Buying an apartment in marriage for one of the spouses: who is better to register an apartment for when buying while married?

While in a registered marriage, one of the spouses registers the acquired apartment as their property. What pitfalls can await him during a possible division of property? How can legislation protect his interests and the interests of other family members? We will tell you about the most important points that every owner should know in this material.

Registration of purchased real estate

There are different ways to purchase real estate during marriage:

for one of the spouses;
into joint ownership without allocating a specific share to each;
with the allocation of shares - in equal proportions or divided by agreement of the spouses according to the invested funds.

While the family lives in marriage, these moments do not play a big role. But if it comes to divorce and division of acquired property, the principle of registration of property will play a decisive role. How will property issues be resolved in the event of a family breakdown?

Important! Let’s make a reservation right away that we are talking about real estate acquired during marriage. If the apartment was owned by one of the spouses before the marriage, it is considered premarital property and is not subject to division under any circumstances. estate received as a gift or inherited, regardless of the time of its receipt, during marriage or earlier, is also not considered joint property

When is a spouse's consent required when making a transaction?

Relations of ownership, use and disposal of common property of spouses

Notarized consent of the spouse is required:

for transactions on the disposal of spouses’ property, the rights to which are subject to state registration;
for transactions for which the law requires a notarial form;
for transactions subject to mandatory state registration.

The relations of ownership, use and disposal of the common property of the spouses are regulated by Art. 35 of the Family Code of the Russian Federation (hereinafter referred to as the RF IC). In accordance with paragraph 2 of Art. 35 of the RF IC, when one of the spouses makes a transaction to dispose of the spouses’ common property, it is assumed that he is acting with the consent of the other spouse. An exception to this rule is contained in paragraph 3 of Art. 35 of the RF IC, according to which the need to obtain a notarized consent of the other spouse is required for one of the spouses to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law.

Transactions for the disposal of spouses’ property, the rights to which are subject to state registration

In order to understand why the law defines mandatory notarial consent of transactions for the disposal of spouses’ property, the rights to which are subject to state registration, we will determine what kind of property we are talking about in this article. So, according to Art. 8.1 of the Civil Code of the Russian Federation, rights that secure the ownership of an object of civil rights to a certain person, restrictions on such rights and encumbrances on property (rights to property) are subject to state registration, which is carried out by an authorized body in accordance with the law on the basis of the principles of verifying the legality of the grounds for registration, publicity and reliability of the state register. Such registers include:

Unified State Register of Real Estate (USRN),
Unified State Register of Legal Entities (USRLE),
Unified State Register of Rights to Aircraft and Transactions with Them,
Unified State Register of Rights to the Results of Intellectual Activity.

Those. transactions for the disposal of the common property of spouses, the rights to which are subject to state registration in any of the above state registers, require obtaining a notarized consent of the spouse not participating in the transaction. At the same time, according to Art. 209 of the Civil Code of the Russian Federation, the disposal of property presupposes not only its alienation by the owner, but also the right to transfer to other persons the rights of ownership, use and disposal of property, to mortgage and encumber it in other ways, while remaining the owner. This means that the conclusion of any transactions for the disposal of the common property of spouses, the rights to which are subject to state registration, including the transfer of it as collateral, gratuitous use, rental, rent, trust management and others, requires obtaining a notarized consent of the spouse. Literal interpretation of paragraph 3 of Art. 35 of the RF IC allows us to conclude that in order to complete a transaction of this category, the spouse’s consent must be obtained only by the person exercising the owner’s authority to dispose of common property, the rights to which are subject to state registration. A person who does not dispose of property, the rights to which are subject to state registration, is not required to obtain the consent of the spouse when concluding a transaction. For example, in order to conclude a contract for the sale and purchase of an apartment in simple written form, only the seller’s spouse needs to issue a notarized consent; the buyer’s spouse is not required to issue such consent. This conclusion is true only in relation to transactions for the disposal of common property, the rights to which are subject to state registration, and do not require a mandatory notarial form or state registration.

Transactions for which the law requires a notarial form

According to the Civil Code of the Russian Federation, a mandatory notarial form is established for:

annuity agreement and its varieties (Article 584),
a pledge agreement to secure the fulfillment of obligations under the agreement, which must be notarized (clause 3 of Article 339),
agreements on the assignment of claims (clause 1 of Article 389) and on the transfer of debt (clause 4 of Article 391),
based on transactions completed in notarial form, a preliminary agreement in cases where a mandatory notarial form is provided for the main agreement (clause 2 of Article 429),
agreements to amend or terminate contracts executed in notarial form (clause 1 of Article 452).

According to the Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate”, mandatory notarization is provided for:

transactions for the alienation of shares in the right of common shared ownership of real estate, including the alienation by all participants in shared ownership of their shares in one agreement (clause 1 of Article 42),
transactions related to the disposal of real estate under guardianship conditions,
transactions for the alienation of real estate belonging to a minor citizen or a citizen recognized as having limited legal capacity (clause 2 of Article 54).

According to the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the LLC Law) establishes a notarial form for:

transactions aimed at alienating a share or part of a share in the authorized capital of a limited liability company (hereinafter referred to as LLC),
agreements on granting an option to conclude an agreement aimed at alienating a share or part of a share in the authorized capital of an LLC (clause 11, article 21 and clause 5, article 429 of the Civil Code of the Russian Federation),
an irrevocable offer in the form of a separate document and its acceptance (clause 11 of article 21),
agreement for the pledge of a share or part of a share of the authorized capital of an LLC (clause 2 of article 22),
requirements of an LLC participant for the acquisition of his share (clause 2 of Article 23),
applications for leaving the company (Clause 1, Article 26), which are subject to mandatory notarization according to the rules provided for by the legislation on notaries for certifying transactions.

A completely different law enforcement practice has developed regarding the need to obtain the consent of a spouse for the other spouse to exercise his right to withdraw from the membership of an LLC.
The difficulty lies in determining the legal nature of the application to withdraw from the LLC. There are opinions that an application to withdraw from an LLC is an act of expression of will. On the contrary, some classify it as legally significant messages. More solid, in our opinion, is the position of those who believe that the withdrawal statement is a one-sided deal. Established judicial practice also qualifies the withdrawal of a participant as a unilateral transaction, which can be challenged as void or voidable. Therefore, we can conclude that the withdrawal of a participant from the LLC is a unilateral transaction aimed at alienating a share in the authorized capital of the LLC, subject to mandatory notarization, the conclusion of which requires the notarized consent of the spouse. The issue related to determining the legal nature of the requirement of a company participant to acquire his share in accordance with clause 2 of Art. 23 of the LLC Law. To this day, the issue of the need to obtain the consent of the spouse to conclude an agreement on the payment of alimony, in relation to which paragraph 1 of Art. 100 of the RF IC provides for a mandatory notarial form. This applies only to those cases where the alimony payer is married, and the alimony recipient or his legal representative is a person who does not have the status of the payer’s spouse. In accordance with the explanations of the Commission of the Federal Notary Chamber for Legislative and Methodological Work, the consent of the spouse to enter into an agreement on the payment of alimony is not required due to the relative nature of these legal relations. The notarized consent of the spouse must also be received by the person who is obliged, in accordance with the terms of the preliminary agreement, to make a deposit as fulfillment of the obligation to conclude the main agreement, for which the law provides for a mandatory notarial form, since in this case the specified person disposes of the common property of the spouses in the form funds on the basis of an agreement subject to mandatory notarization. However, unfortunately, the positions of the courts on this issue are not unified. So, for example, if in one case, when making a decision, the court proceeds from the fact that the preliminary purchase and sale agreement is not a transaction for the disposal of the spouses’ common real estate and does not require obtaining the notarial consent of the other spouse, then in another case the court makes a conclusion that the possibility of alienation of jointly acquired real estate in the absence of the consent of one of the spouses, including within the framework of a preliminary agreement, is not permitted by law.

Transactions subject to mandatory state registration

Such transactions that require obtaining a notarized consent of the spouse include:

lease, sublease and gratuitous use of land agreements concluded for a period of at least 1 year;
lease and sublease agreements for buildings and structures concluded for a period of at least 1 year;
agreements for the free use of cultural heritage objects;
lease and sublease agreements of the enterprise; real estate mortgage agreements;
agreement on the assignment of a claim based on a transaction subject to registration;
agreements on the transfer of debt based on a transaction subject to registration;
agreements to amend or terminate a registered transaction;
forest lease agreements concluded for a period of at least 1 year;
agreements for participation in shared construction.

An analysis of the entire volume of transactions for the conclusion of which the legislator provides for the need to formalize a notarized consent of the spouse allows us to come to the conclusion when the second spouse is not required to consent to the sale (or alienation in any other way) of property. It can definitely be said that the notarized consent of the spouse is not required:

when one of the spouses makes a transaction to dispose of the spouses’ common property, if he acts with the consent of the other spouse (oral);
acquired before marriage;
received as a gift or by inheritance during marriage;
transferred to the property of the spouse making the transaction after the division of property;
belonging to the spouse making the transaction in accordance with the marriage contract.

Sources:

“Civil Code of the Russian Federation (Part One)” dated November 30, 1994 N 51-FZ (as amended on December 16, 2019);
“Civil Code of the Russian Federation (Part Two)” dated January 26, 1996 N 14-FZ (as amended on March 18, 2019, as amended on July 3, 2019)
“Family Code of the Russian Federation” dated December 29, 1995 N 223-FZ (as amended on December 2, 2019) (as amended and supplemented, entered into force on January 1, 2020);
Federal Law of July 13, 2015 N 218-FZ (as amended on August 2, 2019) “On State Registration of Real Estate” (as amended and supplemented, entered into force on January 1, 2020);
Federal Law No. 14-FZ dated 02/08/1998 (as amended on 11/04/2019) “On Limited Liability Companies”;
“Review of the judicial practice of the Supreme Court of the Russian Federation No. 3 (2016)” (approved by the Presidium of the Supreme Court of the Russian Federation on October 19, 2016);
Kuznetsova O.A. Notarial form of spouse's consent: some issues of law enforcement practice // Modern law. 2021. N 4. P. 57 - 61.

Registration of an apartment for one of the spouses

Most often, the purchase of an apartment or house is registered in the name of one of the family members, the husband or wife. The reason is a simpler registration process (there is no need for both spouses to complete all the necessary formalities).

Regardless of whose income was the source of funds for the purchase of housing, it will be joint property if acquired during a legal marriage. It should be taken into account that when registering with Rosreestr, you will have to provide a document confirming the consent of the second spouse to purchase living space.

Important! Such a document will not be required only when registering real estate when:

the apartment is purchased as shared ownership;
there is a marriage contract, which spells out in detail in what situations and how spouses have the right to dispose of property;
There is a power of attorney from the second spouse to draw up a purchase and sale agreement.

You can obtain permission from your husband (wife) to purchase an apartment in advance. In this case, two options for such a document are allowed:

indicating the specific housing (address, other technical data);
consent to purchase real estate without specifying the object.

Consent from the spouse must be certified by a notary. This is done in order to protect the seller from terminating the transaction through the court if the buyer’s husband (or wife) wants to challenge the purchase and sale agreement and seek a refund.

Features of dividing an apartment purchased during marriage

An apartment purchased during marriage can be registered to one owner. However, you need to remember that registering property rights for only one spouse has its pitfalls. We are talking about the possible division of jointly acquired property.

This situation most often arises in the process of divorce, but even if the family is preserved, it is quite likely that the second spouse will want to secure his right to real estate. And it is not at all necessary that the apartment or house will be divided equally.

If the spouses fail to reach an agreement through negotiations, the size of each share will be determined by the court. The interests of minor children, the existence of a marriage contract and other legally established nuances will be taken into account.

However, an owner who bought real estate while married and registered ownership only in his own name, in certain cases may well claim its indivisibility. There are several reasons for this decision.

Housing was purchased with money inherited or donated by a relative

In such a situation, you will need to take care of two things:

record the fact of donation by agreement with a notary or make copies of documents on bank transfer of funds from the donor to the recipient. In an inheritance situation, you will need an appropriate notarial certificate;
record the fact of transfer of funds for the purchased housing from the buyer’s personal account.

If the apartment was purchased in cash, you must have a document confirming the origin of the amount spent on the purchase. This will help subsequently prove that the purchased housing was, in fact, given to one of the spouses and the second cannot claim a share in it.

The apartment was purchased entirely with the owner’s income

If the second spouse is fully supported by the owner of the property without good reason, then the housing purchased during the marriage may go to the person who purchased it.

It should be borne in mind that the court may recognize the following as valid reasons for lack of income:

the need to care for a sick relative, confirmed by a doctor’s conclusion (certificate of disability);
the presence of minor children who are being raised by a non-working spouse;
a serious illness that does not allow the second spouse to work and earn their own income.

Presence of a marriage contract

All possible property disputes can be described in detail in the marital agreement between the spouses. These necessarily include questions about the distribution of shares in real estate acquired during marriage.

A marriage contract is a document of title and is not contested in court, except in cases where the interests of minor children are directly affected. In such situations, the court will focus on family and civil law to protect the rights of the child.

Registration of real estate purchased during marriage in the name of one of the spouses somewhat simplifies the process of its registration, but in the future it can cause many unpleasant moments when dividing property.

Lawyers involved in real estate issues advise deciding on the distribution of shares between spouses even before the purchase. Registration of property rights in accordance with the agreements reached by the spouses will help avoid unnecessary conflicts later.

According to Article 35 of the Family Code of the Russian Federation (FC RF), when one of the spouses makes a transaction to dispose of the spouses’ common property, it is assumed that he is acting with the consent of the other spouse. A transaction made by one of the spouses to dispose of the common property of the spouses may be declared invalid by the court on the grounds of lack of consent of the other spouse only at his request and only in cases where it is proven that the other party to the transaction knew or should have known about the disagreement of the other spouse to complete this transaction (clause 2).

When one of the spouses acquires real estate, he disposes of the spouses’ common property—money. Consequently, in this situation, the rule of law prescribed in paragraph 2 of Art. 35 of the RF IC, by virtue of which the notarized consent of the spouse for the acquisition of real estate is not required, it is assumed that he acts with the consent of the other spouse. There is an exception to this rule - these are transactions that require notarization and (or) for which mandatory state registration is provided. For transactions involving the disposal of real estate, the notarized consent of the spouse is required in all cases. That is, for transactions regarding the most valuable types of property that are of significant importance to the family, the law establishes special rules. When concluding such transactions, the interests of the spouse not participating in the transaction require additional protection. Clause 3 of Art. 35 of the IC provides that in order for one of the spouses to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is necessary to obtain the notarized consent of the other spouse. By virtue of this provision of the law, the consent of the spouse must be notarized in the following three cases: 1) when making a transaction to dispose of real estate; 2) when making a transaction that requires notarization, and (or) 3) when making a transaction for which mandatory state registration is provided. Article 130 of the Civil Code, art. 1 of the Federal Law of July 21, 1997 “On state registration of rights to real estate and transactions with it”, real estate includes, in particular, land plots, subsoil plots, isolated water bodies and all objects that are connected to the land in such a way that their movement is impossible without disproportionate damage to their purpose, including forests and perennial plantings, residential and non-residential premises, buildings, structures, condominiums, enterprises as property complexes. Notarized consent of the spouse is also necessary when making transactions that require notarization. The list of transactions subject to notarization is defined in the Civil Code; this is a mortgage agreement, an agreement on the pledge of movable property or rights to property to secure obligations under the agreement, which must be notarized (Article 339 of the Civil Code), a rent agreement (Article 584 of the Civil Code). Notarization of transactions is also possible in cases provided for by agreement of the parties, although by law a notarial form would not be required for transactions of this type (Article 163 of the Civil Code). Transactions subject to state registration, as a rule, are also of particular importance to the family. These include: a mortgage agreement (Article 339 of the Civil Code), a contract for the sale of residential real estate (Article 558 of the Civil Code), an agreement for the sale of an enterprise (Article 560 of the Civil Code), an agreement for the donation of real estate (Article 574 of the Civil Code), a lease agreement for real estate (Article 609 of the Civil Code), lease agreement for a building or structure (Article 651 of the Civil Code), lease agreement for an enterprise (Article 658 of the Civil Code), agreement for trust management of real estate (Article 1017 of the Civil Code). For some transactions, the law establishes the need for mandatory notarization and state registration (mortgage agreement, rent agreement), for others - the need only for state registration (purchase and sale, exchange, donation of a residential building, apartment, garage). Regarding transactions such as purchase and sale, exchange, donation of real estate, the legislator abolished the obligation to comply with the notarial form. Thus, a notarized consent of the spouse is not required when purchasing real estate of the following types: non-residential (land plot, garden and country house, garage, industrial, warehouse, office premises, etc.). When making transactions with listed property, only the transfer of rights is subject to registration, and not the transaction (agreement) itself. If you are not sure of the stability of your relationship with your spouse, which may cause property disputes in the future, a notarized consent of the spouse will not be superfluous in any case. The consent of a spouse is not required for the sale of real estate that is separate property of the spouses. To the property of each spouse in accordance with Art. 256 of the Civil Code of the Russian Federation includes property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift or by inheritance. Article 36 of the RF IC adds one more type of basis for the emergence of separate ownership of spouses for property acquired at least during the marriage: receipt by one of the spouses of property under other gratuitous transactions. The most common type of gratuitous transactions currently is the transfer of residential premises into the ownership of one of them as a result of privatization. Privatization of housing is a kind of gift from the state to a citizen, therefore, the right of common joint ownership of spouses cannot arise when one of them privatizes residential premises, and the consent of the second spouse is not required for the alienation of residential premises privatized into the ownership of one of the spouses. The only exception to this rule is the alienation of residential premises, although acquired into the ownership of one of the spouses as a result of privatization, but under a paid agreement. There is no need for the spouse's consent to the sale of real estate acquired during the marriage with joint funds, if in relation to this property the spouses entered into a marriage contract, in accordance with which the legal regime of this property has changed and a regime has been established that is different from the regime of common joint property. Moreover, if the marriage contract establishes the separate ownership of one of the spouses for property that is currently the object of alienation, then any consent of the second spouse is not required to complete the transaction. If one of the spouses alienates a share in the right of common ownership of property in respect of which the marriage contract establishes common shared ownership of this property, the spouse’s consent to the alienation of the share is also not required, however, the transaction for the alienation of property is drawn up in compliance with the requirements of Art. 250 of the Civil Code on the pre-emptive right to purchase the co-owner of the alienated share. Analysis of paragraph 3 of Art. 35 SK, art. Art. 253, 256 Civil Code, art. 24 of the Federal Law of July 21, 1997 “On state registration of rights to real estate and transactions with it” allows us to conclude that consent is a clearly expressed will of a person to perform certain actions by another person. Article 153 of the Civil Code qualifies as transactions actions aimed at establishing, changing or terminating civil rights and obligations. To express the consent of one spouse to the completion of a transaction by the other, only the expression of the will of the spouse is sufficient; this expression of will can be considered as a one-sided transaction that can create obligations for other persons. Thus, a spouse entering into a transaction for the alienation of real estate is obliged to comply with the conditions of its sale that come from the other spouse and are enshrined in the document. If such consent is absent or the form of its expression is violated, the transaction may be declared invalid. The spouse, whose notarized consent to the transaction was not received, has the right to demand recognition of the transaction as invalid in court within a year from the day when he learned or should have learned about the completion of this transaction. When certifying consent to dispose of real estate by a notary, you must have: the passport of the applicant, a marriage certificate, and preferably title documents for real estate.