Property that was received during marriage by gift, that is, free of charge, is personal and not jointly acquired. In the event of divorce, only joint property is subject to division, and the question arises in which cases the gifted apartment is divided during a divorce and in which it is not. It is worth considering that a gifted apartment is still divided during a divorce in strictly limited circumstances by law, and in most cases the rights to such real estate will remain with the spouse in whose name the gift agreement is drawn up. If the apartment was donated without proper documentation, then during division it can be included in the category of common property with all the consequences arising from such status.
The procedure for dividing a donated apartment
According to Art. 36 (clause 1) of the RF IC, as a result of registration of a deed of gift for an apartment, real estate becomes the personal property of the donee. The property is personal and not jointly acquired, therefore it is not subject to division. It makes no difference exactly when the gift agreement was drawn up - before the spouses entered into marriage or after.
An apartment under a gift agreement during a divorce is subject to division in the following circumstances, which are exceptions:
- There is no evidence that the property is the personal property of one of the spouses, that is, it was directly gifted.
- There was an increase in the value of real estate, since the husband or wife invested personal money in housing during marriage: they made reconstruction, repairs, furnished it, etc.
- A donated apartment must be divided during a divorce if it was given to both spouses as a wedding gift.
- There is a prenuptial agreement, which spells out in detail all the conditions on how to deal with the donated apartment in the event of a divorce.
In these situations, upon dissolution of the union, it will be possible to claim half of the property, that is, an equal share when the property is divided in court. In all other cases, the property will not be considered jointly acquired property, which means that the second spouse will not be able to claim the donated apartment during a divorce.
When wondering whether the donated apartment is divided, it is worth understanding that this fact is not affected even by the presence/absence of minor children, dependents and other circumstances. In the event of a divorce, the second spouse can legally ask to move out/vacate the living space, and it will not be possible to challenge this point in court.
How do spouses share gifts with each other?
Gifts and things given by spouses to each other are recognized as their personal property and therefore will not be subject to division.
But only if certain conditions are met:
- this thing or property was used exclusively by the spouse to whom it was gifted;
- the gift is not a luxury item or a treasure.
Example. If one husband purchased a mink coat as a gift for his wife, then it will be her personal property, since it will be used by her personally. In addition, part 2 of Art. 36 of the RF IC establishes that clothing and other personal items are also recognized as personal property. Another situation: the wife gives her husband a TV, which will be in the common living room, and the whole family will use it. In this case, proving that this property is the personal property of the husband will be very problematic.
Luxury items and jewelry, whether acquired jointly or presented to one of the spouses, according to Part 2 of Art. 36 of the RF IC will not be considered personal property and will be subject to division.
Gift based on a gift agreement
Sometimes citizens manage to receive real estate as a gift free of charge. Donors can be relatives (parents, sister, brothers, grandparents, etc.) or other people. And a person has no obligations towards them.
If the donor is a relative of the spouse, the recipient is even exempt from paying taxes. If you try to sell real estate within 3 years after receiving it, you will still have to pay taxes. If the deed of gift indicates a person who has no family ties as the recipient, then you will have to pay a tax in the amount of 13% of the total amount of the gift.
If there is an agreement to donate an apartment, then it is divided during a divorce only if the second spouse invests significant funds in it, which led to an increase in price. In all other situations, the spouse who has title to the property is the sole owner, and the other spouse cannot claim the gifted property after a divorce.
Registration or long-term residence will not be taken into account. Immediately after the dissolution of the union, the spouse can, on the basis of the law, evict the other.
Particular attention should be paid to the agreement under which the donated apartment becomes the property of the recipient. If there are inaccuracies, violations of registration rules, or there is no official registration, then the property received as a gift will be subject to division between the spouses or the transaction may be canceled altogether.
Methods
There are two of them:
- peacefully (the owner decides to make the former life partner a co-owner of the home, for example, by stipulating this in the marriage contract);
- through the court.
The words “peacefully” must be understood correctly. It should be borne in mind that changes in property rights can only follow legal actions with the living space itself - for example, a gift or exchange.
Some people calm down when they receive a residence permit , if the apartment was given to their husband during marriage, or they sign an agreement with him. However, all these documents do not provide any guarantee.
To begin with, registration does not mean owning a home, it only gives the right to live in a given territory.
And the termination of family relationships is a reason to leave the premises - for everyone who is not its owner (Article 31 of the Housing Code of the Russian Federation).
You shouldn't trust the agreement either. It only means, again, the owner’s permission for your use of the apartment . If he gets fed up, he’ll kick him out, and from the point of view of the law he’ll be right.
So what will it mean that you are not a user, but an owner of square meters? Only title documents - for a share in the living space or all of it.
Or, as an option, the owner can sell one large apartment and buy several small ones, one of which he will dedicate to his former partner. Again, you need to make sure that the allocated home is registered specifically in the name of the ex-spouse , and not the previous owner.
The owner can also donate living space to his ex-wife. Most often, this decision is made when there are children.
If the expelled “half” has every reason to believe that the home may well be divided as a result of the common money invested in it (for example, redevelopment), then a claim should be filed in court (Article 38 of the RF IC).
The concept of deed of gift and the nuances of registration
There are no difficulties in the issue of donating an apartment after a divorce and dividing it if you accurately understand the concepts. Real estate can be presented as a gift to a relative or a stranger in general. The document for the donated property can be drawn up in person or you can seek help from a lawyer. The second option is preferable, since a specialist knows the intricacies of the law and will help to avoid mistakes and inaccuracies. And this will eliminate the possibility of problems arising with how the gifted real estate is divided after the dissolution of the union and how to establish the very fact of receiving property as a gift.
If the property is given as a wedding gift
Any property given to young spouses as a wedding gift by relatives or friends is considered their joint property.
This property is not given to one of them personally, but to the family as a whole. That is why, in the event of a divorce, the property given to the newlyweds for a wedding will be subject to division according to the general rules specified in the Family Code and will be considered acquired during the marriage. In established practice, spouses share wedding gifts like any other items acquired during marriage.
If the donated property requires registration (apartment, house, car), then lawyers advise registering it as a common shared property of ½ for each of the spouses. This will further eliminate the need to prove the fact of donation and will simplify the division - after all, property in common shared ownership can often be left behind by its owners without re-registration.
Read more about the procedure for dividing joint property here.
Marriage contract and its conditions
If you are concerned about the procedure for donating an apartment after a divorce and dividing it when a marriage contract is concluded, you need to read its terms more carefully. It spells out the conditions for dividing all personal property if the spouses suddenly have to divorce. It is best to clarify in detail who gets what and what is to be shared. Moreover, in this agreement the interests of any of the parties should not be infringed, although the shares may be different: one is large, the other is smaller.
This method of dividing property is absolutely legal. The main thing is to draw up a document according to the rules of the law, so that when people get divorced, there will no longer be any difficulties in obtaining the property that is due to everyone. The method of concluding a prenuptial agreement is the best option to decide how to divide property between the owners.
Property division agreement
When separating, many people wonder whether a deed of gift is subject to division in a divorce. Legal practice shows that such property can be divided by mutual agreement or through a lawsuit. Spouses can enter into an amicable agreement on the division of an apartment or car belonging to one party in exchange for any concessions. But for the party to whom such property was not donated, such a solution to the issue can be risky, because the owner can change his mind at any time.
You can draw up a new gift agreement, transfer real estate or a car to your children, and then no one will be able to lay claim to this property. If one party still wants to receive a share of the property of the other half, they will have to prove in court that during the period of cohabitation, major repairs or remodeling were done in the apartment, which significantly affected its value. But this must be material evidence and testimony that can convince the court.
But after the divorce of the spouses, the deed of gift will remain for the sole use of the recipient and he can perform any actions with his property.
Increase in property value
How can this happen? So, if one of the spouses was given real estate before or during marriage, and during their life together the market value of the apartment increased several times due to the investment of family funds in it, then the second spouse can claim a share of the property, since he directly participated in increasing its future prices. A similar rule applies even to those couples if the wife or husband did not work for some reason, for example, temporary disability, maternity leave, child care, etc. After all, money also belongs to joint property (movable), regardless of who earned more.
However, not all actions with real estate lead to a significant increase in its market value; these include the following:
- redevelopment;
- replacement of communications;
- expensive installation work, finishing;
- major repairs;
- equipped with built-in technical equipment.
If during your married life something like this was implemented and funds from the family budget were spent to improve living conditions, then you can safely claim a share in the apartment, according to the difference in its initial and final cost. However, words alone cannot prove anything here, so confirmation is needed. It’s good if they become:
- receipts;
- checks;
- discharge;
- estimate;
- service agreement;
- other documentary evidence of material expenses.
Also, for persuasiveness, you can attract witnesses, for example, neighbors, friends, colleagues who will confirm your participation in the repair. This will be especially obvious if the spouse for whom the deed of gift was drawn up did not work, that is, had no income, but the improvement of living conditions was still carried out. To confirm this act during a divorce, be sure to re-evaluate the cost of the apartment and compare it with the original one, which is indicated in the deed of gift.
Conditions
The possibility of transferring property to one spouse will be influenced by the succession regime applicable to the object of the agreement.
© Transfer of real estate owned equally by spouses.
It’s difficult to formulate:
a. A citizen has the right to dispose of an object with the approval of his spouse. It turns out that he must first issue his half a notarized permission. That I agree to receive living space.
b. Both spouses have the right to simultaneously own property, without dividing the item into shares or determining a schedule of use. It turns out that the husband/wife will receive their own apartment as a gift. Moreover, with your own written permission.
c. Article 38 of the RF IC will be required , according to which citizens will first divide the object, allocating a share to each. This is easy to formalize with a special agreement followed by registration of the paper. Only after receiving the right of private ownership to a share, a citizen will be able to give half to his wife/husband.
© Transfer of separate property . A different regime is applied here; the approval of the second party is not required, because there is only one owner of the item. It is enough to carry out a standard donation transaction.
The donor, entering into an agreement, will give the property to the other party free of charge. Losing all rights to it.
Donation of land to a spouse
Under land plots, in accordance with clause 3 of Art. 6 of the Land Code, is understood as a real estate object that is a part of the earth’s surface and has a number of characteristics that make it possible to define it as an individual thing (for example, marked boundaries). Land plots, if they are not seized and not limited in circulation , can be donated by their owners, including to a husband or wife (Article 260 of the Civil Code).
For your information
Land plots are subject to special regulation by the state. Therefore, the procedure for their civil circulation has a lot of features that distinguish land plots from other real estate objects. According to Art. 7 of the Land Code, each of the land plots has a designated purpose, depending on the category of land to which it belongs.
According to Art. 35 of the Land Code, the alienation of a land plot with a building located on it, owned by one legal entity, is carried out together with such a building . Based on this, the donor cannot give his spouse only a plot of land, without a building standing on it, if he has ownership rights to both of these objects.
Since a land plot is a piece of real estate (Article 6 of the Land Code), its donation in favor of a wife or husband requires state registration (Article 131 of the Civil Code), which, in turn, requires the mandatory written execution of the agreement. For registration, Rosreestr authorities charge a state fee, the amount of which, according to Art. 333.33 Tax Code is 350 rubles for the whole plot and 100 rubles for its share.
Since the spouse is a member of the donor’s family (Article 2 of the Family Code), he will be exempt from the obligation to pay 13% income tax on the market value of the land plot given to him. In addition, during notarization, a special notarial fee will be provided for such entities.
Separately, it should be noted the peculiarities of giving spouses land shares - shares in the ownership of land plots that are in common ownership. The regime for their alienation is quite specific - the donation of a land share is permissible only in favor of another shareholder , an agricultural organization or a member of a farm also using this land plot (Article 12 of the Federal Law No. 101 of July 24, 2002).
Donating a share in favor of other entities, including a spouse, is permissible only after the allocation of such a share into private ownership . To do this, the owner of the share must contact a cadastral engineer who will prepare a land surveying project. The formation of a new land plot is permissible only if there are no claims regarding such a project from other co-owners (Article 13 of Federal Law No. 101 of July 24, 2002). After this, the share can be gifted to the spouse.
Division of real estate and minor children
The current legislation of the Russian Federation protects the rights and interests of children, and if a married couple has minor children, the process of divorce and division of assets occurs only through the courts. When making a decision, the court always takes into account their property rights, and depending on who the children remain with, a division of property may be made, deviating from the rule of allocating equal shares. For example, the new edition of the Family Code obliges both parents to provide decent living conditions for children, therefore, when dividing real estate, a larger share can be allocated to the spouse with whom the child will live after the breakup of the family.
