Division of an apartment in a military mortgage: tenants’ rights, conditions for dividing living space, the process of peaceful and judicial settlement

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To simplify the purchase of residential premises, the state provides some categories of citizens with the opportunity to participate in preferential programs. Thus, military mortgages are available to persons who work under a contract in the armed forces of the Russian Federation. In fact, the state fully bears the costs of closing the loan. However, the question arises about the ownership of such premises. Generally, property purchased during marriage is owned jointly and is divided in the event of divorce.

Attention

When government subsidies are used to purchase premises, the classic rules for the distribution of property may change. Therefore, you need to figure out in advance how to divide an apartment using a military mortgage.

Is an apartment purchased with a military mortgage considered common property?

If property was acquired during marriage, it is the common property of the spouses. The corresponding rule is reflected in Article 256 of the Civil Code of the Russian Federation and the RF IC. However, there is a disclaimer in the latest regulation. It states that a special-purpose cash payment is not recognized as joint property. This means that premises purchased with state money are not considered jointly owned. As a result, it is impossible to divide an apartment purchased with a military mortgage. The property will remain the property of the person who bought the apartment with money allocated by the Ministry of Defense. As a result, it turns out that the general rules do not apply in the current situation.

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Five basic rules you should know

Before dividing property acquired under the military mortgage program, you need to know the basic rules. These standards are regulated by the current legislation of the Russian Federation:

When considering case materials, the judicial authorities do not always take the side of the serviceman. If the fact of financial assistance from the spouse is established, part of the housing is recognized as hers. If you have minor children, the chances increase exponentially.
Full payment of the mortgage loan is the basis for the removal of all encumbrances on the property.
The apartment/house becomes the property of the spouses after the last mortgage amount is paid off, unless the limit on the market value of the asset has been exceeded. This indicator is set by the state. If the condition is met, the owner is a serviceman whose income had a designated purpose.
If there is no agreement with the court decision, it is possible to file an appeal about the division in a divorce.
The RF IC contains a legal norm that excludes the status of property as jointly acquired. First of all, this concerns participation in social programs, which include military mortgages.
A statement of claim to the court by one of the spouses (not a participant in the NIS) is the starting point for the proceedings. The process takes into account the individual characteristics of the case (children, personal funds for a down payment, etc.).
To prove the fact of the down payment on a military mortgage from joint funds after a divorce, you will need the appropriate documents. This could be a certificate of inheritance, deed of gift, etc.

Is it possible to divide an apartment that was purchased with a military mortgage during a divorce?

As mentioned earlier, property purchased during marriage is subject to division in the event of divorce. However, the norm is applied only in the classical situation. If real estate was purchased using funds allocated under a military mortgage, the premises are not recognized as joint property. As a result, during a divorce, the division of an apartment purchased with a military mortgage will not be carried out.

Attention

There are a number of exceptions. The list includes situations where not only military mortgage funds belonging to the state were used to purchase real estate, but also amounts from the family budget. In this situation, the division of property will take place in court. The spouse must prove that he also incurred expenses for the purchase of housing. All expenses must be documented.

Typically, the amount of money allocated under the NIS is not enough for housing. As a result, citizens are forced to provide additional money. The spouse will be able to defend her rights to part of the property if she had personal savings and paid off the loan debt. A similar rule applies if maternity capital was used to calculate obligations.

Directly in Federal Law No. 117 of August 20, 2004, which regulates the issuance of military mortgages, there is no data regarding the division of the purchased apartment between family members. As a result, it turns out that in a classic situation, a wife or child can only claim the premises by inheritance.

What did the Supreme Court pay attention to?

The panel of judges set out its own position in the ruling dated January 24, 2021 in case No. 58-KG 16-25. The key is the statement that the apartment purchased with funds from the savings-mortgage system for the military belongs to the common property of the husband and wife. Therefore, its division in the event of divorce should occur in the general manner.

Let us recall that Article 36 of the Family Code establishes which property of spouses is considered joint and which is personal. In particular, the latter includes funds that have a specific purpose.

For example, the Supreme Court clarified some time ago that property acquired during marriage at the expense of maternal capital is not divided. In the event of a divorce, the apartment, house and land continue to remain in shared ownership of the parents and children.

But let's return to the military mortgage. In its ruling, the cassation court referred to the Federal Law on the status of military personnel and the savings-mortgage housing system for military personnel.

According to this legislation, military personnel are provided with a targeted housing loan to form an initial mortgage payment.

At the same time, there are no restrictions on the disposal of such property for family members of a military personnel. The Supreme Court considered that since the mortgaged housing was acquired during the existence of a family relationship, it should be divided in the same way as any other property of the spouses.

The highest authority noted that the housing was not purchased entirely using funds from a targeted loan. During the marriage, a loan was taken out from the bank for part of the cost of the apartment, which was common to the two spouses.

This is also an additional argument in favor of the fact that property in the event of family breakdown should be divided according to the standard procedure.

The Supreme Court also declared unlawful the refusal to satisfy Anna's claims regarding the recovery of income in the form of fees for renting out an apartment on a rental basis. According to the judges, this requirement is derivative in relation to the division of the apartment. Therefore, the courts had to evaluate him.

As a result, the cassation found the violations committed earlier by the courts to be significant, and the case was sent for a new trial at the first instance in terms of the division of the apartment and the income from renting it out.

So, the main conclusion. Housing issued under the terms of a military mortgage is not the personal property of a serviceman. Therefore, when spouses divorce, such property must be divided.

Law on the division of an apartment in a military mortgage

The procedure is regulated by a list of legal acts. The military mortgage itself is provided within the framework of Federal Law No. 117 of August 20, 2004. Here are the rules for participation in the program, features of the provision and use of funds, the rights and obligations of a military personnel, as well as other nuances. However, the procedure for distributing property between family members is not reflected in it.

Article 256 of the Civil Code of the Russian Federation states that all property acquired during marriage is recognized as the joint property of the spouses. If the couple decides to separate, the property is divided.

However, Article 34 of the RF IC states that special-purpose cash payments are not recognized as jointly acquired property. Therefore, only the serviceman himself remains the owner of the apartment. The exception is situations where the wife also invested in the purchase of an apartment, or maternity capital was used. Its provision is carried out within the framework of Federal Law No. 256 of December 29, 2006. The legal act states that all family members should be allocated shares after purchasing the premises (Article 10 of Federal Law No. 256 of December 29, 2006).

What is the military mortgage program

Military mortgage is a government program whose goal is to provide officers with personal housing on more favorable terms. The loan debt will be paid not by the officer, but by the Ministry of Defense of the Russian Federation.

One condition for receiving this type of loan is that the serviceman must participate in the savings mortgage system for at least 3 years. The officer's special account will receive funds with which he must pay off the debt. However, there are situations when a married couple separates, and they begin to wonder whether a military mortgage is subject to division during a divorce?

Methods for dividing property in a mortgage loan

There are 2 main ways to divide an apartment - peaceful resolution of the conflict or going to court. In the first case, the parties independently distribute property. The following options are allowed:

spouses draw up a voluntary agreement on the division of property, within the framework of which shares are allocated;
the spouses continue to share the premises;
the wife agrees to leave the apartment, and the husband provides compensation for the cost of the woman’s share;
the premises are sold and the funds are divided;
the apartment is re-registered to the wife, and the husband receives compensation.

If the military mortgage has not yet been repaid, the situation will have to be resolved together with the bank. Typically, companies are asked in advance to resolve the issue regarding the division of property during a divorce. To do this, spouses are asked to prepare a marriage contract, which addresses in advance the issue of distribution of property in the event of divorce.

Attention

If the conflict cannot be resolved peacefully, it is necessary to go to court. In this case, the spouse will have to prove that she also provided funds for the purchase or improvement of the apartment. Otherwise, division of the premises may be refused.

Real estate is divided, but what about loans and property rights?

After settling the issue of ownership of the apartment, debt obligations do not cease to exist. There are many court decisions on claims that raise the issue of distribution of payments between former spouses.

During the consideration of the case, the courts analyze the procedure for granting a loan and making payments from family funds. Importance is also attached to the continuation of military service at the time of filing a claim for division of the loan.

Often, claims regarding borrowed obligations are the subject of a counterclaim filed as part of a property dispute. Then the case is considered by the court as a whole.

Below are typical situations that parties face when resolving debt issues. They are accompanied by examples from court practice.

Credit and CLP is a common debt

Assigning part of the obligations to the second spouse is possible only if there is a discharge from the armed forces. This follows from the content of Art. 9, 13 of Law No. 117-FZ on the savings and mortgage system.

These norms indicate that in the event of termination of service, the citizen’s savings account is closed. In turn, the funds held on them are subject to return. And in this case, liability of both spouses is possible.

The general debt is discussed in the decision of the Central District Court of Chita dated February 21, 2018 in case No. 2-348-2018. It states that the RF IC provides for the assignment of mortgage obligations to the second spouse in the event of termination of the borrower’s service.

Obligations under the loan and the CLP agreement cannot be assigned to the former spouse of a military man

Under the CJL agreement, the serviceman himself does not pay off the obligations. The funds are not paid from the family budget either. Under such conditions, debt division does not occur.

The above is confirmed by the appeal ruling of the Supreme Court of the Karachay-Cherkess Republic dated October 2, 2019 in case No. 33-1331/2019. The citizen filed a lawsuit to distribute payments between him and his ex-wife, but was refused.

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The appeal supported the position of the first instance. The said definition states that the plaintiff himself did not make the payments. The case materials also lack evidence of loan servicing from the family budget.

Voluntary division

It is much easier to divide property if the mortgage loan has already been repaid, and the parties independently decide the fate of the apartment purchased with a military mortgage and document the agreement reached. To do this, a voluntary agreement must be drawn up. The possibility of its registration is enshrined in Article 38 of the RF IC. The document is drawn up in simple written form. The paper form is not legally fixed, but it is necessary to adhere to the general rules of office work. It is important to reflect information about the parties to the transaction, as well as to describe in detail the property that is subject to division.

The use of general language is unacceptable. The document is subject to mandatory notarization. If the action is not performed, the document will be invalidated. The completed document serves as the basis for re-registration of property. It is noteworthy that a voluntary agreement on the division of an apartment under a military mortgage can be drawn up both during marriage and after divorce. To independently divide property, you need to follow the following scheme:

Discuss with your spouse all the nuances of the current situation and determine the list of property to be divided.
Determine shares and prepare technical documentation for the apartment.
Draw up the text of the agreement, describing in detail all objects.
Visit a notary and carry out the procedure for certifying the agreement.
Contact Rosreestr through the MFC and re-register the property.

A voluntary agreement on the division of a mortgaged apartment can be found here.

The option is considered optimal if the military mortgage has already been repaid and the parties have divorced without trial. However, the agreement can only be drawn up voluntarily. If the parties cannot reach an agreement, and the loan has not yet been repaid, it will be possible to divide the apartment using a military mortgage only through the court.

Division of an apartment purchased with a military mortgage through the court

If an agreement cannot be reached, the division of property will be carried out through the court. It is necessary to prepare for the process. First of all, you have to collect documents. You must provide:

statement of claim;
identification;
marriage or divorce certificate if the family relationship has already been dissolved;
title documents for real estate;
loan agreement, if the debt to the bank has not yet been repaid;
papers confirming the fact of expenses for improvement or purchase of an apartment by a person who is not a recipient of a military mortgage;
a marriage contract, if one has been drawn up;
documentation generating the fact of purchasing housing under a military mortgage;
receipt of payment of state duty.

Attention:
You must contact the district court at the location of the property or the defendant’s place of residence. The exception is situations when a person who lives with young children wants to initiate the procedure, and they cannot be left unattended for a long time. In this case, you can submit an application at your own place of residence. However, it is important to confirm the presence of valid reasons.

When the documents are collected, you must proceed according to the following scheme:

Contact the authorized body. It is necessary to remember the existing jurisdiction. Representatives of the organization will consider the claim. If there are no errors, the document will be accepted for processing.
Wait for an invitation to court. The parties will be sent agendas indicating the date of the meeting.
Take part in the consideration of the case. The parties have the right to express their position, present evidence and ask questions. The court will consider all the arguments presented and divide the property, taking into account the law, the interests of all participants in the procedure, as well as minor children, if present.
Receive the final court decision. If you are not satisfied with the verdict regarding the division of an apartment under a military mortgage, you can challenge it by filing an appeal.

The statement of claim for dividing an apartment under a mortgage can be found here.

Features of dividing an apartment according to NIS in the presence of a marriage contract

Certainty in resolving the issue of dividing a mortgaged apartment exists if there is a marriage contract drawn up by the spouses. If this document is presented to the court, and it includes a clause stating that the apartment is the property exclusively of the mortgage borrower, then after a divorce it makes no sense for the soldier’s wife to claim it in court. The solution may be to cancel the marriage contract or make changes to it by mutual agreement of the parties, according to which the clause on the ownership of the apartment by the borrower is excluded.

Important! Cancellation of the contract is possible only if there are compelling reasons, and changes to the marriage contract on conditions unfavorable for the borrower are possible only if good relations are maintained between the former spouses, despite the divorce.

Sale of an apartment with a military mortgage and division of income

You can sell an apartment only after the military mortgage debt has been paid. Otherwise, such a transaction will not pass through the Rosreestr authorities. When the debt is paid off and the soldier has served 20 years, he becomes the full owner of the property. The apartment can be sold freely. If the transaction was carried out during marriage, the income is recognized as joint property. Both spouses will have equal rights to the funds. The division of the amount is carried out on the principle of equality. The money can be divided voluntarily or through the court. Typically, the procedure for selling an apartment for the subsequent distribution of funds is carried out according to the following scheme:

The parties put the premises up for sale and find a buyer.
The participants in the procedure discuss all the nuances of the subsequent transaction and reach an agreement.
The buyer draws up and signs a purchase and sale agreement. The agreement fixes all the features of cooperation and determines the nuances of the transfer of funds and premises. A military spouse must document consent to such a transaction if the wife's funds were used to improve or purchase real estate.
Payment is made to the seller and the keys are handed over.
The buyer registers the property in Rosreestr through the MFC on the basis of a purchase and sale agreement, the spouses divide the funds. The procedure can be carried out by voluntarily drawing up an agreement, or by going to court.

Peaceful solution to the issue of division of mortgage housing

Resolve the issue of dividing mortgage property in a civilized manner in the interests of both divorcing spouses. If it is impossible to register an apartment as a joint property before repaying the mortgage debt, and the law cannot remove the wife and children from it, then one of the following options may be a solution to the problem:

Former spouses continue to live in the same apartment after a divorce. However, the husband may subsequently demand that the wife pay compensation for actual residence in his property. Former relatives can resort to such a decision if they have no other options to leave;
The wife has the opportunity to move to another housing, so she checks out of her husband’s apartment and leaves it without any conditions. This option is possible at the stage when the mortgage debt is still far from being repaid, and the husband cannot fully dispose of the housing until the debt is fully repaid. At the same time, the wife is not bound by debt obligations and she did not invest funds in her husband’s apartment;
The spouses find funds to pay off the missing amount of the cost of housing after paying off the preferential mortgage, and after selling the apartment, they divide the proceeds in proportion to the investments of each and taking into account the possibility of purchasing another home for each of them;
The borrower, after paying off the mortgage and removing the encumbrance on the purchased property, registers an apartment for the joint child, for example, under a gift agreement. In this case, the wife remains to live with the child in the previous apartment, but she is obliged to pay compensation to her husband in the amount of the military mortgage paid by the state.

Ex-spouses can come to an agreement while maintaining friendly relations after a divorce in different ways. At the same time, they will avoid conflict situations and additional costs when resolving the problem in court.

How is an apartment divided if it was purchased through a military mortgage using one’s own funds?

If the spouse added her own funds to increase the comfort of the purchased housing, the standard rules for dividing the apartment under a military mortgage change. The division of property will occur according to the following rules:

The share that was purchased using the spouse’s funds or money that was the total family income is determined in court.
The part of the property corresponding to the amount of money invested under the military mortgage is excluded from the division.
For the share of the apartment that corresponds to additional funds, an assessment of the market value is carried out. The spouse will then be given a compensation payment.
It is necessary to prove the fact of investing your own funds. The procedure is quite simple. To do this, compare the cost of the transaction, the amount of the down payment and the state funds used to close the obligations under the loan agreement.
The court will not allocate a share in housing for the spouse. The premises always remain with the military personnel.

How can a wife prove her right to a share of a mortgaged apartment?

Target mortgage payments are indexed annually. But, despite this, the savings amount is limited to the maximum amount, which in 2021 is 2,570,000 rubles. This amount is enough to buy an apartment in small towns remote from the center. Of course, it is not enough to purchase housing in prestigious areas of megalopolises. If a serviceman’s family chooses an apartment in such a location, they will have to pay the difference in cost from their budget. In addition, after purchasing a home, you have to bear additional costs associated with repairs and redevelopment.

Expert commentary

Potapova Svetlana

Lawyer

All listed costs relate to joint payments of the spouses. Therefore, it is important for the wife to know whether the apartment purchased under a military mortgage is divided and whether she can claim an equal share of the funds jointly invested in the apartment with her husband.

Despite the fact that the apartment is the property of the husband, the wife can prove her right to a share of his apartment. To do this, you need to have indisputable evidence of all additional joint expenses. It can be:

payment documents to the bank in connection with the repayment of additional payment for purchased housing;
agreements with construction contractors for repairs and redevelopment;
receipts and invoices for purchased construction and finishing materials.

The collected evidence of the costs incurred will determine their total size, and therefore the share of the mortgage apartment that the wife has the right to claim during a divorce.

Difficulty of division

If the living space was fully purchased with funds allocated by the state under a military mortgage, it is not subject to division during a divorce. The benefit is provided only to the serviceman himself. Therefore, only he is the owner of the apartment. In practice, the division of the premises can be complicated. So, if the apartment was improved at the expense of the second spouse, or maternity capital was used to close the mortgage, the division procedure may be changed. Therefore, it is important to take into account all possible nuances in advance.

If there are minor children in the family.

If the child is left with the mother, the minor receives the right to register in the father’s apartment. A minor will be able to live in the premises without interference. The presence of a child does not directly affect the division of the apartment under a military mortgage. The rule applies if maternity capital was not used to purchase housing. In all other situations, the division of property will be carried out according to the standard scheme.

Debt for utilities.

Debt for utility bills is not divided between spouses. If a person becomes the full owner of the premises, debts for housing and communal services, if any, will be transferred to the person along with the apartment. But this nuance does not in any way affect the fact that another person previously lived or was registered in the property. Payments to the management company must be made by the owner of the apartment.

If the apartment has been improved.

Under a military mortgage, you can buy housing in both the primary and secondary markets. An ordinary family strives to make their home as comfortable as possible, using additional funds to repair and improve the premises. As a result, the cost of the apartment increases.

Attention

The amount of invested funds can influence the division of the apartment under a military mortgage during a divorce. Even if the spouse did not spend her money on the purchase of property, but invested the amount in repairs, the court may oblige the husband to pay compensation during a divorce. In this case, the apartment is left to the serviceman. However, the woman will have to prove the amount of her expenses. To do this, you need to keep documents confirming the amount of investment in repairs.

If the mortgage was repaid from the family budget.

If funds from the family budget were used to close obligations to a financial organization, the same rules apply as in a situation where the premises were improved at the expense of the spouses. A husband or wife who is not involved in obtaining a military mortgage may qualify for a share in the apartment or compensation if the amount of investment in the purchase or improvement of the premises is relatively small compared to the amount of money transferred by the state.

If maternity capital was used for repayment.

In classic situations, the serviceman is considered the sole owner of the premises. However, if maternity capital is used to calculate obligations, the situation changes radically. The program involves allocating a share in the premises to all family members. If the rule is not followed, the violator may be held accountable. An apartment that was purchased using family capital and a military mortgage is divided in accordance with the general procedure.

What did the courts decide when making their decision?

The first instance, having considered both claims, acted as follows. Based on the decision of November 11, 2015, each of the spouses received a car. In addition, the court distributed the available loans equally among family members.

The court did not divide the mortgaged apartment and the income received from renting it out, leaving everything to Roman. The appellate court also agreed with this option, leaving the original decision in force by its ruling dated February 24, 2016.

When dividing the mortgaged apartment, the courts noted that it was acquired using funds with a designated purpose (NIS). This money was provided to the serviceman to solve his housing problem. In this case, the family status of the recipient of payments does not matter.

Anna was not satisfied with the court decision and this option for dividing property, and she appealed to the Supreme Court with a cassation appeal. As a result, the ex-wife, in part of the apartment, achieved a review of previous judicial acts and the transfer of the case for re-examination to the first instance.

Judicial practice of dividing an apartment under a military mortgage

Judicial practice on the issue of dividing an apartment under a military mortgage is quite diverse. However, among the large number of solutions, a pattern can be traced:

The issue of dividing an apartment purchased with a military mortgage is usually considered only after the obligations have been completely closed.
If the family used maternity capital funds, the other party can claim part of the property.
If the spouse used personal savings, he may receive compensation or a share of the property. However, this will require proof of costs. As evidence, you can provide bank payment documents, statements, checks, receipts. The more evidence a person presents, the higher the likelihood that the requirements will be satisfied.
If a marriage contract has been signed, the court will consider the case taking into account the terms of the document.
If there are minor children present, or the apartment purchased with the help of a military mortgage is the only home, the court may consider this as a mitigating circumstance and decide to allocate shares or retain the right to reside in the property for the second spouse and child. Additionally, the number of years that the husband and wife have lived together is taken into account.

Attention
The exact decision regarding the division of an apartment under a military mortgage directly depends on the personal characteristics of the situation.

What will happen to the apartment after the division?

In any case, the real estate will remain with the serviceman. A military mortgage is a targeted and gratuitous payment, and the courts in such cases apply clause 1 of Art. 36 IC RF. Even if the mortgage is fully repaid, but the share of the second spouse is not allocated, the housing will belong to the military man.

If shares were allocated to other family members, the court may order compensation for their cost. The second option is to sell the property and divide the proceeds in proportion to the awarded shares. If there is a prenuptial agreement, everything will be divided taking into account its provisions, subject to the repayment of the mortgage at the time of division.