A gift agreement or deed of gift is one of the civil contracts and, accordingly, is drawn up in accordance with the rules of civil law. The validity of the contract directly depends on compliance with these requirements prescribed in the Civil Code. One of the conditions for registering a deed of gift is to obtain consent for the gift from the spouse, if the donor has one. Is it always necessary to obtain such permission, and what to do if it is not possible to obtain it?
Is the consent of the spouse required to formalize a deed of gift?
If a legally married citizen intends to make an act of gift, the question arises whether it is necessary to obtain permission from the spouse, and whether it is possible to give something without such permission. In this case, the law clearly regulates: if the acquisition of the gifted item (or immovable object) was made during marriage, then it is impossible to draw up a gift agreement without the approval of the husband or wife.
But there are also cases in which a gift is allowed without the consent of the second participant in the marriage:
- if the property that the citizen was going to donate was acquired by him during the premarital period, and therefore is considered his personal;
- if the donated item (or real estate) went to the owner-donor through one of the ways of gratuitous acquisition: by inheritance or as a gift.
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In all other situations, it is imperative to obtain a document specially drawn up in accordance with the rules established by law, which clearly states that the husband or wife does not object to the donor’s position regarding the gratuitous alienation of their common joint property.
An exception to the rule that everything acquired during a marriage is considered common joint property is the case of drawing up a marriage contract (Article 40 of the Family Code) and a special designation in it about the composition of the property of both partners.
How much does a notary cost?
Most legal actions come at a cost. The legal relationship under consideration is no exception. The cost of this service is determined by the regional notary chamber.
Private notaries can offer their own prices. Therefore, in this case, you should ask in advance how much it will cost.
Of course, in the capital and largest cities of Russia, it will cost slightly more than in the provinces. However, if we take into account all regional tariffs, then this document can cost 1800 rubles, not taking into account the city of Moscow.
When is a spouse's consent required for a transaction?
Accordingly, Part 2 of Art. 576 of the Civil Code, the deed of gift has a limitation in the form of the need to obtain consent from all owners if the subject of the gift is common joint property . And according to Part 1 of Art. 256 of the Civil Code of the Russian Federation, such property is considered to be all property that was acquired by the spouses during the period of marriage.
This is also evidenced by Article 34 of the Family Code. Everything that relates to such property is also described here, namely:
- the earnings of both partners from any activity, pension accruals, various types of benefits and payments, financial assistance, etc.;
- everything that was acquired during the marriage, including movable and immovable property, securities, deposits, etc.;
- if one of the spouses did not contribute to the common income during the marriage and did not have his own earnings at all (due to valid reasons), then he still has exactly the same rights to the common property as the working partner.
When one of the spouses purchases something during the marriage (even if only he paid and the purchase was registered in his name), the second partner will also have the right to this property by law.
Challenging a gift agreement
The possibility of cancellation is provided for in Art. 578 Civil Code of the Russian Federation.
The donor has the right to challenge the transaction and return the gift if:
- the donee commits a crime against his life and health, the health of other relatives;
- the recipient treats the donated values in bad faith, there is a risk of irretrievable loss, and for the donor the gift is of non-property interest.
The heirs of the donor who died due to the fault of the donee have the right to contest - by a court decision, the property is alienated in their favor and included in the estate.
If a person has accumulated debts before registration and has filed for bankruptcy, creditors can cancel the deed of gift, provided that it was drawn up no earlier than six months before going to court.
Let's look at a practical example:
A woman gave her husband an apartment purchased before marriage. A few months later, their relationship deteriorated: her husband began to beat her, she demanded a divorce. The donor also went to court to cancel the transaction. The basis was the fact of systematic beatings by the recipient.
Medical certificates and information from the police confirming the existence of grounds were presented to the court. As a result, the claims were satisfied and the apartment was returned to the woman’s ownership. After the decision came into force, she applied to Rosreestr to re-register the documents.
Arbitrage practice
Courts often grant claims to cancel DD if plaintiffs provide sufficient evidence.
Below are some example solutions:
- Decision No. 2-846/2019 dated May 30, 2021 in case No. 2-846/2019;
- Decision No. 2-1941/2018 2-225/2019 2-225/2019(2-1941/2018;)~M-1964/2018 M-1964/2018 dated February 20, 2019 in case No. 2-1941/2018 ;
- Decision No. 2-1238/2017 2-66/2018 2-66/2018 (2-1238/2017;) ~ M-1084/2017 M-1084/2017 dated February 27, 2021 in case No. 2-1238/2017 .
Important! In judicial practice, there are decisions to cancel on the basis of a conclusion under the influence of delusion, when the donee, taking advantage of the helpless state of the donor, “pushes” him to draw up a deed of gift.
How to obtain consent?
According to Art. 160 of the Civil Code, a document stating that the donor’s spouse agrees with the donation must be drawn up in writing. And according to the rules of Article 163, the partner’s expression of approval regarding the alienation of property that belongs to both participants in the marriage union as common joint property must be notarized.
To prepare a document according to all the rules, you need to contact a notary office , providing the notary with a number of papers, namely:
- donor's passport;
- certificate of marriage;
- documents confirming the donor’s right to the donated property.
The contract itself must be attached to these papers. It must reflect the following information:
- comprehensive information about the subject of the transaction;
- a note indicating the absence of mutual claims and conditions between the parties to the agreement;
- details of the identity cards of both the donor and his husband/wife;
- indication of the form of the transaction;
- special conditions imposed by the second spouse, under which he agrees to the donation.
You can draw up a document yourself, but then you still need to have it notarized.
Cost of services
The cost of the entire process of registering a deed of gift consists of several points:
- notarial services;
- National tax.
The state fee for registering property rights is fixed and amounts to:
- 2,000 rubles for the whole object;
- 200 rubles per share.
If a donation is made in favor of a distant relative or a stranger, the recipient undertakes to contribute 13% of the value of the property to the budget. This is an income tax, because in fact the citizen receives profit in the form of property. Close relatives, which are husband and wife, are exempt from income tax. In addition to spouses, close relatives include parents, children, grandparents, grandchildren, brothers and sisters.
Otherwise, notary services are calculated. A gift agreement between spouses, as well as an agreement on the alienation of a share, are subject to notarization. The Tax Code has established the following rates, which depend on the price of the object:
- up to 10 million rubles - 3 thousand rubles + 0.2% of the total amount;
- over 10 million rubles - 23 thousand rubles + 0.1% of the total price, but not more than 50 thousand rubles.
The deed of gift can be drawn up independently, without the involvement of a notary or lawyers; only notarization is required. However, you should only resort to drafting a document yourself if you are confident that you can correctly draft the document. Therefore, before filling out the form, it is recommended that you familiarize yourself with the document form. Errors in the agreement may cause Rosreestr employees to refuse to formalize the transfer of ownership rights, and in the future this may become a reason for attempting to challenge the deed of gift.
What to do if consent is not obtained?
In practice, it may happen that it is not possible to obtain permission to transfer an object as a gift from a husband or wife for some reason. And the absence of such consent in necessary cases means the invalidity of the deed of gift .
What to do in such a situation? You can try to get the court to recognize the alienated property as belonging only to the donor. However, this is a rather complicated process. There is another way - division of property in court. In this case, the share of property that the donor intends to transfer to a third party free of charge will be allocated. In case of allocation of shares, a corresponding agreement is drawn up.
In accordance with the rules of civil law governing the process of donation, it is possible to carry out an act of gratuitous transfer of any object considered jointly acquired during marriage only with the consent of the spouse. Otherwise, the deed of gift risks being declared invalid. There are several exceptions to this rule: when property was acquired before the wedding, divided under the terms of the marriage contract, or acquired by the owner free of charge.
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Final provisions: 5 basic rules
If a person has decided to donate part or all of the marital property, it should be discussed with the other party, including after a divorce, if it has not previously been divided, by obtaining verbal permission.
Then you need to observe a number of points:
- Drawing up an agreement on your own is sometimes beyond the power of a legally inexperienced person. agreements can be found here.
- Choose a notary where it will be drawn up and find out the price of the service accordingly.
- Carefully read the text of the document, eliminating errors, inaccuracies and blots from it.
- Have it with you when registering with Rosreest.
- Weigh everything carefully before deciding to enter into a transaction.
There are cases when consent to conclude a deed of gift is not impossible to obtain. There are ways out of this unfavorable situation for the donor that should not be neglected.
- Try to convince through negotiations to give the necessary permission.
- Select part of the joint property and donate it. Draw up a document on the disposal and use of shares, and on its basis make a gift.
By acting in this way, you can avoid the problem that has arisen. The second half will not prevent the allocation of shares of the property (apartment), since according to the law the spouses dispose of it equally. In the case of housing, when designating shares, the apartment is sold, and the funds are divided in half, within the designated parts.
Features of the property division agreement
According to paragraph 2 of Article 254 of the Civil Code of the Russian Federation, the division of joint property in unequal shares between co-owners (husband and wife) must be carried out on the basis of an appropriate bilateral agreement. For example, if a family had a country house and a city apartment in joint value, and as a result of the division of property, one of the spouses got a house, and the other got an apartment. This is regarded as a division of property in unequal shares, since the market value of the objects may differ significantly.
An agreement on the division of jointly acquired property resembles in appearance an agreement on the allocation of shares, but these two documents give the parties to the transaction completely different powers and rights regarding the object of the agreement. The division of joint property does not have any special requirements and norms established by law, but there are general principles for executing such transactions that must be followed when drawing up such agreements:
- if the market value of the object exceeds 10 thousand rubles, the agreement must be drawn up in writing;
- The document must contain the following data: full names of the parties to the agreement, passport details, place of registration of both spouses, marital status;
- the subject of the agreement is the form of ownership of the object, as a result of which the apartment from a joint form passes into the separate ownership of both parties to the agreement;
- the document must also contain clear, specific and complete information about the object of the transaction;
- the agreement must indicate which party receives its share and when;
- date of conclusion of the transaction and place (notary office).
An agreement on the division of property between spouses may include other terms of the transaction, if such exist at the time of conclusion of the agreement:
- terms of employment;
- exchange;
- inheritance;
- conditions and requirements for ownership and disposal of property.
The inclusion of such clauses in the property division agreement will significantly simplify the process of owning and disposing of property in the future.
