If the child is registered with the father, what rights does the mother have to live during a divorce?

Very often, relationships between representatives of both sexes move to another level - marriage. Naively, they hope to live together all their lives. Fate often presents unpleasant surprises: discord occurs in a couple, spouses quarrel, and later, finding no reason to maintain the relationship, they separate.

As the family boat slowly sinks to the bottom, the former lovers make a final decision that results in an official divorce. This results in not only a change of place of residence for all family members, but also other pressing problems. What will be the registration of a child after a divorce? The answer can be found below.

Divorce in court and determination of the place of residence of children - Family Code

If, while in a formalized relationship, a married couple did not have time to have children, then there will be slightly fewer problems.
All that remains is to divide the jointly acquired property. But if you have children who have not yet turned eighteen years old, you need to prepare for the fact that the process of divorce will be quite long and unpleasant.

There are many legal subtleties here. After a divorce, former lovers go their separate ways. But before doing this, they should sit down calmly and think about the situation.

They must agree on where and with whom their common baby will live. An important point is that it is necessary to find out in whose living space the child will be registered.

As practice shows, events often unfold according to the following two scenarios:

changing of the living place . The mother has the legal right to remove the child from the father’s living space and register him at her own address. If there is no dispute between the ex-lovers regarding the place of residence of the children, then they simply peacefully agree on further nuances. When it is not possible to reach a general consensus, you will have to turn to the court for help. The judges side with the mother and leave the child to her. At the same time, she has every right to discharge her baby from her former home and register him in her apartment;
living at the old address . If, after the end of the divorce process, the common children remain to live with the party who is the owner (proprietor) of the cottage or apartment in which they lived and had permanent registration, then there is no need to re-register documents or change other data.

Registration is done on the basis of a written application from the mother and a list of relevant documents, which should include:

passport confirming the identity of the applicant;
divorce certificate;
child's birth certificate;
the child’s passport, if at the time of submitting documents to the court he was fourteen years old;
the court's decision.

Respect for children's rights during divorce

Many people know that when determining the place of residence or when changing the surname of children, the court is obliged to take into account the opinion of the child if he has already reached 10 years of age. But parents, during a divorce involving the division of land, apartments, cars and other property, often forget about the property rights of each child. And there are also unscrupulous citizens who, taking advantage of the legal illiteracy of their former spouse, infringe upon the property rights of not only the spouse, but also the child during a divorce. To ensure that your child’s rights are not violated, consult with a family law lawyer, because the legislation in this area is not perfect enough.

Where should a minor child be registered after the parents' divorce?

Divorce implies serious changes in the lifestyle of all family members, including this will significantly affect the living conditions of the common child.

In addition to financial provision for an acceptable standard of living, resolving the issue of place of residence, as well as other issues, it is very important to immediately think about where to register your own offspring.

You should also consider the following question: is it possible to evict the mother of your minor child from the apartment? If it does happen that the offspring has a residence permit, then whether one of the parties to the conflict can live on this square is a very ambiguous question.

The place of residence of minors who have not yet turned 14 years old, as well as citizens under guardianship, is the housing where their parents or adoptive parents are registered.

Children and parents: controversial issues regarding property

Many parents believe that since the Law protects the rights of children, minors have the right to absolutely all the property of their parents, including valuables and real estate. This is wrong. A child has the right to real estate only if it was donated to him or inherited, as well as when a minor citizen took part in the privatization of this residential premises and has his own share in it. If a child is only registered in an apartment that was acquired before marriage by one of the parents or by both parents during the marriage, then the minor has the right of residence, but not the right of ownership.

Another type of opportunity for a child to become the owner of property rights is associated with receiving things purchased by spouses-parents solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, children's library, etc.). These things are not subject to division, no matter which parent acquires them. They are the child's property.

The same can be said about contributions made by spouses from common property in the name of their common minor children. These contributions, no matter which parent makes them, are included in the property mass, the owner of which is the minors. If the investors are not parents (one of them), but relatives and even strangers, then by opening an account in the name of a minor, they are thereby giving it to the child. But minors can dispose of their property only in accordance with Art. 26, 28 Civil Code.

Registration of a child after divorce

We must not forget that the current legislation will always protect the interests of the child. If residents living in an apartment where one of the parents is registered, who wants to register their baby with them, opposes this, then their protest has no legal force.

In such a situation, the registration of the offspring is carried out not only without the obligatory consent of the residents, but also of the owner of the apartment or house. The basis for this is the registration of the mother or father in the housing area in question.

Let's take a closer look at the child's registration:

at the mother's . Registration does not require consent from the baby's father. In addition, you do not need permission from the property owner if the mother is not the owner. It is very important to collect a package of relevant documents, submit it along with the application, after which the specialist will set a date for you to appear at the Federal Migration Service or MFC. In most all cases, the minor remains with the mother. If she owns any home, then her registration should be there;
at my father's . If the son’s mother does not have her own property, or the living conditions leave much to be desired, he is registered with the father. This applies only to those cases when the mother lives in the premises on the basis of a social tenancy agreement: the child still receives the right to live with her as a result. Moreover, the position of other family members will not be taken into account.

Dear readers! To solve your problem right now, get a free consultation

— contact the on-duty lawyer in the online chat on the right or call:
+7
— Moscow and region.
+7
— St. Petersburg and region.
8
- Other regions of the Russian Federation
You will not need to waste your time and nerves
- an experienced lawyer will take care of solving all your problems!

Housing rights of minors under the terms of social rent

Housing disputes very often involve the claims of a person living in a residential building to recognize another person as having lost or not acquired the right to use. Minor children are often defendants.

The problem associated with the emergence and subsequent termination of the right to use residential premises is quite easily resolved when a claim is filed by the owner of the residential premises. Such cases do not pose any significant difficulties for practicing lawyers, and do not cause any dogmatic difficulties in interpreting the norms of current law. All legal regulation in this part is covered by the provisions of Art. 31 of the Housing Code of the Russian Federation, and consists in the fact that the right to use residential premises is terminated upon termination of family relations with the owners. Thus, it is not difficult for the owner to evict a former family member from a living space.

The issues of loss of the right to use residential premises are resolved somewhat differently when such rights arise under the terms of social rent. From time to time, the courts demonstrate miracles of interpretation of the current law, in an effort to protect those who are the weaker parties in legal relations arising between persons. And then the courts present a rather interesting legal position, which has a fairly logical explanation.

In essence, there is nothing unusual about this. The desire for justice, for achieving a balance of private interests of several persons, is one of the goals of judicial activity. In situations where the law does not allow one to directly identify the beginning of justice in the content of a specific legal norm, judicial interpretation of the law enters the arena, which has its source in the factual circumstances that form the basis of the claim and the established relations of the parties .

It was in this way that the beginning of justice was realized in one of the disputes that aroused our interest, in connection with the consideration by the district court of a case, the final decision of which was upheld by the appellate instance of the regional court. The plot of the case is set out on the court’s website and is as follows:

Based on a social tenancy agreement, a person owns an apartment in which her two sons are registered and live along with the tenant. The tenant's granddaughter was also registered in the disputed apartment, but in fact the girl lives with her mother at another place of residence.

The employer filed a claim to recognize her granddaughter as a minor who had not acquired the right to use residential premises and to deregister her. Referring to the fact that the girl’s parents formally registered her in the disputed apartment, in fact the family permanently lived in another room, the child did not move into the apartment and never lived in it. The marriage between the girl’s parents was dissolved, and she remained to live with her mother; the plaintiff also pointed out that the granddaughter was not a member of the employer’s family.

Having examined the evidence presented by the parties, the court rejected the claims. The Judicial Collegium for Civil Cases, checking the arguments of the appeal, found no grounds for its satisfaction. However, the conclusions that guided the court are of considerable interest.

The existence of the right to use and residence of the child's father in the disputed residential premises is always interpreted by judicial practice in favor of the emergence of the same rights for the child. And this despite the fact that the actual basis for the emergence of the right of use is the fact of occupation (Article 70 of the Housing Code of the Russian Federation)

. For children, the only exception is made here due to the fact that their accommodation does not require the consent of the tenant and adult members of his family, as well as other persons who have the right to use the residential premises.

Everyone, it would seem, has become accustomed to the fact that the courts link the fact that children have the right to use municipal residential premises not with the fact of moving in, but with the fact that one of the parents lives in such premises, while referring to the derivative of the place of residence of the children from the place of residence of the parents. for a long time, despite the controversy of such an interpretation.

Let us remind you that according to clause 2 of Art. 20 of the Civil Code of the Russian Federation, the place of residence of minors under fourteen years of age, or citizens under guardianship, is recognized as the place of residence of their legal representatives - parents, adoptive parents or guardians. Accordingly, within the meaning of Art. 20 of the Civil Code of the Russian Federation, parents of a minor child under the age of fourteen have the right to move their child into legally occupied residential premises without the consent of the owner of the residential premises and other persons using the residential premises (see, for example, the Determination of the Moscow City Court dated October 20 2010 in case No. 33-32836).

At the same time, according to paragraph 3 of Art. 65 of the Family Code of the Russian Federation, the place of residence of children when parents live separately is established by agreement of the parents. This leads to an important conclusion that in order for a child to have the right to use residential premises, in addition to moving in, an agreement between the parents is also required to determine the child’s place of residence . At least, this is the conclusion with reference to paragraph 2 of Art. 20 of the Civil Code of the Russian Federation and clause 1 of Art. 70 of the RF Housing Code is motivated by the Ruling of the Supreme Court of the Russian Federation dated June 5, 2012 No. 5-KG12-3, in which the court concluded that minor children acquire the right to the living space of their parents, which is determined by them as a place of residence by agreement of the parents . And determining a child’s place of residence involves actually providing the child with a place to live in a residential building, but not an illusory move-in. It should be noted that the legal position formulated in the above ruling of the Supreme Court of the Russian Federation, based on the law, entailed the abolition of judicial acts of lower courts, which, under similar circumstances, also refused to recognize the child as having not acquired the right to use.

But what if the parents did not enter into such an agreement? We believe that in our situation it is necessary to proceed from the circumstances of the case, namely to assess the grounds for the loss or acquisition of the right to use the disputed residential premises by the parent with whom the child actually lives, and also take into account the existence of a dispute about determining the child’s place of residence.

Termination of family relations and actual abandonment of the place of residence in the disputed apartment, taking into account the interpretation of the provisions of Art. 83 of the Housing Code of the Russian Federation, given in paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14 “On some issues that arose in judicial practice when applying the Housing Code of the Russian Federation” by the mother of a child after the termination of her marriage with the son of the employer, indicates the loss of the right use of residential premises by one of the child’s parents.

However, in our case, the appellate court, in order to achieve justice, literally stated the following provisions. Since, according to Part 1 of Art. 38 of the Constitution of the Russian Federation, motherhood, childhood and family are under the protection of the state, and by virtue of Art. 71 of the Housing Code of the Russian Federation, the temporary absence of a tenant of residential premises under a social tenancy agreement, any of his family members living with him or all these citizens does not entail a change in their rights and obligations under the social tenancy agreement; minor children acquire the right to living space by agreement parents, the form of which is not established by law. Excuse me, what kind of temporary absence of a child who has never moved into the apartment can we talk about in relation to the circumstances of the case that are available on the court’s website? And not a single word is said about the rights of the child’s mother to living quarters in the available report on the case.

Further, it is even more interesting: “ One of the proofs of the conclusion of such an agreement is the registration of a child in the disputed residential premises; this is a prerequisite for the child to acquire the right to use a specific residential premises, regardless of the fact that the child has moved into it, since minor children do not have the opportunity to independently exercise their right for move-in

».

What is called here it is - the spirit and letter of the law. With this interpretation, it is completely clear that the plaintiff’s arguments that the child did not move into or live in the apartment have no significance for the resolution of this case and are not the basis for recognizing a minor who has not acquired the right to use the residential premises. No other conclusion can be drawn in a situation of frankly incorrect application and interpretation of the law.

The case considered is indicative of the fact that certain provisions of our law are far from perfect. Of course, the interests of the child require protection. And the court is obliged to protect the interests of the child when the parents do not protect them. On the other hand, the court must always take into account the balance of interests of the parties to the dispute. After all, the formal registration of a child in a disputed residential premises, if there is a different actual place of residence, does not contribute to the protection of the interests of the child. There are simply no such interests violated when satisfying a claim. It is a completely different matter if the child, as a result of the existing relationship between the parents, was left without a place to live.

But justice inexorably requires more and more new interpretations to justify the correctness of the position on protecting the interests of children. As soon as we referred to the ruling of the Supreme Court of the Russian Federation, which made the exact opposite decision, the position of the same court on that article comes to mind. 304, 305 of the Civil Code of the Russian Federation (essentially, it is the reference to an obstacle to the use of residential premises that motivates any claim to recognize a person as having not acquired or lost the right to use residential premises) cannot be applied to relations of a contractual nature. And no one denies the contractual nature of the relationship for the use of residential premises on social rental terms. Therefore, if a housing relationship arises between the plaintiff and the defendant, the provisions of Art. 196 of the Civil Code of the Russian Federation, which establishes the limitation period at three years. This position on the case considered in relation to the issue of eviction from official residential premises is set out in the Ruling of the Supreme Court of the Russian Federation dated August 19, 2008 No. 5-B08-77.

So, to protect the interests of the child, the mother should have referred to the expiration of the statute of limitations? Of course it shouldn't. The case we examined indicates the need for courts to develop legal positions that are uniform in their content for the fair resolution of housing disputes involving minors.

Is it possible to register a child in the apartment of an ex-spouse without his consent?

If he is against it, then in this case his opinion will not be taken into account. The rights of a minor are always more important.

If the father is registered in the apartment, then the child can be registered in it even without his direct consent . Here we are also talking about housing that is not owned. Absolutely any legal representative of his interests can register a child.

To carry out this procedure, you will need only two main documents: the parent’s passport and the child’s birth certificate. According to current legislation, the place of residence of a child who has not yet turned fourteen years old is the home of his parents and other representatives.

In the case of registering children, what the owner of the home thinks about this plays absolutely no role. To carry out this manipulation, you must provide a passport with registration. Together with it and the certificate, you need to appear at the passport office at your place of residence.

Next, you need to write an application according to the template established by law. It is very important to fill out a departure form when re-registering your child.

As a result, he will be automatically deregistered at his previous address and registered at his mother’s place of residence. After submitting all the required documents, the child is re-registered, which will take up to three working days.

It is important to note that in the process you may encounter the reluctance of a FMS representative to register a child without the consent of the second parent and his direct presence. Such a refusal is unfounded and, moreover, is not legal.

After this, you should prepare an application addressed to the head of the service and inform him about the verbal refusal of the subordinate. If such an appeal does not give the expected result, then it is necessary to file a claim with the appropriate authority.

As practice shows, judicial authorities make decisions in favor of the parent, obliging the FMS to register minor children at their place of residence without the consent and presence of the other party.

Specifics of home sales

If a child lives in the apartment or he is a co-owner of this property, then the sale of such an object requires prior permission from the guardianship authorities. If this document is missing, the sale may be invalid.

Obtaining permission from the guardianship to sell such a property is quite difficult, since the parents must already have another property that will be used to register the baby.

To obtain such consent, you must correctly draw up an application that clearly states the purpose of selling the property, and also indicates the address of another property where the child will live. Guardianship officials must make sure that the rights of a minor are not violated in any way.

It is also important to determine whether the child will be resettled in poor living conditions. If no violations are identified, then permission to sell such an object can be obtained.

Can a husband expel a minor from the apartment?

Yes, the spouse has the right to remove his child from the living space only on the basis of a judge’s decision. This happens in such cases:

if the marriage was dissolved and alimony obligations arose in relation to the minor. In such a situation he ceases to be a member of his family;
the baby goes to live with his father due to the fact that the mother was deprived of parental rights.

According to the requirements of current legislation, the child’s place of residence is where his official representative (parent or guardian) is located.

Results

The consequences of registering someone else's child in your apartment entail not only an increase in utility bills, but also difficulties in selling it.
You can register a minor without asking permission from the owner of the apartment if one of his parents is registered there.
Registration of other people's children in municipal housing gives them the right to participate in privatization on an equal basis.
Other people's children who have lived with the owner for at least a year can claim an inheritance. You can protect yourself from such developments by making a will.
Temporary registration will help you avoid negative developments when registering other people's children with you.

How to complete the procedure?

This procedure is completely simple, you only need:

collect the required papers, make the necessary copies;
obtain written consent from one parent to register with the one who, after the divorce, will permanently live with the child;
show up during office hours at the MFC or at the housing department at the place of registration of the parent who is registering the child (read about how to register a child through the government service website and the MFC here);
At the appointed time, come for the original birth certificate of the child.

There is an option to register a minor online .

If the child has reached the age of 14, then he, accompanied by both parents, must appear in person for an appointment with the official responsible for registration.

Is it possible to register a child using the temporary registration of the mother? Can. The appearance and consent of the landlord or owner of the property where the mother is already registered will not be required.

Why is it necessary to register a child?

Registration is necessary to ensure the normal functioning of the child , because without a certificate of registration it is impossible to:

receive free medical care;
enroll the child in a preschool or school;
draw up paperwork to receive maternity capital;
receive benefits, benefits, etc.

An appeal for any of the above reasons requires the provision of a certificate of registration of the cub.

Read more about whether a minor child needs registration and how to register him before the age of 14 and after, in a separate article.