How to divide an apartment that is in shared ownership during a divorce

The Civil Code of the Russian Federation (Civil Code of the Russian Federation) established the use of common shared property. The procedure for using property that is in joint and shared ownership is also determined by the Family Code of the Russian Federation (FC RF).

Division of an apartment is possible both by agreement of the co-owners, certified by a notary, and in court (most often used in divorce). An agreement between the co-owners of a residential property is the simplest option. It can provide for the division of property not only in equal shares, but also in other amounts. If the parties cannot reach an agreement, they have the right to go to court to resolve the situation.

The allocation of a share from the common property of one of the owners does not terminate the rights to the common property of the other co-owners. But at the same time, the citizen who allocated the share ceases to have the right to common property.

To allocate a share in an apartment in kind , the following conditions must be met:

1. the room must be isolated from other rooms;
2. must have a separate entrance;
3. must comply with sanitary standards.

To divide a personal account into an apartment, it is necessary that the property be shared. If the apartment is jointly owned, then before dividing the bills, you need to register shared ownership with Rosreestr, defining the share of each citizen. After this, you can apply to split the accounts.

Division of property according to law

Shared ownership is a form of property ownership in which the share of each co-owner of a particular property is strictly specified in the title documents.

Do not confuse joint property and common shared property, because any property acquired during marriage is joint property, and common shared property is only that for which the size of the shares is strictly specified in the title documents.

Everything that spouses acquired during a registered marriage is their joint property. According to Art. 39 of the RF IC, in such cases both of them have the right to claim half of the total property.

Dividing joint property is allowed at any stage:

• when the marriage is registered;
• directly during a divorce (even in one statement of claim);
• after the marriage relationship is dissolved.

Property can be divided in two ways:

1. Conclusion of an agreement - the parties, by mutual agreement, determine how to make the division by contacting a notary to draw up the paperwork. Almost any conditions can be specified in the agreement, the main thing is that they do not violate the interests of minor children and third parties.
2. In court - when divorcing spouses are unable to agree peacefully. In this case, it will be possible to resolve the dispute only on the basis of a court decision.

The legislator indicates that any property that appears during marriage is considered common. In this case, the sources of funds with which it was purchased do not matter.

It is necessary to note that the division of shared property during a divorce has its own characteristics. If the shares are determined during the marriage without an official, notarized agreement, then the size of the shares may be revised upon divorce. That is, the determination of shares in a marriage does not mean that this property is no longer subject to division.

Marriage contract

• Marriage agreement - what kind of document is it and why is it needed?

There is no requirement to divide property during a divorce, and there is no time limit on when a contract can be signed before marriage. By mutual desire, spouses enter into a marriage contract at any time during their family life, or after the termination of the marriage.

The contract makes it easier to resolve issues of property distribution, since the parties know in advance what will belong to them and under what conditions.

In order for the signed marriage contract to be valid, it is necessary to visit a notary and have the document certified. The validity of the contract is not limited to the period of family relations, extending to the time after the termination of the marriage.

Apartment status in shared ownership

When an apartment is in common shared ownership, any of the owners can freely use it, while bearing the obligation to pay for the maintenance of the object, based on the size of their share.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The co-owner should remember that use must occur with the consent of the other co-owners. If the shareholders have not come to a common decision on this issue, then the controversial situation is considered in court, which will determine the procedure for using the joint property.

Everything is quite simple when the disputed apartment is registered only in the name of spouses. It doesn’t matter ½ for each or ¼ for husband and ¾ for wife, for example. The situation becomes more complicated if, in addition to the spouses, there is a third (or even subsequent) participants in the shared ownership - children, parents, third parties.

Any shareholder can use the apartment, taking into account his share, or contact the other participants in shared ownership with an offer to pay monetary compensation for his part.

In addition, it is possible to sell the share. However, it should be remembered that other owners have the right of first refusal, to comply with which it is necessary first of all to notify them of the upcoming sale and offer to buy out the share. If shareholders do not wish to purchase it, they will be required to obtain appropriate consent and then proceed to sell the share to other persons.

Privatized real estate

First of all, before dividing residential or non-residential real estate into shares, if one owner has rights to it, it is necessary to take into account that after the division the apartment will cease to exist as a single real estate object. Instead, two or more new ones will appear, depending on how many parts are allocated. But here, too, not everything is so simple, since in order to create a new real estate object, it must have a number of requirements and characteristics. Of course, in a situation with an apartment this is not always possible due to the installation of two separate entrances.

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In addition, after division, the original owner of the apartment will lose ownership of the allocated part of this property.

It is advisable to divide an apartment when the living space is large enough or the property was previously combined. For small apartments, especially one-room ones, you can often simply face the impossibility of achieving your plans.

The advantage for the sole owner is the fact that he does not need to reach an agreement with the co-owners or go to court. It is enough to conduct an examination and take care of paperwork. This, in turn, allows you to save not only financial resources, but also time.

Is an apartment that is in shared ownership divided during a divorce?

When the title documents for an apartment indicate the specific shares of each owner, then in the event of a divorce it will be divided between husband and wife in accordance with the size indicated in the documents.

There is no division of ownership of the apartment, since the ownership of each spouse is already stated in the ownership documents.

However, cases cannot be excluded when, in addition to the apartment, there is other property, and the total value of this property either does not allow leaving the shares in the ownership of the apartment as is.

Example . During the marriage, A.’s family acquired the following joint property:

• an apartment, the owners of which are husband A., who owns ¾ of the share in the right of common shared ownership, and his wife, who owns 1/4 of the share. The cost of the apartment is 2 million rubles.
• a car worth 1 million rubles.

The total value of property acquired during marriage is 3 million rubles, that is, 1.5 million for each.

In such a situation, ¾ of the shares belonging to the husband can either be left to him, with the rest of the property transferred to the wife, or, if the husband is interested in receiving the car, he will have to give up the entire share in favor of the wife.

In practice, everything turns out to be far from so simple. For example, when the parties, due to constant conflicts and hostility towards each other, cannot resolve a problem related to the procedure for using an apartment after a divorce, or categorically do not want to give up any property, even one of equal value.

Marital property acquired in shared ownership is divided in court only in cases where the husband and wife cannot find a solution that is optimal for both and resolve the issue by concluding an agreement.

Five controversial situations when dividing living space

Most divorces are accompanied by a number of controversial situations, including the division of property under a military mortgage. Let us briefly consider possible ways to resolve some of them.

Situation 1. Parents gave money to buy a home

The authenticity of the fact of unilateral acquisition of an apartment with the money of parents during marriage requires careful proof. Sometimes this can be very difficult, troublesome and accompanied by considerable expenses.

The absence of convincing evidence gives the right to each member of the former family (including the party that did not finance the purchase) to receive a share in the disputed property.

Therefore, if the parents gave money for the purchase of housing, it is advisable to indicate in the purchase and sale agreement that payment is made from funds received as a gift by one of the spouses from close relatives in a certain amount.

Situation 2. The apartment was purchased in installments before marriage, but full payment was made in cash from both spouses

Only the presence of evidence of payment for housing will allow each member of the former family to receive a part of the apartment proportional to the amount contributed for the final payment.

Therefore, it is worth taking care to preserve payment documents confirming payment.

Situation 3. An apartment that belonged to one of the spouses before marriage was renovated after the wedding.

As a result of the renovation, the apartment acquired a new quality due to the integral improvements carried out jointly by former family members.

The housing will be divided, since after the renovation it began to belong to the category of common property acquired jointly in marriage. Or the second spouse has the right to demand part of the money invested in repairs.

Situation 4. Requirements for receiving most of the property in the absence of children

A positive decision is possible only if there is very strong evidence of investing exclusively personal funds earned before the marriage was formalized.

True, in practice it is extremely difficult to prove this fact, and sometimes simply impossible. Therefore, the positive outcome of satisfying this claim is extremely low.

Situation 5. How to use the apartment after a divorce

The spouse who has registration in the apartment and actually lives in it has the advantage of being allocated an isolated room after a divorce.

Due to the impossibility of the court determining the procedure for using a one-room apartment or room (it is impossible to draw a boundary there), divorced spouses are obliged to agree for themselves what to do with this living space.

At the same time, additional claims against each other will not bring the desired result.

When an apartment in shared ownership is not subject to division

In some cases, an apartment that is in shared ownership will not be subject to division under any circumstances. After the divorce, the size of the shares indicated in the Unified State Register will remain unchanged.

This property will not be joint property in the following cases:

1. Gifted to spouses by relatives of ½ share, as specified in the gift agreement.
2. Privatized by spouses.
3. Purchased using maternity capital funds and, in accordance with the mandatory requirement, registered in favor of children and parents in equal shares (more information about the division of an apartment with maternity capital here).
4. Received as an inheritance in the established shares.

Spouses have the right to independently determine the procedure for dividing property from the list above by concluding an appropriate agreement. However, in the event of a unilateral refusal to execute it, it will be problematic even in court to prove your right to this property, because according to the law, such property will not be subject to division.

Recommendations for former spouses when dividing an apartment

To avoid controversial situations, we will briefly formulate a few simple recommendations. Following which, you can minimize conflict situations as much as possible.

Voluntary mutual agreement in notarial form

The voluntary consent of the spouses will allow the division of a joint apartment after a divorce. The advantage of a mutual agreement on the division of property is the absence of financial and moral costs and the possibility of a calm division of housing without further personal clarification.

This is possible only if there is peace and complete agreement between the former spouses. Otherwise you have to go to court. The notarial form of the agreement will not allow either party to refuse the assumed obligations.

However, if there are compelling reasons, this document can be challenged in court.

Official registration of the marriage contract

This method will make it possible to provide for the voluntary division of property and the procedure for its use even before the divorce on conditions that satisfy both parties.

At the same time, it is important to take into account the interests of the spouses in the marriage contract.

How to divide an apartment in shared ownership?

There are many legal and actual ways to divide an apartment owned by spouses on the right of common shared ownership. Alas, there is no method that is 100% suitable for all types of disagreements, and the method of division is determined by the parties or the court, taking into account the characteristics of each situation.

Allocation in kind

If the technical parameters of the apartment allow, the court can make a division of housing with the allocation of shares in kind.

This option provides for the physical isolation of certain rooms, the arrangement of a separate entrance and other premises with the termination of the right of common shared ownership.

In fact, only that property can be divided, the division of which will not cause serious damage to it. If this is not possible, the court may oblige one party to compensate the other for the cost of the share that cannot be allocated.

The section in kind applies to:

• low-rise apartments;
• small apartment buildings (essentially private houses for 2, 4 owners, etc.)
• large-area apartments with a number of rooms of 3 or more (subject to all permits for redevelopment and a conclusion from a construction and technical examination on its feasibility).

In relation to apartments located in multi-apartment buildings, it is almost impossible to produce a division in kind. The courts take the position that division is possible only for such immovable objects for which it is technically possible to isolate the premises and provide separate entrances (accordingly, such rules apply to residential buildings, but not apartments).

Offset against the value of other property

The share of one spouse in the common property may be transferred to the second spouse to offset the value of other property. This is possible if the subject of the dispute is not only an apartment, but also other assets - cash, vehicles, non-residential premises or business.

The offset mechanism is simple: one spouse transfers the right to his share to the second spouse in exchange for a car, other property or cash.

If the case goes to court, in this part the spouses have the right to enter into a settlement agreement, which will be approved by the court.

If the division of real estate occurs disproportionately to the existing shares, and one of the participants receives a larger part, then he is required to pay compensation to the spouse due to the disproportionate shares

Sale of real estate with division of funds

Spouses can agree to put the apartment up for sale with the subsequent division of the proceeds from its sale in equal or other proportions.

This method of division is ideal if it was not possible to reach other options for agreement.

Establishing a procedure for using common property while maintaining shares

If none of the above methods is applicable for a number of reasons, the spouses retain ownership of the previously determined shares. The court or an agreement between the owners establishes the procedure for using the common property of the spouses.

The features of this order directly depend on the characteristics of the living space and any conditions can be specified in it, including the time of use of certain rooms, the order of priority, the procedure for paying for utilities and other points.

Unfortunately, in practice this option is rarely applicable due to the many conflict situations associated with its implementation. Spouses who cannot agree, even through court, on the method of dividing property, will under no circumstances be able to peacefully coexist in the same living space.

Finding an alternative

Even if the loan and meters are divided, joint ownership of an apartment can be a burden for former spouses. So in practice, popular options are those that allow you to divide the mortgaged apartment before repaying the loan.

If the mortgage is paid off by less than 10-20%, one of the spouses may waive the rights to the apartment in favor of the other. For the paid part of the loan, he has the right to demand half of the deposited amount, explains Maria Litinetskaya, managing partner of Metrium. In this case, the obligation to pay the mortgage falls on only one of the spouses, and to avoid discrepancies, the bank enters into a new mortgage agreement with him.

Former spouses can sell the mortgaged apartment. At the same time, the property is pledged to the bank, so they either find a buyer who is ready to repay the loan, or someone who is ready to reissue the mortgage. It is possible that the spouses find money to pay off the balance of the debt, and then sell the home and divide the proceeds.

The procedure for dividing an apartment in shared ownership

Marital property in shared ownership can occur in two ways:

• concluding a voluntary separation agreement;
• if it is impossible to resolve the issue peacefully - in court.

With the help of an agreement, husband and wife, at their own discretion, determine in what order they will divide the property. If it is necessary to go to court, one of the parties will need to file a statement of claim.

An agreement on the division of property can be implemented in the following forms:

Marriage contract

By concluding a marriage contract, the parties can change the regime of joint ownership to shared ownership (i.e., any property acquired by spouses will be registered in equal shares) or establish other features of the regime of joint ownership of spouses.

If desired, it is also possible to allocate everyone’s shares in kind, thus ending common ownership, or to establish other subtleties of the division of property.

A marriage contract is a very flexible instrument that allows you to prescribe a variety of conditions not only for legal, but even for everyday life and behavior of spouses.

It is not uncommon to have contract terms under which, in the event of infidelity, the cheating spouse loses the right to receive part of the property upon divorce. Such conditions are often challenged in court, but unsuccessfully, unless the agreement was concluded under the influence of deception, pressure or threats.

Voluntary agreement

The division of ownership of an apartment through an agreement is a bilateral transaction. Due to the fact that such legal relations are not regulated by law, the general rules of civil law and the principle of freedom of expression of the parties are applied to the document.

The agreement between husband and wife must reflect the following data:

• date and place of compilation, exact information about participants;
• what is the subject of division of property with a detailed description of each item of divisible property;
• what division path was chosen by the spouses: allocation of a share of property in kind; payment of compensation; offset with other property, etc.
• how the transfer of divisible property to each party to the agreement will take place;
• the procedure for the entry into force of the agreement, as well as other conditions significant for the parties.

The law does not oblige spouses to retain minimum shares for each of them, however, when concluding an agreement on the division of property, the interests of minor children should not be violated in any way.

Options for co-owners

If the apartment belongs to more than one owner, the following ownership options are distinguished:

1. Shared real estate, divided into parts, with each owner receiving a certificate (until 2021) or an extract from the Unified State Register. The scope of ownership is precisely defined, which is documented.
2. Joint, if it was purchased by the spouses before the divorce, and a marriage contract was not concluded between them and shares were not allocated immediately.

Methods for dividing shares in an apartment include registration through:

• settlement agreement;
• marriage contract;
• court order.

How many parts can be identified?

The technical part of resolving the issue of allocating a share in an apartment lies in identifying the possibility of the emergence of new separate cadastral objects from one existing one. In other words, at the legal level, this is not just the disposal of personal real estate, but also changes at the state level, since several premises are created from one dwelling, even if outwardly little changes.

And yet, the technical possibility of allocating shares in practical implementation is the procedure for equipping separate entrances and sanitary facilities for each part of the divided apartment. This assumes that the property initially has more than one hundred square meters. However, in the case when the apartment cannot be divided so fully, it is quite possible to register the required number of shares without isolating them from each other by concluding an agreement on the use of the premises with the owner of part of the housing.

When talking about how many parts residential apartments are divided into, we should refer to the current Russian legislation. There are absolutely no restrictions in this matter. However, in reality everything will depend on the technical expertise carried out. That is, the owner will tell the specialist how many parts he wants to divide his home into, and in the end he will receive an answer as to whether this can be done in practice.

Transfer of ownership or use rights

After the apartment is divided into separate shares, each of the owners has the right to carry out any transaction with their property.
The relationship between such owners differs from co-ownership in that there is no need to coordinate and obtain permission to alienate real estate from each other. Each share is a separate object, with its own personal account and documents. This is what makes it possible to sell such property using a simplified system, but at the same time, the right of redemption will always be primarily with the remaining shareholders. That is, having decided to sell your part, you first need to notify the other tenants in writing and either receive their written, notarized refusals, or after a month you need to formalize the deal independently of anyone. All alienation transactions are not subject to mandatory state registration, since the new owner will still register ownership rights. However, for the safety of the parties and to ensure legal purity, it makes sense to have contracts certified by a notary office. This will save both the seller and the buyer from possible claims and fraud.