How to formalize the refusal of an apartment during a divorce

The division of property during a divorce is not always associated with scandals and disputes between spouses. In some cases, one of the spouses decides to voluntarily transfer part of their property to their ex-wife or husband. However, the waiver of joint property cannot be oral. Today we will talk about how to correctly formalize the abandonment of property during a divorce and whether it is possible to return property after abandonment.

You can formalize a waiver of joint property at any time, both during family life and after divorce.

How to formalize the refusal of an apartment during a divorce and where to get a sample of the necessary documents

Severance of family relationships and divorce is a rather complex process, both psychologically and legally.
Often, divorce is accompanied by the division of joint property acquired during the period of cohabitation. Sometimes dividing property peacefully is impossible, and spouses go to court. But the issue is not always resolved through disputes and scandals. In some cases, one of the spouses voluntarily renounces part of the common property in favor of the other half. Therefore, it is important to know how to formalize the abandonment of an apartment during a divorce.

Is it necessary to divide property during a divorce?

The Family and Civil Codes of the Russian Federation explain in detail what property is considered jointly acquired and how to divide it during a divorce. But not a single legal document establishes that the division of property upon divorce is the responsibility of citizens. Either spouse has the right to decide to leave everything they have acquired to the other party on any conditions or without them.

When deciding to formalize the abandonment of property, you should remember the legal consequences of this action, which are enshrined at the legislative level.

Consequences of failure:

inability to claim property in the future;
prohibition on filing a claim if the refusal was accepted by the court;
deprivation of the right to use and dispose of property.

In this case, it does not matter at all in what form and under what conditions the agreement on the renunciation of jointly acquired property was drawn up.

Who can't give up property?

Theoretically, each spouse can refuse jointly acquired property. But in some cases, the refusal may be invalid, since not only good will is required from both spouses. They both must be fully capable.

The following citizens cannot formalize the abandonment of property::

officially declared legally incompetent;
under pressure from third parties or misled;
suffering from serious illnesses that affect the ability to make responsible decisions.

For example, a husband signed a waiver of an apartment during a divorce. But at the time of signing, he was ill and taking psychotropic medications. At the end of the course of treatment, when he returned to normal, the man filed a lawsuit to invalidate the agreement to renounce housing. He motivated his statement by his inadequate condition associated with taking medications. The claim was accompanied by a copy of the medical record, prescriptions written by the doctor and receipts for the purchase of drugs. The court found his claims fair and annulled the agreement.

How to correctly issue a refusal

According to the current legislation of the Russian Federation, the refusal of jointly acquired property by one of the spouses must be formalized only in writing. If the decision to renounce property in favor of the other half is stated orally and even in front of witnesses, it will not have any legal force.

Many married couples are concerned about the question of how to correctly formalize the refusal of a shared apartment during a divorce.

In order to legally correctly renounce common property in favor of a spouse, you should follow the following sequence of actions:

Try to verbally agree with your other half that the apartment purchased during marriage will go to her (or him) after the divorce.
Gather all the necessary documents.
Draw up a settlement agreement.
Contact a notary with all the collected documents.
If you have collected and submitted the required documents, you will be able to receive a waiver agreement certified by a notary. The document must be in triplicate. One each for husband and wife, another copy remains with the notary.

The agreement is drawn up with a notary if the following documents are available:

A draft voluntary agreement that spouses must draw up in advance.
Identification documents of husband and wife.
Marriage certificate, or divorce document if the divorce has already taken place.
A complete list of real estate acquired during marriage, for which one of the spouses refuses. You also need to provide a full description of it, indicating the shares for each spouse.
Documents for ownership of a joint apartment.

Let's sum it up

To formalize the renunciation of his share, a man can use the following methods - drawing up a marriage agreement, a gift agreement, a renunciation agreement or a receipt.

As soon as a man has renounced his property rights in favor of a woman, she will receive the right to dispose of these property objects and enter into civil transactions with them (these include sale, barter, donation). After this, the spouse will not be able to challenge the completed transactions, since they will no longer violate his rights.

Receipts for giving up an apartment during a divorce

In some cases, a married couple can issue a quitclaim deed to property acquired during the marriage. This document is drawn up in writing, but is not notarized, and therefore has no specific legal force. And according to this document, it will not be possible to completely abandon the apartment after a divorce in favor of the other half.

To ensure that all actions of spouses when dividing jointly acquired property are legal, you should choose document options for their execution,

provided for by the Family Code of the Russian Federation:

An agreement that the spouses drew up during their marriage and had it certified by a notary.
A court-approved settlement agreement on the division of property acquired during marriage.

These documents must be drawn up in writing, in a prescribed format and must be notarized.

The Supreme Court explained the subtleties of dividing the property of former spouses in the presence of a marriage contract

On September 10, the Supreme Court issued a Ruling in case No. 18-КГ19-82 on the division of property of spouses in the presence of a marriage contract.

The marriage of Sergei Ulyanchenko and Irina Kondrasheva lasted four and a half years. During this period, the woman bought an apartment under the DDU and registered it in her name. Three months before the divorce, the spouses entered into a marriage contract, having it certified by a notary. According to its terms, the property acquired by the spouses during the marriage was their joint property, with the exception of personal property belonging to one of the spouses by law. The agreement also noted that all income of the spouses during the marriage (including from business activities) is the property of the one in whose name it is registered.

In addition, the spouses entered into a notarized agreement on the division of property. According to its terms, the apartment acquired by Sergei Ulyanchenko under the DDU before marriage is the common joint property of the spouses. The cadastral value of such housing was 3.7 million rubles. at the time of conclusion of the agreement. The apartment became the property of the husband after paying compensation to the wife in the amount of 700 thousand rubles, as evidenced by the corresponding receipt.

After the divorce, the man filed a lawsuit against his ex-wife to invalidate the agreement on the division of jointly acquired property and the marriage contract. According to the plaintiff, the terms of the disputed documents put him in an extremely disadvantageous position, since he was deprived of all property acquired jointly during the marriage.

Sergei Ulyanchenko insisted that the apartment for which he paid compensation is not the joint property of the spouses, because it was acquired before their marriage and with his personal funds through the conclusion of a joint agreement, which was confirmed by settlements under the agreement. In this regard, he demanded the recovery of the compensation paid from the defendant, as well as the recovery of legal costs in the amount of about 11 thousand rubles.

The court of first instance rejected the claim, indicating that the disputed documents complied with the law. He noted that the transactions were concluded by the spouses during the marriage on a voluntary basis. At the same time, the court took into account that at the time of the conclusion of the agreement, the ownership of the specified apartment was registered for Ulyanchenko on the basis of the corresponding DDU, and the registration of this right was made during the marriage of the spouses. As the court pointed out, the plaintiff did not prove that the terms of the disputed documents placed him in an extremely unfavorable position. In addition, he considered the plaintiff’s argument about the disproportionate property allocated to each of the spouses to be unfounded, since the possibility of deviating from the legal regime of the spouses’ property by concluding a marriage contract and an agreement on the division of property is provided for by current legislation.

The appeal overturned the decision of the first instance regarding the refusal to satisfy the claim to invalidate the agreement on the division of property between the spouses.

This agreement was declared invalid by the court of appeal, so it recovered 700 thousand rubles from the defendant. and legal expenses. The second instance justified its position by the fact that, in violation of the requirements of Art. 38 of the RF IC, in the agreement on the division of property, the parties included an apartment that was not the joint property of the spouses. Since the appeal considered the property to be Ulyanchenko’s personal property, it declared the controversial transaction invalid.

Subsequently, Irina Kondrasheva filed a cassation appeal to the Supreme Court of the Russian Federation.

Having studied the circumstances of the case, the Judicial Collegium for Civil Cases of the Supreme Court noted that, by virtue of clause 2 of Art. 38 of the RF IC (as amended in force at the time of concluding the agreement on the division of jointly acquired property), the common property of the spouses can be divided between the spouses by their agreement. Such an agreement can be notarized. In accordance with paragraph 1 of Art. 42 of the RF IC, the parties have the right to determine in the marriage contract the property that will be transferred to each of the spouses in the event of divorce, as well as to include in the marriage contract any other provisions relating to their property relations. “Thus, spouses (former spouses) have the right, at their discretion, to change the regime of common joint ownership of property acquired during marriage (or part thereof), both on the basis of a marriage contract and on the basis of any other agreement (agreement) that does not contradict the norms of the current legislation,” noted in the Court’s ruling.

With reference to a number of provisions of the Family Code of the Russian Federation, the Supreme Court explained that spouses are free to establish their rights and obligations on the basis of an agreement and to determine any terms of the agreement that do not contradict the law. In this regard, he supported the conclusion of the court of first instance that the value of the disputed apartment at the time Sergei Ulyanchenko concluded the DDU was 2.3 million rubles, and at the time of the conclusion of the disputed agreement on the division of property, the latter was estimated at 3.7 million rubles. “It is clear from the case that the disputed agreement on the division of property between the spouses Ulyanchenko and Kondrasheva dated May 3, 2021 is an independent transaction, which defines all the essential conditions in order to regulate mutual property rights and obligations for the division of property acquired by the parties during the marriage. As a result of an agreement concluded on a voluntary basis between them on the division of property for the plaintiff Ulyanchenko, who was the title owner of the apartment at the time of conclusion of the agreement, the ownership of this apartment was retained subject to the payment by him to the defendant Kondrasheva of monetary compensation without specifying what exactly this compensation was paid for,” – pointed out the Armed Forces.

The Supreme Court added that spouses, including former spouses, have the right, at their discretion, not only to change the regime of common joint ownership of property acquired during marriage, but also to include in the marriage contract and other agreement defining the property status of its participants any items that do not contradict the law conditions (including the disposal of property that is the personal property of each spouse). The inclusion of such conditions in a marriage contract or in an agreement on the division of property cannot be interpreted as illegal, since Art. 38 of the RF IC does not contain a ban on this.

Thus, the Court canceled the appeal ruling on invalidating the agreement on the division of property between the spouses and making a new decision, leaving in force the relevant part of the judicial act of the first instance. The rest of the decision of the second instance was left unchanged.

The head of family practice at the Moscow Bar Association No. 5, lawyer Tatyana Sustina, noted that litigation regarding marriage contracts is quite young for Russia, so practice on them is in the formative stage. “The category of all family disputes (including those settled by marriage contracts) has its own specifics, because, being in an acute stage of conflict in the divorce process, each party wants not only to protect itself, but also to complicate the life of the other party as much as possible. It would seem that a marriage contract should level out the property conflict between spouses, but, unfortunately, it does not always protect against litigation, creating difficulties of a different nature,” she noted.

According to the expert, in the case under consideration, the appellate court went beyond standard national law enforcement, interpreting a citizen’s right to property more broadly than the district court. “It is interesting that the court of appeal recognized the invalidity of the transaction on the basis of the inclusion in the subject of the contract of property acquired before marriage. Apparently, the second instance applied the general rules of law on the division of property by analogy to contractual relations in the absence of direct legal regulation. On the one hand, Art. 34, 38 of the RF IC speak only about property acquired during marriage or about the future property of spouses, on the other hand, these norms resonate with Art. 7 RF IC and Art. 421 of the Civil Code of the Russian Federation, according to which citizens are free to conclude an agreement and can enter into an agreement, both provided for and not provided for by law,” the lawyer explained.

Tatyana Sustina believes that Art. 42 of the RF IC establishes that a marriage contract can be concluded in relation to the property of the spouses and, based on the literal interpretation of this norm and all family legislation, there are no restrictions on the moment of acquisition of property. “Thus, the approach of the Supreme Court, which actually established the right of spouses to include property acquired before marriage in marital agreements, is consistent with family and civil law and protects contractual obligations,” she concluded.

Lawyer of AK SanctaLex Olga Istomina believes that the conclusions of the Supreme Court can hardly be called revolutionary. “When canceling the decision of the appeal regarding the nullity of the agreement on the division of property, the Supreme Court mentioned that although the apartment was the personal property of the spouse, he became the title owner already in marriage and its cadastral value as of the date of division increased by 1.5 million rubles. In this situation, payment of compensation in the amount of 700 thousand rubles is not critical. while maintaining ownership of the apartment,” she explained. The expert added that the commented definition is unlikely to significantly affect the entire judicial practice, because each case is considered individually, taking into account the totality of specific circumstances.

Passive refusal

In some cases, the husband or wife makes a “passive” refusal to share the common property.

Such actions occur in the following cases:

The apartment was originally registered to one of the spouses. For example, it was given to the wife before marriage under a gift agreement.
The property is under a mortgage and the husband or wife does not want to allocate their share of the property.

The advantages of a “passive” refusal include a quick solution to the issue of dividing an apartment; its owner is immediately determined.

But there are also disadvantages to this option:

Until one of the spouses formalizes a voluntary or amicable agreement, the other party will not be able to sell, gift or exchange it.
A husband or wife can challenge their right to real estate not from the date of divorce, but from the moment when the other half wants to sell, donate or exchange an apartment. Therefore, the process of dividing joint property may be significantly delayed.

If one of the spouses adheres to “passive” actions, the other half can interrupt such an uncertain status. To do this, you need to file an application with the court to divide the property and allocate a share for each party. Then the husband or wife, who does not want to give up his share, will be forced to admit part of his wealth, or to make an active refusal.

Conditions of refusal

Registration of a waiver of property can be carried out if the other party fulfills a number of conditions. This nuance must be specified in the text of the document drawn up by interested parties.

Gratuitous

This happens rarely, but common property is registered in the name of one of the spouses without presenting any conditions. Those. they simply state in the agreement or contract that the transaction is free of charge. The gift agreement presupposes the presence of such a factor initially.

Transfer of other property

One of the conditions for renunciation of common property during a divorce or during the existence of a marriage may be the presentation of a counterclaim for the transfer of some personal property of the second party. For example, a husband gives up a 3-room apartment purchased during marriage, and the wife gives him her 1-room apartment, received as an inheritance.

Registration for a child

Sometimes spouses, giving up property, want to provide for their children, and not the second spouse. In this case, the agreement or contract indicates that part of the property is transferred to the ownership of the minor child, and not the wife or husband. For such purposes, a gift agreement is better suited. Until the age of majority, the property will be managed by the parent with whom the child remains to live, but only with the approval of any transaction by the guardianship and trusteeship authorities.

Active refusal to divide real estate

An “active” waiver is the drawing up of a certain form of agreement in which one party renounces its share of property in favor of the other half.

Currently, the following forms of agreement are used:

Marriage contract. It is drawn up before marriage or during the time the spouses live together. The document must contain a clause according to which, after a divorce, ownership of the joint property passes to one of the spouses.
Property division agreement. This document must indicate that the spouses do not have property claims against each other when dividing joint property. It should also indicate what property will remain with the husband or wife. The agreement is signed by both parties and certified by a notary.
An agreement to donate one’s share of the joint living space to the second spouse. After its signing and registration with a notary, the transfer of ownership is subject to registration in Rosreestr with an entry in the Unified State Register of Real Estate.

Compared to “passive” refusal, “active” actions have a number of advantages:

After the divorce, the owner of the apartment or house is clearly determined.
From the moment the contract is signed, all property rights pass to one of the spouses.
The registration of a marriage contract and an agreement for the voluntary division of property is carried out in accordance with the current legislation of the Russian Federation.
All actions take place only by mutual consent of the two parties.
The issue of renunciation of a share of property is resolved without recourse to the courts.
After signing the documents, the husband or wife who has received ownership of the entire apartment or house will be able to sell, exchange or rent out this property.

Who cannot give up property

The law provides for two categories of citizens whose refusal of property during a divorce in 2021 can be easily appealed:

persons recognized by the court as legally incompetent at the time of signing the document;
citizens suffering from serious diseases, the presence of which may affect the decision made.

Those.
if the spouse signed the marriage contract while being legally capable, then his further incapacity will not affect the decision to refuse. Each of the spouses at any time during the marriage relationship has the right to draw up a written refusal of joint property. To do this, you will need to sign your choice: a marriage contract, a gift agreement or a separation agreement.

Required documents

To draw up an agreement, the notary will need to present the following documents:

The text of the agreement with the attached list of property that is planned to be abandoned.
Passports of spouses or other identification documents.
Certificate of marriage and divorce.

Usually there is no need to confirm ownership, since the agreement is voluntary, but it is still recommended to keep the title documents with you.