How is an apartment divided between spouses after a divorce if the owner is husband or wife?

Article updated: March 25, 2021
Alexey BessonovPracticing Moscow lawyer

Hello. I am a visiting lawyer from the Bessonov and Partners law firm. I specialize in discharging citizens in court.

Any person can be discharged from an apartment without his consent ONLY THROUGH THE COURT. This is expressly stated in paragraph 1 of Art. 35 LC RF and Art. 7 of the Law of June 25, 1993 N 5242-1. There is NO other way.

If, after a divorce, the ex-husband, not being the owner of the apartment, refuses to check out or ignores this requirement, the owners need to go to court and file a claim for termination of the rights to use the residential premises. Next, you will need to attend court hearings and obtain a positive court decision.

Important: All owners must agree to the ex-husband’s discharge and report this at the trial. If one of them expresses his disagreement, then the claim may be denied.

When can an apartment be registered as the property of one of the spouses?

An apartment can be registered in the name of one of the spouses in the following cases:

1. personal property:

• buying an apartment before marriage;
• the property was received as a gift or by inheritance;

1. the object was purchased during marriage, but with the personal funds of the spouse;
2. jointly acquired property:

• property purchased during marriage, but registered in the name of one of the spouses.

Example: Citizen Denisyuk, manager of a large construction company, bought a three-room apartment. He made renovations, got married and continued to live with his family in this apartment. Five years later, the couple divorced and after the divorce, the ex-wife demanded to divide the apartment, since she had no other housing and had nowhere to live.

Denisyuk provided the court with documents confirming that he bought the apartment before marriage with personal funds and during the marriage there were no financial investments in the apartment. The apartment is the personal property of citizen Denisyuk and is not subject to division.

An apartment purchased during marriage can be divided at the request of either spouse.

Example: During the marriage, the spouses bought an apartment. The wife was on maternity leave, so they decided to register the apartment in her husband’s name in order to receive a property deduction.

After the divorce, the woman filed a lawsuit to recognize ownership of a 1/2 share in the apartment. The apartment was purchased during marriage and is the common property of the spouses. According to Article 34 of the RF IC, the right to the common property of the spouses also belongs to the spouse who during the marriage did not have income for good reasons. Documentary evidence was presented to the court and the court satisfied the ex-wife's demands.

Husband's rights to the deceased wife's inheritance

After the death of the wife, the concept of “joint property” with the husband is no longer used. There is a need to allocate shares. The deceased wife retains:

• Half of the jointly acquired property in a valid marriage, subject to the following conditions: the absence of other instructions in the marriage contract (if there is such a document);
• Property inherited by her separately at any stage of life;
• Personal property that she owned before the day of her marriage.

The property share of the wife (testator) becomes the property of the heirs by right of inheritance. The list of heirs can be determined in order of legal priority or in accordance with the will that was written before the death of the spouse. The husband's rights to inheritance, which is distributed after the death of his wife:

• The surviving spouse becomes the heir of the first (priority) line. However, this line also includes the parents of the deceased and her children. Therefore, if there are two or more owners, the inherited property will be divided equally between them;
• If the wife managed to draw up a will, and the husband’s name is not in it, then he has the right to claim only an obligatory share of the inheritance. It is at least 50% and is divided among all heirs claiming the obligatory share. These are people whose names are mentioned in the first place (children, father and mother, together with the spouse of the deceased), as well as disabled dependents. The second part of the inheritance in the amount of up to 50% will be transferred equally to those persons whose names appear in the will.

Regardless of whether the spouse’s name is on the will, he has two rights:

1. The right to retain a share of the property that was acquired during marriage with the wife during her lifetime;
2. The right to allocate your share of property without legal proceedings by obtaining a certificate of appropriate ownership of it.

Thus, after the death of his wife, the husband claims her inheritance in any case, unless he was divorced from her. But the share of the property inherited by him will depend on the number of heirs of the first priority, the contents of the will drawn up by the spouse during her lifetime, as well as on the presence of heirs claiming an obligatory share of the inheritance.

Rules of inheritance in the case of a joint will of spouses

On November 1, 2015, a law came into force according to which a married couple has the opportunity to draw up a will together . In this case, spouses can only dispose of that part of the property that is jointly acquired. And all decisions regarding it must be made by mutual agreement.

A characteristic feature of a joint will is that one of the spouses can refuse it only while the second spouse is alive. This is due to the protection of the right of freedom of disposal of the testator, since the wife was a joint owner. The refusal of a joint will must be confirmed by a notary.

If the spouses have drawn up a joint will, then after the death of the wife, her property share passes legally to her husband, who survived her . But he loses the right to alienate the property that appeared in the will due to the imposition of a notarial prohibition. When the husband also dies, the right of inheritance passes to the people whose names appear in the joint will.

Is an apartment purchased before marriage divided?

Property that belonged to a citizen before marriage, received by one of the spouses during marriage as a gift or by inheritance, is his property and is not subject to division.

But, according to Article 37 of the RF IC, the property of each spouse can be recognized by the court as their joint property. This is possible if it is established and proven that during the marriage, investments were made that significantly increased the value of this property.

The cost can be increased due to:

• common property of spouses;
• property of one of the spouses;
• labor of one of the spouses.

Example: Citizen Kostylev, after the death of his father, inherited a room in a communal apartment. A man and his wife moved from their rented home to their own room. During the marriage, a second room was purchased and major renovations were made to the apartment. After the divorce, the wife filed a claim to recognize this apartment as joint property. With the statement of claim, documents were provided indicating an increase in the area and value of this property during the marriage.

How to buy an apartment so you don't have to share it

You should protect yourself in advance from possible claims of the former half to property acquired after the divorce. There are several legal ways to do this:

Another option would be to wait the 3 years required by law. This is the period for resolving a property issue between spouses after a divorce. The parties must meet this deadline and enter into a settlement agreement or initiate legal proceedings. Share what you have acquired together in any way. Otherwise, all claims will be rejected, and purchase and sale transactions made by one of the parties will be recognized exclusively as a personal initiative. Lost time can be returned if there is a compelling argument, for example, the plaintiff proves in court that he did not know about the existence of common property of the spouses that was subject to division. This happens when citizens deliberately hide income or secretly buy real estate, registering it in the name of relatives.

When you can't share an apartment

Division of an apartment is impossible or difficult in cases where:

1. the basis for the emergence of property rights are:

• privatization agreement;
• gift agreement;
• certificate of the right to inheritance by law or by will;

1. the apartment was purchased before marriage;
2. the apartment is recognized as the personal property of one of the spouses by agreement or marriage contract.

In order for the personal property of one of the spouses to be recognized as joint property of the spouses, compelling reasons and convincing evidence are needed.

Is gifted property divided in a divorce?

Spousal share in inheritance

Inheritance issues are spelled out in the list of norms of family legislation (Articles 33-38 of the IC of Russia). It is necessary to pay attention to civil laws (we are talking about Articles 1119, 1150, 1118, 1141, 256, 1142, 1149 of the Civil Code of Russia). The matter of inheritance can hardly be called easy. To correctly draw up and receive it, you need to understand notarial legislation. There are regulations of the Supreme Court on these issues (Resolution dated May 29, 2012 No. 9).

If one of the spouses has died, then the heirs of the first group have the right to the property first, if they are alive. The property is divided equally between them.

It happens that several heirs of the first group are absent, then the property is divided among the rest of the remaining ones.

The spouse is also included in the list of heirs; he will have to prove his right to the property. Submit a marriage registration certificate to prove that the deceased person was a life partner and this is officially recorded.

How to divide an apartment purchased during marriage, but registered in the name of one of the spouses

An apartment acquired by spouses during marriage is joint property. It doesn’t matter which of them is registered in the name of, the second spouse has the right to 1/2 share, unless otherwise provided by the contract.

Methods for dividing an apartment

An apartment can be divided at the request of either spouse by agreement or in court.

An agreement on the division of property is drawn up with the mutual consent of the spouses. Spouses independently determine to whom and what property becomes property. The agreement is subject to mandatory notarization.

If the spouses cannot agree and independently determine their shares in the disputed property, the division is carried out in court. Based on the documents presented and taking into account the stated requirements, the court makes a decision on the division of property. If one of the parties does not agree with the court decision, it can be appealed.

What documents are needed for the division of property in court?

Apartment division options

You can divide an apartment registered in the name of one of the spouses, but which is joint property:

• In equal parts.
• With payment of compensation. In this case, the apartment remains the property of one spouse, and the other is paid compensation equal to the value of his share in this property.
• Sale of an apartment. The proceeds from the sale are divided between the spouses.

Read more about collecting monetary compensation when dividing property → here

Stage No. 3 - Discharging the ex-husband

The losing party has a period to try to challenge the court decision - by filing an appeal to a higher court (Article 320 of the Code of Civil Procedure of the Russian Federation). After the expiration of this period, the decision comes into force - Art. 210 Code of Civil Procedure of the Russian Federation.

How long should I wait? In-person decision - if the defendant does not challenge it, then after a month it comes into force (clause 1 of Article 209 and Article 321 of the Code of Civil Procedure of the Russian Federation). The month must be counted from the date of the final decision. The date can be found in the text of the decision itself. For example, “The reasoned decision was made on August 20, 2021” or “The decision in reasoned form was made on August 20, 2019.” This means it will come into force on September 20, 2021.

With an absentee decision it is more complicated - it comes into force 7 days after the defendant received it, but did not appeal - clause 1 of Art. 244 and paragraph 1 of Art. 237 Code of Civil Procedure of the Russian Federation. What if the defendant does not withdraw the decision? Then it must wait 1 month and 10 days - clause 14 of the Review of Judicial Practice of the Supreme Court No. 2 of June 26, 2015. Better than a month and a half.

When the court decision comes into force, the plaintiffs need to bring a copy of it to the passport office and the defendant will be discharged. After discharge, I advise you to obtain a fresh extract from the house register (certificate of registered persons). There will be no defendant.

The court itself will send a copy of the decision to the migration department of the Ministry of Internal Affairs (formerly the Federal Migration Service).

Limitation period for division of property after divorce

A three-year statute of limitations applies to the claims of spouses for the division of property after divorce (clause 7 of Article 38 of the RF IC)

The beginning of the period is calculated from the moment when the spouse learned of the violation of his property rights:

• refusal to divide property;
• filing a claim in court.

Example. The apartment purchased during marriage was registered in the name of the wife. After the divorce, the husband moved out, but remained registered in the apartment. Four years later, the wife filed a lawsuit to remove her ex-husband from the registration register, who had not lived in the apartment all this time. The husband learned of the violation of his rights and filed a lawsuit to recognize the disputed apartment as joint property and divide the apartment in equal shares.

The statute of limitations in this case is calculated not from the moment of divorce, but from the moment of filing a claim to deregister the ex-husband.

Step-by-step instructions for a gift transaction between husband and wife

Before starting the donation procedure, it is advisable to first check whether it is encumbered, because any restrictions on real estate are registered in the Unified State Register of Real Estate (USRN).

Where to start and where to turn?

In order for an apartment to be gifted to a husband (wife) during marriage, a number of actions must be completed.

1. Receive an extract from the Unified State Register of Real Estate (it contains the necessary data at the time of the request and, if there is an arrest, it will be indicated for what and in favor of whom).
2. Decide which notary you want to contact.
3. Obtain the consent of the recipient spouse to the transaction.
4. Collect the necessary documents and prepare them with notarization.
5. Register ownership (Multifunctional Center, Registration Chamber).

Documentation

In order to formalize a donation, the owner of real estate should prepare the necessary documents:

• passports of husband and wife, both originals and copies;
• Marriage certificate;
• foundation agreement (this is a document confirming the purchase of an apartment during marriage);
• document confirming state registration of property;
• prenuptial agreement or property division agreement;
• notarized consent for donation;
• a certificate from the housing department about persons registered in the home;
• consent of other property owners (if any);
• confirmation of payment of state duty;
• an agreement signed by the parties and certified by a notary.

The submitted documents are checked by a notary or registrar, who must decide the correctness and completeness of the submitted certificates.

Drawing up and essential terms of the contract

The donation agreement, as a form, can be oral or written and is regulated by the norms of the Civil Code of the Russian Federation (Articles 158-165), and regarding gifts directly (Articles 572-574). The essential terms of the gift agreement (Article 432 of the Civil Code of the Russian Federation) are those conditions on which the parties must reach agreement.

As a standard, the deed of gift states:

• date and place of conclusion of the agreement;
• Full name and address of the donor and recipient;
• information about the subject of the transaction;
• the fact that the apartment was transferred free of charge;
• document data confirming the relationship;
• rights and obligations of the parties;
• responsibility.

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

8 (800) 302-76-94

The deed of gift does not have to be certified by a notary. However, taking into account the fact that the procedure itself has some features, notarization looks more reliable, although the parties may incur some material costs.

Registration

Spouses, after completing all the documents, must apply for registration and pay the state fee.

In accordance with the Tax Code of the Russian Federation, Art. 333.33, pp. 22.1. The state fee is 2000 rubles.

How to donate your part of the living space to your husband or wife is discussed here.

Lawyer's answers to frequently asked questions

When we were married, we bought an apartment, but my husband registered it in his name, since I didn’t work after the birth of my children. Can I file for division of an apartment after a divorce?

If the apartment was purchased during marriage, it is the joint property of the spouses. The right to common property also belongs to the spouse who, during the marriage, ran a household, looked after children and, for other valid reasons, had no income.

My parents want to give us an apartment for our wedding. I'm afraid that during a divorce, my husband will want to divide it. What is the right thing to do?

Draw up an apartment donation agreement in which your parents will be the donors, and you will be the only recipient, and register the ownership rights in Rosreestr. The apartment will become your personal property and will not be divided.

After a divorce, is it possible to file for division of an apartment registered to my wife and in which I am not registered?

If the apartment was purchased during marriage, you have the right to half of the apartment, regardless of registration.

Registration of a gift agreement

You can donate your part of the apartment to your wife by drawing up an appropriate agreement. This is a rather advantageous solution, since the deed of gift is difficult to dispute and is highly reliable. In order to issue a deed of gift for your wife, you must follow a certain sequence of steps:

1. collection and preparation of required documents;
2. preparation of contract. In the case of a gift between spouses, a standard form of agreement can be used;
3. certification by a notary if desired;
4. registration of the rights of the new owner.

Only after passing the state registration procedure is the transaction considered completed. Expert opinion Maria Lokshina Family law expert since 2010 The donor must take into account that the gift is difficult to cancel and it is absolutely impossible to do this without sufficient grounds.

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Section Features

Disputes over the division of property are one of the most complex and lengthy, especially when it comes to privatized (cooperative) housing or acquired housing using donated funds. Courts also take into account the interests of minors and spouses, and therefore may deviate from the rule of equal shares. So, let's look at some features of the division of property.

Privatization for one spouse

It is more difficult to resolve the housing issue during a divorce when the apartment has been privatized for one of the spouses. In the case where this was done before marriage, the court will side with the owner. The maximum that the ex-spouse can count on is that they will determine the period during which he can live in the apartment. However, if it is proven that he has other housing, the court will issue an eviction order .

If an apartment was privatized during a marriage to one owner, provided that all other family members refused to participate in his favor, the housing is also not subject to division. In this case, neither the children nor the second spouse will be able to count on a share. However, the law allows relatives to live in the premises without restrictions, but they have no right to dispose of it (sell, gift or exchange).

If you have children

If the spouses have a minor child and the property was acquired with the help of maternity capital, the property is divided taking into account the provisions of Federal Law No. 256 of December 29, 2006 “On additional measures of state support for families with children.” According to paragraph 4 of Art. 10 of this law, spouses are obliged to allocate shares in the residential premises to all children. Number of sq.m. determined by agreement of the parties.

An equally important point is provided for in paragraph 2 of Art. 39 RF IC. According to the provision, the court has the right to deviate from the rule of equal shares if the interests of minors are infringed. However, the legislation does not contain any list of grounds; all evidence is considered and assessed individually. For example, such a circumstance could be a child’s illness or a father’s unkind attitude towards a minor.

Real estate with mortgage

All property, including those acquired through a mortgage, is subject to division. Even if the wife did not work, and the loan was repaid from the husband’s income, the court will still divide the living space in half. The basis for derogation from this rule can only be a marriage contract. The legislation offers several division options:

• The agreement is executed in the name of the spouse, who will become the sole owner after repayment. The spouse has the right to claim monetary compensation in the amount of half of the market value of the housing or its cadastral value;
• re-registration of the contract for both spouses and distribution of responsibility. Both parties independently pay the remaining debt, and then become owners of a share in the apartment.

It is impossible to perform any actions without the consent of the bank, since the apartment is pledged. In the courts, representatives of credit institutions act as a third party and have the right to demand a waiver of the division of the mortgage. In this case, obligations remain only with one of the parties specified in the contract. In turn, after repaying the mortgage, the ex-husband has the right to recover half the cost of housing from his wife.

Property acquired before marriage

Not all property is subject to division. According to the Supreme Court Determination No. 49-KG19-51 dated December 3, 2019, it is impossible to divide real estate acquired before marriage. The same rule applies to everything that was received by one of the parties as an inheritance from deceased relatives.

However, if during the marriage the value of the property increased significantly (for example, due to an extension or expensive repairs), the court may listen to the plaintiff and divide the living space. Proof of this fact will be documents (payments, checks, receipts, receipts, invoices, etc.) confirming that the ex-spouse also invested funds.

In this case, housing is subject to division without taking into account the original cost of the property. The court orders an appraisal and then deducts the purchase price of the home. The remaining amount is divided between the spouses and converted to square meters.

Purchasing a home using the funds of the spouse’s parents/relatives

If the disputed property was acquired with the funds of the parents or relatives of one of the spouses, the court will refuse to recognize such property as jointly acquired property. The main condition is the presence of a deed of gift for money, a house, or other confirmation of the origin of funds, for example, a bank receipt indicating the purpose of payment. The parties can also sign a gift agreement or transfer money in the presence of witnesses.

Another common situation is when money is given as a wedding gift. In this case, an agreement is not required; it is enough to prove in court that the funds were personal and not joint (Resolution of the Plenum of the Supreme Court dated November 5, 1998 No. 15). This fact is confirmed by the testimony of witnesses, as well as certificates of income of the parties.

Studio apartment

Division of a one-room apartment is a difficult process, especially when both former spouses claim square meters and categorically refuse compensation. The court will proceed from the rule of equality of shares if the property was acquired from common funds, there is no marriage contract and there are no joint children. The following options are possible:

• redevelopment of the premises with the allocation of two rooms;
• sharing agreement;
• transfer to pay off the cost of other property subject to division;
• assessment and subsequent sale of the premises, division of money in proportion to the shares specified in the court decision.

Courts have the right to deviate from the rule of equality of shares and increase the share of one of the spouses if the interests of young children so require.

Municipal apartment

Often such apartments were transferred to military personnel or other preferential categories of citizens. Like official housing, municipal housing is not subject to division. According to the Housing Code of the Russian Federation, such an apartment is transferred for temporary use under a social tenancy agreement and cannot be jointly acquired property. As a rule, an agreement is concluded with one of the spouses, and the second moves in and registers as a family member. After a divorce, this status is lost; in case of refusal to move out voluntarily, the ex-husband or wife may be forcibly evicted by a court decision.

However, if the spouses were able to privatize a municipal apartment before the divorce, then such housing becomes jointly acquired property. The court will divide it in proportion to the shares specified in the privatization document, unless there is another agreement between the former spouses. In cases where housing is scarce, one of the parties may agree to pay compensation.

Division procedure through court

In a situation where a peaceful settlement of the issue is impossible, the division of the spouses' property is carried out in court. As a rule, this is a complex and lengthy process that can last several years. The decision of the first instance can be challenged in higher authorities: appeal and cassation, as well as the Supreme Court.

Which court should I go to?

If the total joint property of the spouses in an apartment during a divorce does not exceed 50,000 rubles, the case is considered by the magistrate court at the defendant’s place of residence (clause 4 of article 3 of Federal Law 188 of December 17, 1998 “On justices of the peace in the Russian Federation”). In other cases, the claim should be filed in the district court. The requirement for division of property can be considered as part of the divorce process, or separated into independent proceedings.

If the defendant’s residential address is unknown, the claim is filed in court at the location of the property.

Package of documents/Apartment assessment

Statement of claim. The applicant must set out in detail the circumstances of the case, explain when and with what funds the property was acquired, and also indicate what requirements are presented to the defendant. To substantiate the arguments, the plaintiff should submit to the court additional documents confirming these facts, for example:

• payment documents (checks, receipts, receipts);
• certificates of ownership of real estate;
• contract of sale;
• extracts from the Unified State Register of Real Estate;
• certificate of marriage or divorce.

In cases where dividing the apartment equally between spouses is impossible (for example, one of the spouses plans to buy the premises from the other), the court may order an examination. It is carried out by specialized companies in order to establish the actual value of the object. According to Art. 11 Federal Law No. 135 dated July 29, 1998 “On appraisal activities in the Russian Federation”, the appraisal report contains:

• date and serial number;
• basis (court ruling);
• information about the specialist;
• real estate description and valuation standards;
• conclusion indicating the final price.

State duty and deadlines

According to paragraph 1 of Art. 333.19 of the Tax Code of the Russian Federation, the amount of state duty depends on the value of the property subject to division:

4%, but not less than 400 rubles from an amount up to 20,000 rubles;

800 rubles + 3% of the amount exceeding 20,000 rubles;

3,200 rubles +2% of the amount over 100,000 rubles;

5,200 rubles + 1% of the amount over 200,000 rubles;

13,000 rubles +0.5% of the amount over 1,000,000 rubles.

The maximum amount of state duty is limited to 60,000 rubles. The court may exempt the plaintiff from payment on the basis of Art. 333.20 of the Tax Code of the Russian Federation due to a difficult financial situation or provide an installment plan.

The legislation does not contain any time limits; the court has the right to consider the case based on the principle of reasonableness and fairness. Depending on the situation, the process can last from two months to several years.

Section options

The law allows several options for dividing property. This could be the allocation of a share, payment of compensation, or determination of the procedure for using the premises. So, what are the features of each option?

Allocation of share in kind

Allocation of a share in an apartment after a divorce (Article 252 of the Civil Code of the Russian Federation) is a legal procedure, as a result of which part of the area is recognized as an independent object, independent of the original one. In essence, this means the termination of the right of common ownership of the apartment and the emergence of several residential premises. Often, the allocation of shares is used when it is possible to build a separate entrance and use the house for two owners. The size of the area is determined by the court in proportion to the share in the property (50/50). The claim will be rejected if:

• there is no legal possibility to allocate shares;
• no technical capability;
• the object will become impossible to use for its intended purpose;
• the building is recognized as unauthorized;
• there is no agreement on the allocation of shares from all interested parties.

Compensation

This option is used by the courts in several cases. Firstly, the apartment is small and it is impossible to divide the square meters. Secondly, one of the spouses wants to buy the apartment as sole ownership, and the second agrees. The third option is that a mortgage has been issued for the apartment, but the bank does not want to include the second spouse in the contract.

As a rule, the courts issue a ruling to appoint an expert examination to assess the market value of the premises. The parties can agree with the conclusion or challenge it . If there are no objections, a decision is made to assign compensation either in a fixed amount or as a percentage of the sale price, and the procedure and terms of payment are also indicated.

Determination of the order of use

If it is impossible to divide an apartment during a divorce, the former spouses can file a lawsuit to determine the procedure for using the residential premises. Formally, this means allocating a separate room (for example, a room) to each party, as well as common areas (toilet, bathroom, kitchen, hallway). In the statement of claim, you can indicate furniture, household appliances and other property, the right to use of which the party wishes to reserve for itself.

If the plaintiff or defendant is allocated a larger area, the court may seek monetary compensation. According to paragraph 37 of the Resolution of the Plenum of the Supreme Court of 07/01/1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation,” courts are required to take into account the peculiarities of the existing procedure for the joint use of property. This means that one of the parties cannot be forced to move to another room or be prohibited from using certain common areas.