How is property acquired in a civil marriage divided in 2022?

Many couples, starting their life together, prefer not to register their relationship with the registry office. Such relationships are called “civil marriage”. The second name for the union is cohabitation. Given the popularity of this type of relationship and the fact that the couple entering into it does not have official status, the government was forced to amend the Family Code. This is due to the fact that after people who were in a civil marriage, they have problems regarding the division of property, determining with whom the child will live, as well as the assignment of alimony. For example, a parent may refuse to pay child support because he was not considered a spouse in the official sense of the word.

The essence of the concept of “civil marriage”

A survey of young people under the age of 25 conducted several years ago showed that about 50% of respondents do not seek to enter into an official marriage. Given this trend, amendments had to be made to the family code to protect the rights of citizens in such relationships. For example, how to undress your ex-spouse by dividing an apartment that was purchased in a civil marriage. The topic of children, alimony and other important issues was also raised.

The amendments introduced by the deputies had one goal - to equate civil marriage to official relations. According to the law, a civil marriage is a marriage that is registered with government agencies . But the concept in question has come to us from ancient times and has changed a little. Today this is what we call cohabitation. This is an actual marriage, but not officially registered. It adds the definition of “civilian” to the concepts of “husband” and “wife”.

Save bills and receipts

In an official union, relations are regulated. But in an unregistered marriage, dividing property is more difficult. Therefore, if an apartment was purchased with a mortgage outside of marriage, it is necessary to preserve all documentary evidence of payments.

Recommended article: What to do after accepting an apartment with a mortgage in a new building

This is especially true if you pay for a loan from a card, through a terminal or from an electronic wallet. Make sure the payer is identifiable. It may be better to make payments over the counter by showing your ID.

Important! Having payment orders in hand, you will be able to prove that you actually repaid the loan and participated in the acquisition of property.

Is it possible to divide property: law

Civil marriage or cohabitation is not protected by law to the same extent as official marital relations. Civil spouses do not bear any property or other obligations to each other, and all property will be considered the premarital property of the person to whom it officially belongs. But this does not mean that a civil marriage does not provide for the division of property at all and does not regulate it in any way. Simply, regulation takes place under the auspices of the Civil Code, not the Family Code.

Therefore, if one of the common-law spouses wants to protect themselves when purchasing common property, drawing up a marriage contract will not help, since this document will not have legal force. In addition, there are different formats of ownership; the division of property can also take place according to different algorithms. The right algorithm must be chosen depending on the circumstances.

Possible problems with a mortgage

Problems may arise if one of the partners stops paying the loan. For example, co-borrowers agreed on equal joint payment. Moreover, their shares in the purchased apartment will be 50%. However, after some time they may separate, after which one of the former common-law spouses stops paying for the mortgage that is no longer necessary for him.

If a similar situation arises between official spouses (if a marriage contract has not been concluded), in the event of a divorce with division of property in court, the housing is recognized as jointly acquired, after which it is divided in half, explains Irina Dobrokhotova. If the co-borrowers are not relatives by law, then the partner who continues to regularly pay the loan can re-register the agreement in his name.

To do this, you will need to draw up an additional agreement with the bank. Subsequently, this will allow you to register the apartment only for yourself in full. The money treasure of the second co-borrower will be leveled; in fact, he will simply lose his money,” the expert sums up.

Changes for 2022

Starting in 2021, the State Duma began to say that actual marriage relationships will be equal to official ones. Citizens must live together for at least 5 years, but if there is a common child, then this period is reduced to two years.

If the conditions under consideration are met, then citizens already bear legal responsibility to each other identical to that which occurs in an official marriage. This means that it is up to the Family Code to resolve conflicts regarding the division of property, the assignment of alimony, and the determination of who the child will live with. But this project was not approved, which continues to complicate the division of property of couples who were not officially married.

Rights of a cohabitant

The opportunities of a woman who is not in a marital relationship with her common-law husband are significantly limited by law. However, her husband can change things during his lifetime. For example, a man categorically does not want to register a marriage, but decided to transfer his property to his child, parents or brother.

The owner can make a testamentary refusal in favor of his common-law spouse. For example, the heirs will have to provide the woman with the opportunity to live in the house for the rest of her life (Article 1137 of the Civil Code of the Russian Federation).

Example. A widower in adulthood decided to start a family again. However, he categorically refused to get married. The man had a house in the village. His brother lived nearby, who helped him all his life. As a result, the man decided to leave his house to his brother. He made a will accordingly. The former widower had no children from cohabitation with a woman. My own child died in a car accident. However, the woman had a son who lived in her personal home. But the young man, abusing alcohol, periodically caused trouble at home. It was unbearable to live in the house with him. Before his death, the testator fell ill. His common-law wife looked after him all the time. In order not to offend the woman and not to change his promise regarding his brother, the man made changes to his will. He executed a will in favor of his wife. As a result, the brother had to provide the opportunity for his common-law wife to live in the testator’s house.

However, this option greatly depends on the relationship between the heirs and the cohabitant. In the case of a negative relationship, living together will be impossible.

The legatee does not have the right to demand determination of the procedure for using the premises. Therefore, the heirs can rent out the free living space.

Can a common-law spouse waive her rights? Yes. If we take the example under consideration as a basis, then she is not obliged to live in the testator’s house if the living conditions in it are unacceptable. In addition, the woman can return to her own home.

Who monitors the execution of a will? Such a duty may be assigned to the executor of the will. Also, the supervisory function is performed by the notary who executed the will. If the heir is a minor citizen, then the guardianship authority acts in his interests.

What is recognized as joint property

Property that was acquired during cohabitation can be called:

• various real estate (apartments, houses, etc.);
• land (allotments);
• movable property;
• jewelry and precious metals;
• tools (agricultural machinery, musical instruments, etc.);
• material resources received at the time of cohabitation (bonuses, lottery winnings, pensions).

But there is also personal property, which includes:

• items purchased by a person before he entered into a relationship or after that relationship ended;
• things and an apartment purchased with a person’s personal savings or loan funds (provided that the loan is issued in the name of this person);
• personal items (intellectual property with designated copyrights, gifts and inheritance).

Jewelry is not included in this list.

How to take out a mortgage for two people outside of marriage and use family capital

A mortgage loan sometimes extends over 15–20 years. During this time, changes may occur in the life of the family team. For example, children will appear.

If the loan is fully or partially issued to a woman, it is easy for her to exercise her right to maternal capital. But if the loan was taken out by a man, the only way out is to enter into a legal marriage in order to take advantage of the benefits from the state.

Note! Sometimes clients mistakenly believe that the bank should advise on the use of family capital. In fact, the Pension Fund decides on loan repayment through MK. This is where you need to go.

The principle of division of property in actual marriage

When a couple who is not officially married, but is in fact in a relationship, makes a purchase, the acquired property will not be considered joint. It doesn’t matter what exactly you buy: an apartment, a car, furniture, household items, jewelry, etc.

Community property has an individual owner, who can strip his ex-lover to his underwear if he can prove that his common-law spouse’s belongings were purchased with his money. It is important that the property is registered in the name of one of the members of the couple.

If the purchase was acquired jointly and one cannot claim sole ownership, the division will occur in accordance with the investment made by each spouse. But in order to claim your part, you need to prove the right contribution. Such evidence may be the fact of cohabitation and evidence of funds contributed to the purchase.

The share of each cohabitant is proportional to his contribution to the purchase. Issued invoices, checks, receipts, and agreements may be provided as evidence of such a contribution. Also, the share can be calculated depending on the mutual agreement between common-law spouses. But it is important that the agreement is officially documented. If so, the division will be carried out according to the rules of the Civil Code. Moreover, it does not matter when to perform the section - after a breakup or while the relationship continues.

Every person has a desire to literally undress their ex-lover, taking everything away from him. But according to the law, this cannot be done. Especially if the relationship was not officially registered. A huge problem arises if, during cohabitation, the purchase (for example, an apartment) was not registered as common property. Then the couple can agree among themselves how they will divide the apartment or any other major purchase.

Therefore, if you are not interested in formal marriage, you will need to take care of documentary evidence that each common-law spouse is the rightful owner of an apartment or other valuable property. In some cases, it will even be rational to divide everything so that the right tube of toothpaste is the right of the spouse, and the left is the right of the spouse. You should also be careful with documents such as checks, receipts and statements.

✅ 3. The rights and responsibilities of parents towards their children are the same both within and outside of marriage

Both parents have the right:

• participate in the child's upbringing;
• receive leave to care for him;
• organize the child’s communication with his relatives;
• go to the hospital with your child;
• choose an educational institution (in agreement with the second parent) and so on.

And in the same way, they equally bear responsibilities: for the material support of the child, his upbringing and development, protecting the child from harmful influences, ensuring that he receives an education, etc.

Marriage in this situation is not of fundamental importance: the basis for the emergence of the rights and responsibilities of a parent is the entry in the child’s birth certificate.

✅ Outside of marriage, you will not lose the right to receive alimony for the maintenance of a joint child

If suddenly your union breaks up or creditors encroach on the property of the child’s second parent, the parent with whom the child lives has the right to demand that the other pay child support.

If you want to officially formalize the amount and procedure for paying alimony, there are two ways: concluding a notarial agreement on the payment of alimony and going to court. They are also available to everyone, regardless of whether they registered their marriage.

When resolving a dispute in court, the parties also have the right to enter into a settlement agreement or proceed to mediation at any time before the judge retires to the deliberation room.

✅ 4. Outside of marriage, you can also acquire property as community property

A couple can register any property, including real estate (house, apartment, land, etc.), purchased at the expense of the common budget, into common shared ownership.

In this case, the termination of the relationship or the death of one of the partners allows each of the partners to remain with their own. To recognize rights to a share in property, you do not have to go to court.

The difference from an official marriage is that there is no presumption of community of property acquired during cohabitation.

In marriage, you can move away from this “pre-established” option and enter into a prenuptial agreement or an agreement on the division of jointly acquired property.

Outside of marriage, on the contrary, it will be necessary to provide for the division of each individual object or several objects, or to enter into some kind of “framework” agreement for future acquisitions (for example, a simple partnership agreement).

✅ 5. Even without the consent of your partner outside of marriage, you can receive a share in the common property or return the money spent on it. But you will have to try for this

Often, in a couple that has not registered a marriage, property is purchased with common money and, for convenience, one of the partners registers it in his or her own name. If a dispute arises about the ownership of property or if the partner who is the official owner dies, the second partner can go to court.

There are three options:

1) File a claim for the award of a share in property rights.

This is a rather complex method of protection: positive decisions are made by the courts in cases where it is possible to prove the existence of an agreement between partners to acquire the disputed property as shared ownership.

2) File a claim to recover funds invested in the purchase as unjust enrichment, if there was no agreement on the joint acquisition of property.

It will not be possible to use this method if the court finds that from money transfers or correspondence between the parties it follows that the money was gifted or transferred to the second partner specifically for some purpose.

3) File a claim to recover the transferred funds under the loan agreement.

Don’t be confused by the word “agreement”: to file this claim, it will be enough to confirm the transfer of funds to the second party and (if there are objections from the opponent) to confirm the absence of intention to donate them. The absence of a written agreement or receipt only deprives the parties of the right to refer to the testimony of witnesses, but the rest of the evidence is correspondence, recordings of negotiations, bank statements, etc. - can be used. If you did not agree on a time frame for the return of funds, simply send a request for a return of funds to the other party. After thirty days (unless a different period is agreed upon in the contract), you can go to court.

Please note the statute of limitations: for each claim it is three years:

• for a claim for the award of a share in the right: from the moment when the share in the right should have passed to the plaintiff (and did not);
• for a claim for recovery of unjust enrichment: from the moment the defendant receives funds or other property;
• for a claim for debt collection under a loan agreement: from the moment when the debt should have been repaid under the terms of the agreement, and if the period is not agreed upon in the agreement - from the thirty-first day from the date of sending the demand for the return of funds (not counting the day the demand was sent).

✅ For comparison, a claim for the division of property acquired jointly during marriage can be filed at any time during the marriage and within three years after its dissolution.

✅ 6. Outside of marriage, you decide for yourself what debts your partner owes

An official marriage allows creditors to foreclose on jointly acquired property, demand its sale and, most importantly, demand payment of the debt assumed by your spouse. However, the debt will be presumed to be personal unless the creditor proves that the debt arose in connection with the needs of the family and with the consent of the second spouse.

In the case of unregistered relationships, there is a presumption that all debts of each partner are their own. Otherwise, it must be expressly provided for by the agreement of the parties (for example, you can agree and become co-borrowers on a loan or accept guarantee for the debts of your other half).

The rights to inherit and receive maintenance in an informal union are quite limited

An official marriage presupposes that if one of the spouses is incapacitated, the second, able-bodied spouse, assumes the obligation to take care of him. In the event of a dispute, the disabled spouse may demand the establishment of alimony: the main thing is that the incapacity for work occurred during the marriage and not through his own fault.

He also has the right to an obligatory share in the inheritance (it is half of what would be due to him by law). This rule cannot be circumvented either with the help of a will or with the help of an inheritance agreement (by the way, we wrote about it in one of our recent posts).

In an unofficial couple, all these guarantees are absent. To inherit, there must be a will of the second partner; there are no rights of the first-priority heir, and in case of inheritance without a will, there is no right to accept the inheritance. There is also no right to demand alimony (including for the maintenance of the mother of a joint child during pregnancy and for three years after the birth of the child - in official marriages this obligation of the spouse, including the former, exists).

✅ 8. You can get a tax deduction for a common child, regardless of whether you are married

To register, you must provide the child's birth certificate. The deduction is applied to personal income tax paid during the year and amounts to:

• 1,400 rubles - for the first child annually;
• 1,400 rubles - for the second child annually;
• 3,000 rubles - annually for the third and each subsequent child annually;
• 12,000 rubles - annually for each disabled child, full-time student, graduate student, resident, intern, student under the age of 24, if he is a disabled person of group I or II.

If one of the partners dies outside of marriage, the other will not be able to receive funeral benefits.

The vast majority of readers will involuntarily wince when reading this title. Of course, we prefer not to think about bad things and drive away thoughts of death.

Unfortunately, pills for immortality have not yet been invented. A funeral benefit does not compensate for the pain of loss, but in some cases it allows you to avoid aggravating the mental pain by urgently seeking a loan for the funeral of your partner and subsequent payments on it. Many take out loans from microfinance organizations out of desperation and time constraints, and are then forced to pay off debts for years.

For 2021, the funeral benefit in Moscow is 5,946 rubles. 47 kopecks for employed widowers and 16,946 rubles. 47 kopecks for unemployed and disabled citizens. Also in Moscow there is an additional payment from a constituent entity of the Russian Federation, it amounts to 11,000 rubles.

If there are children

A child in a civil marriage is the norm today. A man in a civil marriage has the right not only to pay alimony. In addition to alimony, he can also receive alimony payments if the child lives with him:

• register a child in your last name without confirming paternity in a civil marriage;
• unlimited communication with the child (even if the couple is no longer together and the father pays child support);
• live in the same house with the child;
• refuse or allow the child to be taken out of the country;
• refuse to change your surname;
• enter into inheritance and protect your interests;
• obtain information about the child from school, kindergarten and other educational authorities.

If the father does not live with the child, he must provide for him financially with the help of alimony. Alimony is awarded by a civil marriage to any parent whose paternity is confirmed. The amount of alimony that a common-law spouse pays depends on the court decision.

Didn't prove that he earned the apartment himself

The above example of an oral gift is now actively developing in the practice of the Supreme Court of the Russian Federation. He recently overturned court decisions that recognized the apartment as the common property of the spouses.

One of the reasons given was that the spouse did not prove that he had the financial ability to purchase the disputed apartment (RF Armed Forces, case No. 78-KG19-63).

The couple purchased very expensive housing during their marriage, despite the fact that both were not working at that time. The wife stated that the money for the apartment was given by her parents, who were very wealthy people (this was confirmed by their income certificates).

And the husband could not provide evidence that he or his relatives had the opportunity to invest in an expensive purchase.

According to the rules of civil procedure, each party must prove the circumstances to which it refers. The wife justified her position, but the husband did not.

Therefore, the court questioned the right of common ownership of the apartment and sent the case for review.

Peaceful division of property

There are several options for how to divide property in a civil marriage without being in an official relationship. One of them is to resolve the issue peacefully. This can be done if the cohabitants did not quarrel when they parted, and agree to share everything they acquired together during the relationship.

The division can be made verbally or officially by concluding a settlement agreement. An agreement is still a more reliable way to divide property, since it precisely describes who is entitled to what share of the common property. And after certification by a notary, the document receives legal force.

Judicial procedure for resolving the issue

If the issue cannot be resolved amicably, there is only one way out - to go to court and resolve the problem in court. You will need to draw up and send a claim requesting recognition of the right to common shared property with a determination of the share in the specified amount. You can also submit a claim for the allocation of a share if it is not possible to determine it yourself.

Legal proceedings to divide property are based on several important principles:

• the fact that people lived together cannot become a basis for sharing the benefits that they enjoyed at the time of their common life;
• even if people ran a joint household, this does not entail any complex legal consequences;
• the common benefits of citizens living together, as well as their jointly acquired property, are controlled by the rules applied to common property;
• The division of property and other common property is regulated by Art. 245 of the Civil Code of the Russian Federation, according to which the division of values ​​occurs into equal parts in the absence of an absent agreement.

You can establish paternity of your common children even without being married

Outside of marriage, paternity is established by a joint application of the child’s parents simultaneously with the registration of his birth or later. If, before the birth of the child, you have a suspicion that after the birth it will be difficult or impossible to submit a joint application (for example, one of the parents will go on a long business trip or there is a risk to his life), you can submit the application during pregnancy.

The father can also file an application to establish paternity on his own (without the mother’s consent, but with the consent of the guardianship and trusteeship authority) in the following cases: the mother has died, been deprived of parental rights, or been declared missing.

Differences arise when the father objects to the establishment of paternity.

The only difference between an official marriage and an unregistered partnership is the simplified nature of the “assignment” of paternal status. During marriage and for 300 days after its dissolution, there is a presumption that the official spouse of the mother is the father of the born child (unless she wishes to leave a dash in the “Father” column or indicate another person).

If the spouse in the marriage has objections, he can challenge paternity in court, but until the decision enters into legal force, he will remain the father of the child. In an unregistered union, it’s the other way around: the man will not be considered the father of the child until the court’s decision to establish paternity comes into force.

Statement of claim

The filed claim is the basis for starting proceedings regarding the division of common property in a civil marriage or if the spouse does not pay alimony. The claim is drawn up in two versions, which can act as an alternative to each other:

Claim demanding recognition of a share in property

Submitted if the property is registered in the name of only one cohabitant, but the second spouse has evidence of his contribution to the property in question.

Statement indicating unjust enrichment

Used if one cohabitant transferred money to the second.

The second case is quite common, but more difficult to handle, so it is better to consider it with an example. For example, a civilian family collected money and eventually bought a house, which was registered in the man’s name. When the civil marriage broke up, the apartment was sold, and the husband kept the money for himself. The spouse files a claim not for compensation of half of the apartment, but for the amount of money received for its sale.

The claim must be filed taking into account the following information:

• plaintiff’s data (information from passport and contact details);
• document's name;
• description of the grounds for the appeal;
• what property is in dispute;
• Attached documents;
• the applicant's request;
• date and signature.

The main thing is that the information is presented correctly and to the point, regardless of whether alimony is being collected or property is being divided. But when collecting alimony, you need to supplement the list of documents with evidence that the ex-spouse ignores the need to pay alimony debts.

Can a common-law husband claim an inheritance, an apartment of a common-law wife?

The above rules apply equally to both common-law spouses. Therefore, a man has the same rights and obligations as a common-law spouse.

To avoid misunderstandings, it is better for citizens to legalize their relations. You can also make a will so that the spouse is not left without property after the death of his common-law wife.

In addition, it is advisable to avoid registering joint property in the name of one of the cohabitants. Otherwise, the share of the common-law husband will be transferred to the heirs of the deceased.

Proof

But the court will not assign a share of ownership for lack of evidence. And as proof of who is right, the following set of documents and testimony can be used:

• cohabitation (people lived together for a relatively long time and built their own family);
• maintaining a common life (having a common budget, where expenses and income were carried out jointly);
• the purchase of property was carried out with the money of both (payment documentation from the bank where the joint loan was taken out, documents from the bank indicating the income and expenses of each member of the couple will help to prove);
• the property was used jointly (photos or videos can be provided as evidence, testimony of witnesses: relatives, friends can also be used);
• common-law spouses made the purchase together, and there is an indication of each person’s share in the transaction.

It is important that the court accepts the couple’s evidence as sufficient. Judicial practice has many precedents that show how to fairly undress a former common-law spouse by dividing property if it was purchased during a common-law marriage.

You can get legal assistance on property division issues on our website.

Buying an apartment out of wedlock with a mortgage – which bank to contact

Many organizations are ready to provide a mortgage loan to an unsigned couple. The bank is less and less interested in the personal life of the borrower. An institution's solvency is important. If you have a down payment and a good income, the financial institution will have no reason to refuse lending.

Another question is whether the bank will agree to see the unofficial spouse as a co-borrower. In some institutions, only relatives can act as co-owners. In this case, it will be impossible to supplement the income of the second partner and increase the chances of approval.

Important! Many women are concerned about the question of whether a common-law husband can be a co-borrower on a mortgage. Yes – it’s easier today than 5 or 10 years ago. Not only the husband, but also other relatives can be a co-borrower. For example, if the bride’s parents have paid the entire down payment (30 or 40%), they can act as co-borrowers and claim a share in the apartment.