The Supreme Court told how spouses should divide shared property

Joint property of spouses as a regime of joint property

The law establishes that property acquired by spouses during marriage is their joint property. The joint ownership of the spouses may include any property that has not been withdrawn from circulation. The property of spouses may include not only things that have not been withdrawn from circulation, but also rights. Thus, it is necessary to understand the term “any property” used by the legislator. It should be noted that the law classifies only things and rights, but not obligations, as joint property of spouses - this follows from the meaning of the norm provided for in paragraph 2 of Art. 34 RF IC. Things withdrawn from circulation are things the alienation of which is not permitted by law. Property withdrawn from circulation cannot be jointly owned by spouses.

What is joint ownership

The concept of joint ownership is given in Art. 244 of the Civil Code of the Russian Federation, according to which joint property is common property without defining shares. A participant in joint ownership cannot alienate his share in the right of joint ownership of common property, for example, transfer or gift it to another person. To do this, he must first determine and allocate his share. The joint property of spouses is defined by law as property acquired by them during the period of marriage, meaning a marriage concluded in the manner prescribed by law in the registry office. Actual marital relations without their registration in the manner prescribed by law do not give rise to rights and obligations for the spouses in relation to each other and, accordingly, do not create the right of joint ownership of property for the spouses.

What is included in the joint property of spouses

The law defines property acquired during marriage and included in the joint property of spouses as: the income of each spouse from labor, entrepreneurial activity and the results of intellectual activity, pensions and benefits received by them, as well as other monetary payments that do not have a special purpose; movable and immovable things acquired at the expense of the common income of the spouses, 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 which spouse’s name it was purchased or in the name of whom or which of the spouses contributed funds.

Rights to joint property in case of invalidity of marriage

The rights of spouses to property acquired during marriage, as joint property, are canceled when the marriage is declared invalid. Things acquired during a marriage that was subsequently declared invalid are recognized either as the property of the spouse who acquired them, or as common shared property.

What if joint property is registered in the name of only one of the spouses?

Among the property of spouses, residential premises are of particular value. They are often purchased and registered in the name of only one spouse. However, the conclusion of a transaction and the fact of registering a house or apartment in the name of one spouse does not yet predetermine the ownership of this property. To establish ownership, it is necessary to clarify each time the time, grounds and sources of acquisition of property. If the premises are acquired by the spouses using common funds or the donation agreement is made in favor of both spouses, then their joint ownership of the residential premises arises. For property acquired during marriage and registered in the name of only one of the spouses, the term “title owner” exists.

Mandatory consent of the other spouse to enter into transactions with joint property

Transactions with real estate and other property that require notarization are made only with the notarized consent of the spouse not participating in the transaction, otherwise such transactions are subject to termination in court within a year from the moment when the spouse whose notarized consent was not received, learned or should have known about the completion of this transaction.

Section and shares

The bill makes significant adjustments to the mechanism for dividing the common property of a husband and wife. It is no longer uncommon for spouses to purchase real estate as shared ownership. But if this was not done, the courts, when resolving a dispute about the division of property between husband and wife, are required to do so, by analogy with paragraph 1 of Art. 254 of the Civil Code initially establish the size of the share of each spouse in all their common property and the list of objects that are transferred to one of them on account of his share in the joint property established by the court. This approach will make it possible not to raise the issue of determining the size of each person’s share every time in court if, for example, they do not share everything at once.

In this case, the rights to objects that are not distributed between spouses in accordance with the shares determined by a judicial act will belong to them in the specified shares from the moment the judicial act enters into force. In the event that the rights to these objects are subject to state registration (for example, registration of common joint property of spouses), the rights of each person to the corresponding shares in this object will also be subject to registration. They have similar rights in relation to undistributed property even if they previously concluded a division agreement in which they determined the shares of each.

The bill proposes, during judicial division, to establish a restriction on the fragmentation of business assets (rights of participation in various corporate structures - these are shares in the authorized capital, stocks, shares) due to a disproportionate decrease in their value. In these cases, it is prescribed to recognize such assets as belonging to the spouse who exercised sole or predominant use in relation to them, on account of the value of his share in the common property. If the value of business assets transferred to one of them exceeds the value of the share due to him, then monetary compensation must be recovered in favor of the other spouse.

When a husband or wife is unable to pay monetary compensation to the other immediately after the end of the trial on a dispute over the division of property, the court has the right not only to defer or install such payment, which is allowed now, but also to establish a pledge and a ban on the alienation of the business to secure it -assets or other property. This allows for a balance of interests between the former spouses.

Disputes about joint property between spouses

Division of common property of spouses

The division of common property of spouses most often occurs as a result of divorce. Division is also necessary in the event of the death of a spouse, because only the property that was the property of the testator is inherited. The division of joint property can also be made during the marriage, including by the court, at the request of the spouse or at the request of his creditors. The reasons for division may also be the actual termination of family relationships, extravagance of one of the spouses and some others. Most often, spouses themselves decide on the division of joint property. In the event of a dispute, the issue is referred to the court.

Division of property along with divorce

If spouses want to resolve a dispute about the division of common property simultaneously with the divorce, the court finds out whether the dispute about the division of property of the spouses does not affect the rights of third parties, and determines the composition of the property to be divided, the shares due to the spouses, and specific items from the common property , which are allocated to each spouse based on their interests and the interests of the children. In cases where one of the spouses is transferred a share the value of which exceeds the share due to him, the other spouse may be awarded appropriate monetary or other compensation.

Which of the joint property of the spouses is not subject to division?

Property that is not subject to division includes property acquired by spouses before marriage, as well as personal property of spouses, which the law includes:

1) received by each of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions;

2) personal items (clothing, shoes and others, with the exception of jewelry and other luxury items);

3) things acquired solely to meet the needs of minor children - these things are transferred to the spouse with whom the children live;

4) the court may classify as property acquired by each of the spouses and not subject to division, things and rights acquired by the spouses during the period of their separation upon termination of family relations.

These are cases of long-term separation of spouses, when in fact family relations between them are interrupted. These do not include cases of separation of spouses due to objective reasons: one of them is on a long business trip, studying, serving in the army, etc.

All other property acquired by the spouses during the marriage, including deposits made by one of the spouses in a bank or other credit institution, is the common property of the spouses and is subject to division in cases provided for by law. Contributions made by spouses at the expense of their 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 property. The issues of division and allocation of living space are now becoming of great importance. The division of a residential building owned by spouses under the right of joint ownership is most often made in kind, and since the house remains indivisible, it becomes the subject of their shared ownership.

How to use intact property (apartment, house) in respect of which a division has been made

The use of the premises is carried out by agreement of the spouses or by court decision. In cases where a residential premises is subject to division, the division of which is impossible (for example, a one-room apartment), the court has the right to determine the procedure for using the residential premises or the procedure for monetary or other compensation to one of the spouses. When dividing an unfinished house, the spouses’ ability to complete the construction of their part is taken into account, as well as the obligations under the loan received for the construction of the house.

Property that is in shared ownership can be divided by agreement between all owners, and if no agreement is reached on the method and conditions of division, through the court.

Property not subject to division Certain types of property determined by law are not subject to division. In particular, such property includes: 1) indivisible things, that is, things the division of which in kind is impossible without destruction, damage or changing the purpose of the thing (for example, a car); 2) common property of the owners of premises in an apartment building; 3) property constituting a mutual investment fund; 4) property constituting the mortgage coverage; 5) monuments and ensembles, including those related to the housing stock, as well as land plots located within the boundaries of their territories. In addition, division of property in shared ownership is not allowed if it is impossible without disproportionate damage to such property. Disproportionate damage should be understood as the impossibility of using property for its intended purpose, a significant deterioration in its technical condition or a decrease in material or artistic value (for example, a collection of paintings, coins, libraries), inconvenience in use, etc. Let's consider the algorithm for dividing property located in shared ownership, using the example of real estate. An extrajudicial procedure for the division of property An extrajudicial procedure for the division of property is possible only if the remaining owners are ready to discuss the conditions of such a division and it is possible to reach agreements on the allocation of specific parts of the property to account for the shares of each of the participants. To divide property that is in shared ownership, by agreement of the parties, we recommend following the following algorithm. 1. Determine the parts of real estate for division When dividing real estate in kind, you should take into account the requirements that the real estate resulting from the division must meet. Thus, land plots formed as a result of division must comply with the requirements of the law, in particular, on the maximum minimum sizes and location of boundaries. If we are talking about a residential building or apartment, then the real estate objects formed as a result of the division must be isolated, suitable for living, have a separate entrance and independent communications. Thus, before division it may be necessary to carry out reconstruction and (or) redevelopment work. After the real estate objects resulting from the division have been formed, you should contact a cadastral engineer to carry out cadastral work, as a result of which technical and (or) boundary plans will be prepared showing the characteristics of the objects being formed. The contract may provide for the obligation of the cadastral engineer to place the technical and (or) boundary plans prepared by him for temporary storage in an electronic storage facility maintained by the rights registration authority. If provided for in the contract, the plans can also be drawn up in the form of paper documents and issued to you. 2. Conclude an agreement on the division of real estate with all owners. The agreement specifies the address, cadastral number and other characteristics of the property, information about the owners, as well as the division procedure. As a general rule, the value of the property allocated to each of the co-owners should be proportional to his share. If the value of the allocated property is disproportionate to the share, the difference may be compensated by an appropriate monetary payment or other compensation. The provision for compensation must be reflected in the agreement. The agreement is drawn up in writing according to the number of property owners and must be signed by each of them. Such an agreement does not require mandatory notarization, unless you submit documents to Rosreestr by mail. 3. Contact Rosreestr For state cadastral registration and registration of ownership rights to real estate formed as a result of the division, as well as termination of the right of common shared ownership and deregistration of the original property, the following documents must be submitted to Rosreestr: 1) identification documents of the applicants ; 2) statements from each of the co-owners; 3) agreement on the division of real estate; 4) title documents for the original property; 5) a notarized power of attorney for the representative (if the documents are submitted by the representative). If a technical or boundary plan is placed in electronic storage, the identifying number of the plan can be indicated in the application. In this case, submission of the plan itself will not be required. Documents can be submitted to Rosreestr in one of the following ways: - directly through “My Documents” (MFC) (regardless of the location of the property according to the list of departments that accept on an extraterritorial basis posted on the Rosreestr website). In the city of Goryachy Klyuch, documents for state registration are accepted only through “My Documents” (MFC), except for acceptance on an extraterritorial basis; - by postal item with a declared value when forwarding it, a description of the contents and a notification of delivery (in this case, the authenticity of the applicant’s signature on the application must be notarized, the agreement and power of attorney of the representative must be notarized, and copies of identification documents must be attached); - in the form of electronic documents via the Internet, for example through the official website of Rosreestr. To register property rights, you must pay a state fee. It is not necessary to submit a document confirming payment of the state fee along with the application. The applicant has the right to do this on his own initiative. However, if there is no information about the payment of the state duty in the State Information System on state and municipal payments, after five days from the date of filing the application, Rosreestr will return the application and the documents attached to it without consideration. Amount of state duty The amount of state duty for registering ownership of newly formed real estate is: - 350 rubles. - in relation to a land plot intended for personal subsidiary farming, dacha farming, vegetable gardening, horticulture, individual garage or housing construction; — 2,000 rub. - in relation to other real estate objects. If it is possible to submit an application and pay the state fee through government services portals and other portals integrated with the Unified Automated Identification of Information and Logistics, the state fee is calculated taking into account a coefficient of 0.7. If at the time of submitting the application the state duty has not been paid, the applicant is issued or sent information containing a unique payment identifier (unique accrual identifier) ​​necessary to confirm the fact of payment for a specific service, indicating the date by which it must be paid. 4. Receive documents after cadastral registration and state registration Cadastral registration and state registration are carried out within 10 working days from the date Rosreestr receives the application and documents. If the application was submitted through “My Documents” (MFC), then the period for consideration of the application will be 12 working days. This period begins on the next working day after the date of receipt of documents. State registration and cadastral registration are certified by an extract from the Unified State Register of Real Estate, which can be sent to you electronically. Judicial procedure for the division of property If an agreement on the method and conditions for the division of property in shared ownership could not be reached, the interested owner has the right to demand the allocation in kind of his share from the common property in court. Other owners also have the right to file counterclaims for the allocation of their shares in kind with the termination of the right of shared ownership of the property. To divide property in shared ownership in court, we recommend adhering to the following algorithm. 1. Prepare a statement of claim and the necessary documents. In the statement of claim, you should identify the real estate property (indicate the cadastral number, address, area, other characteristics), describe the nature of use of the property that has developed between the owners, indicate which part of the property should be allocated to the plaintiff and which to the defendant, as well as the amount and calculation of compensation (in case of disproportionate share). The following documents should be attached to the statement of claim: 1) documents confirming the possibility of division (allocation) of real estate, for example, a conclusion from a construction and technical organization on the possibility of the proposed division (allocation); 2) legal documents for real estate; 3) a receipt for payment of the state fee for consideration of the case in court, the amount of which, as a rule, is calculated based on the price of the claim; 4) copies of the statement of claim according to the number of defendants and third parties. Depending on the circumstances of the case, other documents may also be required. 2. File a statement of claim with the court and take part in the court hearing. The statement of claim is submitted to the court of general jurisdiction at the location of the property. During the trial, to resolve the issue of the possibility of the proposed allocation and the proportionality of the allocated part to the owner’s share, the court may order a judicial construction, technical, land management and assessment examination in the case. To resolve a legal dispute, you may need qualified legal assistance. If a corresponding written petition is filed, the court may recover the costs of paying for the services of a representative in full or in part from the defendant. 3. Contact Rosreestr By analogy with an out-of-court settlement of the issue, in the event of a positive court decision on the division of property or the allocation in kind of a share in real estate, it is necessary to carry out cadastral registration and register ownership of the property. To do this, the following documents must be submitted to Rosreestr: 1) an identification document of the applicant; 2) application for state cadastral registration and state registration; 3) a court decision that has entered into legal force in two copies; 4) a notarized power of attorney (if the documents are submitted by a representative). The procedure for submitting documents, as well as paying state fees, is similar to that described in step 3 of the out-of-court section.

Alienation

The next innovation is the possibility of reducing the size of the share in the common property of one of the spouses in cases where the latter makes transactions on the alienation of common property without the consent of the other.

The changes also affect issues related to the marriage contract. So, from paragraph 3 of Art. 42 of the RF IC, which deals with the content of a marriage contract, excludes the current ban on including in the contract conditions that put one of the spouses in an extremely unfavorable position. This was one of the most common grounds on which marriage contracts were declared invalid. The bill proposes to exclude the possibility of a broad interpretation of the invalidation of a marriage contract.

In the case of concluding a notarial agreement on the division of common property, spouses are required to determine the shares in all of their common property and have the right to determine specific objects belonging to each of them. Such an agreement is the basis for the emergence, change and termination of the rights of the husband and wife to property (individual objects), including the joint property rights of spouses subject to state registration.

How to convert joint ownership into shared ownership

In order to separate several independent shares from joint ownership, you must follow the following algorithm:

1. We determine the method of transfer of ownership: by agreement or by court.
2. We conclude a marriage contract and have it certified in a notary’s office or sign an agreement defining the procedure for dividing the common property (if desired, the document can also be certified by a notary), or we obtain a court ruling on the allocation of independent shares. We described in detail the procedure for purchasing an apartment by a husband and wife in the article “Purchase of an apartment in shared ownership by spouses.”
3. We prepare the package of documents required for Rosreestr.
4. We submit the collected papers along with an application for amendments to the unified state register of real estate to the Rosreestr branch or to the MFC “GBU My Documents”.
5. We take a receipt from a government agency employee for receipt of documents.
6. After 14 calendar days, we come to Rosreestr for a completed extract from the Unified State Register of Real Estate.

Required documents

If a married couple has reached a mutual agreement on the allocation of shares in an apartment that was initially registered as joint ownership, the following documents will need to be submitted to Rosreestr:

• applicants' passports;
• one application from each owner with a request to carry out state registration of rights to shares of joint property determined by the marriage contract or agreement;
• marriage contract or apartment division agreement (two copies);
• marriage certificate;
• title document for the apartment;

If one of the participants acts through a representative, a power of attorney certified by a notary must be attached to the papers.

If the allocation of shares is carried out on the basis of a court decision, then the court decision that has entered into force (two copies) should be added to the package for the Russian registry.

Expenses

For registering shared ownership rights and making changes to the unified state register of real estate, each owner of a new share must pay a state fee of 2,000 rubles. This is the only major expense.

Additionally, funds may be needed for the following services:

Deadlines

The transfer of ownership carried out through Rosreestr will be carried out within two weeks from the moment the documents are accepted by an employee of the state organization. If the application was submitted through the MFC, be prepared that the period will increase by 2-3 business days.

Example. The family Victor and Irina Savina have been married for more than 10 years, recently their relationship began to deteriorate, and the family was on the brink of divorce. A pressing question arose about how to divide a jointly owned apartment. None of the spouses wanted lengthy legal proceedings, so it was decided to peacefully divide the housing into two equal shares. The spouses did not see the point in drawing up a marriage contract, since they were convinced that divorce was inevitable. Having concluded a division agreement, the spouses submitted all the necessary documents to Rosreestr and after 14 days each of them became the full owner of half of the apartment.