28.01.19
M. Poluektov / AK Poluektova and partners
In our practice, we have many times encountered demands to invalidate a transaction on the grounds that such a transaction was made without the consent of the spouse or that such consent was flawed.
Moreover, in most cases, the desire to “break” the deal and take away a valuable asset arose from persons acting in bad faith. The husband simply stated that he allegedly did not know about this transaction and did not consent to its completion.
For a bona fide counterparty to a transaction, the risks of losing the acquired property are very significant.
Let us understand all the nuances of such cases.
Roots of the problem
In the Russian legal system, there is a de facto regime of hidden matrimonial property. In the public register (for example, the Unified State Register), one person may be listed as the owner, but in fact there is another owner - his spouse, about whom the bona fide purchaser may not know.
And this does not in any way contradict the rule of Article 8.1 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), according to which rights to property subject to state registration arise from the moment the corresponding entry is made in the state register.
The fact is that after these words there is a clause “unless otherwise provided by law.” And this “other” is established by Article 34 of the Family Code of the Russian Federation (hereinafter referred to as the FC), by virtue of which property acquired by spouses during marriage is their joint property “regardless of which spouse’s name it was acquired in.”
If the second (“unregistered”) spouse is the same owner as the first, then his opinion must be taken into account.
According to the general rule, paragraph 2 of Article 35 of the Family Code, when one of the spouses makes a transaction to dispose of the spouses’ common property, it is assumed that he is acting with the consent of the other spouse. Such a transaction can be challenged on the grounds of lack of consent of the other spouse only if the other party to the transaction knew or should have known about the other spouse’s disagreement with the transaction.
However, there is one exception to this general rule - this is clause 3 of Article 35 of the Family Code, according to which for certain three types of transactions it is necessary to obtain the notarized consent of the other spouse, i.e. the presumption of the spouse's consent does not apply in these cases.
Gifted orally
For several years now, when dividing marital property, courts have been paying attention not only to when it was purchased (during marriage or not), but also to what means.
Only the property that the spouses acquired with their common income is divided in half. And money given to one spouse is his personal income.
This means that what he bought with this money is also recognized as his personal property and is not divided during a divorce (clause 10 of the Review of Practice of the Armed Forces of the Russian Federation No. 2 for 2021).
By presenting a donation agreement for funds from relatives, the spouse can win the entire apartment for himself if its value is commensurate with the amount of his personal investments.
But now the practice goes even further: they allow you to prove the fact of a gift, even if a written agreement was not concluded.
Formally, the law does not recognize an oral gift in an amount over 10 thousand rubles as void (Articles 161-162 of the Civil Code of the Russian Federation). It can be proven by any means (it is only prohibited to refer to witness testimony).
Therefore, in one of the disputes, the court recognized the apartment as the personal property of the husband, even though it was purchased during marriage.
He proved that shortly before purchasing the apartment, his father sold his apartment and transferred this money to him (Moscow City Court, case 4g/2-13767/18).
When is a spouse's notarized consent required to complete a transaction?
By virtue of clause 3 of Article 35 of the Family Code, the notarial consent of the spouse is necessary to carry out the following transactions with the common property of the spouses:
- Or it must be a transaction for the disposal of property, the rights to which are subject to state registration .
These are not only real estate transactions, but also transactions with shares in the authorized capital of a limited liability company (clause 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25), results of intellectual activity and means of individualization (in some cases), small and some other sea and inland navigation vessels, aircraft.
Rights to cars and shares are not subject to state registration, and therefore the notarized consent of the spouse is not required to complete a transaction with them.
- Or it must be a transaction for which the law requires a notarial form .
This may be a rent agreement, a pledge of a share in the authorized capital of an LLC, an escrow agreement (except for cases of depositing non-cash funds and uncertificated securities), an inheritance agreement, a transaction for the disposal of real estate under the terms of guardianship, an agreement on the transfer of a share in the authorized capital of an LLC ( with some exceptions), an agreement for the alienation or pledge of a share in the right of common ownership of real estate.
- Or it must be a transaction subject to mandatory state registration .
This may be a mortgage agreement or an agreement on the transfer of non-residential premises for long-term lease (for a period of 1 year or more).
It is necessary to distinguish between the concepts of “state registration of transfer of rights to property” and “state registration of a transaction”.
For example, when making a transaction for the sale and purchase of non-residential premises, only the transfer of ownership of the premises is registered, but not the contract itself. Such an agreement is considered concluded from the moment it is signed by the parties.
But when a transaction for the sale and purchase of a residential building or apartment is completed, both the contract itself and the transfer of rights are registered. Such an agreement is considered concluded from the moment of its registration, and not from the moment it is signed by the parties.
Requirements for the content of the spouse's consent
Often, one spouse takes from the other spouse notarized consent to the alienation of any jointly acquired property without any specifics. Rosreestr accepts such consent and registers the transfer of rights.
In the future, the spouse who gave such “general” consent may try to challenge the transaction for the alienation of common property, referring to clause 3 of Article 157.1 of the Civil Code, which states: “The preliminary consent to the transaction must determine the subject of the transaction for which consent is given.”
As a rule, the courts in such disputes refuse to extend the effect of Article 157.1 of the Civil Code to the consent of the spouse and preserve the transaction.
The fact is that this article applies if the consent of a third party is required by force of law to complete a transaction, and the courts do not recognize spouses as “third parties in relation to each other” (they are co-owners, after all) and proceed from the fact that Article 35 The IC “does not provide for a mandatory indication in the consent of the spouse to carry out a transaction for the disposal of the property of a specific real estate object for the alienation of which it is given, does not contain a prohibition for one spouse to give consent to the other spouse for the alienation of any property belonging to them without indicating a specific list of it” (Resolution of the Presidium St. Petersburg City Court dated July 25, 2018 N 44g-128/2018).
True, there is also another practice, according to which Article 157.1 of the Civil Code is recognized as general, and Article 35 of the Civil Code as special. The following logic applies here. Clause 1 of Article 157.1 of the Civil Code states that “the rules of this article apply unless otherwise provided by law or other legal act.” Article 35 of the Insurance Code does not provide for “other” (that the subject of the transaction may not be indicated in the consent of the spouse). Therefore, some courts apply the rule of paragraph 3 of Article 157.1 of the Civil Code on the need to specify the subject of the transaction in the notarial consent of the spouse and do not recognize the “general” consent of the spouse.
Consequences of completing a transaction without the notarial consent of the spouse
It must be said right away that transactions made without the notarial consent of the spouse are contestable. That is, they are valid until the court declares them invalid (which is why their registration in Rosreestr often goes without problems).
As for challenging such transactions, not everything is so simple here and the practice of the courts is currently heterogeneous.
There are three norms whose application can be discussed:
- In relation to transactions made without the consent of a third party - clause 2 of Article 173.1 of the Civil Code :
“Unless otherwise established by law, a voidable transaction made without the consent of a third party required by law ... may be declared invalid if it is proven that the other party to the transaction knew or should have known about the absence of the necessary consent of such person at the time of the transaction...” .
- In relation to joint property in general (it doesn’t matter whether spouses or not) - clause 3 of Article 253 of the Civil Code :
“A transaction made by one of the participants in joint ownership related to the disposal of common property may be declared invalid at the request of the remaining participants on the grounds that the participant who made the transaction lacks the necessary powers only if it is proven that the other party to the transaction knew or obviously should have was aware of this."
- In relation to joint property exclusively of spouses - clause 3 of Article 35 of the Insurance Code :
“The spouse, whose notarized consent to carry out the specified transaction was not received, has the right to demand recognition of the transaction as invalid in court within a year from the day when he learned or should have learned about the completion of this transaction.”
As you can see, the first two norms of the Civil Code protect the interests of a bona fide purchaser. According to them, if the owner registered in the Unified State Register sells an apartment without the necessary notarial consent of his spouse, but it is established that the buyer could not have known about the existence of the seller’s spouse, then the court will leave the transaction in force. In this case, the spouse may suffer.
However, the third norm (Article 35 of the SK) says nothing about the figure of a bona fide purchaser.
The question arises: how do all these three norms relate to each other, which one should be applied and when?
The first norm (Article 173.1 of the Civil Code) talks about the consent of a “third party”. And, as stated above, the courts for the most part do not consider a spouse to be a “third party” in relation to the other spouse. The courts consider them equal owners.
In addition, the first norm is similar in content to the second (Article 253 of the Civil Code). Therefore, the first norm can be excluded from our analysis and only Art. 253 of the Civil Code (which protects a bona fide purchaser) and Art. 35 of the SK (which does not provide such protection) can be compared.
There is a general rule - a special norm has priority over the general one, the general norm is applied in the part not regulated by the special norm.
From these positions, Article 35 of the Civil Code clearly has priority over Article 253 of the Civil Code. But here’s the question: does Article 35 of the Civil Code completely replace Article 253 of the Civil Code or not?
There are two interpretations:
- These articles say different things - clause 3 of Article 253 of the Civil Code speaks of a necessary condition for recognizing a transaction as invalid (if it is proven that the other party to the transaction knew or should have known about the lack of consent), and in Article 35 of the Civil Code in addition In addition, it states how long the spouse can file a claim to invalidate the transaction.
With this interpretation, the interests of a bona fide purchaser are protected.
Let’s say right away that this approach is more common in legal literature than in judicial practice. Perhaps because it is unclear why, in this case, the legislator needed to establish a special one-year limitation period for such cases, if the same period is already established in paragraph 2 of Article 181 of the Civil Code. That is, with this approach, the special norm does not establish anything new, which is strange.
- Paragraph 3 of Article 35 of the IC completely cancels Article 253 of the Civil Code, since only in this case can some meaning be found in the special norm of Article 35 of the IC.
With this interpretation, the interests of a bona fide purchaser are absolutely not protected, and it is this approach that prevails in judicial practice.
In this case, the consequences of completing a transaction without the notarial consent of the spouse differ radically depending on when the transaction for the disposal of common property was made - during the marriage or after its dissolution.
If the transaction was made during the marriage , then Article 35 of the Family Code applies - a spouse who has not given notarized consent to the transaction can challenge it and take away the property even from a bona fide purchaser.
If a transaction with common property was completed after the divorce , then Article 35 of the Family Code can no longer be applied, since at the time of the transaction the participants in the joint property were not spouses. Accordingly, there was no need to obtain any notarial consent from the ex-spouse. In this case, Article 253 of the Civil Code should be applied, according to which the consent of the second participant in joint ownership is assumed; the transaction can be challenged only if it is proven that the acquirer was dishonest, i.e. knew or obviously should have known that the other participant in the joint property (former spouse) was against the transaction (Decision of the Supreme Court of the Russian Federation dated April 25, 2017 N 16-КГ17-4).
We bought an apartment with our husband’s money, and then got divorced. How to divide property - a lawyer answers
Disputes about the division of property during divorce are endless. Most of the questions that come from readers in the “Right to Defense: Advice from a Lawyer” section relate specifically to this topic. Which, however, is not surprising: if spouses whose life together has not worked out do not manage to solve the problem peacefully, legal procedures are involved. There are so many nuances and subtleties here that it’s impossible to figure it out without a competent lawyer. Specific situations will be analyzed by lawyers from the Oktyabrsky district of Grodno, Veronika Leichonok, Natalya Pigareva and Elena Bodrova.
My brother bought a one-room apartment, then got married, had children, and the family decided to expand. The real estate agency processed the sale of a one-room apartment and the purchase of a two-room apartment (house) at the same time, and reported about $2 thousand (the parents of both gave $1 thousand). Now the spouses are divorcing (this case is almost finalized, a claim for divorce is in court, alimony has already been formalized, and he is paying). Question about the house: whose is it? Is it considered jointly acquired property if it was actually purchased with the brother’s personal money? How, as a general rule, does the division of property occur in this case? What are the chances of the ex-spouse getting a larger share when dividing the house?
Property acquired during marriage, regardless of which spouse acquired it or which of them contributed money, is their common joint property. Spouses have equal rights to own, use and dispose of this property, unless otherwise provided by the marriage contract.
Since a two-room apartment (house) was purchased by spouses during marriage, in accordance with Part 1 of Art. 23 of the Code on Marriage and Family, this residential premises is their common joint property.
As follows from Art. 259 of the Civil Code, property acquired by spouses during marriage is in their joint ownership, unless an agreement between them establishes a different regime for this property. Property that belonged to each of the spouses before marriage, as well as property received by one of them during marriage as a gift or by inheritance, is his property. The rules for determining shares in common property during its division and the procedure for such division are established by the legislation on marriage and family.
In accordance with the explanation contained in paragraph 12 of the resolution of the Plenum of the Supreme Court of the Republic of Belarus dated March 26, 2003 No. 2 “On the application of legislation by courts in resolving disputes related to the ownership of residential premises,” residential property erected or acquired by spouses during marriage the premises (except for those received as a gift or by inheritance) are their common joint property, unless otherwise provided by law or agreement. When dividing the property of spouses, the size of the shares of each of them in the right of joint ownership of residential premises is determined in accordance with Art. 259 Civil Code and Art. 24 Code on Marriage and Family; If there is a marriage contract, the court proceeds from its terms.
The question posed does not specify whether a marriage contract was concluded between the spouses. There is no information whether an agreement was reached to increase your brother’s share in the disputed apartment (house) acquired during the marriage after he contributed the money received from the sale of the apartment (which is his personal property) to purchase the apartment (house). From the circumstances set out in the question, it follows that the disputed residential premises were purchased by your brother and his wife in the interests of the family, to improve living conditions.
The spouses' shares of acquired property during marriage are recognized as equal, regardless of the specific share of each spouse's contribution to the common property. At the same time, the court has the right to take into account the noteworthy interests of one of the spouses and increase his share in the disputed property.
The court may deviate from the equality of shares, taking into account the fact that before purchasing the disputed apartment, on the same day your brother sold the apartment owned by him as personal property. The fact that your brother invested the funds received from the sale of the apartment into the purchase of the disputed apartment must be confirmed by evidence. In accordance with Part 1 of Art. 179 of the Civil Procedure Code, each party proves the facts that it refers to as the basis for its claims or objections.
Thus, when dividing the disputed residential premises, your brother has the right to claim an increase in his share in the ownership of the disputed residential premises due to the fact that he invested in the purchase of this residential premises the money received from the sale of the apartment, which is his personal property.
There are two apartments. One - two rooms, the second - one room. The ex-wife and daughter live in the two-room apartment. I'm in a one-room apartment. In what cases in your practice did the courts deviate from equality of shares? I want to divide by 1/2.
The question does not specify how the spouses acquired one-room and two-room apartments (based on a purchase and sale agreement, gift, by inheritance, etc.), nor does it specify the period of acquisition of the apartments (before marriage or during marriage). When answering the question posed, it will be taken into account that the disputed residential premises were acquired by the spouses during the marriage on the basis of a purchase and sale agreement.
Taking into account the provisions of Part 1 of Art. 23, part 1 art. 24 of the Code on Marriage and Family it follows that one-room and two-room apartments are the common joint property of the spouses. In the case of division of jointly acquired property, the shares of the spouses are recognized as equal, unless otherwise provided by the marriage contract. The court may deviate from recognizing the shares as equal, taking into account the interests of minors and disabled adult children in need of assistance, or the noteworthy interests of one of the spouses.
From paragraph 18 of the above-mentioned resolution of the Plenum of the Supreme Court, it follows that if spouses own several residential premises by right of joint ownership, in the absence of an agreement on their division between the spouses, the court takes into account the size, cost of residential premises, family composition of the former spouses and other relevant circumstances has the right to divide these residential premises, allocating separate residential premises to each of the participants in the common property. In the event that one of them is given items whose value exceeds the due share, the other spouse is awarded the appropriate monetary compensation (Part 3 of Article 24 of the Code on Marriage and Family).
The spouses live separately, do not maintain a joint household, but are not divorced. Can a wife claim an apartment that her husband will buy before the marital relationship ends? How to prove that he spent his personal funds to purchase it?
If the spouses stopped running a common household before the divorce case was considered in court or a joint application was submitted to the body registering acts of civil status, then only the property that was their common joint property at the time of termination of the common household is subject to division.
The fact that the spouses live separately and have stopped running a common household for a certain time must be proven in court. This can be proven by witness testimony, the presence of other de facto marital relations (living in another actually created family), the spouse’s collection of alimony for the maintenance of minor children and for his own maintenance from the other spouse, and other written evidence. It is also necessary to confirm the fact that the spouse received a certain amount of money for the purchase of real estate after the termination of the common household (inheritance, donation, other sources of income).
Before marriage, the man formalized the privatization of the apartment and for a long time paid the funds from his personal savings. Will the wife be able to claim a share in the apartment in the event of their divorce?
In accordance with Art. 137 of the Housing Code, residential premises (share in the ownership of residential premises), privatized by spouses living together, are their common joint property if both participate in its privatization (including by investing funds belonging to them under the right of common joint ownership).
Thus, in the case of a wife moving into an apartment in accordance with the procedure established by law, living in it, running a common household, making privatization payments from common joint funds, the wife can claim recognition of her share in the ownership of the apartment in proportion to the funds contributed during the marriage .
The couple took out a loan from the bank to purchase a two-room apartment. 70% of the borrowed funds were repaid by the wife from the proceeds from the sale of her own premarital real estate (she sold her 1-room apartment). How will property be divided between spouses in the event of a divorce? Can a wife count on a larger share and how can she justify her position in court?
Residential premises erected or acquired by spouses during marriage (except for those received as a gift or by inheritance) are their common joint property, unless otherwise provided by law or agreement.
When dividing property, the size of the shares of each spouse in the right of joint ownership of residential premises is determined in accordance with Art. 259 of the Civil Code and Art. 24 Code on Marriage and Family; If there is a marriage contract, the court proceeds from its terms.
In the absence of a marriage contract or other agreement between the spouses, if the specified money was invested in the interests of the family, the shares of the spouses are recognized as equal. The court may deviate from recognizing the shares as equal, taking into account the worthy interests of one of the spouses. The share of one of them, in particular, can be increased if the other spouse avoided working or spent common property to the detriment of the interests of the family.
In relation to this situation, one should also be guided by the explanations of paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus dated March 26, 2003 No. 2 “On the application by courts of legislation in resolving disputes related to the right of ownership of residential premises.” In accordance with the clarifications, if the payment for the loan and other monetary obligations for the residential premises was made by one of the spouses after the actual breakup of the family from their own funds, the court has the right to satisfy his demands for an increase in the share in the ownership of the residential premises only if there is evidence that that the second spouse deliberately avoided paying these obligations.
Do adult children have a share in the division of housing purchased on credit during marriage?
In accordance with Art. 259 Civil Code, Art. 24 of the Code on Marriage and Family, property acquired by spouses during marriage is in their joint ownership, unless an agreement between them establishes a different regime for this property. When dividing property, the court also takes into account the common debts of the spouses and the rights of claim for obligations arising in the interests of the family.
Thus, when spouses purchase an apartment on credit, children do not acquire ownership rights to the residential premises.
If a gratuitous subsidy was used for the construction or purchase of residential premises, then the family members on the basis of which it was calculated may demand recognition of their right to a share in the ownership of the residential premises based on the amount of the subsidy accruing to each of them.
According to BELTA
