The Supreme Court did not like the pledge of property without the knowledge of the spouse

Circumstances of the dispute

A couple from Pyatigorsk built a residential building on the site in 1996. And 22 years later, in 2018, the wife received a statement of claim for eviction. From it she learned that in 2012 her husband acted as a guarantor for a loan from an individual entrepreneur he knew, and for this purpose he mortgaged the house to the bank. Since the borrower did not repay the loan, the Tverskoy District Court of Moscow foreclosed on this property in 2014. The decision came into force. The bank registered ownership of the disputed property in 2021.

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Spouses own, use and dispose of common property by mutual consent (Clause 1, Article 35 of the Family Code).

The woman went to court, where she asked to invalidate the real estate pledge agreement, apply the consequences of its invalidity, recognize the residential building and land plot as jointly acquired property, and allocate 1/2 share in the property rights to each spouse.

Property risks of a “civil” marriage

When disposing of the spouses' common property, the consent of both of them is required. Meanwhile, it happens that one of the spouses disposes of common property without the consent of the other. Let's figure out what the second spouse should do in such cases if he wants to invalidate the concluded deal.

What is the legal regime of the property of the spouses? The legal regime of the property of the spouses acquired during marriage is the regime of their joint ownership, regardless of the name of which of the spouses the property was acquired or funds were deposited (Clause 1, Article 33, Article 34 of the RF IC ; Article 256 of the Civil Code of the Russian Federation). Thus, the very fact of making a record in the Unified State Register of State Registration of the property rights of one of the spouses and indicating in the certificate of state registration of the right or an extract from the Unified State Register one of the spouses as the right holder does not cancel the legal regime of the property of the spouses, if it has not been changed in the prescribed manner . Accordingly, in this case, both spouses are the owners of the property, the copyright holder of which is indicated in the Unified State Register of One of them (Letter of Rosreestr dated October 28, 2015 N 14-10087/15). Spouses own, use and dispose of common property by mutual consent, and when one of the spouses makes a transaction to dispose of common property, it is assumed that he is acting with the consent of the other spouse. Thus, the law establishes a presumption of mutual consent of the spouses for the disposal of their common property, that is, it is assumed that the spouse alienating the common property acts with the consent and approval of the other spouse (clauses 1, 2 of Article 35 of the RF IC). Is the consent of a spouse required to make a transaction with common property? As a general rule, any of the spouses has the right to make transactions with common property. At the same time, in order to complete a transaction for the disposal of property, the rights to which are subject to state registration, a transaction for which a mandatory notarial form is established by law, or a transaction subject to mandatory state registration, it is necessary to obtain a notarized consent of the other spouse (Clause 1 of Article 253 of the Civil Code of the Russian Federation ; clause 3 of article 35 of the RF IC). 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 the request of the other spouse and only in cases where it is proven that the other party to the transaction knew or obviously should have known about the disagreement of the other spouse to completion of this transaction. But if the transaction was completed by one of the spouses in the absence of the necessary notarized consent of the other spouse, then the obligation of the spouse who went to court to prove the fact that the other party to the transaction knew or should have known about the absence of such consent is not provided for by law. By establishing special rules in relation to these transactions, the law provides for the possibility of a spouse who has not given permission for the alienation of such property to unconditionally restore his violated rights, regardless of the good faith of the acquirer (Clause 2 of Article 35 of the RF IC; Articles 166, 173.1 of the Civil Code of the Russian Federation ). If one of the spouses alienates real estate without providing the consent of the second spouse, the Rosreestr branch makes a record in the Unified State Register of the absence of such consent at the same time as making a record of the state registration of ownership of the buyer (Part 5 of Article 38 of the Law of July 13, 2015 N 218-FZ ). How to invalidate a transaction In order to invalidate a transaction for the disposal of the common property of spouses, made by one of the spouses, we recommend that you adhere to the following algorithm. Step 1. Draw up a statement of claim In the statement of claim, indicate, in particular, the requirement to recognize the transaction as invalid and apply the consequences of its invalidity, and also justify why the other party to the transaction knew or should have known about your disagreement with the transaction (clause 4, 5, part 2, article 131 of the Civil Procedure Code of the Russian Federation; article 167 of the Civil Code of the Russian Federation). The burden of proof of these legally significant circumstances, as a rule, rests on the party challenging the transaction. You can, for example, point out that the acquirer of the property was aware of the existence of a dispute between the spouses about the property and the reluctance of the plaintiff to give consent to its disposal. Such circumstances, in particular, may occur before the upcoming divorce, when one of the spouses sells common property to his relatives in order to avoid its division (Appeal ruling of the Moscow City Court dated 02/06/2019 in case No. 33-5434/2019). The defendants should be the spouse who made the transaction and the acquirer of the property (clause 3, part 2, article 131 of the Code of Civil Procedure of the Russian Federation). The following should be attached to the statement of claim, in particular (Article 132 of the Code of Civil Procedure of the Russian Federation):

a document confirming the payment of the state duty or the right to receive benefits for its payment, or a request for a deferment, installment plan, a reduction in the amount of the state duty or an exemption from its payment (clause 1, clause 1, article 333.19 of the Tax Code of the Russian Federation; clause 2, part. 1, Article 91 of the Code of Civil Procedure of the Russian Federation; Question 4 of the Review, approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation dated November 29, 2006).

copies of the marriage certificate, documents confirming the location of the disputed property in common joint ownership, documents confirming the completion of the disputed transaction;
other documents confirming the claims;
notification of delivery or other documents confirming the sending to other persons participating in the case, copies of the claim and documents attached to it, which these persons do not have.

Step 2. File a claim in court Claims for this category of disputes are most often filed in the district court at the defendant’s place of residence (Article 24 of the Code of Civil Procedure of the Russian Federation). The limitation period for a claim to declare a voidable transaction invalid and to apply the consequences of its invalidity is one year. The course of this period begins from the day when the plaintiff learned or should have learned about the circumstances that are the basis for declaring the transaction invalid (Article 4, paragraph 3 of Article 35 of the RF IC; Part 2 of Article 181 of the Civil Code of the Russian Federation). Step 3. Take part in the consideration of the case and receive a court decision. You can conduct the case in court in person or through your representative. If your interests are represented in court, you may need a notarized power of attorney for the representative (Article 185, 185.1 of the Civil Procedure Code of the Russian Federation; Article 48, Part 2 of Article 53 of the Civil Procedure Code of the Russian Federation). As a general rule, the period for consideration of a case by a district court should not exceed two months. Depending on the complexity of the case, the period for its consideration may be extended by no more than a month (Part 1, 6, Article 154 of the Code of Civil Procedure of the Russian Federation). It is necessary to pay attention to the fact that the law connects the possibility of recognizing a transaction for the alienation of common joint property as invalid with proof of the disagreement of the participant in joint ownership of the alienation of property, as well as with the awareness of the acquirer of the property in the transaction about such disagreement. After the trial is over, you will receive a court decision. It will enter into legal force after a month from the moment of its production in its final form, unless appealed to a higher court (part 1 of article 209, part 2 of article 321 of the Code of Civil Procedure of the Russian Federation). If your claims are satisfied, the court may fully or partially recover from the defendant in your favor the costs of paying for the services of a representative. To recover expenses, you will need to submit a written petition (clause 1 of article 100 of the Code of Civil Procedure of the Russian Federation; clause 2, Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 21, 2016 No. 1).

Decisions of lower courts

The Pyatigorsk City Court of the Stavropol Territory satisfied the claim in 2021. He established: the plaintiff really did not know about the mortgage of the residential building and land, therefore the agreement contradicts Art. 35 of the Family Code in the absence of the notarized consent of the spouse.

Lawyers' opinion

The party that did not give notarized consent to participate in the pledge of real estate cannot subsequently be held responsible for the actions of the spouse of which she was not aware. The Supreme Court proposed a practical mechanism for resolving similar disputes. With its help, lower courts will be able to make a fair decision on the case.

The Stavropol Regional Court overturned the decision and adopted a new one – dismissing the claim. He came to the conclusion that the notarial consent of the other spouse is not required to pledge jointly acquired real estate, since the pledge agreement is not a transaction for the disposal of common property.

Property relations between spouses will be regulated in a new way

What property is subject to sale?

Based on Art. 213.25 of Law No. 127-FZ, after a citizen is declared bankrupt, all movable, immovable property, and luxury items are subject to seizure and sale through auction. The sale of common property of spouses during bankruptcy occurs if:

the debtor's personal property is not enough to cover debt obligations;
one of the spouses acted as a guarantor when applying for a loan;
both spouses are owners of a mortgaged apartment, repayment of the debt for which has ceased and is impossible.

Property, the list of which is established by Art. 446 of the Civil Procedure Code of the Russian Federation:

an apartment or house, if they are the only housing, with the exception of mortgaged properties;
a plot of land if the debtor’s only housing is built on it;
clothing, shoes, essential technical appliances (for example, refrigerator, washing machine);
property necessary for carrying out the main activity of the bankrupt, with the exception of equipment, the cost of which is a hundred times the minimum wage;
breeding cattle, birds, bees are not included in the bankruptcy estate if their breeding is not associated with generating income;
food and money in the amount of the established subsistence level based on the number of family members;
a car, if the debtor is disabled and it is difficult for him to move on foot, and also if the car is the source of the main income (for example, the bankrupt works in a taxi).
The law also prohibits the inclusion of awards in the bankruptcy estate: prizes, cups, medals.

Position of the RF Armed Forces

The woman filed a complaint to the Supreme Court. He decided: the controversial real estate pledge agreement was subject to mandatory state registration, therefore, the notarized consent of the spouse to complete the transaction was required, which is not in the case (clause 3 of Article 35 of the Family Code). The Supreme Court canceled the appeal ruling and sent the case for a new trial to the court of second instance (ruling of the RF Supreme Court dated March 17, 2020 No. 19-KG20-3). It hasn't been reviewed yet.

How our cooperation is built:

Leave a request. Fill out the form on the website and our specialist will contact you. Be prepared to provide copies, scans or photos of documents.

Meeting at the office. If the application is approved, you must go to the office with the original documents to resolve issues regarding the collection of remaining documents, the loan amount, conditions and date of signing the agreement.

Registration of the agreement. On the appointed day, the contract is signed in our office or at the Rosreestr branch, and submitted along with all documents for state registration.

Receiving funds. After completing registration, you receive the entire loan amount in cash or to a bank account. It is possible to pay an advance before registration, if necessary.

Selling spouses' property during bankruptcy - will the creditor take everything?

If the arbitration manager indicates in the report that the debtor does not have personal property or its value is scanty and does not cover even the minimum part of the loan obligations, then the court decides to include the joint property of the spouses in the bankruptcy estate.

The Family Code of the Russian Federation recognizes as joint property that which was acquired during marriage. Moreover, after the sale, the debtor’s spouse receives a payment equal to 50% of the proceeds from the sale.

If the spouses took out a mortgage together or one of the spouses acted as a guarantor, then no compensation is due - the entire amount of the bankruptcy estate goes to pay off the debts.

Spouses also need to be concerned about joint property in the event of bankruptcy of legal entities if they are co-founders. This is possible if during the trial their guilt in the financial collapse is revealed, and they are held vicariously liable.

Arbitrage practice

For the first time after the adoption of the Law “On Insolvency”, the fact that joint bankruptcy of spouses was recognized as possible was recorded in October 2015 in the Arbitration Court of the Novosibirsk Region. The married couple, unable to pay off their debts, filed a joint application to declare them bankrupt and write off all obligations.

Despite the fact that Law No. 127-FZ does not establish the procedural possibility of initiating a case in relation to two, three or more debtors as defendants, the court decided to accept a joint statement and conduct a common process based on the family status of the plaintiffs.

Is joint bankruptcy possible?

The Law “On Insolvency” does not indicate that both spouses can act as initiators of bankruptcy at the same time, but there is no direct prohibition there either. Therefore, if spouses are equally responsible for debt obligations, for example, they are co-borrowers in a mortgaged apartment, then it is possible to submit an application on behalf of two debtors. Joint recognition of insolvency benefits debtors:

The state fee is paid for one participant - in the amount of 300 rubles;
expenses for the arbitration manager are also set in the amount established for one debtor - 25,000 rubles;
all creditors are united in one register - this helps to avoid disagreements regarding the priority of debt repayments.

Since such a procedure is not regulated by law, the judge, at his discretion, may approve joint bankruptcy or refuse to consolidate the case.

Divorce in case of bankruptcy of a spouse: property in half?

According to current legislation, if an application for divorce is filed after the initiation of the procedure for declaring a citizen insolvent, then the division of property will be dealt with by the Arbitration Court as part of the bankruptcy process.

In this case, the sale of the bankruptcy estate will be carried out in accordance with the provisions of Law No. 127-FZ:

inclusion of joint property in the bankruptcy estate and its withdrawal from the owners;
holding auctions;
allocation of the part (50%) due to the spouse of an insolvent citizen;
the remaining funds are redirected to pay off claims in the register of creditors.

If the divorce was filed before the initiation of the insolvency procedure, then the property of the former spouse in bankruptcy can be seized and sold until the division of the common property is carried out in court. Only after the district court has satisfied the claim for division of real estate can the debtor’s ex-spouse be at peace.

If the divorce was carried out immediately before bankruptcy, then the financial manager or creditors may have suspicions that it was fictitious. On this basis, they can file a motion to invalidate the procedure.