The apartment was purchased during marriage, but is registered in the name of the husband: how to divide during a divorce

Article updated: May 28, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years

Hello. To explain to you the need for your spouse’s consent, I have identified 2 options: 1) the apartment is purchased only for cash; 2) the apartment is purchased with a mortgage. These 2 options are the most popular among my clients whom I help in purchasing real estate.

If you need free legal advice, write online to the lawyer on the right or call (24 hours a day, 7 days a week): 8 (Moscow and region); 8 (St. Petersburg and region); (all regions of the Russian Federation).

About the form of ownership

The form of ownership can be private, shared or joint.

As for the shared part, it can be private or general. Often this type of property is used to privatize apartments or rooms. It involves assigning share rights to each family member. Everyone has a separate share and a certificate of the right to dispose of it. Such a share can be sold. Thus, a single housing unit can turn into a communal apartment that has been fragmented. However, before the sale of the share, it is offered to be purchased by other shareholders, and only if they refuse, can it be sold to third parties.

Private ownership is the ownership of property by one person. In most cases, this type of property is common among young people before marriage. An apartment is considered shared after the appearance of joint property. In this case, all family members who took part in this transaction will be taken into account, they will all receive equal shares.

Joint ownership implies the absence of indication of shares. The division of property is carried out in equal shares between spouses and their minor children. The shares are not separate. They cannot be divided and sold separately. In this case, only one person is listed on the title deed, but everyone actually owns it. That is, when deciding to sell an apartment, one of the owners must obtain consent from the others.

Based on the information provided, it becomes clear that for spouses who are worried about the division of property, the priority option would be to register housing as shared ownership. If necessary, it can be issued in unequal shares. If joint ownership has been registered, when dividing the property, this will have to be done through the court. Usually he divides the property into equal shares, but if the husband or wife provides evidence of the right to a larger part, a decision will be made on the division not in equal shares.

If housing was purchased during marriage and registered in the name of the husband or wife, it will also be considered joint property. For example, if an apartment was purchased during marriage and registered in the name of the wife, in the event of a divorce the husband has the right to half of it.

How to transfer a share in an apartment to your spouse?

If a husband and wife own an apartment in shared ownership, then one of them can freely transfer his part to the other.

You can transfer real estate to your spouse using a gift agreement or an agreement on the ownership of jointly acquired property.

The procedure must be registered with the Federal State Registration Service.

The woman will be considered the new owner of the property only after she receives an extract from the Unified State Register of Real Estate. Usually the procedure takes up to 30 days.

If the apartment was purchased during marriage, then it is the property of both spouses.

In this case, a gift or “purchase and sale” agreement for the entire property is not concluded, since the wife already owns part of it.

In this situation, you should draw up an agreement to determine the share, and then draw up an agreement for the transfer of rights to the apartment.

It is not necessary to indicate the value of the property in the gift deed. However, practice shows that it is better to write this characteristic in the agreement.

Usually the average market price is indicated. But the cost can be set by agreement between the parties to the transaction.

Download the agreement for donating a share of the apartment here:

Agreement on donation of a share of an apartment.

About tax refund

When housing is purchased during marriage, income tax is deducted, taking into account certain features. It is jointly owned by the husband and wife, but tax deductions can be provided in different ways, depending on the form of ownership chosen by the spouses when purchasing housing.

In order to receive a tax deduction, you need to pay attention to the fact that if the apartment is registered in the name of one spouse, and the payment papers are in the name of the other, the deduction may be denied.

Note: In order for income tax to be refunded, you will need to provide papers confirming payment of funds for housing and ownership of it.

The deduction can be divided between two spouses if each has regular official income. This is the only way to get your tax refunded.

You can request a full tax refund for one spouse. Then the other will have the opportunity to use the deduction in the future.

Drawing up an agreement on the division of common property.

Spouses can enter into an agreement on the division of common property. In order to get it properly executed, it is recommended to visit a notary.

Spouses should prepare the following documents:

• passports;
• real estate ownership documents;
• technical certificates, cadastral passport, etc.

Download the sample here:

Agreement on the division of common property.

Rights to receive deduction payments

If housing is registered as joint ownership, both spouses or one of them can count on receiving payments. The latter case implies the need for the second spouse to write a refusal to receive payments in favor of the other.

When registering an apartment as shared ownership, each spouse receives a separate payment, which is commensurate with the share owned.

The general rule determines the amount of deduction for one apartment at 200 thousand rubles. The cost of housing is divided proportionally. This is how the deduction is determined for each spouse only if the cost of the apartment is no more than 2 million rubles. If the cost exceeds the specified amount, 2 million rubles will be deducted for each spouse, multiplied by his share.

When a spouse is on maternity leave, she has no taxable income, which means that during this time she will not receive a personal income tax refund. However, the spouse will retain his right in future purchase and sale transactions of any real estate.

When spouses buy an apartment not for the first time, if one of the spouses receives the maximum amount of payments earlier, the second spouse has the opportunity to receive a full deduction this time.

Marriage contract

Often, spouses discuss in advance their rights, responsibilities and specifics of the division of property during a divorce. In this case, they turn to a lawyer to draw up a marriage contract. It will specify who will get the apartment in the event of a divorce. It does not take into account which spouse paid for it when purchasing it.

Also, the marriage contract will contain information about the presence or absence of the right to transfer housing to a minor child with the right for one of the parents to live in it until the child turns 18, as well as the need to remove one of the spouses from registration in the event of a divorce.

Thanks to a prenuptial agreement, the division of property during a divorce can take an unusual path. However, this document can also be considered invalid. To avoid such a situation, some rules should be taken into account when concluding a contract.

First of all, it is impossible to draw up a marriage contract if one of the parties is put in a disadvantaged position by the conditions that the other party wants to include in the contract. If such conditions exist, you can challenge the contract in court.

Buying an apartment while married: how to protect yourself

It is advisable to take care of your own safety even before purchasing real estate during marriage. There are several ways to protect yourself:

1. Draw up a marriage contract.
2. Buy an apartment through a third party.
3. Pay for real estate with personal money accumulated before marriage.

There are other ways, but they are less secure. Let's look at each of them in detail.

Registration of a marriage contract

Art. 40 of the RF IC allows you to conclude a marriage contract, and then instead of the legal regime of property in the family, contractual property will operate. The contract is concluded before registration or during marriage. In the first case, it comes into force only after the marriage is concluded in the registry office.

Important! A prenuptial agreement is relevant if the apartment is purchased with a mortgage and the spouse wants to keep it in the event of a divorce. The second spouse will not be able to claim the property, but he will not have to repay the debt to the bank, as he will not be involved as a co-borrower. The agreement must be certified by a notary.

How to conclude a marriage contract?

To draw up a marriage contract, you need to agree in advance what information it will contain. It is advisable to first draw up a draft, agree with each other, and only after that draw up the final version of the contract. It indicates only the specifics of financial and property legal relations in the family. He cannot regulate personal relationships.

How to draw up an agreement:

1. Agree on the contents of the document, draw up the final version in triplicate.
2. Contact a notary and sign the contract in his presence. He must sign and seal.
3. Submit the agreement to the bank if the apartment is purchased with a mortgage.

A fee is paid for notarization in accordance with Art. 333.24 Tax Code of the Russian Federation – 500 rubles. If the notary independently draws up a contract and provides other technical services, this is paid separately.

Important! The agreement cannot contain provisions that limit legal capacity, regulate non-property relations, or worsen the position of one of the parties.

Purchase through a third party

Housing purchased during marriage by one of the spouses with personal funds can be registered in the name of a close relative or other trusted person. In fact it looks like this:

1. The spouse chooses an apartment and negotiates with a relative or friend who will act as the buyer.
2. A purchase and sale agreement is concluded, where a friend appears as the buyer. The spouse allocates money for the purchase.
3. The property is registered in the name of a friend, but the spouses live in the apartment.

Legal advice: this option is unsafe, it’s better not to risk it. The friend can kick the spouses out of the apartment at any time, since according to the documents he will be the owner.

There is another option. A friend can buy an apartment, the money will be allocated by one of the spouses, for whom a gift deed will subsequently be drawn up. According to Art. 36 of the RF IC, property received during marriage under a deed of gift is not subject to division. There is also a danger here: if during marriage the value of real estate is significantly increased at the expense of common funds, it may be recognized as joint property and divided (Article 37 of the RF IC).

How to draw up a gift agreement?

To register a deed of gift you need:

1. Draw up an agreement and sign it.
2. Submit the agreement and other documents for registration to Rosreestr or MFC.
3. Receive a new extract from the Unified State Register and an agreement with a registration mark in 7-9 business days.

Notarization is required only if a share is being donated or one of the parties to the transaction is incapacitated. But the parties can turn to a notary at their own request if they want the transaction to be carried out as correctly as possible.

Buying an apartment in marriage with personal money

If a spouse has money saved before marriage or given by someone during marriage, he can buy an apartment with it. In the event of a divorce, she will not share. Even if the second spouse wants to divide, it is possible to prove that the purchase was made with premarital or gift funds.

Applying for a family mortgage

Most Russian banks set the following requirements for a family deciding to buy an apartment with a mortgage:

• age from 18 to 60 years;
• presence of Russian citizenship;
• work experience in the last place for at least 6 months;
• family income not lower than the subsistence level;
• the need for the family to improve living conditions.

If all the rules are followed, you can collect documents. Of these you will need:

1. Passports and birth certificates (for minor children).
2. Marriage certificate.
3. Property documents (if any).

If necessary, the bank may require additional information. In addition to the original documents, copies will be required.

A down payment will also be required. The percentage will be different for each bank. The average contribution is 10-30 percent.

Housing that was purchased with a mortgage will be encumbered by the bank until the debt is fully paid.

The mortgage can be issued in joint ownership or for one spouse.

You can issue a mortgage for two spouses, and register property rights for one, or vice versa, a mortgage can be issued for one person, and property rights for two. In any situation during a divorce, debts will be distributed between husband and wife in equal shares.

If the spouses want, they can draw up a prenuptial agreement, specifying who will own the home after the divorce and who will make the monthly payments.

Mortgage and joint ownership

The most common way to purchase real estate is on credit. In this case, the apartment is pledged to the bank until the debt is fully repaid. And if the agreement with the creditor is executed for only one of the spouses, the object will still belong to both in equal parts.

For loan obligations, husband and wife are co-borrowers, even if one of them has no income. An exception is paying for the loan with personal funds - money received as a gift or from the sale of one’s own property acquired before marriage.

If housing was purchased with funds received as a result of labor/business activity, the property is divided in equal shares between the spouses.

By a notarized agreement, the husband and wife are allocated specified parts of the premises. At the request of the parties to the loan agreement or the bank, the mortgage agreement can be renegotiated separately with each of the spouses and debt obligations can be divided in proportion to their shares.

Until the debt is fully repaid, property can only be sold with the consent of the bank (Article 37 of the Law of the Russian Federation of July 16, 1998). Therefore, when allocating shares and dividing loan obligations, the ownership of housing is re-registered with a note of collateral. After repaying the loan, the spouses acquire the right to dispose of the premises.

Who should I register housing for?

So which spouse should I register housing for? What's the best way to proceed? According to the law, when registering housing as joint property, both husband and wife have equal rights to its share (Article 39, paragraph 1).

The distribution of shares will depend on the presence or absence of a marriage contract or other type of transaction, on the basis of which one of the spouses can be allocated a larger share (deed of gift, etc.). If the listed ones are available, the shares will be distributed according to these documents.

If housing is purchased from scratch using funds that have been accumulated by both spouses, shares may not be indicated at all during registration; the contract simply indicates that the housing is being purchased as joint ownership. In this situation, both husband and wife will be the official owners of the apartment.

What is required to re-register an apartment for my wife?

In order to re-register an apartment in the name of your spouse, you will need to prepare the following papers:

• passports of both parties;
• technical and cadastral documents for living space;
• certificate of family composition;
• certificate confirming ownership.

Sometimes additional documents may be required depending on the specifics of the transaction. The donation agreement must indicate the technical parameters of the property, its address, and total area.

If the apartment was purchased with a mortgage by both spouses after registering the relationship, then in order to re-register it in the wife’s name, you will need to obtain permission from the financial institution where the loan was issued.

If a woman’s income is too small, the bank may refuse the procedure.

If the financial institution has given permission to re-register the apartment, then changes are made to the loan repayment agreement.

The agreement states that the husband is released from financial obligations, but also does not claim ownership of the property.

Spouses can also enter into an agreement on the division of property.

In this case, each of them has a share in the apartment determined, and the amount they must pay on the mortgage is also indicated.

What will happen to the apartment after a divorce, if it is registered for one spouse?

If one spouse owns the home, it will remain with him during a divorce. If the second spouse disagrees, you can file a lawsuit, describing in detail the reason for recognition of the share or residence.

Each case is individual. If the apartment was purchased during marriage, but was registered to one spouse, you will need to prove your rights by providing, for example, statements from the joint account from which money was transferred to pay for the apartment.

If a husband or wife acquired an apartment by gift or inheritance, it is not subject to division.

Litigation in practice

Despite the fact that the legislation clearly states all the clauses and exceptions that apply to the division of an apartment during a divorce, legal disputes arise very often.

When filing a claim for division of joint property, the main thing is to prove two facts in court:

1. Who is the owner of the property?
2. Is it possible to divide real estate?

To prove this, it is necessary first of all to present to the court facts confirming whose money the property was purchased with. If it can be proven that the housing was purchased after the wedding and with common money, the fact that the apartment was registered only in the name of the husband (or wife) does not matter.

USEFUL INFORMATION: Settlement agreement in divorce disputes

Controversial issues regarding the division of real estate after divorce include:

• The property was acquired during marriage, but the spouses did not actually live together during this period. Their family relations were terminated. In this case, the plaintiff will have to prove that he was not in a relationship with his wife and purchased the apartment on his own. In court, to confirm these facts, it is necessary to present testimony of witnesses.
• If there are minor children in the marriage, when dividing property, the court may side with the spouse with whom they remain to live. That is, the parent raising children is awarded more than half of the housing.
• The court may reduce the share of real estate of one of the spouses if it is proven that during the marriage he or she did not receive income without good reason.

The important point is that the lack of earnings is not taken into account for a woman when she was not employed, but was engaged in housework and raising children.

Is consent or refusal required for the sale from the wife/husband?

There is no need to provide consent to the sale of the apartment from the second spouse in the following situations:

1. The apartment was received by inheritance or as a gift.
2. The spouse purchased the home before marriage.
3. The apartment was privatized for one of the spouses, and the second gave consent to this.
4. Availability of a marriage contract indicating points of consent or refusal.

In other cases, when purchasing an apartment in joint ownership, a refusal or consent is required. They must be certified by a notary.

In this case, you need to submit an application to the notary's office. The notary will sign an agreement indicating the validity period of the consent or refusal. This paper, along with the rest of the collected documents, is submitted to the registration chamber.