According to the law, military personnel have many benefits. One of them is the right to obtain a mortgage on favorable terms. However, if the family breaks up, then you need to know how to divide an apartment using a military mortgage.
There is an opinion that real estate is the personal property of a serviceman, since it was acquired using funds that have a designated purpose. This position is also shared by some courts. However, the highest authority expressed a different opinion in the ruling of the Supreme Court of the Russian Federation No. 58-kg16-25 dated January 24, 2017.
The collegium considered a cassation appeal in one of the cases regarding the judicial division of property. The disputed property also included an apartment received on NIS terms. The couple also shared a car and several bank loans. Let's talk about everything in order.
What is the military mortgage program
Military mortgage is a government program whose goal is to provide officers with personal housing on more favorable terms. The loan debt will be paid not by the officer, but by the Ministry of Defense of the Russian Federation.
One condition for receiving this type of loan is that the serviceman must participate in the savings mortgage system for at least 3 years. The officer's special account will receive funds with which he must pay off the debt. However, there are situations when a married couple separates, and they begin to wonder whether a military mortgage is subject to division during a divorce?
Arbitrage practice
In any case, a military spouse with a military mortgage cannot count on receiving an apartment purchased on credit; at best, she will receive either a share of the living space commensurate with her personal investments, or monetary compensation. But all this is possible only if she proves her participation in the costs of purchasing the apartment, namely:
- any loan agreement that specifies the purpose of receiving funds (for the purchase of housing);
- receipt for borrowing money from private individuals;
- documents according to which it will be proven that the plaintiff participated in the payment of the military loan.
The court's decision will be made taking into account all the evidence presented; the amount of monetary compensation determined by the court will depend on its completeness.
Important. Regardless of the outcome of the case, payment of the balance of the debt on the military mortgage is assigned only to the serviceman who received the military mortgage; all other current or former members of his family do not bear any responsibility for the fulfillment of the loan agreement.
The division of any property during a divorce is a rather complex and confusing procedure, especially the division of property under a military mortgage, where the parties to the process, in addition to the spouses, are often credit institutions and the Ministry of Defense of the Russian Federation. The law determines that the only owner of an apartment purchased with a military mortgage is the serviceman himself, and in the absence of compelling evidence of the other party’s participation in the purchase of the residential premises, one cannot count on a positive court decision.
It is possible to win the process only with the help of a competent, highly qualified lawyer who:
- at the first stage, he will conduct a free consultation and tell you what evidence will be required for the trial;
- will help you write a statement of claim;
- if necessary, act as a legal representative in court.
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Loan Features
The peculiarity of the mortgage is that the debt is repaid not by a citizen of the Russian Federation, but by the Ministry of Defense.
This is an opportunity for an officer to buy an apartment on preferential terms.
The main features of this loan:
- To receive such a loan you must be a military member. The rest of the family does not participate in this program, therefore they are not responsible if the terms of the contract are violated.
- Housing purchased under the state program is pledged by the Ministry of Defense. The pledge is valid until the debt is paid. A service member cannot sell the apartment or part of it until the loan is repaid.
- It is impossible to renew the loan agreement. The only owner of the living space is the one in whose name the apartment is registered. He alone is responsible for the terms of the contract, whether he is married or not.
- When a serviceman retires, he himself pays off the remaining amount under the contract.
- If the apartments were purchased only through the state program, then the military man’s apartment will not be divided in half in the event of a divorce from his wife.
- The available loan amount is 2.4 million rubles, no more. The borrower or his family members can contribute additional personal funds to purchase a home with a higher value.
Conclusion
The situation with the division of a mortgaged apartment purchased under the NIS program for military personnel is quite complicated.
If you have a similar problem, write your question to our lawyer specializing in mortgage lending, consultation is provided free of charge. You can also ask questions in the comments by filling out the form below. Share on social networks, we are sure that our post will be useful to many of your colleagues. You may also be interested in reading about a military mortgage upon dismissal.
Is it possible to divide living space purchased with a military loan during a divorce?
The money that the Ministry of Defense transfers to repay the loan has a designated purpose, so only the military personnel receive it. The question of whether a military mortgage is divided during a divorce is of interest to many married couples. And the answer to it is clear - such real estate is not subject to division. It will remain the officer's personal property.
However, division of a military mortgage during a divorce is possible. The second member of the marriage union can claim monetary compensation or a legal share in the ownership of housing if he proves that he added his finances to purchase living space. Also, the inclusion of a mortgaged apartment in the array of divisible property is possible in cases where the second spouse invested personal money or labor in improving the condition of this housing - participated in major repairs or refurbishment.
If there are children
Divorce, division of property if there are minor children, is considered a problematic case, and if there is also a family apartment on a military mortgage, then difficulties cannot be avoided. In any case, such a divorce will take place through the court, even if the spouses have decided everything peacefully: who the children will stay with, where they will live. This type of peaceful separation is rare, because often neither one nor the other spouse has anywhere to live other than a common living space.
As for the court, its main task is to protect the interests of minors. Actually, the case will be considered from this position.
If the wife has no other housing, and it is with her that the court most often leaves the children, then she has every right to demand that the child be registered in the apartment. True, this can only be realized after the lien has been removed. The child's rights to housing arise only after the death of the parent who was the owner.
Note! The court may reserve the right to use the living space for the spouse and minor child(ren).
How to divide housing under a military mortgage during a divorce
All divorce cases that involve the division of assets must be heard in a courtroom. The husband or wife draws up a statement of claim and sends it to the office of the magistrate's court located in the defendant's place of residence. The petition must indicate all the property that is subject to division and the rights to it.
The claim must also indicate the requirement for the division of living space taken out on a loan. The judge has the authority to make a decision regarding real estate or other property separately, determining whether an apartment under a military mortgage is divided in a divorce.
As already mentioned, living space taken on a special loan belongs only to the officer. He is her full and only owner.
However, there are significant circumstances when a military mortgage during a divorce is divided equally:
- The cost of the apartment is more than the permissible loan amount (2.4 million rubles). The price of the apartment may exceed the loan issued for this amount. When the loan is repaid with the family's personal funds, the second partner can claim back 50% of the total amount. For example, housing costs 3,000,000 rubles, which means 600,000 were contributed from personal savings. It is divided in half, and the second spouse has the right to his 300,000 rubles.
- Dismissal from service before the end of the contract. The borrower himself will repay the balance of the loan. Even the other half will not hide from paying off the debt. This will become a burden for all members of the union. The balance of the loan is divided between the husband and wife, and they will be required to repay it from the family budget.
- Payment of the down payment with the personal funds of the second partner. The spouse will have to prove that it was his personal money, and he received it as an inheritance or by gift.
Dispute resolution methods
A decision on the division of housing purchased under the NIS program can be made only in the case of the financial participation of the military spouse. In this case, the former spouses can enter into a settlement agreement on a method of compensation for the funds invested in the apartment from the family budget.
If it was not possible to reach an agreement peacefully, then the ex-wife/husband has the right to defend his interests in court. If the amount of the claim does not exceed 50,000 rubles, then the case will be heard in the magistrate's court. If the amount of claims exceeds the specified amount, then the conflict will be resolved by the city court at the place of residence.
How is a military mortgage paid during marriage and divorce?
The legislation does not contain detailed requirements regarding the payment of a military mortgage after a divorce and questions about how the apartment is divided. Therefore, disagreements often arise between husband and wife.
Article 34 of the RF IC states that all property purchased during marriage by spouses can be divided in half. However, this does not apply to state target programs. The living space, formalized as a military loan, is not divided, therefore, after termination of the relationship, its owner will be the one with whom the loan agreement was concluded. If an officer leaves service without waiting for the loan to be repaid, the bank and the Ministry of Defense will claim the apartment.
Difficulties of a military mortgage and where to live with children after divorce
Military Mortgage The division of property during a divorce can cause difficulties in several cases. This is a joint child or children, the serviceman quit his job without waiting for the end of the loan agreement, and provided that the living space was purchased using maternity capital. Let's look at some of the nuances of dividing real estate in cases where a divorcing couple has children together or the spouse who received the mortgage retired from the armed forces.
The soldier quit his job
The law states that if a serviceman leaves his job, but the loan term has not expired, he will be required to pay the balance of the funds himself. Under such circumstances, the couple has a question: is the military apartment divided during a divorce? She shares, but along with the debt in the bank. It is important to remember that the banking institution may require early repayment of the mortgage in the event of a break.
Have a child together
Parents themselves determine the place of residence of their offspring. When divorcing a serviceman, if there are children, but they remained with their father, the woman can demand a share of the apartments purchased with a mortgage, but she will get a maximum of a third. If the offspring stays with their mother, they have every right to be registered in the father’s apartment.
When all family members are registered in the living space, then by dividing the property, everyone receives their shares. But according to the law, children will receive a smaller share of residential property than adult citizens.
Living space was purchased using maternity capital
Until recently, it was believed that a serviceman was the only owner of living space that was purchased with a military mortgage. From the point of view of the Law, the provided certificate for family capital did not provide grounds for claims to living space.
But recent judicial practice has proven that a military mortgage in the event of a divorce between spouses and children can be equally divided. Now situations where maternity capital was used to purchase living space are considered by the court in a general manner.
Situations vary, but if you or your spouse have a military mortgage and you don’t know how to divide it during a divorce, contact a competent lawyer. Experienced legal experts will be able to resolve such issues and advise how a wife can live with children in an apartment registered in her husband’s name.
Is it possible to get housing again to live with children after a divorce?
When an officer himself leaves the service, and the loan contract has not been fully repaid, he can live in the apartment, but is obliged to pay the balance. However, re-obtaining housing for a military man after a divorce and dismissal is possible if leaving work was at his own request or at the end of the contract.
Collateral after division of living space
In this case, the legal relationship does not end. The corresponding norm is enshrined in Art. 38 Federal Law “On Mortgage”, as well as in Art. 352 of the Civil Code of the Russian Federation. In other words, when the premises have several owners, they act as joint mortgagors.
According to the law, spouses are not required to ask permission to divide property from mortgagees, even when there are several of them. At the same time, he has no right to sell, donate or otherwise alienate his part, without obtaining approval. Otherwise, the bank will put forward a demand for early repayment of the remaining debt. This is stated in paragraph 1 of Art. 351 Civil Code of the Russian Federation.
As for an example of judicial practice, it is appropriate to cite the decision of the Svetlogorsk District Court of the Kaliningrad Region dated July 2, 2019 in case No. 2-396/19. It states that declaring the subject of pledge as common property does not infringe on the rights of the pledge holders. Moreover, they were aware of the marital status of the mortgagor.
