Judicial practice of property division

Divorce in Russian: pitfalls

According to the UN, Russia is among the leading countries in the number of divorces. Moreover, half of marriages break up due to instability living conditions. It is no coincidence that every second divorce in our country ends in irresolvability. property disputes between former spouses.

Subtle point

Divorce in Russia is worse than a fire: in addition to the loss of property, it often brings complete emotional devastation to its participants. A friend of mine recently went through a lot of stress. 10 years ago he came to Moscow at the invitation famous company. He worked for three people, bought a new building in installments on the outskirts of the capital and finally married the woman he loved. But after some time, a black cat ran between the spouses, and they decided to separate. In court, it turned out that since the man paid the developer in full after the wedding, the wife has a legal right to part of the apartment. It’s good that the woman turned out to be from a decent Moscow family and renounced her claims. In general, the guy was lucky.

If an apartment in a new building was purchased in installments by a spouse before marriage, but mutual settlements with the developer were completed after its conclusion, the husband or wife will have the right to a share in the apartment, which is equivalent to the additional funds paid during the marriage. That is, a spouse who initially had nothing to do with the purchase can claim during a divorce the share in the apartment that corresponds to the payment made during the marriage.

“Courts often consider questions about the moment at which spouses have a right to property in new buildings - from the moment of payment of funds for it or from the moment of registration of ownership. Definitely - from the moment of payment for the share participation agreement or assignment of rights. If, after such payment, the shareholder registered the marriage and then formalized the ownership, the spouse cannot lay claim to the apartment,” explained lawyer Oleg Sukhov.

Expensive plaster

Often, one spouse tries to obtain a share in a new building purchased before marriage with the funds of the other spouse, using “inalienable improvements” to the home. The argument most often used is the fact that the second spouse, after major repairs in the apartment, has the same rights to the apartment, even if the ownership of it was registered in the name of the owner before marriage. After all, the walls plastered in the apartment, electrical wiring and other capital improvements are recognized as jointly acquired property.

The repair must be documented, that is, the spouse must have contract agreements for the work. However, resolving this issue is usually not difficult. Even after the fact, construction companies are ready to formalize such an agreement. It is important to note that types of property that are not recognized as jointly acquired property (donation, inheritance or privatization) are transferred to the category of jointly acquired property if major repairs were carried out in this property during the marriage.

However, the chances of winning a case on such grounds are slim. “The requirement to recognize the right to a share of real estate - for example an apartment - in exchange for repairs made to it is a common misconception. The courts usually refuse such requests,” the lawyer said.

Gift of parents

Today, often, especially in young families, the parents of one of the spouses give their children money to buy an apartment. If this property was purchased during marriage, then it is almost impossible to prove in court during a divorce that it was purchased with money not from the family, but from the parents of the husband or wife. This means that the party who did not invest a penny in the purchase will have the right to 50% of the property during a divorce.

“Disputes with the gift of money and the acquisition of property are very specific, but simple. So, if the parents bought property for the spouses, it is considered jointly acquired. And if you donate money to one of the spouses for purchase, then it must be notarized, otherwise the court will refuse to recognize individual property,” says the lawyer.

Large share

Sometimes one of the spouses wants a larger share of the joint property. For example, indicating that a child remains to live with him, or on the basis that he invested more personal funds in its purchase: evidence is collected confirming that at the time of purchasing the apartment they no longer had a family relationship, which means that all investments were their personal.

However, it is extremely difficult to prove in court that the spouse’s personal funds were invested in the apartment. And this rarely happens, even if the second spouse does not work anywhere. The chance arises if it can be proven that personal funds received before marriage were used for the purchase.

Communal trap

When dividing property, the court determines the order of use joint property for spouses, that is, in fact, which room can only be used by one spouse. This practice is especially “interesting” for apartments where there are no two isolated rooms (studios, apartments with an open plan). The advantage of living in an isolated room is given to the spouse who is registered in the apartment and actually lives in it.

If both spouses are registered and live in the apartment, the court, at its discretion, establishes the procedure for use. “In practice, there are cases when one spouse is allocated a room, and the other is given the right to redevelopment with the possibility of allocating a room for himself,” says Est-a-Tet director Alexey Bernadsky. According to him, for one-room apartments, the courts refuse to determine the order of use, that is, the spouses themselves must figure out who will live in the apartment. In any case, joint property for divorced spouses, each of whom wants to live in it, is actually a communal apartment, where each has their own room, “locked with a key.”

“Half of married couples sell such property, and the other half either unsuccessfully sue or endure life in a “communal apartment.” For our country, this situation is literally a scourge, almost all couples fall into this trap, and no one calculates their risks in advance, believing that the marriage will be “eternal” or that everything will be resolved amicably in a divorce,” says Bernadsky.

In his opinion, main question of all property disputes between former spouses is the further use of joint property, since if they fail to agree on the sale, then in fact two people who are already strangers to each other are doomed to Cohabitation in one apartment. “It is almost impossible to sell a share in an apartment; its market price is negligible - about 40% of half the cost of the apartment (that is, if an apartment costs 8 million rubles, then for a 50% share you can get only 1.6 million rubles). Moreover, this transaction can be challenged in court by a co-owner on the basis of improper notification of the sale, because he has a pre-emptive right to purchase. The courts are simply overwhelmed with such cases,” the specialist noted.

Thin world

According to lawyers, in addition to real estate, disputes very often arise between former spouses regarding the repayment of loans, most often mortgages. “The courts determine who took the loan and for what needs it was spent. If it’s for family, then give it to everyone equally. If only for the needs or property of one of the spouses, then give it to him,” Sukhov noted. According to his assessment, the courts often consider compensation to a spouse for half the value of the property sold by the other spouse: “If the spouses have actually stopped living as a family, i.e. together, and at this time one of them, for example, sold a car purchased during the marriage, then half of its value will have to be paid to the second spouse.”

To minimize the risks of property disputes, lawyers advise registering before the wedding marriage contract, who is able to eliminate all possible disputes during a divorce in advance. “As for alimony, a child support agreement will help here. Although it is very difficult, and sometimes impossible, to agree on its terms,” Sukhov admits. “If you want to save nerves, time and money, during a divorce it is better to divide the property as required by law, or reach an amicable agreement during negotiations.” Another good option is mediation (dispute resolution with the participation of a neutral, impartial mediator-lawyer). A bad peace is better than a good war.

Photo from the site babarub.ru

The practice when spouses after a divorce divide not only housing and other property, but also debts, for Russian ships has become habitual. But should credit obligations arising during marriage always be recognized as common to the ex-husband and wife? Supreme Court O explained how to properly divide loan debts, and told who must prove that the money received was spent for the benefit of the family. Experts agreed with his point of view, but warned the courts to refrain from a formal approach when considering such cases.

Was the money spent on the family?

After the divorce, Alexander Morozov (surname changed - editor's note) filed a lawsuit for the division of property (furniture and equipment) and debt on a loan taken for the needs of the family. The plaintiff asked to recover from his ex-wife Olga half of the amount he paid - 193,750 rubles. She also made counterclaims, indicating that she twice took money from banks for family expenses. Morozova asked to oblige her ex-husband to reimburse her half of the amount in the amount of 158,244 rubles. In March last year, the Karsun District Court Ulyanovsk region partially satisfied the applicant's demands, deciding that ex-wife must pay him half the value of the property recognized as common, and 1/2 the amount of the repaid loan debt. Morozova’s counterclaims were denied because she did not prove the use of the received Money for the needs of the family. The Ulyanovsk Regional Court, where she filed an appeal, determined that debts on all loans taken during the marriage should be recognized as common, obliging Morozov to pay ex-wife the amount she requested. In the ruling, the appeal stated: the norms of family law establish a presumption of the occurrence of monetary obligations during marriage in the interests of the family. Therefore, Morozov himself had to prove that the ex-wife spent the money received from banks on personal needs (“urgent”, as indicated in the loan agreements she concluded). And since he didn’t do this, both must pay. The dispute was put to rest by the judges of the Civil Cases Collegium of the Supreme Court (Alexander Klikushin, Tatyana Vavilycheva and Igor Yuryev), who considered the Morozovs’ case (No. 80-KG15-32) in April of this year.

The appeal got the burden of proof wrong.

The Supreme Court indicated that by virtue of clause 3 of Art. 39 of the IC (determination of shares when dividing the common property of spouses), the common debts of the ex-husband and wife are distributed between them in proportion to the awarded shares. At the same time, in paragraph 2 of Art. 35 SK (possession, use and disposal of common property of spouses) and paragraph 2 of Art. 253 of the Civil Code (possession, use and disposal of jointly owned property) states that if a husband or wife performs any actions with joint property, the other “half” agrees with them by default. “However, the current legislation does not contain a provision that such consent is also assumed in the event that one of the spouses has debt obligations to third parties,” the Supreme Court’s ruling says. On the contrary, paragraph 1 of Art. 45 of the IC (foreclosure on the property of spouses) provides that collection of the debts of one of the spouses can only be applied to his personal property, that is, the legislation allows for the existence of separate obligations for each of the spouses. From the content of paragraph 2 of the same article it follows that the debt under a credit agreement or loan agreement concluded by a husband or wife can be recognized as common if the funds received were spent on the needs of the family. The burden of proving these circumstances lies on the party claiming to distribute the debt, in our case, on Olga Morozova.

According to the Supreme Court, the appellate court, satisfying the demands of the ex-wife, incorrectly distributed the burden of proof between the parties, which is why it came to the erroneous conclusion that she spent the funds received on credit for the needs of the family and both spouses had to return them . At the same time, even during the consideration of the case in the first instance, Morozova was unable to prove that she took and spent money for “family” purposes. “Under such circumstances, the court of appeal had no grounds for canceling the decision of the court of first instance in this part,” the judges of the Collegium for Civil Cases concluded, canceling the appeal ruling and denying Morozova the right to demand that her ex-husband repay her personal debts.

Often personal debts are still shared

Experts interviewed by Pravo.ru, on the one hand, recognize the correctness of the Supreme Court, which corrected the error of the appeal, and on the other hand, they urge the courts, when considering such cases, to move away from the formal approach and examine in more detail what the borrowed funds were spent on.

“The situation that interested the Supreme Court is far from original - even in my practice there are a good dozen such cases,” he comments lawyer Alexey Mikhalchik. - In Moscow courts, in such cases, an approach has long been formed that is not in favor of dividing debt received without the consent of the spouse. In any case, the legal position of the Supreme Court will serve uniformity judicial practice according to these disputes throughout Russia."

“According to the letter of the current legislation, the approach used by the Supreme Court is fully justified,” he believes Svetlana Tarnopolskaya, partner at Yukov and Partners. However, according to the lawyer, this legislation is imperfect. After all, spouses often receive a loan for common family purposes, despite the fact that only one of them is the borrower. “Thus, the presumption of separate obligations established in Article 45 of the Family Code, in my opinion, does not correspond to the relationships that develop in 90% of cases. As a result, after a divorce, the borrower finds himself in a deplorable situation when the loan is spent on common needs, or even on the needs of the second spouse, and the entire obligation “hangs” on the borrower, who (naturally) during happy marriage“I didn’t think about collecting evidence of spending borrowed funds,” says Tarnopolskaya. She believes that it is necessary to change the presumption established by law to the generality of liability for obligations, unless it is proven that they were undertaken by one of the spouses in personal interests.

Mikhalchik agrees with his colleague here. “My personal assessment of this decision is twofold: on the one hand, the move of dividing imaginary debts was used by unscrupulous spouses to obtain advantageous positions in the division of jointly acquired property, but in many cases, property is actually acquired with borrowed money, to which only one of the spouses is formally related. Thus, we can simulate a situation where a car, apartment, dacha, etc., are divided in half during a divorce, but the debts that were taken out to purchase them “hang” on the spouse who unwisely acted as the borrower. We would like to hope that the courts will not accept the position of the Supreme Court formally and will in each case establish the validity of the loan,” the lawyer expresses his position.

Another drawback of the legislation that “pops up” when considering such cases was noted by Svetlana Burtseva, Chairman of the Lyubertsy Bar Association. “Despite the fact that there is no definition of “common debt” in the legislation, the courts recognize as such the obligations of one of the spouses, according to which everything he received was used for the needs of the family,” she comments on the current practice.

Interesting solution adopted by the Judicial Collegium for Civil Cases of the Supreme Court when it reviewed the case on the division of jointly acquired property between former spouses.

The topic is who will have how much left after family boat breaks into everyday life - almost eternal. Nevertheless, like any classic, it is always relevant.

Property is divided by oligarchs and their spouses, officials and their girlfriends. Thus, the wife of the former governor of Sakhalin Khoroshavin asked through the court for a part of the seized family property. Ordinary citizens are not lagging behind either. The other day, a resident of Yakutia burned himself and his house in front of his ex-wife and bailiffs, who came to share the home following a court decision on divorce. The division of family wealth in our time is complicated by the fact that in addition to common property, spouses almost certainly also have common debts. How to divide them? And what is important to consider in such disputes? With your explanations Supreme Court tries to show lower courts what they need to pay attention to when dividing the debts and expenses of a collapsed family.

Our story began with lawsuit ex-wife to my ex-husband.

The woman asked the district court to divide the housing. Their marriage was dissolved before the suit by a magistrate. And during their life together, in addition to the child, the family acquired an apartment in which the ex-husband and child were registered. The right of ownership was with the husband. The plaintiff explained in court that she took out several loans to renovate the apartment, and after the divorce she paid for the apartment from own funds. The plaintiff asked the court to divide the apartment - half for each and to also halve the remaining loan debts.

The ex-husband was against such arithmetic and filed a counterclaim in which he asked to compensate him for half of his debt that had accumulated on his card during the marriage.

The district court did not agree with all the requirements. He divided the apartment in half, and the husband’s debt was his credit card. In justifying this decision, the district court referred to the Family Code (Articles 34 and 39), which states that everything acquired during the marriage is divided in half. But the appeal did not agree with this division. More precisely, the division of her husband’s debt suited her, but the division of the apartment did not.

The court of second instance stated that the money used to buy the disputed apartment was given by the husband’s parents. They sold their three rubles, and there is a receipt that confirms this. By the way, the plaintiff did not refute it. But the ex-wife did not provide evidence that the family did not have any common money to buy housing, the court noted.

After such a verdict, the case reached the Supreme Court, which did not agree with the arguments of the appeal.

The Supreme Court, with the Family Code in hand, explained to its colleagues what they were doing wrong when dividing the property acquired by spouses. So, article 34 Family Code says that everything that a family has acquired over the years of living together is considered common. According to another article of the code - 39th, when dividing acquired property, the definition of shares by the spouse is recognized as equal, unless otherwise stated in the marriage contract.

From all that has been said, the Supreme Court concludes that during division everything is divided in half, regardless of whose name the property is recorded in. And here is an important idea that the Supreme Court emphasizes: in the event of a dispute, any of the spouses is not required to prove the fact of community of property if it appeared during the marriage. Because there is such a thing as the presumption of common property. Goods are shared unequally only if there is a marriage contract.

In our case, there was no prenuptial agreement. The disputed apartment was bought during marriage, so the district court divided it in half correctly. But the second instance, in violation of the Civil Procedure Code (Articles 56, 59, 60), placed the burden of evidence on the plaintiff.

The appeal stated that the apartment was bought not with family money, but with the funds of the spouse’s parents, as evidenced by a copy of the receipt for 1,300 thousand rubles. The court called it a gift from the parents, and gifts are not shared. But the Supreme Court saw in the case materials that the apartment in which the husband’s mother lived and where he was registered was sold for one million rubles. But no one paid attention to the fact that the defendant’s parents, having sold the apartment, immediately bought themselves another home, which was much more expensive than the one sold. At the same time, no one presented any evidence to the court that it was with the parents’ money that the disputed housing was purchased. As well as evidence that his relatives presented the money to her husband as a gift.

The Supreme Court emphasized that the receipt for the amount available in the case does not confirm that the husband received the money as a gift from his parents. The defendant did not provide any other evidence. So it was the right decision district court the Supreme Court decided on dividing the apartment between the former in half.

Help "RG"

What is the common property of spouses?

Everyone’s income from labor, entrepreneurial and intellectual activities. Pensions, benefits and other payments that do not have a designated purpose ( material aid, compensation for damage due to loss of ability to work due to injury, etc.).

Movable and immovable things, securities, shares, deposits, shares in capital contributed to credit or any other organizations are considered to be common. As well as any other property acquired during the marriage, regardless of whose name it was purchased in and who paid. The right to common property also applies to the spouse who led household and had no independent income.

Natalia Kozlova
Profit and share

Sometimes, after being married for decades, spouses decide to separate for one reason or another. And, if a divorce occurs officially, it usually entails the division of jointly acquired property. In this case, it is often necessary to establish who, when and under what circumstances it was acquired. Victoria Krasnyuk, lawyer of the Moscow City Bar Association, answers the question of what can serve as evidence in such processes.

First, let’s define what “proof” is. The law understands this concept as information about facts obtained in the prescribed manner, on the basis of which the court establishes the presence or absence of circumstances justifying the demands and objections of the parties, as well as other circumstances that are important for the correct consideration and resolution of the case.

Please note that this information can be obtained from explanations of the parties and third parties, testimony of witnesses, written and physical evidence, audio and video recordings, and expert opinions.

Very often citizens have doubts: “Can relatives be witnesses?” Of course they can if they have the relevant information. Another question is how the court will evaluate it.

For example, during one trial the following happened. A married couple was divorcing, and the stumbling block in the division of property was a very decent building (which could be rented out) built during the marriage. Legally, his fate was predetermined - one second share for each of the spouses. However, the husband's father old man, wanting to return the “floating assets,” filed a lawsuit against his daughter-in-law and son to collect debts from them, and even presented receipts on behalf of his son, confirming that the property was built with his money. Witnesses came from the ex-husband and father-in-law, those who know the family for more than forty years, who claimed that money was transferred to the young family in their presence. Witnesses, friends and relatives also came from the ex-wife’s side, who, in turn, claimed that it was the wife’s parents who gave money to the family.

The court treated the testimony of all witnesses critically, since, in its opinion, both of them had an interest in the outcome of the case related to relatives and friendly relations with the parties to the case.

By the way, receipts (such simple techniques in property division processes are used quite often, but, as a rule, unsuccessfully) were also not taken into account by the court and here’s why. Strictly speaking, such large loans must have written approval from the other spouse, who must be aware of the purposes for which the money is taken. If this is not the case, then the court may not see a cause-and-effect relationship: well, yes, the husband borrowed money, but it does not follow from this that these particular funds were spent on jointly acquired property. Maybe he spent it on some beauties or in a casino?

In general, if we talk in court about money, or rather, its transfer, then it is not always possible to bring witnesses to court. The fact is that if a transaction must be formalized in writing (as, say, transactions between citizens among themselves for an amount exceeding at least ten times the amount established by law minimum size wages), and if this form is not followed, then reference to witness testimony cannot be made.

In addition, you cannot use evidence that was obtained in violation of the law. They have no legal force and cannot be used as the basis for a court decision. For example, if the confidentiality of correspondence is violated: you stole someone else’s mail, wanting to prove your spouse’s adultery or squandering. It is unlikely that the court will accept such evidence.

However, there are cases established by law when the parties are exempt from the burden of proof.

There will be no need to prove circumstances recognized by the court as generally known. Of course, the concept of “well-known” is in itself evaluative, but the point is that, say, information about a sharp fall in the ruble is generally known, and information that ex-husband known to everyone as a Don Juan - as a rule, known only to a narrow circle persons

The circumstances established by a court decision that has entered into legal force in a previously considered case are binding on the court. The specified circumstances are not proven again and are not subject to challenge when considering another case in which the same persons participate.

This means that if in the court decision on divorce the court established that the spouses do not maintain a joint household and have not lived together since such and such a time, then in the process of dividing property between them the moment of the beginning of separation will already be established. This is important because the court may recognize property acquired during separation as the personal property of each spouse.

In addition, a court verdict in a criminal case that has entered into legal force is obligatory for the court considering the case on the civil consequences of the actions of the person against whom the court sentence was passed, on the issues of whether these actions took place and whether they were committed by this person. This may be “useful” for recognizing the heir as unworthy.

Another important point- in any civil process, each party must prove the circumstances to which it refers. That is, the burden of proof lies not with the court, but with the parties to the dispute.