While in a registered marriage, one of the spouses registers the acquired apartment as their property. What pitfalls can await him during a possible division of property? How can legislation protect his interests and the interests of other family members? We will tell you about the most important points that every owner should know in this material.
Registration of purchased real estate
There are different ways to purchase real estate during marriage:
- for one of the spouses;
- into joint ownership without allocating a specific share to each;
- with the allocation of shares - in equal proportions or divided by agreement of the spouses according to the invested funds.
While the family lives in marriage, these moments do not play a big role. But if it comes to divorce and division of acquired property, the principle of registration of property will play a decisive role. How will property issues be resolved in the event of a family breakdown?
Important! Let’s make a reservation right away that we are talking about real estate acquired during marriage. If the apartment was owned by one of the spouses before the marriage, it is considered premarital property and is not subject to division under any circumstances. estate received as a gift or inherited, regardless of the time of its receipt, during marriage or earlier, is also not considered joint property
1.1. Legal regime of marital property
The legal regime of property of spouses means the regime of their common joint property established by the norms of the Civil Code of the Russian Federation (Article 256) and the RF IC (Article 34). Thus, the legal regime of marital property means that property acquired by spouses during marriage is their joint property. The legal regime for the property of the spouses applies unless otherwise provided by the marriage contract.
To property acquired by spouses during marriage, i.e. The common property of the spouses includes:
- income of each spouse from work, entrepreneurial activity and results of intellectual activity;
- pensions, benefits received by each spouse, as well as other monetary payments that do not have a special purpose (amounts of financial assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, and others);
- movable and immovable things, securities, shares, deposits, shares in capital acquired at the expense of the common income of the spouses, contributed to credit institutions or other commercial organizations;
- any other property acquired by the spouses during the marriage.
It is important to note that in order to recognize property as common, it does not matter in the name of which spouse it was acquired or in the name of which or which spouse contributed funds (Clause 2 of Article 34 of the RF IC). In addition, 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 (Clause 3 of Article 34 of the RF IC).
At the same time, the law provides for types of property to which the joint ownership regime does not apply. So, in accordance with paragraph 2 of Art. 256 of the Civil Code of the Russian Federation and Art. 36 of the RF IC the property of each spouse is recognized as:
- 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;
- things for personal use (for example, clothes, shoes and others), with the exception of jewelry and other luxury items, although acquired during the marriage at the expense of the common funds of the spouses;
- exclusive right to the result of intellectual activity created by one of the spouses. However, income received from the use of such a result is the joint property of the spouses, unless otherwise provided by the marriage contract between them.
The property of each of the spouses may be recognized by the court as their joint property if it is established that during the marriage, investments were made at the expense of the common property of the spouses or the property of each of the spouses or the labor of one of the spouses that significantly increased the value of this property, in particular, major repairs , reconstruction, re-equipment and others (Article 37 of the RF IC).
Legal regime, i.e. the regime of joint ownership of spouses can be changed by a marriage contract (clause 1 of article 256 of the Civil Code of the Russian Federation). In addition, spouses have the right to make a division of common property by concluding an agreement on the division of common property acquired during the marriage, or in court in the event of a dispute between spouses.
When dividing the common property of spouses in court, the court, at the request of the spouses, determines what property is to be transferred to each of the spouses. If one of the spouses is transferred property, the value of which exceeds the share due to him, the other spouse may be awarded the appropriate monetary or other compensation (Clause 3 of Article 38 of the RF IC).
The court may recognize the property acquired by each of the spouses during the period of their separation upon termination of family relations as the property of each of them (Clause 4 of Article 38 of the RF IC).
Items acquired solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, children's library and others) are not subject to division and are transferred without compensation to the spouse with whom the children live. Contributions made by spouses at the expense of the spouses' common property in the name of their common minor children are considered to belong to these children and are not taken into account when dividing the spouses' common property (Clause 5 of Article 38 of the RF IC).
In the case of division of the common property of the spouses during the marriage, that part of the common property of the spouses that was not divided, as well as the property acquired by the spouses during the marriage in the future, constitute their joint property (Clause 6 of Article 38 of the RF IC).
A three-year statute of limitations applies to the claims of spouses for the division of common property of spouses whose marriage is dissolved (clause 7 of Article 38 of the RF IC).
According to the provisions of Art. 39 of the RF IC, which contains the rules for determining the size of shares when dividing the common property of spouses, the shares of spouses are recognized as equal, unless otherwise provided by the agreement between the spouses. The court has the right to deviate from the beginning of equality of shares of spouses in their common property based on the interests of minor children and (or) based on the noteworthy interests of one of the spouses, in particular, in cases where the other spouse did not receive income for unjustified reasons or spent the common property of the spouses to the detriment of the interests of the family. When dividing the common property of the spouses, the common debts of the spouses are distributed between the spouses in proportion to the shares awarded to them.
The procedure for foreclosure on the property of spouses depends on who is the debtor in the relevant obligation.
Thus, for the obligations of one of the spouses, recovery can only be applied to the property of this spouse . If this property is insufficient, the creditor has the right to demand the allocation of the share of the debtor spouse, which would be due to the debtor spouse during the division of the common property of the spouses, in order to foreclose on it.
Execution is applied to the common property of the spouses for the common obligations of the spouses, as well as for the obligations of one of the spouses, if the court establishes that everything received for the obligations of one of the spouses was used for the needs of the family. If this property is insufficient, the spouses bear joint liability for these obligations with the property of each of them. Moreover, if a court verdict establishes that the common property of the spouses was acquired or increased from funds obtained by one of the spouses by criminal means, the penalty may be applied to the common property of the spouses or to a part of it, respectively. The same rules apply when foreclosure is applied to the property of spouses when they compensate for damage caused by their minor children.
In the event of the death of one of the spouses, the surviving spouse has a share in the right to the common property of the spouses equal to one half, unless a different size of the share was determined by the marriage contract, joint will of the spouses, inheritance agreement or court decision (Clause 4 of Article 256 of the Civil Code of the Russian Federation) . In addition, the surviving spouse is the first-degree heir of the deceased spouse in the absence of a will, and if there is one, he has the right to claim an obligatory share in the inheritance .
union of a man and a woman registered with the civil registry office. Unregistered de facto marital relations (civil marriage) do not give rise to legal consequences - that is, the rights and obligations of spouses in accordance with the Family Code of the Russian Federation, just like a marriage concluded according to a religious rite. Registration is carried out only in the personal presence of those entering into marriage; representation in this case is not allowed. a person who has the right to demand the fulfillment of any obligation by the debtor
Registration of an apartment for one of the spouses
Most often, the purchase of an apartment or house is registered in the name of one of the family members, the husband or wife. The reason is a simpler registration process (there is no need for both spouses to complete all the necessary formalities).
Regardless of whose income was the source of funds for the purchase of housing, it will be joint property if acquired during a legal marriage. It should be taken into account that when registering with Rosreestr, you will have to provide a document confirming the consent of the second spouse to purchase living space.
Important! Such a document will not be required only when registering real estate when:
- the apartment is purchased as shared ownership;
- there is a marriage contract, which spells out in detail in what situations and how spouses have the right to dispose of property;
- There is a power of attorney from the second spouse to draw up a purchase and sale agreement.
You can obtain permission from your husband (wife) to purchase an apartment in advance. In this case, two options for such a document are allowed:
- indicating the specific housing (address, other technical data);
- consent to purchase real estate without specifying the object.
Consent from the spouse must be certified by a notary. This is done in order to protect the seller from terminating the transaction through the court if the buyer’s husband (or wife) wants to challenge the purchase and sale agreement and seek a refund.
Article 36 of the RF IC. Property of each spouse (current version)
1. On the application of the commented article, see the commentary to Art. 169 of the commented Code.
In addition to joint property, spouses may have separate property. Separate property includes property (things and property rights) that belonged to each of the spouses before marriage, received by one of the spouses during the marriage under a gift agreement, by inheritance or other gratuitous transactions. Other gratuitous transactions mean transactions for the free privatization of residential premises.
2. Separate property will also be recognized as things that serve the individual needs of the spouses (clothing, shoes, hygiene items), even if they were acquired for the common needs of the spouses. The exception is jewelry and other luxury items (products made of precious metals, rare furs, etc.). The law does not define what constitutes a luxury item. This issue is decided by the court, taking into account the specific circumstances and financial situation of the family.
To jewelry according to Art. 1 of the Law on Precious Metals and Stones includes precious metals and stones. In turn, precious metals include gold, silver, platinum and platinum group metals (palladium, iridium, rhodium, ruthenium and osmium). Whereas precious stones are natural diamonds, emeralds, rubies, sapphires and alexandrites, as well as natural pearls in raw (natural) and processed form. Unique amber formations are equated to precious stones in the manner established by the Government of the Russian Federation. At the same time, materials of artificial origin that have the characteristics (properties) of precious stones are not considered precious stones.
The issue of the possibility of recognizing the items of professional activity of one of the spouses as separate property is regulated in a special way. Current legislation (as well as judicial practice) recognizes them as jointly acquired property. This is due to the fact that significant amounts of money, which are the common joint property of the spouses, are usually spent to acquire them.
3. The results of intellectual activity (intellectual property) are understood as such results of mental (creative) activity that are protected by law. It should be noted that the processes of mental activity in themselves are outside the scope of law. The results of such activity, which have elements of creativity, become objects of legal influence (the results of creative activity in the field of technology are new concepts, technical solutions, product forms, in the field of literature and art - new images, etc.).
What all objects have in common is that these objects themselves have an ideal nature, that is, they are intangible, but they can be embodied in physical (material) objects that have a certain economic value.
In relation to the results of intellectual activity, in contrast to ordinary things, the regime of exclusive rights is applied, which means that only the creators of these products or other right holders, except for cases expressly specified in the law, have the right to use and dispose of them. In addition, it should be borne in mind that the owner has a perpetual and absolute right to a material object, while exclusive rights to the results of intellectual activity are urgent and may be limited in cases provided by law. Finally, it should be pointed out that exclusive rights to results are limited in space and that the right to a creative result is inextricably linked to the personality of its creator.
In this case, one should distinguish between the exclusive right to the result of intellectual activity, which includes two powers: use and disposal (clause 1 of Article 1229 of the Civil Code) and remuneration for the use of this result. The latter, as already noted, is the joint property of the spouses, while the exclusive right remains with the spouse - the author of the creative result.
It should be borne in mind that situations are possible when both spouses act as co-authors of the result of intellectual activity. In such cases, the spouses must enter into a separate agreement as co-authors.
Comment source:
“ARTICLE-BY-ARTICLE COMMENTARY TO THE FAMILY CODE OF THE RUSSIAN FEDERATION” UPDATED
S.P. Grishaev, 2017
Features of dividing an apartment purchased during marriage
An apartment purchased during marriage can be registered to one owner. However, you need to remember that registering property rights for only one spouse has its pitfalls. We are talking about the possible division of jointly acquired property.
This situation most often arises in the process of divorce, but even if the family is preserved, it is quite likely that the second spouse will want to secure his right to real estate. And it is not at all necessary that the apartment or house will be divided equally.
If the spouses fail to reach an agreement through negotiations, the size of each share will be determined by the court. The interests of minor children, the existence of a marriage contract and other legally established nuances will be taken into account.
However, an owner who bought real estate while married and registered ownership only in his own name, in certain cases may well claim its indivisibility. There are several reasons for this decision.
Housing was purchased with money inherited or donated by a relative
In such a situation, you will need to take care of two things:
- record the fact of donation by agreement with a notary or make copies of documents on bank transfer of funds from the donor to the recipient. In an inheritance situation, you will need an appropriate notarial certificate;
- record the fact of transfer of funds for the purchased housing from the buyer’s personal account.
If the apartment was purchased in cash, you must have a document confirming the origin of the amount spent on the purchase. This will help subsequently prove that the purchased housing was, in fact, given to one of the spouses and the second cannot claim a share in it.
The apartment was purchased entirely with the owner’s income
The fact that the second spouse is fully supported by the owner of the property without good reason may result in the housing purchased during the marriage going to the person who purchased it.
It should be borne in mind that the court may recognize the following as valid reasons for lack of income:
- the need to care for a sick relative, confirmed by a doctor’s conclusion (certificate of disability);
- the presence of minor children who are being raised by a non-working spouse;
- a serious illness that does not allow the second spouse to work and earn their own income.
Property acquired by spouses during marriage is their joint property, except in cases where other provisions are specified in the marriage contract or the spouses entered into an agreement on the division of property (Articles 33, 34, 38 of the RF IC; Article 256 of the RF Civil Code).
As a general rule, the common property of spouses includes:
• income of each spouse from labor, entrepreneurial activity and the results of intellectual activity, as well as pensions, benefits and other monetary payments that are received by the spouses and do not have a special purpose, for example, amounts of financial assistance;
• movable and immovable things, securities, shares, deposits, shares in capital contributed to credit institutions and other commercial organizations, which were acquired from the common income of the spouses;
• any other property that the spouses acquired during the marriage. In this case, it does not matter in the name of which spouse it was purchased, in the name of which or by which of the spouses the funds were deposited.
At the same time, property received by one of the spouses during marriage by inheritance or as a gift, as well as personal items, except for jewelry and other luxury items, are not jointly acquired property (Article 36 of the RF IC).
The surviving spouse retains the right to part of the common property acquired during the marriage with the testator. The deceased spouse's share in such property is included in the inheritance and passes to the heirs. As a general rule, when determining shares in the common property of spouses, their shares are recognized as equal. Otherwise, it may be provided by a marriage contract, a joint will of the spouses, an inheritance agreement or a court decision (clause 4 of article 256, article 1150 of the Civil Code of the Russian Federation; clause 1 of article 39 of the RF IC).
For example, if spouses have an apartment in joint ownership, only a share equal to 1/2 of the deceased spouse’s apartment is included in the inheritance estate. The remaining 1/2 share in the ownership of the apartment remains with the surviving spouse. In this case, the surviving spouse has the right to file an application for the absence of his share in the property acquired during the marriage. Then all this property will be included in the inheritance (clause 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 N 9; clause 9 of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on July 4, 2018).
In general, to accept inheritance of jointly acquired property after the death of one of the spouses, we recommend following the following algorithm.
How to prove that property (apartment) is not jointly acquired,
When spouses get married, they often do not decide on the issue of drawing up a marriage contract; they buy property during marriage, including with their personal or donated funds. In this connection, during a divorce, the question arises of how to prove that property (apartment) is not jointly acquired and is not subject to division between spouses . SEE COURT PRACTICE: Court decision to refuse to divide an apartment purchased during marriage
According to Art. 34 of the Family Code of the Russian Federation (hereinafter referred to as the RF IC), property acquired by spouses during marriage is their joint property.
Based on the provisions of this rule of law, all property acquired by spouses during marriage, regardless of who it is registered in the name of, is subject to division between the spouses.
By virtue of Art. 36 of the RF IC, property that was acquired before marriage or received through gratuitous transactions, for example, donation, inheritance, is the personal property of the spouse.
That is, if before marriage a spouse acquired ownership of an apartment, then such property is not jointly acquired and is not subject to division between the spouses.
According to paragraph 4 of Art. 38 of the RF IC, it can be proven in court that property that was acquired during marriage is the property of the spouse who acquired it, if it can be proven that on the date of acquisition of the property, the spouses lived separately and family relations were terminated.
According to the clarifications of the Supreme Court of the Russian Federation, given in paragraph 10 of the “Review of the judicial practice of the Supreme Court of the Russian Federation No. 2 (2017)” (approved by the Presidium of the Supreme Court of the Russian Federation on April 26, 2017), the resolution of disputes arising in connection with the attribution of property to the common property of spouses “ the regime of common joint property of the spouses does not apply to property acquired during the marriage, but to funds that belonged to one of the spouses personally.”
Previously, similar explanations were given in paragraph four of clause 15 of the resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 15 “On the application of legislation by courts when considering cases of divorce.”
Based on the above, property (apartment) that is not jointly acquired is not subject to division between spouses if:
✔purchased with personal funds or funds received from the sale of personal property of one of the spouses;
✔ property was acquired, although in marriage, but during the period of separation and termination of family relationships.
to prove that property (apartment) is not jointly acquired and cannot be divided between spouses ; to do this, it is necessary to present evidence in court that confirms that the purchase of property by the spouses was carried out with the personal funds of one of the spouses. Moreover, the burden of proof in court lies with the spouse who declares that the property was acquired with his personal funds.
A legally significant circumstance when deciding whether to classify property as the common property of spouses is what funds (personal or common) and through what transactions (compensated or gratuitous) the property was acquired by one of the spouses during the marriage. The acquisition of property during marriage, but with funds that belonged to one of the spouses personally, excludes such property from the regime of common joint property.
Consequently, the determining factors in classifying property as separate property of spouses (the property of each spouse) are the time and grounds for the emergence of the right of ownership of specific property in each of the spouses (before marriage or during marriage, but in gratuitous transactions).
Is it possible not to divide property during a divorce?
In order to answer positively the question of whether it is possible not to divide property during a divorce, it is necessary to prove the circumstances of the origin of funds for the purchase of property during marriage.
Let's look at specific examples of how to prove that property (apartment) is not jointly acquired and cannot be divided between spouses .
✔The property was acquired during marriage, but payment was made before marriage.
For example, a married couple purchased a car, the ownership was registered during the marriage, but the spouse paid the money before marriage, for which there was a corresponding receipt.
The obligation to pay for the purchased car to the seller was fulfilled before the marriage. Due to the above, the regime of joint ownership of spouses cannot be applied to the specified property (see: Determination of the Investigative Committee on civil cases of the Supreme Court of the Russian Federation of July 5, 2021 N 37-KG16-8).
✔The property was acquired during marriage, but with funds received by the spouse from the sale of personal property.
For example, spouses bought an apartment during marriage, and payment for the apartment was made from the funds of the spouse who sold his personal apartment. As the Supreme Court of the Russian Federation pointed out, when considering a case on the division of property, “the sequence of these events confirms that transactions for the sale of one apartment and, accordingly, the acquisition of another apartment were carried out simultaneously. At the same time, it is essential that when these transactions were completed, both the composition of the participants in the common shared property—the defendant and his minor son—and the size of their shares in this property were preserved. These circumstances, in the opinion of defendant A.V. Zubkov, indicate that funds in the amount of 1,225,000 rubles, proceeds from the sale of 1/2 share of the apartment at the address: <...>, owned by him on the basis of an agreement for the gratuitous transfer of residential property premises (privatization), and invested by him in the purchase of an apartment located at the address: <...>, are the personal property of A.V. Zubkov, since they did not make money together during the marriage and were not the common income of the spouses. In accordance with Article 34 of the Family Code of the Russian Federation, a property purchased with the specified funds could not be recognized as the common joint property of the Zubkov spouses” (See: Determination of the Supreme Court of the Russian Federation dated February 14, 2017 N 9-КГ16-21).
When proving this circumstance that marital property was acquired through the sale of personal property, it matters:
✔how payments were made for property, for example, for an apartment purchased during marriage. If a personal apartment was sold, the funds were in a bank account, and then were transferred to the account of the seller of the apartment purchased during marriage, then this circumstance is evidence of the funds with which the apartment was purchased during marriage. If the sale of a premarital apartment and the purchase of an apartment during marriage were made on the same day, then this circumstance can also be evidence.
✔ did the spouses have money that they had saved up to purchase expensive property? In court, it is worth raising the issue that the spouses could not have had the funds to purchase the property. During the purchase period, the spouses did not receive wages or other income that would allow them to purchase the property.
✔The property was acquired during marriage, but with funds received by the spouse as a gift from relatives or parents.
For example, in one of the cases regarding the division of property, I was able to prove that the parents gave their son money to buy an apartment. At one of the consultations, the husband asked whether it was possible not to divide the property during a divorce and how to prove that the property (apartment) was not jointly acquired and could not be divided between the spouses, since the parents gave money for the purchase, and the wife filed a claim for the division of this apartment.
I represented my husband’s interests in court, presented evidence that funds were withdrawn from the parents’ account and on the same day a similar amount was transferred to the seller’s account. Accordingly, the apartment was purchased with the personal funds of the spouse, and therefore was not subject to division; the spouse’s claim for division of the apartment was denied (See: appeal ruling of the Moscow City Court dated January 24, 2014 in case No. 33-1860/2014).
✔The property was acquired during marriage, but with funds received by one of the spouses for personal obligations. For example, under a loan agreement, under a loan taken out before marriage.
✔The property was acquired during marriage, under an agreement to exchange the spouse’s personal property for other property or at the expense of securities. For example, a premarital apartment was exchanged for a friend’s apartment under an exchange agreement.
In one of the cases with my participation, my husband approached me, who said that when buying an apartment he used personal property - a promissory note - and asked the question: is it possible not to divide the property during a divorce ? The answer was positive; it was proven in court that most of the money spent on purchasing an apartment during marriage was made from a bill of exchange, which was the personal property of the spouse, and the remaining small part was from a mortgage loan received during marriage. As a result, the court fully recognized the apartment as the property of the spouse, with the payment of monetary compensation in the amount of ½ share of the payments made under the mortgage agreement during marriage.
Thus, it is possible to prove that property (apartment) is not jointly acquired and cannot be divided between spouses, but based on judicial practice, this is very difficult to do; it is necessary to present in court the appropriate evidence confirming the circumstances of the origin of funds for the purchase of property during marriage.
If you prove these circumstances, you can either completely exclude the division of property or reduce the spouse’s share. For example, if you prove that an apartment purchased during marriage was purchased entirely with personal funds, the court will refuse to divide this property.
If only part of the money was the personal property of the spouse, then in court it is possible to reduce the share of the second spouse or pay him monetary compensation corresponding to ½ share of the money that was used to purchase property during the marriage.
For example, an apartment was purchased for 10 million, of which it was proven that 5 million were the personal funds of the spouse, accordingly, only ½ of the share in the apartment is subject to division. The court can divide such an apartment in the following way: allocate a ¼ share in the ownership to the spouse or collect 2.5 million from the first spouse as compensation, leaving the apartment entirely in the ownership of the spouse who used personal funds.
✔The property was acquired during marriage, but after the termination of actual residence and termination of family relationships.
In court, it will be necessary to prove that on the date of purchase between the spouses the joint household and family relations were terminated, and also to provide evidence of the origin of the funds for the purchase of such property.
Based on the foregoing, it is possible to prove that property (apartment) is not jointly acquired and is not subject to division between spouses, provided there are appropriate circumstances, evidence, and, of course, with an experienced lawyer with relevant judicial practice.
Other articles on the division of property CAN BE VIEWED HERE:
◉Divorce and division of property of spouses through the court
◉How to sell an apartment purchased during marriage
Judicial practice on the refusal to divide property acquired during marriage with personal funds CAN BE VIEWED HERE:
◉Court decision to refuse to divide an apartment purchased during marriage
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Purely personal apartment
As the Supreme Court of the Russian Federation analyzed one of these decisions on the division of joint property, not everything acquired during the marriage can be divided equally. The subject of analysis by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation was the process of dividing a one-room apartment. Their marriage lasted three years. It was concluded in September, and a month after the wedding, the wife signed an agreement with the developer for shared participation in the construction of a house, in which she was to receive a one-room apartment.
A month later, this transaction passed state registration. Judging by the court materials, the wife had her own apartment before marriage, which she sold a month after the wedding, and invested the proceeds in the construction of a one-room apartment.
After the marriage broke up, her ex-husband came to court with a claim for the division of jointly acquired property. The plaintiff argued his demands as follows: at the time of consideration of the dispute, the ownership of the one-room apartment was not registered with his ex-wife. They did not enter into any agreement on the division of common goods. But after the divorce, the wife has sole use of this one-room apartment, and since it was purchased during marriage, it means that he, as a spouse, has full right to half of the living space.
The district court rejected the claim. The court decided that the ex-wife purchased the apartment with money received from the sale of property that she had before marriage. Therefore, the one-room apartment does not belong to the common property of the spouses. The ex-husband challenged this decision.
Property purchased during marriage will not be common, but with personal money that the spouse had before the wedding
The appeal sided with the plaintiff and did not agree with the decision of the district colleagues. She canceled it and decided to divide the one-room apartment in half. In her opinion, the very fact of paying money from the sale of personal property as payment under an agreement for participation in shared construction does not have legal significance for the correct resolution of the dispute “in the absence of evidence of an agreement between the parties on the acquisition by the defendant of the disputed property as personal property.”
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with this decision and the division of the apartment.
The high authority reminded colleagues of Article 34 of the Family Code. It states that property acquired during marriage is considered joint property. The article lists in detail what belongs to such common property - the income of each spouse from labor, entrepreneurial or intellectual activity. The pensions, benefits and other payments they received that did not have a designated purpose. By the way, money for special purposes - financial assistance, compensation for loss of ability to work and other similar payments - is personal property.
What is purchased from joint income will also be common property. These are movable and immovable things, securities, shares, deposits, shares in capital contributed to credit institutions or commercial organizations. This list ends with the words “and other property acquired by the spouses,” regardless of in the name of which of them it was acquired or registered and which of the spouses contributed the money.
And Article 36 of the Family Code lists what cannot be divided. This is property that belonged to each before marriage, as well as what each of them received during marriage as a gift, by inheritance and “through other gratuitous transactions.”
There was a special plenum of the Supreme Court, which considered complex issues regarding claims for divorce (No. 15 of November 5, 1998). At this plenum, the following explanations were given: property, although acquired during marriage, but purchased with the personal funds of each spouse that belonged to him before marriage, is not considered joint property. And “things for individual use, with the exception of jewelry and other luxury items,” will not be shared.
From all that has been said, the Supreme Court draws the following conclusion: a legally significant circumstance when deciding the issue of classifying property as the common property of spouses is the money with which it was purchased, personal or common, and under what transactions, compensated or gratuitous, one of the spouses acquired this property during marriage. Property received by one of the spouses during marriage through gratuitous civil law transactions (inheritance, donation, privatization) is not the common property of the spouses. The acquisition of property during marriage, but with funds that belonged to one of the spouses personally, also excludes such property from the regime of common joint property.
The Supreme Court emphasized that in our dispute, the appeal had such an important, “legally significant” circumstance as the use of funds that personally belonged to the ex-wife to purchase a one-room apartment, “erroneously left unattended.”
The proceeds from the sale of the old apartment were legally the personal property of the defendant, since they were not earned jointly during the marriage and could not be the common income of the spouses.
The Judicial Collegium for Civil Cases of the Supreme Court especially emphasized that the period between receiving money from the sale of an apartment before marriage and payment under the agreement for shared participation in construction was only five days. So, in accordance with Article 34 of the Family Code, the one-room apartment purchased with this money could not in any way be recognized as the common property of the spouses.
The result of the analysis is that the decision of the district court, which gave the apartment to the ex-wife, was considered correct and legal by the Supreme Court and upheld, and the appeal decision was overturned.
VS figured out how to divide an apartment purchased before the wedding
Victor and Anna Gubkin* lived together for nine years and then decided to get married. On November 2, 2021, Viktor Gubkin bought an apartment under a purchase and sale agreement with Invest Plus LLC with payment over five years (its book value was 2.2 million rubles). On November 11, the Gubkins registered their marriage. And on November 21, ownership of the apartment was assigned to Gubkin in the Unified State Register of Real Estate. The couple lived together for another two years, after which they decided to divorce. The question arose about the division of property.
From love to divorce: who needs prenuptial agreements and why?
The stumbling block was the apartment. Victor Gubkin insisted that the property should not be considered joint property, because the agreement was signed before the marriage was registered. Anna Gubkina argued that the apartment should be divided as a joint property, since ownership was registered after the wedding. In addition, the Gubkins ran a joint household before they officially got married.
Anna Gubkina went to court. She demanded that 2/3 of the share be left for her, and 1/3 for her ex-husband, and the debt to Invest Plus LLC be recognized as common. The plaintiff proposed to deviate from the equality of shares, since her minor daughter remained with her.
What did the courts decide?
The Gagarinsky District Court of Sevastopol refused to satisfy the applicant’s demands. In the first instance, they explained that the deal to purchase the apartment was concluded before the marriage, so the housing would not be considered jointly acquired property and should not be divided between ex-spouses. At the same time, the court recalled that the cost of the apartment was paid from Gubkin’s personal funds (except for one payment of 20,000 rubles).
But the decision did not survive the appeal. On August 15, 2021, the Sevastopol City Court concluded that the apartment is the joint property of the spouses, so it must be divided equally. The appeal referred to the fact that the purchase and sale agreement for the apartment must be registered. It is considered concluded from the moment of state registration. Since registration occurs during the period of marriage, the apartment is the joint property of the spouses. The Fourth Court of Cassation of General Jurisdiction agreed with this opinion.
Viktor Gubkin appealed the court decisions to the Supreme Court. He insisted that the decision to divide the apartment was illegal and it could not be considered the joint property of the spouses. The Civil Disputes Collegium of the Supreme Court, having studied the details of the case, decided to cancel the contested acts of appeal and cassation.
The Supreme Court recalled that according to paragraph 1 of Art. 36 of the Family Code, property acquired before marriage is the property of each spouse. To recognize property as joint property, you must prove that it was purchased during marriage and with common money.
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In this case, such circumstances as the time and grounds for the emergence of ownership of property are legally significant. In the Gubkin dispute, the date of conclusion of the purchase and sale agreement is important, and this happened before the marriage. At the same time, the rule on state registration of transactions with real estate does not apply at all to contracts concluded after March 1, 2013, that is, the conclusion of the two authorities about the need for such registration is erroneous. “Registration of a right is not of a title-establishing, but of a title-confirming nature, therefore it is unreasonable to attach decisive importance to the date of the registration record of the transfer of ownership of the disputed property when determining the status of such property as acquired by spouses during marriage,” says the Supreme Court Determination No. 117-KG20-2 -K4.
The purchase and sale agreement for the disputed apartment was concluded before the marriage, so there was no reason to include the housing in the jointly acquired property, the Supreme Court pointed out. The fact that the personal debt of one of the spouses for the apartment was repaid during marriage does not make it joint property, is noted in the definition, especially taking into account the fact that the remaining payments occurred in the period after the divorce.
The Supreme Court panel consisting of Igor Yuryev, Boris Gorokhov, Tatyana Nazarenko upheld the decision of the first instance on the division of the apartment. The housing was left to Gubkin.
Expert opinions
“The Supreme Court once again emphasized that the criterion is not only its formal registration with the Federal Service for State Registration, Cadastre and Cartography (Rosreestr), but also the actual payment for residential premises,” says the head of the family and inheritance law practice of KIAP KIAP Federal Rating. group Arbitration proceedings (medium and small disputes - mid market) group Compliance group Family and inheritance law group Intellectual property group (including disputes) group Dispute resolution in courts of general jurisdiction group Labor and migration law (including disputes) group Criminal law group Antimonopoly law (including disputes) group Foreign trade/Customs law and currency regulation group Land law/Commercial real estate/Construction group Corporate law/Mergers and acquisitions group International arbitration group TMT (telecommunications, media and technology) group Financial/Banking law group Bankruptcy (including disputes) group Tax consulting and disputes (Tax consulting) Company profile Yulia Yanygina. In her practice, there were cases when she had to prove that an apartment was purchased with “pre-marital” funds. It is very important here how the payment was made: “Such circumstances cannot be proven by testimony.”
“The court, unfortunately, did not directly answer whether the possible emergence of common property is affected by the fact that the personal debt to pay for the apartment was repaid partly from common funds,” notes Olesya Petrol, partner at Petrol Chilikov Petrol Chilikov Federal Rating. group Arbitration proceedings (medium and small disputes - mid market) group International litigation group Family and inheritance law group International arbitration. She drew attention to another significant aspect of the matter.
The Supreme Court quite rightly ignored the plaintiff’s argument that actual marital relations existed between the parties already before the marriage was registered, and it was during this period that the purchase and sale agreement was concluded. Marriage registration cannot create community of property retrospectively.
Olesya Petrol, partner at Petrol Chilikov
In order to further divide jointly acquired property in your own interests, it is necessary to correctly formalize the transfer of funds, warns Yulia Yanygina: “It is advisable to do this in a non-cash form.” And after the next determination of the Armed Forces, she hopes, it will become easier to classify this or that object as general or personal property.
* – the names and surnames of the parties to the dispute have been changed.
- Irina Kondratyeva
12.2. Allocation of spousal share in inheritance
As stated in paragraph 1 of Art. 256 of the Civil Code of the Russian Federation, property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property. Similar legal regulation of the property regime of spouses is established in the Family Code of the Russian Federation (Articles 33, 34, 36, 39). Thus, joint property of the spouses arises by virtue of the direct instructions of the law. If the spouses did not enter into a marriage contract during their lifetime, or one of them did not acquire property under a gratuitous transaction, then the property acquired by them during the marriage with joint funds becomes their joint property, and the shares of the spouses are recognized as equal.
The right of inheritance belonging to the surviving spouse of the testator does not detract from his right to part of the property acquired during the marriage with the testator and which is their joint property. At the same time, in accordance with Art. 1150 of the Civil Code of the Russian Federation, a joint will of spouses or an inheritance agreement can provide for other rules and conditions for the inheritance of common property by the surviving spouse.
The share of the deceased spouse in this property is determined in accordance with Art. 256 of the Civil Code of the Russian Federation. In addition, when determining the share of the surviving spouse, it is necessary to find out the fact that property was acquired during the marriage using joint funds. Regarding property acquired by spouses during marriage, the legislator in Art. 34 of the RF IC includes the income of each spouse from work, 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 in connection with 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. The regime of joint property of spouses applies to all property acquired during marriage and in cases where one of the spouses during the marriage was running a household, caring for children, or for other valid reasons did not have independent income. It should be taken into account that, according to paragraph 2 of Art. 256 of the Civil Code of the Russian Federation, property belonging to each of the spouses may be recognized by the court as their joint property if it is established that during the marriage, investments were made from the common property of the spouses or the personal property of the other spouse that significantly increased the value of this property. The above rule does not apply if the marriage contract between the spouses provides otherwise.
As confirmation that the surviving spouse owns half of the property common to the testator, there is a certificate of ownership of a share in the common property of the spouses, the issuance of which is provided for in Art. 75 Fundamentals of the legislation of the Russian Federation on notaries. In the event of the death of one of the spouses, the issuance of a certificate of ownership of a share in the common property of the spouses is carried out by a notary at the place of opening of the inheritance upon a written application of the surviving spouse with notification of the heirs who accepted the inheritance.
A certificate of ownership of a share in the common property of the spouses can be issued to the surviving spouse for half of the common property acquired during the marriage. Based on a written statement from the heirs who accepted the inheritance and with the consent of the surviving spouse, the deceased spouse’s share in the common property may be determined in the certificate of ownership. This is an agreement of persons entering into marriage, or an agreement of spouses, defining the property rights and obligations of spouses in marriage and (or) in the event of its dissolution. The marriage contract is concluded in writing and is subject to notarization. a part of property belonging to the owner that is owned by two or more persons (common property). property owned by the testator on the day of opening of the inheritance, including property rights and obligations. Intangible benefits, non-property rights and obligations, as well as property rights and obligations inextricably linked with the personality of the testator (the right to alimony, the right to compensation for harm caused to the life or health of a citizen, etc.) are not included in the inheritance.
