Taking out a loan is a responsible and important decision. You should soberly assess your strengths, calculate your financial capabilities and, if possible, pay it off as quickly as possible.
This will reduce overpayments. When one person takes out a loan, then, in general, it is clear who will repay it. But what if the citizen is married? Let's talk about such a common topic as the spouse's responsibility for the loan. Does the debt extend to the wife?
- 1 Law
- 2 Joint and several liability
- 3 Reasons
- 4 Can he be a guarantor?
- 5 Loan repayment after divorce
- 6 After the death of one of the spouses
Is one spouse obligated to pay the debt after the death of the other? How does the solidarity of husband and wife help to get rid of the loan together? Let us consider the identified issues further.
Law
All financial obligations to credit institutions are fulfilled by the husband and wife jointly.
An exception will be the registration of a marriage contract. According to it, each party fulfills its points of agreement. For example, if the husband took the loan, then the wife is not obliged to pay it.
This practice is not widespread in Russia, therefore, the responsibility falls on both spouses. But there are some nuances. If the case goes to court, the government agency takes into account a number of factors. For example, did the husband know that his wife took out a loan? The court is especially interested in what purposes were the funds spent on?
For example, my husband spent money on personal needs - he bought a car. One way or another, the wife is not responsible for the loan. But if the funds are spent on traveling or building a summer house, then both will have to pay.
ATTENTION! One of the spouses may not know that the other took out a loan for some joint needs. But from a legal point of view, both will have a debt to the credit institution.
Let's move on to some other nuances. If the amount is not enough to repay the loan, then the funds are withdrawn from the common property, although this does not apply to real estate. Especially if she is the only one. For example, a wife lives in her husband’s apartment, but she is registered in a studio apartment. The bank has no right to deprive the spouse of this apartment, even if the debt is very large.
As for common property. Bailiffs seize property. The apartment is divided among everyone registered in it and the debtor's part is sold at auction. The proceeds go to repay the loan. In rare cases, one spouse will be left with a small cash reserve after the sale.
If we turn to the Civil Code, then payment of a debt can only come from property acquired during marriage. For example, the money after selling a share in an apartment was not enough to cover the debt. The part of the second spouse is put up for auction. Personal property, jewelry, things that were received, inherited, donated, purchased before marriage remain untouched.
The Supreme Court was deciding whether the ex-wife should return the money to her husband
Andrey Lavrentyev* and Karina Perova* got married in April 2015, and in February 2016 they divorced. By that time they had a daughter together. The former spouses lived together for about nine more months (according to Perova’s version). And on May 19, 2021, she bought an apartment in a building under construction with a mortgage. On the same day, Lavrentyev deposited 2.4 million rubles into her account through the cash desk of VTB 24 Bank, and in August – another 1.3 million rubles.
Three years later, the ex-husband decided to collect this money with interest as unjust enrichment. In court, Perova insisted that 2.4 million rubles. - this is her money, which she asked Lavrentyev to deposit into the account because she did not have time herself. And 1.3 million rubles. were a gift from their ex-husband to their daughter. The money contributed, according to the woman, was used to pay off the mortgage. Nevertheless, the Sovetsky District Court of Volgograd sided with the plaintiff, finding that the defendant did not prove either ownership rights or that the money was received as a gift. Two higher authorities agreed with him. Then Perova filed a complaint with the Supreme Court.
Was there a commitment?
Perova was the first to speak at the Supreme Court hearing. “In 2016, the plaintiff and I lived together as one family,” she began and repeated her version of events: 2.4 million rubles. were her savings, and 1.3 million rubles. - a gift from a former spouse. According to Perova, this is also reflected in her declarations. She also noted that for three years Lavrentiev never asked for the money back. “The claim was actually filed a few days before the expiration of the statute of limitations,” the woman emphasized.
Is it possible to recognize money from a husband as unjust enrichment?
Lavrentyev’s representative, lawyer Evgeniy Kushneruk, did not agree with her: “Not three years, but two. And the lawsuit was not filed in the last days of the limitation period.” He also noted that Perova’s argument about living together was not confirmed in court.
– What do you think is the reason for filing the lawsuit? – presiding judge Sergei Astashov asked Perova.
– Now my ex-husband and I have an extremely conflictual relationship. He does not communicate with the child. When the lawsuit was filed, I began a relationship with another man. Lavrentyev found out about this. I don’t know if this was the reason or just a coincidence,” the woman said.
After this, her representative Maxim Osipkin took the floor. He drew the judges' attention to the fact that it is impossible to simply come to the bank and deposit money into a stranger's bank account. “To carry out this operation, you need to know about such an account, its details, and also have the intention to deposit money,” Osipkin explained. According to him, the plaintiff had all this information, and he received it from Perova, with whom he lived then.
“We believe that in this case it is necessary to use clause 4 of Art. 1109 of the Civil Code, because there was no obligation [approx. ed. – according to clause 4 of Art. 1109 of the Civil Code, money and other property provided in fulfillment of a non-existent obligation are not subject to return],” the lawyer concluded his speech.
“There is an obligation in this case,” Kushneruk objected. – We believe that there was a loan, our opponents believe that it was a donation. Moreover, in the first instance they spoke about a donation, and in the appeal they said that they had already partially returned the money.”
– If you claim that there was a loan, why then do you refer not to it, but to unjust enrichment? – Astashov asked.
“The loan agreement was not drawn up, so we were forced to rely on the rules on unjust enrichment,” the lawyer explained.
The judge continued to ask questions about the qualifications of the relationship.
– There is no evidence that there was a gift or loan. Then what remains is unjust enrichment. Did the principal contribute money towards any obligation or not? – the presiding officer asked another question.
– On account of a loan obligation.
-Can you prove it?
– This is proven by the fact that part of the money is 1.145 million rubles. - were returned. The opponents themselves referred to this in the appeal,” Kushneruk emphasized.
The judges briefly retired to the deliberation room, and upon their return they decided: to cancel the acts of the lower authorities, to send the case for a new trial on appeal (No. 16-КГ21-10-К4).
*Name and surname have been changed by the editors.
- Kira Klimacheva
- Civil process
Joint responsibility
So, does a husband's personal debt extend to his wife? Definitely not. Despite calls from bank employees and aggressive actions of collectors, a wife cannot be her husband’s guarantor. The second spouse did not sign the agreement and there should be no claims against him. We talk about exceptions above. But, in practice, the determining factor is the situation when the loan was taken for joint needs.
Article 45 of the Family Code of the Russian Federation introduces the concept of “joint and several liability”. What lies behind such a definition? Joint and several liability is the contribution of equal cash shares on the loan by both spouses, regardless of who took the loan.
ATTENTION! The worst option is when one of the faithful does not have money to pay and property as such. Responsibility falls on the spouse.
Marital debt: will the wife be responsible for her bankrupt husband?
The implementation of the law on bankruptcy of individuals not only allows citizens to free themselves from credit slavery and write off existing debts. But in practice, bankruptcy can affect not only the citizen himself, but also members of his family. For example, spouses, one of whom has been declared bankrupt, may lose all the property accumulated over many years of marriage. These are natural costs of a new law for our country, which citizens intending to begin personal bankruptcy proceedings will have to come to terms with.
As a general rule, spouses are not responsible to each other’s creditors, and for the obligations of one of the spouses, the penalty is applied to the property of this spouse (Article 45 of the Family Code of the Russian Federation). Meanwhile, in some cases, the common property of the family also suffers from bankruptcy. The fact is that, in accordance with family law, our country has a regime of so-called common joint property in relation to the property of spouses. Common property includes the income of each spouse from labor and business activities, all pensions, benefits, as well as other monetary payments. Movable and immovable things, securities, shares and deposits acquired at the expense of the joint income of the spouses are also common. Moreover, the right to common property 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.
In accordance with the norms of family law, foreclosure 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 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 such obligations with the property of each of them.
If the common property of the spouses was acquired or increased using funds obtained by one of the spouses through criminal means, the penalty may be applied to the common property of the spouses or to a part of it, respectively. In the context of the law on bankruptcy of individuals, the joint ownership regime literally means that this property can also be foreclosed on by the bankrupt’s creditors.
As senior lawyer Tatyana Atitanova told Klerk.Ru, when it comes to the bankruptcy of one of the spouses, it is necessary to understand that jointly acquired property can be subject to recovery by separating a share from the common property.
“For the obligations of one of the spouses, recovery can only be applied to the property of this spouse.” But if this property is not enough, creditors may demand the allocation of a share from the common property. Common property can be subject to recovery for common obligations or in the event that what one spouse took on under obligations was used for the needs of the family,” explains Atitanova.
Thus, it is unlikely to be possible to “cheat” through bankruptcy by presenting yourself as unmercenary - debts will still be collected at the expense of common property, including indivisible property.
Consulting company manager Olga Popova told Klerk.Ru about how this happens. According to her, the specific procedure for creditors and the financial manager will depend on which spouse owns the property. So, if the property is assigned to the debtor himself, then such property will be sold according to the general rules established by the Bankruptcy Law. In this case, the debtor’s spouse, including the former, will have the right to participate in the bankruptcy case when considering all issues related to the sale of common property. This has practical implications because once the property is sold, the spouse will receive his or her due share and the remainder will be included in the bankruptcy estate.
The situation will be much more difficult for creditors when the common property is legally registered not in the name of the debtor, but in the name of his spouse. In this case, the bankruptcy estate includes the citizen’s property, which constitutes his share in the total property.
“Here it will be necessary to allocate the citizen’s share in the common property in order to foreclose on it. And this is an independent trial. The Bankruptcy Law determines that any creditor of the debtor can file such a claim with the court. Moreover, to allocate the debtor’s share, the creditor will have to go to the district (city) court at the place of residence of the spouse. In addition, with regard to the common property of spouses, a general rule will apply regarding the exclusion from the bankruptcy estate of property that cannot be foreclosed on in accordance with civil procedure, for example, a single home,” explains Olga Popova.
Of course, the family will not lose basic necessities. Thus, the Civil Procedure Code of the Russian Federation establishes a whole range of property that cannot be foreclosed on under executive documents:
- the only housing
- the plot of land on which this housing is located,
- items of ordinary home furnishings and household items,
- personal items (clothing, shoes, etc.), with the exception of jewelry and other luxury items,
- property necessary for the professional activities of the debtor citizen.
However, with regard to all other property, the legislation does not guarantee anything like this.
Under such circumstances, potential bankrupts and members of their families are faced with the acute question of ensuring the safety of common property. Currently, the law provides citizens with several possible ways to solve this problem. Firstly, this is a change in the regime of common joint ownership. This is done by concluding a special written agreement. In particular, purchase and sale agreements. It should be remembered that in some cases this agreement may seem extremely suspicious to creditors and the manager and may be challenged in court.
“There are certainly risks of losing property. The question remains unclear whether it is necessary to allocate the spouses’ shares in their property before its sale or not. On the one hand, selling shares may not be as profitable as selling the entire property. But, on the other hand, perhaps the non-bankrupt spouse does not want to lose his property, in particular, his share in it, and he is not against the fact that the second share will be sold to someone. To preserve property, it can be proposed to change the regime of joint ownership to separate. However, it should be remembered that such transactions (for example, a donation, an agreement on the division of property) concluded before bankruptcy can be challenged,” notes Anastasia Rastorgueva, lawyer at the Barshchevsky and Partners Bar Association of Moscow.
The second legal way to ensure the safety of property is to conclude a marriage contract.
By means of a marriage contract, spouses have the right to change the regime of joint ownership, establish a regime of joint, shared or separate ownership of all the property of the spouses, of its individual types or of the property of each of the spouses. A marriage contract can be concluded both in relation to the existing and in relation to the future property of the spouses. A marriage contract can be concluded both before the state registration of marriage and at any time during the marriage. And if the first case is already quite common and no one has any questions about it, then an agreement concluded during the marriage, again, can attract the close attention of creditors. For example, when the debtor spouse concludes a marriage contract, according to which all property is transferred into the ownership of the second spouse, who is not the debtor.
In this regard, the Family Code additionally protects the rights of creditors by establishing a number of restrictions on concluding a marriage contract. Ivan Timofeev, a lawyer at the Moscow Bar Association “Gorelik and Partners”, spoke to Klerk.Ru about the intricacies of this transaction in relation to the bankruptcy procedure of an individual.
“The debtor spouse is obliged to notify his creditor of the conclusion, change, or termination of the marriage contract. If this obligation is not fulfilled, the debtor is liable for the obligations regardless of the content of the marriage contract. The creditor(s) of the debtor spouse have the right to demand changes in the terms or termination of the agreement concluded between them due to significantly changed circumstances, Timofeev explained. — In practice, the debtor spouse often does not notify the creditor of the conclusion of the marriage contract. Therefore, as a result of legal proceedings regarding the debts of such a spouse, recovery is applied to the entire share in the common property of the spouses, regardless of the content of the marriage contract.”
Thus, as experts note, the legislation does not allow for the possibility of outright abuse.
Moreover, both on the part of debtors and on the part of creditors. Rather, a certain balance of interests is established - creditors will not be able to deprive the debtor’s family of shelter and essentials, while in relation to bankrupts, obstacles are created to make dubious transactions. Unlock access to the private part of Clerk with a Premium subscription. Get hundreds of webinars and online courses, unlimited consultations and other proprietary content for accountants.
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Causes
- The loan was taken out for real estate or an expensive car, but the couple decided to divorce.
- The debt is too large for one person to pay off and affects the overall budget of the family.
- One of the spouses is trying to prove his innocence, but part of the funds has already been spent on him. For example, a sea ticket was bought for a wife, but the husband took the loan.
It is very important to prove your non-involvement from the first calls from the bank or receiving information about a loan from your spouse/other relatives/third parties . Collect evidence. Checks, certificates, receipts, perfect credit history, after all. The more arguments the party who did not take out the loan gives, the higher the chance of getting rid of burdensome debts.
If necessary, you can file a counterclaim, but this step should be carefully considered. It is possible to engage a lawyer to review your specific situation and make recommendations. In most cases, you will have to find witnesses who can confirm that the loan funds were spent by only one of the spouses.
If a marriage contract has been drawn up, then payment of debts occurs strictly according to the points of the document, using the property of each spouse.
In what cases is the ex-husband obliged to pay alimony to his wife?
Upon divorce, parents must take an equal part in the financial support of the child. Children who stay with their mother may require constant care, meaning it is difficult for the mother to find a well-paid job in such a situation. In order to be able to maintain normal provision for children, the law allows the ex-wife to file for alimony for her ex-husband not only for the maintenance of their common children, but also for herself in accordance with Article 90 of the RF IC. The court makes a decision to collect alimony from the ex-husband if the ex-wife:
- cares for a common child with a childhood disability of group 1 for life;
- cares for a common disabled child until he reaches eighteen years of age;
- cares for a common child up to the age of three.
Can he be a guarantor?
Currently, credit organizations practice the following scheme. The bank employee says that you can take out a spousal loan. What does it mean? In a contract, for example, drawn up for a husband, the wife will be entered as a guarantor.
The bank may offer any additional bonuses if the spouses take such a step. But most often they will simply refuse if there is no guarantor. Especially if you have an uneven credit history. Either spouse has the right to refuse. He simply is not obliged to do this, and this issue will be resolved within the family.
Let's say the hypothetical couple agrees. The second spouse is included in the contract. Now, if the loan is overdue or a debt arises, calls will also be received on the other half’s phone. The court will reject the claim because The contract contains the signature of both spouses. The bank, in fact, does not care who will pay the debt.
IMPORTANT! The credit institution receives additional insurance. One way or another, at least one person will be bound by the agreement and must pay the money.
In this case, it is extremely important to calculate your strength. In case of delay, responsibility will fall on the second spouse. By the way, the practice of guarantee is used by the bank for loans for large amounts.
Let us note a small nuance. Citizens often wonder: is the consent of a spouse required to take out a loan? Based on the legislation, we can say with confidence that no.
But many banks, for reinsurance purposes, especially if the amount is impressive, ask the spouse to act as a guarantor. Based on practice, consumer loans for inexpensive items are issued without approval. For example, for household appliances.
Civil marriage is associated in modern Russia with one of the forms of cohabitation, but legally this is not the case. This is the name for a union that is registered with the state registration office (registry office), but does not imply a wedding in a church.
Paying off a loan after a divorce
Statistics say that more than half of marriages end in separation of the spouses. Should a wife pay off her ex-husband's debt? According to the law, all obligations, be it division of property or repayment of a loan, fall on the shoulders of both citizens. Of course, if the fact of joint spending was proven or there was a guarantee.
ATTENTION! If a spouse took out a loan before marriage, he continues to repay it himself. This is a personal duty.
What to do if the apartment is under mortgage? Often one of the spouses takes out a new loan and repays the old one. Both citizens already pay for the new loan together, sealing their decision with an agreement.
Situations often arise when one of the former spouses pays regularly, and the other ignores the bank’s calls. In this case, one of the citizens will have to prove his responsibility by first contacting a credit institution.
But in most cases, you have to file a claim in court, attaching all available evidence to it - an agreement, checks, receipts, etc. The authority, according to Article 399 of the RF IC, can make a positive decision if:
- it has been proven that one of the spouses deliberately avoids loan payments;
- it has been proven that one of the spouses has never officially worked;
- it was proven that one of the spouses spent money for personal purposes.
For persistent defaulters, there is a way out in the form of bankruptcy. But this is an extreme case, because... the procedure imposes a lot of restrictions on the citizen and he will definitely never receive a loan from a serious credit institution.
Legislative justification
Not long ago, there was a practice of full joint liability for debts incurred during the marriage. That is, husband and wife had to answer to creditors almost equally, regardless of the purpose of the loan.
Interested parties, and they, as a rule, were banks, had the right to demand foreclosure on the family’s common property in the event of non-payments. To many, this situation seemed unfair. Moreover, if cases were considered when the husband’s debt is transferred to the wife or vice versa, provided that the other half spent the borrowed funds unlawfully.
Husband and wife are not responsible for each other's debts, although there are some nuances
The Supreme Court decision of March 16, 2021 abolished the presumption of joint payment of debts in relation to spouses. Tax and loan debt cannot be transferred to the wife or husband.
Banks no longer have the right to demand repayment from other family members. The debt is recognized as common only if it is proven that the borrowed funds were taken for the needs of the family. In this case, the accused party will have to provide facts and evidence about family expenses. Previously, it was assumed by default that loans received from the bank were considered as funds for general needs.
