A rather complicated procedure from a legal point of view is the division of an apartment in a mortgage with maternity capital during a divorce. Participants in the process are several interested parties (children and both parents). Residential real estate purchased during marriage after its dissolution is divided equally between the main participants in the process: husband and wife. It would seem, what could be simpler? However, in practice things are different.
This is especially true for situations where an apartment or house is pledged to a bank. It is even more difficult when a financial institution has a mortgage on housing purchased using maternity capital funds. The point is that when paying off part of the debt on a mortgage loan with the help of a state subsidy to support families, shares must be allocated equally and without fail not only to adult members, but also to children. Therefore, if divorce cannot be avoided with a mortgage with maternity capital, the spouses need to thoroughly study the features and intricacies of the complex process.
What part of the mortgage can be paid with maternity capital?
The guarantor of the fulfillment of obligations on maternity capital is Federal Law No. 256 of December 29, 2006, which clearly states the rights, duties and responsibilities of the parties: state authorities represented by the Pension Fund of the Russian Federation and parents. The allocated money from the state treasury can be spent, among other things, on improving housing conditions ().
You can implement maternity capital in this context in 3 ways:
- add budget money to your own to buy an apartment without encumbrance;
- make a down payment to the bank under the selected mortgage program instead of a down payment;
- repay your existing mortgage loan early.
IMPORTANT! In all cases, parents are obliged to give their children shares in the acquired residential premises (). This is how the state protects the rights of minor family members to own their own square meters.
If the family, having taken advantage of the benefit, continues to live as a whole, there will be no problems. Difficulties begin during a divorce, when the apartment is mortgaged with maternity capital.
The possibility of using maternity capital for a mortgage after a divorce is also available to a parent who did not take advantage of the exclusive right to a subsidy while he was married. In this case, ownership will belong to the children, mother or father.
In what cases can a father issue a certificate in his name?
During a divorce, the father will be able to dispose of the certificate if it was originally issued in his name.
It is also possible to re-register capital in the name of the father if the right to it is transferred due to certain circumstances. This is possible if:
- the man independently adopted a second child, provided that the court decision came into force no earlier than January 1, 2017;
- the child’s mother died or was declared missing based on a court decision;
- the mother has been deprived of parental rights or has committed a crime against the child.
How is maternity capital divided in case of divorce with an outstanding mortgage?
One of the spouses can take advantage of the exclusive right to spend budget funds allocated as additional measures to support families raising 2 or more children to improve their living conditions (). The certificate is received by one of the parents, representing the interests of the small family members. There is no provision for issuing money ().
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A family that decides to use maternity capital needs to submit a written request and collect the necessary package of documents confirming the legitimacy of the request (). Based on official papers, a government agency transfers the established amount to the bank (for mortgage lending) or to the account of the real estate seller (for a purchase and sale agreement).
In this regard, a reasonable question arises: who will own the maternity capital in the event of a divorce? The answer is obvious. To whom the document was issued, it will remain with him. Most often the owner is the mother. But the woman will manage the allocated shares of the children until they reach their 18th birthday only with the consent of the ex-husband. The legislation does not provide otherwise. The division of savings between an ex-husband and wife is impossible.
IMPORTANT! A prerequisite is that children must live in the same area as the certificate holder.
It turns out that maternity capital for a mortgage after a divorce is not subject to the rules and regulations established for the division of jointly acquired property .
Subtleties of the procedure
When dividing credit real estate by a married couple with two or more children, it is important to focus not only on the norms of the insurance company and the rules of mortgage lending.
It is necessary to take into account cases from judicial practice, which become precedents and form the basis for decision-making. It is impossible to competently divide mortgaged property with maternal capital if you have two or more children without a competent lawyer. Often banks do not bother much with finding a compromise and confront spouses with a fact - the debt must be repaid in a short time. And it doesn’t matter whether one of the spouses does it or two. It is important for the lending institution to get your money back. This problem is especially common among borrowers who have paid off most of their mortgage.
Plus, some loan agreements stipulate in advance the right of the creditor to demand early repayment of the debt in the event of a divorce. It is logical that when deciding to apply for a mortgage, the spouses do not even think about separating, so they simply do not take this point into account.
In order for a family lawyer to discuss the topic “divorce, mortgage, maternity capital, two minor children”, it is not necessary to go to a consultation. All details can be discussed online for free.
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.
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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.
The procedure for processing housing transactions after repaying a mortgage with the participation of matkapital
There are cases when spouses decided to divorce after the removal of encumbrances on the living space, but the premises were purchased, among other things, with the participation of a certificate. In this case, the scheme for registering real estate transactions differs from the actions when the mortgage was divided during a divorce from maternity capital.
The apartment or house became the full possession of the residents, and the encumbrances were removed. It's time to allocate shares, without which it is impossible to carry out further transactions with the housing stock. The algorithm of actions prescribes mandatory contact with a notary office. The procedure for allocating shares includes the following steps:
- allocation of shares to spouses with mandatory registration in Rosreestr;
- a second visit to the notary to allocate shares to each child.
IMPORTANT! No more than 6 months should pass from the moment the encumbrances are removed until the shares are allocated to the children. The rule is the same for both married couples and those who have gone through divorce proceedings.
The allocation of shares is not required if at the initial stage of purchasing residential real estate they were allocated to all family members. This is practiced when making a down payment using subsidized funds. Consequently, there is no need to visit a notary’s office, and it is enough to take to the registration chamber documents confirming the complete closure of the mortgage debt (mortgage note and a certificate from the bank about the absence of debt).
It is worth noting that the share is a minimum of square meters per person. The numbers vary in each region. The average for Russia is 18 sq.m.
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Voluntary section
Division of property on a contractual basis is a peaceful and simple method, but it is suitable only for those spouses who, even after separation, were able to reach an agreement among themselves. In this case, a third party will still be involved, but not to a significant extent.
The basic procedure will look like this:
- Former spouses draw up a list of property that is subject to division.
- They verbally agree among themselves about the future ownership of a particular object.
- An appraiser is invited to issue an opinion on the value of the property.
- Draw up an agreement. At this stage, it would be useful to at least consult a specialist, or even better, entrust him with drawing up the text of the contract.
- Contact a notary office to certify the document.
- Pay the required state fee.
- Submit the certified agreement to the registration authority to re-register ownership.
Spouses who have chosen the voluntary settlement method must remember that an apartment purchased with the help of maternity capital is divided taking into account this fact.
This means that, unlike other property, which spouses can divide at their own discretion, such an apartment can only be divided in equal shares with children. Otherwise, the agreement will be considered void.
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The notary will require the following package of documents to register the agreement:
- passports of both parties;
- children's birth certificates (or passports if over 14 years old);
- documents confirming the right to divisible property;
- certificate of receipt of maternal capital and its investment in real estate.
The fee for registering a document is 0.5% of the total amount of the agreement. However, it cannot exceed 20 million rubles.
Judicial procedure for invalidating a transaction
You should not try to deceive the state by completing a housing purchase and sale transaction without the obligatory allocation of shares, simply by agreeing with the bank. Even if the fraud can be pulled off, it will not be possible to submit supporting documents to the Pension Fund of the Russian Federation . After all, only after complete removal of encumbrances can you turn to a notary for the division of living space between all interested parties.
Sooner or later the deception will be revealed, and the swindlers will have a hard time. The court recognizes the transaction as void. The maternity certificate will also be cancelled, and the spouses will have to return the funds spent on it in full to the federal budget.
Therefore, selling an apartment with a mortgage with maternity capital during a divorce is a procedure that is almost impossible to carry out. The guardianship authorities will not give the go-ahead. After all, in return, housing must be purchased that is not inferior in technical and other characteristics to the one sold. It will also not be possible to voluntarily give up the share, because The responsibility to pay debts lies with both spouses. Divorce will not be a reason for revising the established rules.
Therefore, it is possible to think about dividing an apartment in a mortgage with maternity capital during a divorce only after repaying the debt and allocating shares to each child.
Cases of appeal to the courts
Conducting transactions with residential real estate where minor children are involved is quite difficult, especially during divorce proceedings. Things are doubly more complicated when it comes to mortgages using maternity capital during a divorce. Dividing an apartment or house involves a number of difficulties. This is due, first of all, to the mandatory allocation of shares to each child, as described above.
But there are other pitfalls. For example, one of the parents refuses to fulfill the obligation to allocate shares to the children. Then the second interested party will have to apply to a court of general jurisdiction with an application for the forced determination of shares between the former spouses and children.
Another case is when the property of one of the former spouses is seized (when dividing bills to pay the mortgage). Then it is necessary to establish the reasons why it is impossible to allocate shares. This can only be done in court, as well as the seizure of shares can be lifted.
Judicial practice on divorce in the case of a mortgage with maternity capital shows 2 options for the development of events:
- the draft dodger will fully pay the overdue debt with fines as determined by the court;
- the legal authority will deprive the defendant of having a share in the housing.
You can get information and legal advice about divorce and mortgages with maternity capital on forums where real stories from the lives of citizens are presented.
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Author:
Mortgage specialist Maria Yurievna Sokhan
Publication dateDecember 10, 2019December 11, 2019
