Gifted orally
For several years now, when dividing marital property, courts have been paying attention not only to when it was purchased (during marriage or not), but also to what means.
Only the property that the spouses acquired with their common income is divided in half. And money given to one spouse is his personal income.
This means that what he bought with this money is also recognized as his personal property and is not divided during a divorce (clause 10 of the Review of Practice of the Armed Forces of the Russian Federation No. 2 for 2021).
By presenting a donation agreement for funds from relatives, the spouse can win the entire apartment for himself if its value is commensurate with the amount of his personal investments.
But now the practice goes even further: they allow you to prove the fact of a gift, even if a written agreement was not concluded.
Formally, the law does not recognize an oral gift in an amount over 10 thousand rubles as void (Articles 161-162 of the Civil Code of the Russian Federation). It can be proven by any means (it is only prohibited to refer to witness testimony).
Therefore, in one of the disputes, the court recognized the apartment as the personal property of the husband, even though it was purchased during marriage.
He proved that shortly before purchasing the apartment, his father sold his apartment and transferred this money to him (Moscow City Court, case 4g/2-13767/18).
Legal status of housing
In what cases is a privatized apartment not jointly acquired property? Article 34 of the Family Code states that all property acquired by spouses before marriage is personal , and that acquired during marriage is joint .
At the same time, property, the right to which arose through a gratuitous transaction (donation, will, etc.) is personal and is not subject to division (Article 36 of the Family Code).
The right to privatized housing arises for citizens on the basis of the process of gratuitous transfer of municipal property into private hands (Law “On Privatization...” No. 1541-1).
Consequently, a privatized apartment is the personal property of a citizen. The rights of the spouses to it depend on the time of transfer of ownership from the state and the rights of the citizens to whom it was transferred on the basis of an agreement.
Read about the rights and responsibilities of the owner and residents of a privatized apartment on our website.
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.
If the apartment is not privatized
If the apartment is not privatized, it is the property of either the state or the municipality, and only bodies/organizations authorized by them exercise the rights of the owner to such housing.
According to Art. 60 of the Housing Code, such housing is occupied by users under a social tenancy agreement.
Under such conditions, even if the spouse received housing under the contract, he has the same rights as his wife and children, and has the right only to own and use it, without the right of disposal. It does not matter who was originally included in the contract - the concept of a responsible tenant has long lost its meaning.
All living family members must be included in the social tenancy agreement, and according to Part 4 of Art. 69 of the Housing Code of the Russian Federation, if users cease to be a family (for example, upon divorce), this does not affect their residence in the occupied housing.
Thus, the wife, even after a divorce, has the right to use the living space.
It is important that with the consent of the persons living together with him, the tenant has the right to accommodate not only members of his family, but also other persons (for example, a common-law wife, if the marriage is civil). But no one’s consent is required to settle with the parents of their minor children (Article 70 of the Housing Code of the Russian Federation).
Family Code of the Russian Federation
There are different options for legal and property relations between husband and wife, in each of which the husband will have different rights to his wife’s property:
- The apartment was purchased after the official registration of the marital relationship.
- The apartment was purchased by the wife before marriage.
- The wife received the property by inheritance or as a gift.
- The apartment was received as a result of privatization in the name of the wife.
The rights to an apartment mean the following rights:
- the right to live in it;
- use it for its intended purpose;
- dispose of the apartment at your own discretion;
- register other people in it and sign out of it;
- alienate her;
- receive income from it for rental use;
- carry out redevelopment in the apartment and register it.
If the husband does not have rights to the apartment, he has no rights to any of the above. If the husband has rights to housing, he can carry out all these actions, but with the consent of his wife.
Resolving the issue of municipal and state-owned housing
Along with those described above, there are often stories where a family lives in municipal housing. The only way out for tenants, eliminating the need to live in the same apartment after a divorce, is to contact the property owner with a request to exchange living space. Or one of the citizens will simply have to vacate the premises.
The situation is a little different when it comes to government housing. In the vast majority of cases, service housing is provided to military personnel and members of their families. In a situation where a husband and wife divorce, and housing is provided for a man in military service, the woman is obliged to vacate the premises and check out of it. However, if we are talking about children living in official housing, then they can stay until they reach adulthood, just like their mother. A woman can be forcibly expelled only in a situation where the offspring remain in the care of the father.
Nuances of the right to use an apartment during a divorce
Depending on how and when the apartment became the property of the spouse, after the divorce, the rights to use the premises for the wife and other family members may change.
If privatization occurred before or during marriage - what is the difference?
Property acquired by spouses during marriage is considered joint, and upon divorce is divided in half (in equal shares). These are the general rules established by Art. 31 and 39 of the Family Code. Although, since privatization is free, one single spouse may well become the owner (see video)
If the apartment is privatized to the husband before marriage, it is his property. In case of divorce, the spouse loses the status of a member of the owner's family, and, therefore, the right to use the apartment. By decision of the court (the claim is filed by the husband-owner), she can be evicted from the premises.
However, in the case of privatization during marriage, even only for one of the spouses, if the second has issued a refusal to participate in it, does not affect the right to use and live in such an apartment even after a divorce. The law considers that such a person has renounced his share in favor of the owner, and therefore is not subject to eviction.
If the apartment was purchased during or before marriage
Residential property purchased during marriage is the joint property of the spouses. There are only a few exceptions:
- The apartment was purchased with funds donated to the spouse/inherited;
- Or purchased with a target mortgage (the so-called “military”).
If the apartment was purchased before marriage, after the divorce the spouse can write a statement of claim to the court to terminate the ex-wife’s right to use his home and to evict her (Article 35 of the Housing Code of the Russian Federation).
Division of property during cohabitation: nuances and positions of the courts
Family law in the modern world is becoming increasingly popular. Unfortunately, most often for the purpose of dividing property, studying the provisions on alimony, etc. However, a category of cases often occurs (and more and more often already at the trial stage) when a dispute occurs between so-called cohabitants. This type of union is not formally formalized and, in general, is not legally recognized by the state. The subjects of this legal relationship, of course, cannot count on a legal regime similar to marriage. For example, they do not have the right to refuse to testify against each other, gain access to the intensive care unit, inherit by law, etc...
It seems relevant to consider the issue of dividing the property of cohabitants . After all, there are often situations of quite long cohabitation, in which there is, for example, a common car, money or even housing. To study this topic, let us turn to judicial practice and try to give a certain assessment.
Let's consider the Decision of the Guryevsky District Court of the Kaliningrad Region dated January 23, 2021. In case No. 2-1583/2018, where citizen Litvinova filed a claim against citizen Korelov, indicating that in the period from December 2010 to July 2021, she and the defendant were in a relationship unregistered marriage, living with him as “one family”. They ran a joint household and raised common children. During the period of cohabitation, partly for her personal and partly for borrowed funds, the plaintiff acquired a land plot, the ownership of which was registered under an agreement with the defendant, despite the fact that at the time of acquisition of the land plot he did not have the funds necessary for the purchase. Based on the above arguments, with reference to the provisions of Article 252 of the Civil Code of the Russian Federation, the plaintiff asked the court to recognize the relationship between her and the defendant in an unregistered marriage as actual marital, and also to recognize the land plot as shared ownership of the plaintiff and the defendant; allocate to the plaintiff in kind a share in the ownership of the specified land plot.
The court completely refused to satisfy Litvinova’s claims, justifying it as follows:
A) The current Family Code of the Russian Federation does not use the term “actual marriage”. As explained by the Constitutional Court of the Russian Federation in its ruling No. 26-O dated May 17, 1995, the legal regulation of marriage relations in the Russian Federation is carried out only by the state. Currently, the law does not recognize unregistered marriage and does not consider cohabitation between a man and a woman to be marriage. It does not give rise to legal consequences and therefore is not established by the courts as a fact of legal significance. An exception was made only for persons who entered into a de facto marriage relationship before July 8, 1944, since the laws in force at that time recognized two types of marriage as equal - registered with the registry office and de facto marriage.
B) In accordance with paragraph 2 of Art. 218 of the Civil Code of the Russian Federation, the right of ownership to property that has an owner can be acquired by another person on the basis of a contract of sale, exchange, donation or other transaction on the alienation of this property. In such circumstances, the burden of proving the existence of an agreement reached with the defendant, indicated in the contract as the buyer, on the joint acquisition of the disputed plot and the investment of his own funds for its acquisition for these purposes lies with the plaintiff.
In resolving the claims in this part, the court proceeds from the fact that neither in the agreement under which the local government body took the sole ownership of S.N. Korelov. the disputed land plot was transferred, nor in the agreements preceding its conclusion on the assignment of rights and obligations to the land lease agreement, the plaintiff Litvinova S.G. was not named as the acquirer of the relevant right.
The plaintiff did not present evidence to the court of the existence of an agreement reached with the defendant on the joint acquisition of a land plot that satisfies the criteria of relevance, reliability, admissibility, contrary to the requirement of Part 1 of Article 56 of the Code of Civil Procedure of the Russian Federation.
From this we can conclude that the court did not attach legal significance to cohabitation both in a property dispute and in terms of recognizing cohabitation as an “actual marriage.” Moreover, this concept is, in principle, unfamiliar to modern Russian legislation, so it is difficult to use this as some kind of proof of the legitimacy of one’s claims to property.
Let's consider another option to substantiate the claims. Often, former cohabitants make attempts to recover this or that amount through unjust enrichment. For example, let’s study the Ruling of the Supreme Court of the Russian Federation dated June 16, 2021 in case No. 2-2159/2019 on the cassation appeal of Sergei Gennadievich Maksyutov against the decision of the Gagarinsky District Court of Moscow dated April 29, 2021 and the appeal ruling of the judicial panel for civil cases of the Moscow City court dated August 8, 2021
Maksyutov S.G. filed a lawsuit against Leonova N.N. for the recovery of unjust enrichment in the amount of 6,000,000 rubles, citing the fact that during the period of cohabitation with the defendant, a land plot was acquired under a sale and purchase agreement dated February 21, 2013. The situation is quite standard - the plaintiff claimed that 9,400,000 rubles were spent from his personal funds, of which 6,000,000 were documented. The court indeed recognized the “contribution” of 6,000,000 rubles on the part of the plaintiff, but still left his demands unsatisfied.
Justification of the Collegium of the RF Armed Forces for Civil Cases: the purchase and sale agreement was concluded on behalf of Leonova, and the land plot itself was registered in her name. In turn, in order to qualify a relationship as arising from unjust enrichment, it must have the characteristics defined in Article 1102 of the Civil Code of the Russian Federation. In cases of recovery of unjust enrichment, the plaintiff is obliged to prove the fact of acquisition or saving of property by the defendant, and the defendant is obliged to prove the existence of legal grounds for the acquisition or saving of such property or the presence of circumstances in which unjust enrichment by force of law is not subject to return.
The Supreme Court agreed with the first and appellate instances, arguing that Maksyutov S.G. bore the costs of construction and improvement of the house on the land plot of Leonova N.N. due to the personal relations of the parties during the period of their cohabitation, in the absence of any obligations to the defendant, voluntarily, free of charge and without consideration (i.e. as a gift), in connection with which the court came to the conclusion that, by virtue of paragraph 4 of Article 1109 of the Civil Code of the Russian Federation, the plaintiff’s funds spent in this way are not subject to recovery from N.N. Leonova. as unjust enrichment. This can be considered a gift and, in some cases, with a certain interpretation, charity.
It was in this context that the RF Supreme Court issued and justified its Ruling in this case. Indeed, there are no signs of unjust enrichment here. From an ethical and some human point of view, one can argue here endlessly, giving this motivation one or another assessment, but we are considering the legal component.
To summarize, we can safely say that the rights of cohabitants who have not formalized an official marriage are not so protected and, what can we say, not so protected by the state. However, of course, each situation should be considered separately, taking into account all the circumstances, evidentiary and other legal basis. If the topic arouses interest among readers, we will definitely continue it.
If you have any questions, we are ready for an active discussion. If you need legal assistance on an issue that interests you, we will be happy to provide you with all the necessary information and advice. Just call or whatsapp us at +7 905-766-17-36 or email
The apartment was purchased during marriage
According to the provisions of the Family Code, property acquired during an official marriage is considered common. Both spouses have equal rights and equal obligations to this property. At the same time, the law does not make any distinction as to who the apartment is registered to: the husband, the wife, or both of them in a certain proportion.
However, if one of the spouses spent funds accumulated before marriage to purchase an apartment, during a divorce he can claim a larger share of real estate according to his expenses.
Also, according to the marriage contract signed by both spouses, the rights of each spouse to an apartment or any other property can be either expanded or reduced. If there is a marriage contract, the husband's rights to his wife's apartment are determined by this document.
Can a father sign his child out of his apartment?
Possibility survey is complex. Often, after a divorce and parents move to different places, the child remains registered where he was originally. The problem is that a minor under 14 years of age must be assigned to a residential facility; he must be discharged “to nowhere.”
Deregistration at the place of residence of the father of such a minor is possible in several cases:
- the mother agrees to register the child with her;
- the father sells the property and checks out of it himself.
In any case, a compromise can always be found. Often a problem with registering a child arises due to a conflict between adults.
It should be noted that a person over 14 years of age may be registered separately from his mother or father to other relatives.
Dear readers! To solve your problem right now, get a free consultation
— contact the on-duty lawyer in the online chat on the right or call:
+7
— Moscow and region.
+7
— St. Petersburg and region.
8
- Other regions of the Russian Federation
You will not need to waste your time and nerves
- an experienced lawyer will take care of solving all your problems!
An apartment received by inheritance or as a gift
If a wife receives an apartment by inheritance, her husband will not be able to have rights to it. But if the property was bequeathed to both spouses or, by law, they both have the right to the inheritance of the testator, he can present his rights to a share in the apartment.
A similar situation will arise if the wife receives an apartment under a gift agreement. She will become its sole owner, and her husband will not be able to assert his rights in relation to this housing. Except for cases where otherwise is not predetermined by the marriage contract, or if the husband during the marriage did not invest his own funds in improving the apartment, which led to its rise in price, or the wife did not give her husband part of the apartment.
