds for construction was contributed by joint money, part by personal money (before or after marriage). In this combination, the apartment will be shared, but only in the share of joint payment and it is this that can be divided.

How much will it cost to divide property through court?

If the spouses during the divorce were unable to agree on the division of their property, then the judicial authorities will deal with this. Prepare a claim and send it to court. Remember that the judicial procedure for resolving cases will require certain costs from the plaintiff or defendant. They consist of the following components:

• state duty. The spouse filing the claim must pay a state fee in the amount established by law. It is determined in accordance with the Tax Code of the Russian Federation depending on the value of the property in the range from 400 rubles to 60,000 rubles;
• payment for the examination. It is required if the spouses fail to reach a compromise when determining the value of the property being divided;
• lawyer's fees. He can help not only in drawing up a statement of claim, but also represent your interests in court hearings. In each case, the amount of payment is set individually.

If the claim is satisfied, these costs of the plaintiff can be reimbursed to him at the expense of the defendant: in full or in proportion to the satisfied claims.

Payment of compensation upon division of property

Quite often there are cases when, when dividing common property, one of the parties expresses a desire to retain the right to the property in full, and the other party to be awarded compensation equal to its share. Most often, such situations arise when dividing real estate or indivisible things.

Property that is in shared ownership can be divided between co-owners by agreement between them (Article 252 of the Civil Code of the Russian Federation). Thus, determining a share in common property does not always mean the actual division of property in kind; payment of monetary compensation by one of the parties is acceptable.

This principle may be violated if we are talking about the division between the owners of something that cannot be divided in kind. If the court determines that one of the spouses has a significant interest in the possession and use of an indivisible thing, then such thing by a court decision may be transferred into the sole ownership of him, regardless of the size of the share of the spouse to whom it is transferred. The other spouse must be paid compensation - the value of his share.

When paying compensation, the court is always guided by the market value of the property at the time of consideration of the case, to determine which an appraisal examination is carried out. So, when determining the cost of a private house, prices for:

• Construction Materials;
• amounts spent on paying builders and finishers;
• costs for delivery of building materials;
• unloading and loading operations corresponding to the prices of the given area during the period of consideration of the dispute.

Contributions made in the name of children by spouses do not belong to their common property, are not subject to division and are considered to belong to the children. Children's things are also not subject to division and are transferred without compensation to the parent with whom the child lives (Article 38 of the RF IC).

In what cases will property not be divided equally?

Despite the principle of dividing joint property in half, in judicial practice cases of deviation from this rule are allowed. If it is reliably proven in court that one of the spouses committed actions to the detriment of the interests of the family, then by a court decision the share of the second spouse may be increased.

For example, if the husband did not work anywhere without good reason, sold property in the house in order to have money to buy alcohol, and caused scandals at home while drunk. But for the court to make such a decision, bring all these circumstances.

As evidence, attach copies of the protocols on bringing the spouse to administrative responsibility, data from the police about the calls of their employees and medical documents about the beatings or the defendant being registered in a drug treatment clinic, testimony of witnesses who could confirm the facts of the sale of household property to them for next to nothing.

Only if there is evidence, the court will be able to deviate in the interests of the second spouse and minor children when dividing property from the principle of equality of shares of divorcing spouses.

When can one spouse's inheritance be divided in a divorce?

As stated above, the personal property of one of the spouses is not included in the total estate. In theory, an apartment received by inheritance, gifted or purchased before marriage by one of the spouses is not subject to division. But in practice it may be different, and here again argumentation plays a big role .

For example, after marriage, the wife moves to her husband’s apartment, which he inherited. The apartment needs serious repairs and the wife decides to use the money she has saved to make major home repairs .

After this repair, made at her expense, the apartment significantly changes its market value upward. During a divorce, the argument that the apartment was renovated with the wife’s personal funds will be taken into account and it is quite possible that, by a court decision, she will be entitled to a share of this apartment.

The same applies to other personal property, which, as a result of repairs using the personal funds of the other spouse, changes its value upward.

If a car that belonged to the wife before marriage cost 300 thousand rubles, and during the marriage the husband repaired it at his own expense and it began to cost 700 thousand rubles, then he has the right to claim part of this car after the divorce.

But, it must be borne in mind that this is only true when the repairs were carried out at the personal expense of one of the spouses. His current income does not qualify as such and is considered jointly acquired .

But even in this case, if the apartment or car of one of the spouses is repaired using joint income, increasing its value, then during a divorce the other spouse can claim some part of it .

For example, an apartment before marriage cost 2 million rubles. During the marriage, the spouses made repairs in it for the combined income, and the apartment increased its value to 3.5 million rubles. During a divorce, the second spouse has the right to claim part of this apartment, which will be equivalent to half of the changed value . In this case, it is half of 1.5 million rubles or 750 thousand rubles, which is almost equal to one fifth of the apartment (1/4.7).

It is this part of the apartment that the court can award to the other spouse, although in many cases the decision of the apartment owner is obligatory to pay this amount to the ex-spouse, in this case 750 thousand rubles.

As in the previous case, arguments must be based on facts. They are data on the availability of financial resources before marriage, on the sale of some property, the proceeds from which were used for repairs . It is very good when all changes to an apartment or car are made in a timely manner in the registration certificates. This increases the likelihood that the right decision will be made in court.

If the money lying under the pillow was used to increase the value of the property, and its origin is unknown, then it will be very difficult to prove something in court.

Property valuation

When dividing property, it is important to know its value. It is used to determine the amount of the state fee that the plaintiff must pay when filing a claim. Usually the estimate issued by the technical inventory bureau is used. Although it is much lower than the market price.

For the court, an accurate assessment of the divisible property is not so important. After all, the court divides it in shares. For example, all property acquired by spouses during marriage will be divided as follows: each of them will receive 1/2 share. How they will use their shares is up to the owners themselves to decide.

An accurate assessment of the property to be divided will be required when determining the cost of its improvements (for example, when renovating an apartment or car, as in the examples above). If there are disagreements in their assessment, an examination will be required.

In this case, you should not rely on the prices indicated in advertisements for the sale of similar property. It is the expert’s conclusion that will form the basis of the court decision. The division of property will be carried out at the value indicated by the expert.