Mortgage loans often become the subject of legal disputes between spouses. A prenuptial agreement for a mortgage will help provide for events that may affect the property rights of the husband or wife in the event of a divorce. Today we’ll talk about how to draw up a marriage contract, and why it is needed for a mortgage; we’ll give examples of blank and completed database forms.
What is a prenuptial agreement and is it needed for a mortgage?
A marriage contract (agreement) is a mutual agreement between spouses that establishes their rights and obligations in relation to jointly acquired property and loans (mortgages) in the event of a divorce.
It may contain the following information:
- Conditions of ownership of existing and future purchased real estate.
- Distribution of income and expenses of the family budget.
- Who repays the loans and in what amount.
- How loans, movable and immovable property are divided in the event of divorce or disability.
In legislation, a marriage contract is regulated by Articles 40-44 of the Family Code of the Russian Federation. Spouses have the right to add any items to this document.
The presence of a mortgage or the intention to obtain one does not mean that spouses are obliged to enter into a prenuptial agreement. However, in the absence of one, in the event of a divorce, the remaining mortgage debt is divided equally. This also applies to real estate that is pledged.
Example:
The couple divorced. There was no marriage contract. During the divorce, the mortgage and real estate were divided in half. After 3 months, one of the ex-spouses stopped paying his part of the loan. To avoid accumulating debt, the second spouse now makes monthly payments for both. He will be able to collect money from his ex-spouse only through the court. If there was a prenuptial agreement, this would not have happened.
For the lender, the presence of a prenuptial agreement is also desirable. The bank will be clear from whom to collect the debt and in what amount. The risk of loan non-repayment is reduced.
Expert opinion
Alexander Nikolaevich Grigoriev
Mortgage expert with 10 years of experience. He is the head of the mortgage department in a large bank, with more than 500 successfully approved mortgage loans.
During a divorce, the mortgage and real estate are divided in half. A prenuptial agreement allows you to establish the parts of each spouse. If one spouse does not want or cannot pay the mortgage, the agreement stipulates that in the event of a divorce, the rights to the property and the remaining debt will pass to the second spouse.
Conclusion: a prenuptial agreement when purchasing an apartment with a mortgage is useful for both the borrower and the lender. Its presence will avoid litigation in the future and increase the security of the loan.
When is a prenuptial agreement required?
Registration of a marriage contract is not necessary, but in some cases it is necessary to conclude it.
Let's list 7 main situations:
- One of the spouses has a bad credit history. The bank is more likely to refuse a married couple a joint mortgage. According to the agreement, the mortgage can be assigned to one spouse. This will reduce the lender's risk and increase your chances of getting your mortgage approved.
- One of the spouses does not want to take out a mortgage. In this case, as in the previous one, only the husband or wife pays the loan. The agreement states that the rights to the property belong to the spouse who paid the mortgage. The second spouse will not be able to claim housing in the event of a divorce.
- The mortgage was taken out before marriage and will be paid jointly. The contract specifies the shares of each spouse in accordance with their contribution to the mortgage.
- Unequal financial status of spouses. One of them can take over the entire monthly payment and even pay off the mortgage early. The other spouse avoids loan payments or does not work. The marriage contract stipulates that obligations under the mortgage and ownership (in full or a large share) are assigned to the first spouse.
- One of the spouses cannot officially confirm their income. This applies to “gray” income, especially if it is large. When the second spouse has a “white” salary, but it is not enough to pay the mortgage, the real payer will be the co-borrower with the “gray” income. It is logical that concluding a marriage contract is beneficial to him.
- The mortgage was taken out before marriage. In this case, some part of the payments was paid by one spouse, being not related by marriage, and the other part was paid jointly in marriage. The agreement specifies his share of participation in the loan and the right to claim a share in the real estate.
- The first payment for the mortgage was made by the parents of one of the spouses. The party whose contribution to the purchase of real estate is greater is entitled to greater rights.
Distribution of tax benefits and deductions for personal income tax
As a rule, spouses who bought an apartment apply for a tax deduction on income for personal property. You can only receive it for the amount of your own money spent, without taking into account maternity capital. If there are two parties to the purchase and sale agreement, the deduction is provided to each of them in proportion to the share in the property.
How is the issue resolved if a marriage contract is concluded when purchasing an apartment, or subsequently, after the deduction has been processed? The fact is that the federal tax service refused to revise the amount of the deduction after a change in the composition of the owners. The answer is given in the cassation Ruling of the Supreme Court No. 5-KG17-53 (06.06.2017).
So, for example, according to the marriage contract for a mortgaged apartment, it became the sole property of the wife, whereas before its conclusion it was registered in equal shares, and accordingly, each spouse received 50% of the required deduction. The Supreme Court ruled that in this case, along with the apartment and the obligation to repay the loan on it, the right to receive the full amount of the deduction, including interest, passes to the spouse.
The second question arises regarding the determination of the 3-year period of ownership of the apartment, after which the seller is exempt from paying income tax. According to the definition of the Constitutional Court No. 444-O (02.11.2006), the transfer of rights to one of the participants in common property does not entail a change in the period of ownership of the property. Therefore, if, after concluding a marriage contract, the mortgaged apartment passes to one of the spouses, and he intends to sell it, such a transaction will not be subject to personal income tax.
Conclusions. The wider spread of marriage contracts is hampered by stereotypes of a predominantly psychological nature. With its help, you can avoid many problems and conflicts that arise during the division of property, including those encumbered by a mortgage, and resolve issues of repaying a loan after a divorce.
Features of the contract if the mortgage was taken out before marriage
In such a situation, the owner of the property is one of the spouses who took out a mortgage for himself before marriage. He made a down payment and also paid part of the mortgage himself.
After marriage, the couple will pay the mortgage from the family budget. This means that the second spouse will also participate in the loan repayment, but he does not appear in the agreement. Therefore, it is important for him to have a marriage contract that will spell out his rights.
If a divorce occurs, there are 2 possible scenarios:
- The husband or wife takes a share in the apartment equal to the share of the payments made during the marriage.
- One spouse must return to the other half of the payments made during the marriage.
Expert opinion
Alexander Nikolaevich Grigoriev
Mortgage expert with 10 years of experience. He is the head of the mortgage department in a large bank, with more than 500 successfully approved mortgage loans.
Resolving these issues through the courts is time-consuming and expensive. The solution is a prenuptial agreement. It reflects who receives what share in real estate upon dissolution of marriage. Or a condition is prescribed that one of the spouses pays the other an amount of money equal to his mortgage payments.
What information should be included in the document?
A sample marriage contract can be downloaded on the Internet or obtained from a lawyer. The document must contain the following points:
- Marriage certificate number;
- Full name and address of registration of counterparties;
- Date of conclusion of the contract;
- Regime of ownership of joint property;
- The person paying the state fee;
- Signatures of the parties.
Spouses can establish separate ownership rights to the following material assets:
- Bank deposits and accounts;
- Securities (shares, bonds, bills, depositary receipts, shares of investment funds, etc.);
- Derivative financial instruments (futures, options, etc.);
- Shares in the capital of commercial companies with various organizational forms (LLC, PJSC, etc.);
- Jewelry, art and antiques;
- Precious metals in ingots;
- Expensive wedding gifts;
- Unallocated metal accounts;
- Consumer electronics (computers, televisions, refrigerators, etc.);
- Plumbing;
- Fur products, shoes and outerwear;
- Cars and motorcycles;
- Carpets and bed linen;
- Chandeliers and other lighting fixtures;
- Musical instruments;
- Pets (by law they are considered property);
- Cash and funds in electronic wallets;
- Commercial and residential real estate (address and technical parameters of the premises are indicated);
- Furniture, dishes and interior items.
The development of the digital currency market has led to the emergence of a new type of asset that has become the subject of litigation. According to current legislation, Bitcoin and other cryptocurrencies are not considered property and are not subject to division. This law enforcement practice may change in the very near future due to amendments to the law on digital assets.
Sample prenuptial agreement for a mortgage in Sberbank
Prenuptial agreement for a mortgage taken out during marriage
Spouses have the right to fix in the agreement the option of dividing the mortgage debt and the apartment in any proportion. The shares will not necessarily be equal. The financial and social status of each spouse and other factors affecting solvency are taken into account. In addition, you can choose joint or separate ownership.
Banks are more profitable when the marriage contract specifies separate property. In this case, it is easier for the bank to collect the remaining balance of the mortgage debt if a divorce occurs.
Expert opinion
Alexander Nikolaevich Grigoriev
Mortgage expert with 10 years of experience. He is the head of the mortgage department in a large bank, with more than 500 successfully approved mortgage loans.
Lenders insist on separate ownership and may even require that one spouse relinquish the property before taking out a mortgage. The bank may not give a mortgage if you do not agree to its terms. We have already discussed above why the bank may demand that one of the spouses be removed from the mortgage agreement.
If the prenuptial agreement was drawn up before the mortgage, the bank must be notified of this. An additional agreement will be required. It indicates the rights and obligations of spouses regarding the mortgage in the event of a possible divorce.
How to draw up an agreement
When concluding a marriage agreement, it is recommended to focus on the list of necessary documents, the time of execution of the agreement and its cost.
Cost of the procedure
Signing such an agreement requires a financial investment from the couple. If the document is drawn up independently, then the financial costs will only be the cost of notary services. In this case, the costs will not exceed 1500-3000 rubles.
The cost of the agreement increases significantly when you seek help from a specialized company. Therefore, its total price may vary significantly - from 5,000 to 10,000 rubles. The cost of processing the document also depends on the region in which this procedure takes place.
It is recommended to check the exact cost of the marriage contract at notary offices located in the region of residence where the document is planned to be executed.
Production time
Spouses must discuss the terms of the contract in advance.
You can conclude a deal within one business day, but to do this you need to first collect all the necessary papers. Then you need to go to a law office with a package of documents, fill out an agreement form, sign and notarize it.
Therefore, it is recommended to prepare for this event in advance. A married couple must first familiarize themselves with the legislation and negotiate the terms of the contract between themselves.
Documentation
The package of documents required to formalize a marriage contract includes:
- marriage certificate of the married couple;
- original passports of the parties to the agreement;
- the document itself (made in 3 copies).
A contractual agreement between spouses to obtain a mortgage loan from Sberbank is drawn up only in accordance with the requirements established by the financial institution.
How to draw up a prenuptial agreement before a mortgage and where to sign it?
In case of a mortgage, a separate clause on the mortgage loan is highlighted in the marriage contract and the following information is indicated:
- Information about the borrower, co-borrowers and guarantors (if any).
- Information about the lender and the property.
- Information about who will be the owner of the mortgaged property.
- Who pays the down payment?
- Who pays monthly payments, loan fees.
- A list of sources of income that go towards paying the mortgage.
- Responsibility and consequences for failure of spouses to fulfill the agreement.
- The amount of compensation and shares in the property of spouses in case of divorce.
- Conditions under which real estate can be transferred to a minor child with the right of one of the parents to live in it until the child’s 18th birthday.
- Grounds for revising a marriage contract.
Important. The agreement may also contain other information regarding the property rights and obligations of the husband and wife, including on other loans. But the mortgage must be indicated separately.
Banks often offer borrowers samples of marriage contracts, but spouses can use their own option. The form offered by the creditor primarily protects his interests. If you use a bank form, be sure to consult with a lawyer.
The document is drawn up in writing, signed by the spouses in person and must be certified by a notary. Oral agreements have no legal force.
Expert opinion
Alexander Nikolaevich Grigoriev
Mortgage expert with 10 years of experience. He is the head of the mortgage department in a large bank, with more than 500 successfully approved mortgage loans.
A married couple can enter into an agreement on their own. After drawing up the document, they only need to have it certified by a notary for the contract to be legally binding. However, we recommend using the services of a lawyer. The specialist will help to correctly formulate the requirements of the contract and explain to the spouses their rights and obligations. You can get legal advice on our website - just ask your question in the form on the right, and a specialist will answer you within a minute.
It is important that the conditions do not put one of the spouses at a disadvantage. Otherwise, the marriage contract will be declared invalid.
The agreement will be declared invalid by the court if it:
- Not certified by a notary.
- Signed by an incapacitated person.
- Contains conditions that are contrary to law.
What documents need to be prepared?
To draw up a marriage contract, the following documents are required:
- Spouses' passports.
- Marriage registration certificate (if available at the time of conclusion of the contract).
- Extract from the Unified State Register of Mortgage Real Estate.
Features by law
The Family Code of the Russian Federation (Articles 40 – 44) stipulates the following aspects.
- The agreement regulates only property rights and obligations; they do not apply to all other aspects of family life.
- Spouses themselves decide which regime to establish for which property. For example, everything is divided in half, and the car goes to the husband.
- The contract must take into account the interests of both parties and be mutually beneficial, otherwise it can be challenged and declared invalid.
- The agreement can apply to both existing property and what will be acquired in the future.
- The contract may specify the term and conditions of validity of certain agreements.
- Signing the agreement means full agreement and acceptance of all the conditions specified in it. An agreement drawn up in writing and notarized can be considered legal.
Is it possible to enter into an agreement after a divorce?
No, you can enter into a prenuptial agreement either before marriage or during marriage. After a divorce, it is possible to draw up an amicable agreement on the division of property.
A situation is possible when the divorce process has already begun and the spouses have a prenuptial agreement. However, it does not contain a clause on the division of property. Then, before the official dissolution of the marital relationship, the husband and wife must supplement the document with relevant information. If, of course, they reached an agreement on the issue of dividing the mortgage.
Is it possible to cancel a contract with a mortgage?
By mutual decision of the spouses or if one of them does not fulfill their obligations, the couple can terminate the marriage contract.
According to Article 46 of the Family Code of the Russian Federation, the borrower is obliged to notify the lender about this, regardless of the content of the agreement itself. Otherwise, the bank may require changes to the loan agreement or early repayment of the mortgage. This scenario is likely if the termination of the marriage contract worsens the position of the creditor.
Conclusion: before planning to terminate a marriage contract, it is better to consult your bank.
Procedure and grounds for termination
Is it possible to terminate if the apartment is under mortgage? According to the Civil Code, all citizens are free both to enter into contracts and to terminate them. But it is not worth terminating the marriage contract if it is one of the conditions of the mortgage.
This is usually stated in the loan agreement with the bank and is highlighted as a separate paragraph. In case of violation of this obligation, he has the right to terminate all existing agreements with borrowers and demand early repayment.
The grounds for termination of the contract are:
- recognition of one of the spouses as incompetent;
- lack of notarized registration;
- if the fact of pressure on one of the parties (intimidation, threats) when concluding a contract is revealed;
- infringement of the rights of one of the parties;
- death of one of the parties to the contract;
- declaration of one of the participants as missing, confirmed by a court order.
Termination of the contract occurs in court. But first you need to notify the bank of your intentions. And then go to court, where all the nuances of the case will be considered and a decision will be made on the legality of termination.
Features of database for maternity capital
Any real estate that was purchased through a mortgage using maternity capital must be registered as shared ownership of the spouses and their children. The mortgage loan can be taken on by one person, but it is necessary to indicate the shares of the owners.
Expert opinion
Alexander Nikolaevich Grigoriev
Mortgage expert with 10 years of experience. He is the head of the mortgage department in a large bank, with more than 500 successfully approved mortgage loans.
The marriage contract stipulates that children have their own part of the living space. The size of the share for each child is determined by the spouses. A minor cannot give up his living space. An adult child has the right to register his refusal after his share in the mortgaged property is determined in the marriage contract.
Another nuance is the following. The marriage contract may stipulate that one of the spouses will not qualify for a mortgage. However, this will only apply to the property that the first spouse bought with personal or borrowed funds. And the loan was not repaid with maternity capital.
Children receive their share of the living space. This point must be specified in the contract.
Required documents
To draw up a marriage contract you will need the following documents:
- passports;
- marriage registration certificate;
- documents defining ownership of property.
The notary, in turn, may require the provision of an additional package of documents. It is better to clarify their list in advance and directly at the selected notary office.
Registration
The marriage contract is registered by a notary with the obligatory presence of both spouses . Without registration and certification of the document in a notary office, the agreement will not come into force.
How much does the service cost?
There is a fee for concluding a contract. This includes the state duty (500 rubles) and the cost of notary services. Often, notaries determine the price of such documents based on the value of the spouses’ property (about 1% of the amount). In general, registration with a specialist who will tell you how to make an agreement can cost up to six thousand rubles.
conclusions
To summarize the above, let us highlight the main thoughts from the article:
- The marriage contract is concluded on a voluntary basis. If it is available, both the borrower and the lender will know how the loan and real estate will be divided in case of divorce and other situations.
- In some cases, a marriage contract is forced to be drawn up when taking out a mortgage.
- The agreement should reflect the interests of the spouses and those who will live in the purchased property.
- The bank must be notified of the existence of a marriage contract, the fact of its termination and the intention to draw up a document when the mortgage has already been taken out.
