Is property acquired before marriage divided between spouses?

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To understand whether property that was acquired by a husband or wife before marriage is divided during a divorce, you should refer to Art. 36 of the Family Code. According to its rules, such property is recognized as the personal property of the person who acquired it, both during the existence of the marriage and after its breakup. Existing exceptions to this rule are also recorded in articles of the RF IC and the RF Civil Code. Let's look at the question in more detail.

Divisible and indivisible property

The RF IC (Article 34) and the RF Civil Code (Article 256) define jointly acquired property of spouses, which is subject to division during marriage or after its dissolution in 2021. Let's look at the examples in more detail:

The law determines that property classified as divisible is equal property for spouses, i.e. In case of divorce, it is divided in half. If the property is registered as personal property, then it is not subject to division between spouses.

If the mortgage was taken out by a military personnel

If a mortgage loan under the military program was used to purchase an apartment, there are special rules for dividing it. This is due to the fact that during service in the ranks of the Russian Armed Forces, the mortgage is paid by the Ministry of Defense. Therefore, after a divorce, when dividing the property of the spouses, the other half cannot claim the apartment.

However, you should know the following.

1. When leaving the Armed Forces before repaying the debt, the citizen must contribute the remaining funds himself, that is, the funds will be taken from the general family budget. In this state of affairs, the second spouse has the right to demand compensation for the balance of the mortgage paid.
2. When using maternity capital to pay off a mortgage loan, the living space is divided in equal shares between all family members.

When getting married, it is necessary to provide for possible situations regarding the division of property, if suddenly family relationships do not work out. In order not to lose your home, you should take into account that even if an apartment was mortgaged before marriage, in 2021 it may be recognized as jointly acquired property. To protect yourself from possible mistakes, it is better to seek the help of a specialist: a lawyer in St. Petersburg will advise on the issue, help draw up the necessary documents and defend the client’s interests at all stages of the case.

Is an apartment purchased before marriage divided?

If real estate was acquired by one of the spouses before the wedding and he solely took ownership, then it will remain his personal property both during the marriage and after the divorce. There are only a number of exceptions to this rule.

Improving living conditions using shared money

If the housing, which belongs to one spouse as personal property, has undergone significant repairs or reconstruction using funds taken from the general family budget or money that belonged to the second spouse, then you can expect that the court will allocate a share in this property to this spouse. Or oblige the owner to pay compensation to the husband or wife.

The amount of compensation payments is calculated as follows. If the money taken for repairs was related to joint property, then the parties will be required to conduct an independent examination in order to determine the market value of the apartment at the time of the divorce. The original cost will be deducted from it (indicated in the contract of sale, gift, etc.). The amount received will be divided in half - this will be the amount of compensation due.

If the ex-spouse is registered

Let's consider whether an apartment purchased before the wedding is divided if during the marriage its owner registered the spouse in it. Such an apartment cannot be divided during a divorce in 2021. It will remain the property of the person who purchased it. After the divorce, the second spouse will be required to leave the occupied living space. If he does not agree to do this voluntarily, he will have to be deregistered by a court decision.

In a number of cases, the court agrees and allows the ex-spouse, who is not its owner, to live in the apartment if he does not have his own home. But the period of such residence cannot exceed 6 months, i.e. until a new place of residence is found.

If there are children

The RF IC determines that neither parents have rights to their children’s property, nor, accordingly, children have rights to their parents’ property. This means that the apartment purchased before marriage by the father or mother remains their personal property. The presence of children will not affect this fact in any way.

If a child has official registration in this apartment, then it does not give him the right to claim ownership of part of it. However, in this case, the child can continue to live in this apartment even after the parents divorce. If the housing belongs to the husband, and the court left the child with the mother, then his mother can live in this apartment until the child comes of age.

Provided that the child does not have permanent registration in the apartment, the decision on his further residence will depend on the availability of his own housing with the parent with whom the child remains in court. If there is no such provision or it is recognized as unequal, after the parents’ divorce and until the child reaches adulthood, the court may allow the child to live in the apartment with the parent who is recognized as the main guardian. If housing is available, the child and this guardian must move to live with him.

If the apartment is taken out on a mortgage

An apartment purchased with a mortgage, if the spouse has paid off all debts before the wedding, will remain his property. If the loan was issued before the wedding, and payments are made during the marriage, then the court may recognize that the money to repay the loan was taken from the family budget. Unless the interested party can prove otherwise.

Rules for the division of real estate acquired before marriage.

In this situation, the shares will either be divided between the husband and wife, or the apartment will be left to the party that took out the mortgage loan, obliging the second spouse to pay compensation for the funds spent.

Apartment in a new building

If the apartment was purchased before marriage in a house under construction, then the further development of the situation will occur in the same ways as with mortgage housing.

So, if the buying spouse is able to prove that joint funds were not spent on such an apartment, then it will be recognized as purely personal property. If the construction was completed during the period of marriage, then for such property during a divorce, either the division of shares or the payment of a compensation sum of money to someone who will not get this apartment is provided.

If an apartment in a new building purchased before marriage was put into operation only after the husband and wife divorced, then one of the spouses has the right to file a claim in court to recognize such an apartment as joint property. But only after the final delivery of the house. While it is under construction, it is not possible to divide the apartment, because... Legally, it doesn’t even exist yet.

A marriage contract has been concluded

Art. 40 of the RF IC allows spouses to resolve a number of property issues without involving a court. For this purpose, you can conclude either an amicable separation agreement or a marriage contract. If spouses want to regulate the division of property purchased before marriage or not yet acquired at all, then the second option will be more correct for them, because The agreement allows for the division of only property recognized as jointly acquired property.

A husband and wife have the right to draw up a contract both before the wedding and during the marriage. If it states that an apartment purchased before marriage will go to only one of the spouses during a divorce in 2021, then this is precisely the condition of the document that will be accepted. There is only one exception to this condition. So, if maternity capital was invested in the reconstruction of such an apartment or in repaying the loan for it, then the conditions of division will be completely different.

Federal Law No. 256 determines that if maternity capital was used to improve housing conditions, then the real estate in which it was invested should be divided in equal shares among all family members. This also applies to an apartment purchased before marriage. No agreements, contracts or other documents can cancel this rule. In such housing, each family member receives his or her equal share.

The marriage contract is drawn up in any form. It is important to record as carefully as possible all the details regarding the divisible property. Those. if we are talking about an apartment purchased before marriage, then it is necessary to enter basic information about the purchase and sale agreement.

On our website you can see an example of recording the shares of the spouses that each will receive in the event of a divorce.

If a divorcing couple has children, how to divide the mortgage

When dividing the property of spouses who have common children, many factors are taken into account. This also applies to housing purchased with a mortgage loan.

If ownership of an apartment is registered in the name of a spouse before marriage, then the presence of children does not have any impact on its division. After a divorce, the apartment remains the property of the person to whom it was registered. However, a point should be noted regarding the residence of children. If, after the divorce of the parents, they move to housing that is inferior in parameters to this apartment, the court may make a decision on the possible residence of the children in the apartment purchased with a mortgage until they reach the age of majority. Accordingly, the spouse with whom the children remained after the divorce will also be allowed to live with them.

If maternity capital was used to repay the mortgage, the apartment will be divided in equal shares between all family members, regardless of the amount of other funds contributed by the parties.

In a situation where the loan was repaid during cohabitation, but without the use of maternity capital, the apartment is divided according to the standard legal scheme - equal shares between both spouses, or one of them is compensated for the cash costs of repaying the loan.

Sale of property acquired before marriage

Art. 36 of the RF IC establishes ownership rules for property acquired before marriage. It is the personal property of the acquirer. The same rules apply to property that was received under a gift or inheritance agreement during the existence of family relations.

Should property purchased before marriage be divided?

Not really

If the owner decides to sell such property while married, then he does not need to obtain permission from the second spouse to complete the transaction. All proceeds from the sale will again be considered the personal property of the person to whom the property belonged. The second spouse in the event of a divorce or during the existence of the marriage cannot claim these funds.

When property is recognized as common

If the court determines that the second spouse should be allocated a share in the apartment purchased before marriage, then there are several options for further division:

• spouses officially determine shares in real estate and continue to use it jointly;
• the existing apartment is sold, and the proceeds are divided according to the shares allocated to each;
• housing is recognized as the property of one spouse with the need to pay monetary compensation in favor of the second according to the allocated share;
• The spouses are exchanging an apartment. For example, they change it to a room and a one-room apartment;
• division in kind. The option is possible, but difficult to implement. The most suitable for its implementation is a private house, which has two entrances and at least the ability to make a division in such a way as to build an isolated bathroom and kitchen in both parts of the house. This option is also possible for apartments that were created by combining two adjacent ones.

Arbitrage practice

The practice of dividing apartments acquired as personal property is very extensive.

• Citizen Smirnova applied to the court with a request to divide the apartment that her husband bought immediately before the wedding. According to the purchase and sale agreement, the cost of the apartment upon purchase was estimated at 2.5 million rubles. The plaintiff stated that during the marriage, which lasted 2 years, a lot of renovations were done in the apartment. An independent appraiser was invited to determine the value at the time of the divorce. The apartment was valued at 4 million rubles. The judge ruled that the apartment will remain the property of the plaintiff’s husband, and he will be obliged to pay her compensation in the amount of 750 thousand rubles, i.e. half the amount by which the cost of the apartment increased.

Thus, in 2021 the wife will be able to divide the husband’s apartment, purchased before marriage, only in exceptional cases. If she proves that the cost of this housing has increased due to her personal savings or funds from the general family budget.

Nuances that play a significant role in the issue of dividing mortgage housing

It should be noted that, no matter what the situation is with a credit apartment, the down payment and debt paid before the marriage relationship goes exclusively to the owner of the apartment. This fact is easily proven in court. The second spouse will not be able to claim the property.

In order not to share the home, you can invite the second spouse to solve the problem amicably. This option, such as payment of compensation, without judicial intervention, will suit many. The problem is that people cannot always agree on the amount of compensation.

If the apartment was purchased in a new building, then the cost of the primary home may be significantly lower than that of an apartment on the secondary market. In such a situation, for the second spouse the amount of compensation may be significantly less. There is one more point. The fact is that this housing is not suitable for living, since it is still under construction.

In this regard, spouses cannot live in it and bear joint expenses. In addition, ownership can be registered only after the completion of the construction stage. The construction of the building may take several years, which means that the property will be regarded as common. In other words, buying a home in a new building before marriage does not provide any benefits to the borrower, with the exception of a reduced price for the apartment.