The apartment was privatized in marriage to one of the spouses

Married spouses can privatize an apartment for both or one of them. During the divorce process, the pressing issue of dividing privatized real estate arises. During a divorce, only jointly acquired property can be divided in equal or other shares. On the one hand, since the apartment was registered as a property (privatized) during the marriage by one of the spouses, it should be classified as joint property, however, in reality this is not the case. In this case, a family dispute lawyer is simply necessary.

When dividing the property of former spouses, the court is guided by the principle: whether the divorcees had a marriage agreement (contract) or do not have one. If there is, then the division of property is carried out in accordance with the provisions of this document voluntarily concluded by the spouses. Regardless of whether it was signed during marriage or before marriage. In addition, already in marriage, the spouses had the opportunity to make additions to the main provisions of the original agreement, and they will also have legal force if these amendments were made in the manner prescribed by law.

If there is no such agreement between the spouses, then the court is guided by the provisions of the Civil and Family Codes, and in the case of the division of privatized living space, also by the Law of the Russian Federation No. 1541-1 “On Privatization...” dated July 4, 1991. This act states that At its core, a real estate (apartment) privatization agreement is a free transaction. The state transfers ownership of the apartment to the citizen (one of the spouses) free of charge. Therefore, such property is not subject to division during a divorce.

This decision is supported by clause 1 of Art. 36 of the RF IC and clause 2 of Art. 256 of the Civil Code of the Russian Federation, namely: everything acquired as a result of a gratuitous transaction becomes the indivisible property of the person to whom it is registered and cannot be divided during a divorce. The privatization of an apartment is such a transaction. Therefore, it cannot be divided if privatization is registered for only one of the spouses. A similar situation would arise if the apartment was bequeathed to one of the spouses and registered as their property under a will.

In the case where the apartment is privatized for only one of the spouses after a divorce, the family lawyer will be able to suggest to the second spouse only one legal basis for challenging the current situation. Only if the privatization procedure was carried out in violation of the norms of the current legislation, which means that the ownership of the apartment was registered illegally, only then will the second spouse be able to challenge the privatization, and subsequently take part in its legal registration.

Is a privatized apartment considered joint property?

Divorce is a rather unpleasant moment in people's lives. But in addition to the impact on the psychological state, this period is also associated with material aspects related to the division of property.

At this stage, many controversial issues arise. Quite often, spouses who are on the verge of divorce are interested in under what circumstances will a privatized apartment participate in the division of common property?

Arbitrage practice

The wife appealed to the court with a demand to divide the privatized apartment in half with her husband. In the statement of claim, the wife indicated that the owners of the disputed real estate are her husband and minor child. She did not participate in the privatization of housing; she does not own any other housing.

The court, having studied the circumstances of the case, came to the following decision:

• The wife cannot claim a share, since she refused to privatize the premises. Since privatization is a free-of-charge transaction,

  
  then, according to the norms of the Family Code, a privatized apartment is considered the personal property of the husband and cannot be divided upon divorce.

• Since the ex-wife was recognized as a parent who is entrusted with the responsibilities of raising and cohabiting with the child, she has the right to live in a privatized apartment where her child has a share.
• The husband cannot arbitrarily evict his ex-wife from the house, because in this case the child’s right to education and communication with both parents will be violated.

Types of property

The Family Code of the Russian Federation defines property acquired after marriage as the common property of the spouses, even if it was acquired by them separately. At the same time, the husband and wife have the right to agree in writing among themselves that any things will not become their joint possession.

To do this, when concluding a marriage or at any point in their family life, they draw up a marriage contract and have it certified by a notary.

The rules for recognizing types of property are established by family law and consist of the following provisions:

1. For the general property regime, matrimonial property is distinguished: common and jointly acquired. There are restrictions in contractual relationships.
2. When spouses own jointly, the law recognizes the existence of personal property.

Joint property

Jointly acquired property is property that was acquired and accumulated by spouses over the years of marriage, and its definition does not depend on who is the direct owner: husband or wife. The common property subject to division between spouses includes:

• income received as a result of official work activities;
• income received as profit of an individual entrepreneur;
• profit received from the results of intellectual activity;
• pension income;
• other finances generated from proceeds as compensation for harm or social payments;
• movable property;
• real estate;
• shares and other securities purchased from the family budget.

According to Article 36 of the RF IC, it is customary to recognize the following as personal property of spouses:

1. Things and objects acquired before the registration of marriage. A special case is the situation when one of the spouses sold an apartment before marriage and bought a new one after its conclusion. In such circumstances, the court recognizes as personal property that part of the funds that were received from the sale of housing before the creation of a family, but only if there is documentary evidence of this.
2. Items and real estate received through a donation transaction.
3. Inheritance.
4. Property received by a husband or wife as a result of a gratuitous legal transaction, including as a result of privatization.

Stages of registration

The completed package of documents is submitted to the administration or municipality. Within 60 days, local governments will review the application and respond. Next, they sign a privatization agreement, in which they indicate:

• detailed information about the property;
• information about the parties to the transaction;
• rights and obligations of the parties;
• size of shares for each participant in the transaction.

The last stage of privatization is the transfer of documents for registration to the MFC or Unified State Register. After privatization, the husband and wife or one of the spouses receive a certificate of ownership of the apartment, as well as an agreement on the transfer of housing. Privatization documents must indicate shares, not parts. Only in this case will the spouses be able to divide the property equally if necessary.

Impact of privatization on property rights

Housing privatization is the process of free transfer into the ownership of ordinary citizens of residential areas belonging to the estates of federal or regional significance. The procedure for conducting it depends on many individual conditions, and the impact on property is directly related to the time and circumstances of the transaction.

To determine whether the living space privatized during marriage is the joint property of the spouses, it is necessary to take into account the legal and personal attitude of citizens to the privatization process.

In this case, you need to consider two options:

1. Registration of property for both spouses.
2. Registration of property in the name of one of the spouses.

If we talk about joint privatization of municipal housing, then we can distinguish two types of family property rights:

1. Share. When spouses, as a result of receiving housing free of charge from the state, have their own shares and the right to dispose of them. In this case, they have two certificates in their hands and during a divorce they will not have to share housing.
2. General joint. Then, in the event of termination of the marriage relationship, the spouses will have to resort to dividing the living space and allocating shares.

If an apartment is privatized by one of the spouses before the conclusion of a family relationship, then his other half has no rights to it. Such real estate is recognized by law as personal property. Therefore, even if the second family member registers in the territory of the apartment privatized by the first before marriage, in the event of a divorce, ownership will remain with the latter.

Even joint children born after the family’s registration in the registry office will not be able to claim a share in such an apartment.

The law defines a number of exceptions when one of the spouses will be able to claim part of the cost of such housing during a divorce. When an apartment has significantly increased in price during the marriage, for example, due to reconstruction or major repairs.

What is this

First, you need to understand the very concept of privatization.

It means a free transfer of ownership of residential premises (house, apartment, room) from the state or municipality to an individual.

Based on this, privatization is characterized by the following legal facts:

• residential premises that are privatized must initially have the status of state or municipal housing, and be used only for the residence of citizens;
• residential premises should not be subject to restrictions (for example, the building is in disrepair, recognition of the premises as a national cultural heritage);
• Such housing can only be privatized by citizens to whom it belonged under the right of perpetual use (social tenancy agreement), and they are registered in it at the time of registration of privatization.

It is important to remember that a person can participate in privatization only once.

That is, if he has already participated in this process, then he does not have the right to privatize the next property (for example, his mother’s apartment).

What happens if privatization is registered in the name of one of the spouses?

How will spouses divide an apartment during a divorce if privatization for it was registered during the marriage for one of them? First you need to know that to carry out such a procedure, one of the conditions must be met:

• refusal of the other half to participate in the registration of property;
• participation in privatization again.

However, in spite of everything, the law clearly defines a participant in the privatization of housing as its full owner. This means that such an apartment cannot participate in the division of property, unless otherwise agreed in the marriage contract.

Of course, as in the case of privatization before marriage, the second spouse has the right to present evidence of significant investments made from the general family budget for repairs, reconstruction or redevelopment of housing. Then the confirmed costs can be assessed by the joint property of the family and divided between the spouses. In this case, the half without rights has a chance to obtain ownership of some part of the apartment.

As a result of refusal to privatize housing, the second spouse loses the right to real estate, but retains the legal opportunity to live on its territory until he decides to move out.

Therefore, if the owner decides to sell the apartment, then his ex-other half, possibly with children, will have to share it with a stranger.

As a result, if you answer the question of whether a privatized apartment is joint property of the spouses, then first you need to decide on the procedure for obtaining ownership rights in a particular case. If an apartment was privatized by one of the spouses, it does not matter whether before marriage or during it, then it is his full possession, and, therefore, personal property. Therefore, only housing in the privatization of which the married couple participated jointly can be recognized as jointly acquired real estate.

How is the apartment divided?

In some cases, there is still a right to a share in privatized property. For example, as mentioned above, when investing a significant amount of joint funds in it.

A privatized apartment, like any property of spouses, can be divided peacefully or in court.

Division in court

Is it possible to divide housing privatized by two spouses at once? The answer to this question depends on whether the court recognizes such an apartment as joint property. Courts in different regions treat such cases differently.

There are 2 main positions:

1. Such an apartment is recognized not as joint property, but as shared property - in this case, after a divorce, everyone will receive their share without taking these shares into account when dividing the rest of the property.
2. The apartment is recognized as common joint property. In this case, the shares are assumed to be equal, but the court has the right to increase the share of one of the spouses in the presence of special circumstances (for example, the presence of small children and the need to support them when the parent’s income is low).

In the latter case, the court also has the right to award an apartment to one of the spouses with the obligation to pay the second monetary compensation in proportion to the lost share.

Important! Taking into account the specifics of such housing as an apartment, its division in kind is practically impossible. The only exceptions are apartments with a large area, which can be used jointly by both former spouses after appropriate redevelopment.

It is the division of a privatized apartment in kind that becomes the main method of division carried out in court. The law does not provide other grounds for division between spouses in court regarding privatized real estate.

Section by agreement

The best way to divide marital property is by agreement, because:

• it allows you to take into account all the nuances of existing property relations;
• the costs associated with drawing up an agreement are significantly lower than legal costs;
• Compared to the judicial method, this is a very fast method of division.

To divide a privatized apartment, spouses can conclude:

A prenuptial agreement can be signed during the entire period of marriage or even before its conclusion. In the latter case, the terms of the contract come into force after official registration with the registry office. A special feature of a marriage contract is its wide scope of regulation - it covers all property relations of the spouses up to alimony obligations, although it may concern purely the division of property.

If life circumstances have changed, spouses can make additions to the marriage contract. All changes to the marriage contract are drawn up in writing and recorded by a notary.

If the marriage contract is not fulfilled voluntarily, then you should go to court with a demand for division. When considering the application, the court will rely on the contents of the marriage contract without regard to the provisions of the Family Code on the legal regime of the spouses.

In a marriage contract, spouses can change the legal regime of property from personal to joint and vice versa.

A division agreement can be drawn up during a marriage or after its dissolution and exclusively regulates the division of the spouses’ property (all or only part). This agreement does not require a notarial form, protecting the family budget from additional expenses.

A settlement agreement is signed by the spouses if agreements on division were reached during the trial. A settlement agreement is an agreement approved by the court by issuing an appropriate judicial act. A writ of execution is issued against this act-determination, as well as against a court decision, in the event that one of the spouses evades the division of a privatized apartment. In other words, the spouse can be forced to execute the settlement agreement by bailiffs.

A relatively new type of family law agreement is a mediation agreement. Mediation is a peaceful out-of-court settlement of a dispute under the control of a mediator, the result of which is an agreement on mutual rights and obligations, for example, on the division of joint property. This agreement is considered as an ordinary transaction, therefore, if its terms are violated, the parties have the right to go to court to protect their rights.

Property privatized during marriage

The next article in the series “Encyclopedia of complex cases in the division of property” is devoted to the legal status of property privatized by one of the spouses in marriage.

From this article you will learn how to divide property that is privatized by one of the spouses in marriage.

The answer to the question posed is contained in Art. 36 of the Family Code and Art. 1 Law of the Russian Federation dated July 4, 1991 No. 1541-1 “On the privatization of housing stock in the Russian Federation.” According to Art. 36 of the Family Code of the Russian Federation, property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (the property of each spouse) is his property.

Article 1 of the Law of the Russian Federation “On the privatization of housing stock in the Russian Federation” establishes that the privatization of residential premises is the free transfer into ownership of citizens of the Russian Federation on a voluntary basis of residential premises occupied by them in the state and municipal housing stock, and for citizens of the Russian Federation who have reserved occupied residential premises - at the place of reservation of residential premises.

Thus, we see that privatization is a free transaction. Under the privatization agreement, the residential premises are transferred to the purchaser free of charge. The acquirer (future owner) does not pay any amount for the purchased residential premises (apartment) and does not make any other consideration (that is, does not provide services, does not perform work, etc. for the transfer of ownership of the residential premises to him) .

Residential premises obtained as a result of privatization do not become the joint property of the spouses, but become the personal property of the spouse who entered into the privatization agreement and received the property on the basis of this agreement.

If both spouses privatize an apartment or other residential premises, then they become shared owners of the residential premises and can dispose of their share in ownership independently of each other. These shares are not divided. The division in this case occurs at the stage of concluding a privatization agreement and registering ownership of shares in the property right.

This is a general rule.

But when dividing the privatized property of spouses, the following points must be taken into account.

1. If an apartment or other residential premises was provided under a social tenancy agreement to both spouses, but one of them refused privatization in favor of the other spouse, then the person who refused privatization retains the indefinite right to live in this residential premises.

Suppose there lived a husband and wife. The husband was provided with living quarters under a social tenancy agreement. Subsequently, he moved his wife in as a family member. Changes have been made to the housing tenancy agreement or order. One day they decided to privatize the apartment. But they decided that only the wife would privatize the apartment, and the husband would refuse privatization in favor of his wife. And so they did. The husband refused privatization. The wife single-handedly privatized the apartment. Registered property rights.

Based on Art. 1 of the Law on Privatization of Housing Stock and Art. 36 of the Family Code of the Russian Federation, the privatized apartment became the sole property of the wife. However, Art. 19 of the Federal Law of December 29, 2004 N 189-FZ “On the entry into force of the Housing Code of the Russian Federation” provides that the provisions of Part 4 of Article 31 of the Housing Code of the Russian Federation (this article provides for the loss of the right to use residential premises by a former member of the owner’s family, for example, ex-spouse upon divorce) does not apply to former family members of the owner of the privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it, unless otherwise established by law or agreement.

Additionally, clause 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14 “On some issues that have arisen in judicial practice when applying the Housing Code of the Russian Federation” clarifies that former family members of the owner of a residential premises, named in Article 19 of the Introductory Law, cannot be Clause 2 of Article 292 of the Civil Code of the Russian Federation was applied, since by giving consent to the privatization of residential premises occupied under a social tenancy agreement, without which it would have been impossible (Article 2 of the Law of the Russian Federation of July 4, 1991 N 1541-1 “On the privatization of housing stock in the Russian Federation"), they proceeded from the fact that the right to use this residential premises for them would be of an indefinite nature and, therefore, it should be taken into account when transferring ownership of the residential premises on the appropriate basis to another person (for example, purchase and sale, exchange, donation, rent, inheritance).

Consent of the other half

Is it possible to privatize housing without the consent of the other half? The consent of all citizens registered in the living space, including children from 14 to 18 years of age, is a mandatory condition for privatization (Article 2 of the Law “On Privatization...”).

Expert opinion

Makarov Igor Tarasovich

Legal consultant with 8 years of experience. Specialization: criminal law. Extensive experience in document examination.

In this case, it is necessary to register ownership of the entire living space . Neither spouse, without the consent of the other, can privatize either the entire apartment or the part due to him.

The only way out in this situation may be the forced removal of the citizen from the living space.

This can be done through the court if it is possible to prove the loss of rights to reside in the apartment.

For eviction and discharge, truly compelling reasons are required , supported by documents and testimony. But even in this case, the chance of getting a positive court decision is minimal.

Thus, the process of privatization during and before marriage has some subtleties. If you do not think about the decisions you make in time, you will have to defend your own rights in court in the future.

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The procedure for privatizing an apartment by married spouses is practically no different from the standard process of transferring state or municipal property into the possession of citizens.

At the same time, the division of this living space in the event of divorce has a lot of nuances.

Privatized apartment - joint property or not?

Family law determines the list of property that is classified as jointly acquired and which is classified as personal. The Civil Code of the Russian Federation (Article 256) and the RF IC (Article 34) establish that everything that was purchased after marriage belongs to common property, which means that property can be divided during a divorce.

The legislator does not pay attention to which spouse spent how much and on what exactly. If the wife was a housewife, and the husband worked, but did not bring much income, they will have equal rights to property.

It also does not matter to whom the apartment purchased during marriage was registered. If it was purchased during marriage, it will be considered community property.

Not all property can be joint. Before marriage, each spouse may have personal property that will no longer be subject to division, that’s why it is personal.

Division through court

How and to which court to file

The case is being heard in the district court at the location of the privatized apartment.

The proceedings are carried out according to the rules of claim proceedings. First, the interested party needs to determine the value of the claim. It can be calculated in two ways:

• Independently assess the value of the disputed apartment.
• Use the services of a residential real estate valuation expert.

Secondly, the value of the claim is calculated as the amount of the state duty, which the plaintiff must transfer to the treasury. The procedure for calculating the state duty is specified in the table.

List of documents and samples

After determining the amount of the state duty, the interested party prepares the necessary papers for the proceedings and writes a statement of claim. The list of documents that the plaintiff needs to submit to the court is as follows:

• Original statement of claim. A sample can be viewed here.
• Copies of the application according to the number of participants in the trial.
• Passport confirming the identity of the plaintiff.
• A certificate certifying the fact of marriage.
• Certificates confirming the birth of children, if available.
• Privatization order or privatization agreement.
• A document of title, such as a certificate of ownership.
• Copies of certificates of ownership of other owners, if relatives of spouses or third parties own shares in the apartment.
• Technical papers for residential premises, for example, a housing plan. Extracts from the house register.
• A receipt confirming payment of the fee for the provision of judicial services.

How does the procedure work?

The trial takes place in several stages:

• The judge opens the hearing and checks which participants have appeared in court.
• The judge explains what procedural duties and rights the participants have.
• The judge explains the rules by which the defendant and plaintiff can challenge judges.
• The court invites the parties to reach an agreement and enter into a settlement agreement between themselves. With the consent of the parties, the text of the agreement is drawn up, and the judicial authority approves it. A settlement agreement has the same force as a court decision.
• If the participants refuse to settle the dispute amicably, the judge announces the start of the trial.
• During the consideration of the dispute, the court listens to the arguments of the parties, studies and evaluates the evidence presented, for example, the time of drawing up the privatization agreement and the list of persons who took part in privatization events, considers petitions and complaints of participants.
• After this, the debate stage begins, during which the parties make speeches justifying their demands.
• The judge retires to the deliberation room to make a decision.
• The court announces the decision.

What to do after the trial

If the plaintiff’s claims have been satisfied, then he should wait until the decision is given legal force. After this, he can force the defendant to comply with the instructions of the court.

The plaintiff needs to contact the judicial authority involved in the divorce process and demand that a writ of execution be handed over to him for the court's decision. This sheet must be submitted to the bailiff service located at the place of residence of the losing party.

If the plaintiff loses the dispute or the defendant does not agree with the decision, an appeal should be filed with the regional court within 30 days from the date of the final judgment. The complaint must be transferred to the district court. A sample appeal can be viewed here.

Housing during marriage

It is worth drawing the attention of spouses to the fact that property can be recognized as joint property in court if one of the spouses invested their personal funds in the purchase or the couple’s common money was added. In this case, even the personal work of one of the spouses is taken into account.

If, for example, repairs or redevelopment have been carried out, the apartment will already be classified as joint ownership.

It will be useful to save all receipts and receipts, which will be confirmation of joint purchases and personal improvements.

Types of property

Common joint property that is subject to division during divorce proceedings includes:

• income from permanent employment;
• profit from doing business;
• profit from intellectual activity;
• pension payments;
• other funds received through compensation for damage or material assistance).

Jointly acquired property can be:

• movable or immovable property;
• stock;
• securities;
• a share that the spouses acquired using joint funds, and it does not matter to whom it was registered and who contributed funds for it.

1. Property acquired before marriage: it is inviolable. What should you do if your spouse had an apartment before marriage, then he sold it and bought a more spacious apartment? In this case, the court recognizes the spouse as only part of the apartment, which will correspond to the material resources contributed by him, and recognizes the rest as joint property. In this case, it will be necessary to prove that the spouse invested exactly the funds that he received from the sale of his own apartment.
2. Property that was transferred under a gift agreement: in this case, the spouse will not be able to even claim a share of the apartment when dividing the property. You just need to be sure that the deed of gift was drawn up correctly, in accordance with the requirements of Chapter 32 of the Civil Code of the Russian Federation.
3. Property received by inheritance.
4. Property that the spouse received under a gratuitous transaction: this also includes the privatization process. The majority specifically refuse to participate in privatization. For example, a couple lived under a social tenancy agreement, the husband refused privatization, and the wife became the owner of the apartment. In such a situation, the spouse will think that the apartment will remain joint property, because they received it during marriage, but it is now the personal property of the spouse.

Homeowners are required to pay tax on privatized apartments in 2015.

How to privatize the land under an apartment building alone? See here.

Legal status of housing

In what cases is a privatized apartment not jointly acquired property? Article 34 of the Family Code states that all property acquired by spouses before marriage is personal , and that acquired during marriage is joint .

1. Property acquired by spouses during marriage is their joint property.
2. Property acquired by spouses during marriage (common property of spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose (amounts of material assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, and others). The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds.
3. The right to the common property of the spouses also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income.

At the same time, property, the right to which arose through a gratuitous transaction (donation, will, etc.) is personal and is not subject to division (Article 36 of the Family Code).

1. Property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (the property of each spouse), is his property.
2. Personal items (clothing, shoes and others), with the exception of jewelry and other luxury items, although acquired during the marriage at the expense of the spouses’ common funds, are recognized as the property of the spouse who used them.
3. The exclusive right to the result of intellectual activity created by one of the spouses belongs to the author of such result.

The right to privatized housing arises for citizens on the basis of the process of gratuitous transfer of municipal property into private hands (Law “On Privatization...” No. 1541-1).

Consequently, a privatized apartment is the personal property of a citizen. The rights of the spouses to it depend on the time of transfer of ownership from the state and the rights of the citizens to whom it was transferred on the basis of an agreement.

Read about the rights and responsibilities of the owner and residents of a privatized apartment on our website.

Is a privatized apartment a joint property?

The Federal Law “On the privatization of housing stock in the Russian Federation” classifies privatization as a gratuitous transaction. This means that during privatization, one of the spouses registered the apartment in his/her own name, and the property will become his/her personal property.

The apartment will not be included in the list of jointly acquired property and will not be subject to division when dividing property.

However, the spouse can file a claim in court to recognize the privatized apartment as joint property. In his claims, he can justify that during the marriage he invested money in its improvement, which significantly increased its overall value.

Such improvements could be:

In general, a privatized apartment does not belong to the common property of spouses acquired during marriage.

Division of housing during divorce

In practice, spouses often ask whether it is possible to divide a privatized apartment. Let's explain this with examples.

So, the couple received an apartment and were registered in it. They received two certificates that confirm their ownership, respectively, each owns ½ share of the entire property:

1. In this case, there is no need to divide anything, because everyone has their own share, which can be disposed of at their own discretion.
2. If the apartment is registered as common joint property and not shared ownership, then it is better to contact a notary and draw up an agreement on the division of shares of the apartment.

When one of the spouses privatizes an apartment in their own name, the second of them cannot claim to receive a share in the division of property.

Division of an apartment during divorce

During divorce proceedings, the privatized apartment is not divided between spouses.

• If it was acquired during marriage, then when carrying out the division, the court will take into account the factor: with whom the common children live and their state of health. For example, if the children remain to live with their mother and require constant care, then the father will get a smaller part of the apartment.
• In other cases, the living space is divided in half between both spouses.

FAQ

In practice, citizens are faced with many questions regarding the division of marital property. Most often, they cannot independently determine how the division will take place and what they can claim in a divorce.

Wife's property

If the housing was privatized for the spouse, the apartment becomes her personal property.

Such property is not subject to division. Accordingly, the spouse will not be able to apply for an apartment.

Article 36 of the RF IC stipulates that when property is received under a gratuitous transaction, it is the property of one of the spouses.

Right to housing

What to do if, when the wife privatized the apartment, the husband gave his consent, but he was not registered there? Will he get a share of the apartment in a divorce?

In this situation, the fact of its registration in the apartment is important. If during privatization he was not registered in the apartment, then he will not have rights to it.

The wife is the full owner and can independently dispose of her property, because a privatized apartment is not subject to division.

But, if the spouse was registered in the apartment and could participate in privatization, but refused, then he can use this apartment until he refuses, but cannot dispose of it.

He will be able to apply only if he makes an investment in the apartment through:

As practice shows, in this case compensation is often paid for the corresponding share.

So, the division of a privatized apartment has many nuances. In practice, the division of property can only be dealt with based on the specific situation and the list of evidence provided to the court.

If you want the privatized apartment to be joint property, you should not refuse privatization, carry it out jointly, and then the privatization agreement can immediately determine everyone’s share in the apartment.

Final stage

The last step of privatization is to contact Rosreestr or the MFC to re-register housing rights. According to Federal Law No. 218-FZ dated July 13, 2015 (as amended on February 28, 2018) “On State Registration of Real Estate,” state registration is the only acceptable way to confirm the existence of rights to property.

Therefore, from the point of view of the legal sphere, there is no need to be afraid of this procedure: it is fully regulated.

Rosreestr provides a list of documentation similar to when contacting the local government, as well as:

• application for state registration of rights (Application form for registration of property rights);
• receipt of payment of state duty (for 2021 - in the amount of 2 thousand rubles);
• privatization agreement.

In some situations, other documents are also required; government officials must be notified of this. Upon completion of registration, citizens are provided with a document confirming their title.

Is a privatized apartment a joint property?

Everything is not as clear as it seems at first glance.

Privatization refers to a gratuitous method of realizing property rights (as opposed to purchase), which excludes, when dividing, taking into account the funds brought by each spouse into the joint family wallet.

Does the distribution of shares among household members play the main role here?

If one of the couple did not take part in the process of denationalization of the home, having issued a refusal, then he is no longer legally the owner .

In this case, during division, the privatized apartment is not jointly acquired property: it is in sole ownership.

How did my husband privatize the apartment without me, deprived women ask?

Injustice can be restored if the other spouse goes to court with a claim to recognize the housing as jointly owned . for which it is necessary to present evidence in the form of checks, receipts, testimony that the plaintiff participated financially in the reconstruction or renovation of the apartment.

A privatized apartment will be a joint asset acquired during marriage if each of the couple received a share during distribution (this is written in the title documents for the home, and the size of the shares is determined by family members when filing an application for privatization).

What laws govern it?

Issues relating to the marital share in a privatized apartment are considered in the following legislative acts:

It is necessary to clearly distinguish what property belonged to each of the representatives of the family union before marriage, and what was acquired together during the period of marriage.

What if the purchase of a home was joint, and the husband/wife simply decided to appropriate it for themselves?

Then the second spouse must immediately apply to the judicial authorities with a statement of claim to recognize this property as jointly acquired property. However, for this you will have to provide evidence: receipts, checks and witness statements that would prove that the plaintiff was directly involved in the purchase and renovation of the apartment/rebuilding the house.

Housing is considered jointly owned if everyone in the family has a share of it (this is usually stated in the documents establishing the right to property; the size of the share is agreed upon by the participants when drawing up papers for denationalization).

What rights do spouses have to own an apartment?

But it is not always possible to immediately recognize who will get what when sharing the goods. It turned out that there are a lot of nuances.

1. If one of the spouses privatized the apartment only for themselves - before marriage. This property is inviolable ( clause 1 of Article 36 of the RF IC ), it is not included in the list of property subject to division . and will remain personal property even after divorce.
2. If the apartment is privatized - married. During the period of marriage, there may be various options for the privatization of a home, and it depends on this, if official family relations are to be terminated, how property rights will be distributed:

Does a husband have the right to his wife’s privatized apartment?

If the apartment was privatized during marriage to one of the spouses, then this gives this family member the sole right of ownership ( Clause 1 of Article 36 of the RF IC ), due to the gratuitous nature of the procedure.

The second representative of the couple . Those who refuse to participate in the denationalization process acquire the right to use living space, but not the right of ownership.

At the time of filling out the application for privatization, shares are determined and fixed. In case of joint privatization in equal shares, both husband and wife receive the same amount of funds upon sale or division; in case of unequal shares, the property is divided according to the size of each part.

Without the consent of one of the spouses

If the apartment is privatized in the name of the husband without the consent of the wife, what rights does the spouse have?

If a person does not consent to the denationalization of housing, then such a tenant must issue a refusal . or the other spouse will obtain permission to privatize the apartment through the court, otherwise it would not have been possible to obtain the apartment into family ownership.

By refusing, that is, by not agreeing, the spouse deprives himself of the right to own part of the living space.

Documents to be submitted to the administration

The application sent to the municipal authority must be supplemented with certain documentation, namely:

• an order giving the right to privatization, or a social contract. hiring;
• passports of spouses and other persons, if the husband and wife are not the only citizens applying for premises;
• marriage certificate (if available);
• an extract about people registered at the address;
• technical documents (cadastral and technical passports);
• permission from the PLO if one of the participants is incapacitated, has not reached 18 years of age or is an orphan;
• birth certificate of children under 14 years of age (if available);
• a certificate confirming that citizens have the right to privatize this housing;
• refusal of other applicants to participate in the procedure (if any);
• and other documents that an administration employee may request if necessary.

The application form differs depending on the region of the country. You can obtain the form on the official website of your city administration or directly by contacting the appropriate department.

Features and nuances

When the process of registering housing for family ownership takes place, people do not think that their current incompetence will someday result in them not even having part of the property. For example, with the best intentions, you shouldn’t write a waiver so that the children get more . as a result, this act can severely punish its author.

Another interesting point may be the division of parts of the apartment indicated in the application for privatization.

It is most reasonable to define it in shares; in this case, the living space will be in shared ownership, which is not difficult to carry out a division.

If then you did not pay special attention to this point, and the documents for the apartment include parts instead of shares, then it is worth making a targeted visit to a notary to draw up an agreement on the division of living space .

When registering public housing as family property, there is no need to try to fool your spouse by persuading him to refuse .

It would be more honest to immediately divide the living space equally, in shares, this will save you from going to the notary and from remorse during the division.

A little about the features

Expert opinion

Makarov Igor Tarasovich

Legal consultant with 8 years of experience. Specialization: criminal law. Extensive experience in document examination.

Often, the incompetence of citizens when registering property can play a cruel joke on them in the future - leaving them without even a small share of the property. For example, you should not rush into giving up your property, giving your children and grandchildren a larger share.

Note!

The refusal is issued in the presence of a notary - this fact must be certified.

One of the interesting points is the division of parts of the apartment, which is indicated when submitting paper for privatization. It would be most appropriate to determine the shares for each owner, so the division of property in the event of divorce (or disagreement) is the easiest to carry out.

On a note!

If you have again turned to the documents for privatization, and they indicate parts instead of shares, then it is better to immediately resort to the help of a notary and, together with him, draw up an agreement on the division of living space.

When registering for public housing, do not try to deceive your spouse by persuading him to abandon the denationalization procedure; you may face negative consequences in the future if intra-family problems arise. It is better to immediately divide the apartment into two equal parts, this will save you from many unpleasant procedures in the future.

So, there are many nuances hidden in the privatization procedure for spouses, and all of them must be taken into account during a possible divorce and division of real estate. Otherwise, it will not be possible to resolve the situation peacefully. In this case, we recommend that you always describe yourself to the letter of the law - this is a reliable basis for committing such serious financial manipulations.

• the spouse’s apartment, acquired by him before marriage, rightfully belongs only to him, and even after a divorce you will not be able to claim a share;
• when purchasing real estate during marriage, it is better to notarize the shares for each of the partners;
• in official documents it is recommended to delete the wording “part” and replace them with “share”.

For various reasons, a person may think about selling an apartment purchased with a mortgage. It should be borne in mind that in such a transaction there are necessarily three people: the seller, the buyer and the creditor bank. There are various ways to sell an apartment purchased on credit. The apartment is sold by the borrower on his own if it arises.

In order for the issue of purchasing housing to be resolved as quickly as possible and without unnecessary material losses and disagreements between residents, it needs to be given quite a lot of attention. To begin with, when there is an approximate amount of money and the estimated value of the property has been agreed upon, you can begin to look for alternatives for a general idea.