Any property acquired by the spouses after the wedding will be considered jointly acquired and will be divided in half in case of divorce. This is clearly stipulated in the Family and Civil Codes of the Russian Federation. An apartment purchased with a mortgage will be no exception, even if your husband was the main borrower, and it is completely in his ownership.
Another order of division is also possible, if the spouses have entered into a marriage contract and it indicates how the apartment is divided in the mortgage upon divorce. But in our country this method of legal consolidation of family relations is not popular.
The bank needs to know about the divorce
How is the mortgage divided in case of divorce? The first instance that you must notify about a change in marital status is the bank where the mortgage was issued. In this case, it is advisable to come to them with ready-made solution, adopted by you and already a former spouse. There can be three of them:
- You find the necessary sum of money, extinguish the mortgage, sell the apartment and divide the proceeds in half. This is ideal. In practice, it is not so easy to implement it.
You can also try to negotiate with the bank to sell an apartment that is on a mortgage. From the proceeds, you can pay off the debt, and divide the rest. There are many nuances here.
First, banks are reluctant to accept such conditions. Secondly, you are unlikely to help out large amount from such a sale. And, thirdly, a rare buyer wants to get involved with the purchase of an apartment as collateral from a bank.
- You decide with the bank the issue of dividing mortgage payments and each pay your share. There are also many nuances here.
Firstly, in the apartment you need to allocate a share to each spouse, and if you have children, to each child. But, for example, in a one-room apartment it is problematic to do this. Often this issue needs to be addressed in court hearings, and this process is long and tedious.
An apartment in a mortgage is not divided during a divorce proceedings, and its sale can entail significant losses for two spouses. Thus, it is better to solve everything amicably, without going to court.
Some facts
There may be no controversial situations, including with property, if you draw up a marriage contract. This can be done: before the wedding, in the process of family life. However, marriage contracts are concluded by about 5% of citizens aged 35-45 years, who have already experienced a painful divorce with the division of property.
Secondly, it is not a fact that each spouse has sufficient income and solvency to pay off his part of the mortgage on a monthly basis. The bank is very sensitive to this circumstance.
Thirdly, according to the law "On Mortgage", the share allocated in living quarters cannot be pledged. Therefore, the bank is very reluctant to go for this option. And another important question. For example, you and your husband separated, two children remained with you. Mortgage purchased three room flat using funds maternity capital... By law, in this apartment, you must allocate 14 shares to the children after the mortgage is repaid. In this case, the answer to the question of what to do with the mortgage in case of divorce and which of the spouses should take on the responsibility to pay off the mortgage on the shares of the children will help to resolve only the court.
- One of the spouses formalizes the apartment, acquired with a mortgage, into his sole property, and the burden of repaying the mortgage loan falls only on his shoulders. In this case, the second spouse must necessarily agree with this decision. The spouse who takes the mortgage on himself must be solvent in the eyes of the bank.
Perhaps a bank or mortgage organization will offer you their own option. And he has the right to demand immediate early repayment credit.
When divorcing, spouses must understand that the living space acquired in marriage belongs to both, no matter who bought it and who is listed in the documents. Only mutual agreement on an equivalent division will save you from nerves and wasted time.
You still need to pay
Disorder in family relationships and subsequent divorce is, of course, stressful for everyone. But still, do not forget about your loan obligations. Also, the question is, , - one of the most difficult.
At least one of the spouses should act wisely and make monthly payments towards the repayment of the mortgage. Otherwise, you will also have to share the debt for late payments.
If you make a monthly payment on your share (it does not matter if the mortgage apartment is divided in the event of a divorce between you and your spouse in judicial procedure or not yet) or completely, then you will always be able to collect the unpaid part of the mortgage from the unscrupulous spouse through the court.
By the way, when re-issuing a mortgage agreement and changing its terms, the bank will require to pay 0.5 - 1% of the balance of the mortgage debt.
If the apartment was purchased before the wedding
In case of divorce, only the spouse who entered into loan agreement... But the second may demand through the court to reimburse him half of the money that was spent during the marriage to pay off the mortgage loan.
Some facts
It is very difficult to recover property where minor children are registered. The court will require the involvement of the administrative bodies of guardianship, guardianship and the prosecutor's office.
The second spouse may have claims to the specified apartment if the bank was aware of a change in the marital status of the borrower, and the second spouse became a participant in the mortgage as a surety.
Mortgage in a civil marriage
Informal marriage is not regulated in any way by family and civil law. Therefore, in the event of separation of the common-law spouses, the owner of the mortgage apartment will be the one for whom the loan agreement is drawn up.
And if any of the roommates does not agree with this outcome, there is only one way - to court. Just to win it, you need to enlist the help of very good lawyers. And be patient - to prove your claims in such a case is much more difficult than just agreeing on a payment.
Divorce registration in the presence of children is a difficult and lengthy procedure (we talk about all the nuances in detail), but if there are also disputes about the division of property, and even credit, then the litigation can drag on even for many months. By agreeing amicably, you will save a large amount of sludge, nerves, and money.
Mortgage and divorce of spouses are difficult concepts to reconcile. Therefore, getting married and purchasing housing on a mortgage, you need to think about concluding a marriage contract.
If you still have questions about how to share an apartment in a mortgage in case of divorce, then ask them in the comments
Dissolution of the marriage union is in itself an unpleasant procedure, and in the presence of a mortgage upon divorce, the situation becomes more complicated. The peculiarity of such a divorce process is that there are three participants, i.e. husband, wife and bank. The reader will learn about what to do in the event of a divorce with an encumbrance on a loan from this article.
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The IC of Russia regulates legal relations in the family. Specifically, Art. No. 33 contains rules and regulations, the main of which is the division of property acquired in the union, i.e. the property that is acquired by the spouses in marriage. Thus, when applying for a mortgage loan, after a divorce, it is also subject to division, incl. and debt obligations.
By the way, the Federal Law "On Mortgage", adopted in 98, does not provide for any restrictions on the division of living space, drawn up according to this kind lending. But article 7 of the same law contains information that joint mortgage real estate can be qualified only if there is a documented consent of the parties. Please note that a verbal agreement is not enough - you need a written medium.
Based on these acts, it turns out that a divorce in the presence of a mortgage will occur in accordance with the IC of Russia (Art. 39, clause 1), which states that upon dissolution of the marriage union, the property acquired in marriage is subject to the establishment of shares for each of the parties, and they must be equal. Of course, each law contains exceptional cases, which will be discussed in the following sections.
And if everything is more or less clear with the property itself, then what about the mortgage in case of divorce? With debt obligations, not everything is so transparent and most often the actions of the court are based on article 39, clause 3, which regulates spouses who have a loan, to distribute the debt equal to the proportions that took place when the rest of the property was divided. Simply put, housing is divided 50 to 50, and they will pay off the loan in the same proportion. However, if everything is so simple, then why are there so many nuances? The fact is that the third participant appears here - a financial institution.
Bank actions in case of divorce with a mortgage
Mortgages in case of divorce of spouses are burdened with one main difficulty - the property is pledged as a guarantor of payment of payments. This means that after the dissolution of the people's union, it is not possible to do something with the apartment, if there is no bank consent. Accordingly, the spouses cannot sell it, exchange it, and also engage in the re-registration of the mortgage in case of divorce to one of the parties to the marriage. In other words, without a bank with real estate, it is impossible to do anything, even split payments.
Paying the mortgage further or selling the apartment is also decided by the bank. By the way, sales transactions collateral approved only in extreme cases, especially during divorce proceedings. But at the same time, it is quite problematic to oblige one party to pay the bills, given that the spouses most often act as co-borrowers. Wherein given condition spelled out in the Civil Code of Russia (Art. No. 391, clause 1), where it is indicated that the transfer of debt from one to another is possible with a tripartite agreement.
With regard to the question of what to do in order to re-register in a mortgage in case of divorce and give the debt burden to one person, then in this case the division is possible if the apartment has more than 1 room. If this is "odnushka" and it is impossible to divide it into equal parts, then credit obligations cannot be divided. This is spelled out in the same federal law about mortgage lending, namely in art. No. 5.
Exceptional cases
There are two situations that involve a divorce with a mortgage:
- Personal mortgage loan. If there is a fact of purchasing real estate on own funds one side of marriage, both during it and before it. This is indicated in the SK of Russia (Art. No. 36) - that property that is quoted as personally and is not included in the inventory of common property cannot be divided.
Such property can be:
- personal financial savings;
- property.
That is, all finances and property acquired before entering into official relations or bought / spent during marriage, but received before it, will be listed as personal.
- Military mortgage loan. Here it is not as unambiguous as with the first case. For example, some lawyers argue that it is possible to attach here the norms of the IC of Russia specified in Art. No. 34, which indicates that common property is also labor income, the result of intellectual labor, etc., incl. benefits without special purpose. Other legal experts believe that a military mortgage after a divorce should not be divided, because target funds, i.e. aimed at purchasing living space. And in this case, the former spouses cannot claim the share if they are not military personnel.
Note that everything would be logical and legal, if not for one "but". Funds for the purchase of an apartment for a serviceman, in the amount of just over two million rubles, are allocated by the Ministry of Defense of the Russian Federation, which means that in fact it must pay the lion's share of the mortgage. However, in a situation where funds are not enough, additional funds can be taken from family budget.
This situation is difficult, and in order to legally resolve it, we suggest consulting with a lawyer of our portal. Legal assistance is provided free of charge. This enables citizens to have not only legal knowledge, but also to apply it in practice, if necessary.
Effective methods of dividing mortgage housing
You already know what to do if a mortgage is issued before marriage, based on the above information. But what to do with the mortgage and how to divide the living space if the decision is made to divorce.
In this situation, the amount of payments required to pay off the debt will be divided between the parties in equal proportions. In doing so, each of their married couples will bear their own responsibility. With a mortgage, both spouses have equal rights, however, as well as obligations to repay the debt. This option is not very convenient, because due to two factors:
- If one of the spouses does not have their own home, then the spouses will also live together.
- The other party may, under certain circumstances, stop paying its share.
As for the second situation, it can occur for various reasons. For example:
- He does not live in this apartment, so he believes that it is not his responsibility to pay for it.
- The presence of money problems, because of which there is no way to pay.
- Deliberate cessation of payments to stimulate the bank to put the property up for auction.
Speaking about the first two situations, it should be emphasized that if one of the borrowers regularly pays, and the second refuses to pay his share, then the paying person has a number of advantages. For example, in the course of legal proceedings, it may claim a large share of the property.
Note: Financial organization it doesn't matter which of the spouses pays the loan in case of divorce. The account must be replenished monthly according to the schedule from fixed amount... In the absence of such on the day the payment is debited, the bank has the right to terminate the contract and demand a one-time payment or put the property up for auction.
Mortgage and divorce, although a difficult procedure, is very undesirable to bring to the auction, because the property is sold at a minimum price, i.e. below market. And there are chances that the entire proceeds will not be enough to close the personal account. That is, the spouses will not only not receive the money, but they will also owe it.
There is another option, two options for solving the problem:
- One of the owners pays off personal loan obligations ahead of schedule. However, the divorcing person will not be able to dispose of the share until the bond is withdrawn. With this approach, the credit institution will consider the level of solvency of both parties. If the result is positive, then the loan taken will be divided into 2 parts. Further, you can safely divorce and freely dispose of property.
- The supervisor (s) disclaims responsibility for the payment of credit obligations with the subsequent waiver of claims for the property in favor of the other party. It is noteworthy that this method is used most often, because the bank almost always gives consent to this, if the second party, after considering the solvency, is accepted by the only borrower.
Important information: To use the service for reissuing a mortgage agreement, you will need to pay a commission in the amount of 0.5% -1% of the residual amount of the debt.
Well, in the end, we will give more possible variant... But let's note right away that the banks do not treat him very well. We are talking about the sale of real estate, with the subsequent repayment of the debt and the division of the remaining funds. Of course, this option is not only simple, but also convenient, because:
- makes it possible to live separately;
- loan commitments are no longer a burden.
But it is not possible if the bank does not agree to sell the collateral that issued the loan. This is due to the fact that when agreeing to such an option, the bank loses the pledged profit when registering a mortgage, i.e. he will receive only a fraction of the interest in the end. Believe me, we are talking about large amounts. However, if both parties are recognized as solvent, then the credit institution will agree to the sale, subject to the provision of separate apartments on similar credit terms.
By the way, today it is quite difficult to find a client for an apartment with encumbrances, because the real estate market is developing at high speeds. Therefore, experts recommend that both parties make every effort to find such a client, because this will allow you to save living space for yourself.
Young families often buy housing with a mortgage, but many do it before marriage. Divorce statistics are not comforting today, and many young couples are crumbling. Therefore, the question is relevant: "The apartment was bought on a mortgage before marriage, what will happen in the event of a divorce?"
Consider what the laws say Russian Federation and arbitrage practice on this issue.
According to the Civil and Family Code of the Russian Federation, all property acquired by spouses in marriage is joint, unless otherwise provided. But if the mortgage was issued before marriage, then, accordingly, we are not talking about joint ownership.
The apartment was taken on a mortgage before marriage, how is it divided in case of divorce?
The answer to this question is regulated by the laws of the Russian Federation. A mortgage that was registered before marriage in the ownership of one of the spouses is not joint property. If the mortgage is taken before marriage, then after the divorce, this property will not be subject to division. Here we are considering a situation where the other party is not a co-borrower.
But, as with most property issues, there is a pitfall. And it is spelled out in article 34 of the Family Code of the Russian Federation. The definition of jointly acquired property is described there.
And also the spouse can obtain through the court the right to property in this housing. This is due to the fact that cash that were spent after the registration of the relationship was already part of the general family budget. Mortgages before marriage, in case of divorce, has a similar judicial practice. But it is not so easy to prove this fact. This requires two factors. First, a good lawyer. And secondly, carefully collected documentary evidence of payment, that is, checks and receipts. Further, the court makes a decision on each specific precedent.
The situation becomes somewhat more complicated if the mortgage was issued for an object shared construction, that is, for housing that was purchased during the construction process until the moment of marriage, and was commissioned after the registration of relations in the registry office. That is, a certificate of state registration rights were issued already in marriage. This increases the likelihood that the court will protect the property rights of the second spouse.
Another situation in which the court can make such a decision is if the husband bought an apartment on a mortgage before marriage, continued to pay payments after marriage, and the wife was at that time in maternity leave, or did not have a steady income for other valid reasons.
To avoid dividing a mortgage apartment purchased before marriage, a prenuptial agreement should be drawn up before the wedding. This measure will help you protect your property and avoid litigation. Remember, you always have two options for resolving a divorce conflict - pre-trial order and judicial.
As a result, a few tips:
- Life is dynamic and unpredictable, so before the wedding it is worth protecting your property from encroachment. To do this, compose marriage contract.
- Don't throw away your mortgage receipts.
- In the event of a divorce, seek professional legal advice.
- Try not to bring this issue to court.
Upon dissolution of a marriage, all property of the spouses must be divided in half. The same rule applies to debt. All debts, including the loan, are divided in half. But a difficulty arises if the apartment is on a mortgage - how to divide it in case of divorce. Indeed, in this case, it is necessary to divide not only the property, but also debentures... Moreover, the interests of third parties are affected, i.e. the mortgagee.
How to avoid problems
To avoid any problems with mortgage lending, you should conclude a prenuptial agreement in advance. This is possible not only before marriage, but also during family life. However, Russians are in no hurry to do this, only 5% sign such an agreement.
A mortgage agreement is also used to protect the parties. It is drawn up by a bank, reduces the risks of a credit and financial organization in the event of a divorce of spouses. Many banks in the agreement indicate a condition that states that upon termination of relations between spouses who are co-borrowers, the terms of the mortgage remain unchanged. This serves as additional insurance for the lender.
Thus, if the spouses sign a mortgage agreement, and then get divorced, and one of them refuses to make further payments on the mortgage, then all obligations under the agreement are transferred in full to the other.
If the mortgage is taken before marriage
If square meters bought for borrowed funds one of the spouses before marriage, it is much easier to separate them. In fact, the division of the living space does not take place, since the home is solely owned by the borrower. The second half and children cannot claim any part of it.
The only thing that the other party can get is half of all joint payments made during the marriage. Their homeowner will have to compensate their ex-wife or ex-husband... For example, during the marriage, 500 thousand rubles were paid on a mortgage. The owner is the husband, who registered it for himself even before the marriage. After the divorce, he will have to pay his ex-wife 250 thousand rubles.
This rule often leads to conflicts. Payouts can reach impressive numbers, and not everyone has the opportunity to compensate. By agreement of the parties, instead of money, the owner can transfer material values for an equivalent cost.
The situation is more complicated if the payer has allocated a share in housing to his wife or children. Sometimes such a procedure can be carried out with the permission of the bank - for example, if it is necessary to conclude a marriage contract. The spouse becomes the main borrower, and the division of property takes place on the same basis as if the apartment was purchased during the marriage, no matter how much the first borrower paid off on his own.
If the mortgage was taken during marriage
In most cases, the decision on the future of a mortgage apartment upon divorce is made in the course of joint negotiations, in which the divorcing spouses and the mortgagee take part - i.e. bank. The involvement of a bank is very important, because without its permission, any agreements of the former spouses will not have any legal consequences.
So, the following section options are possible:
- The spouses continue to pay according to the previous agreement and according to the schedule. At the same time, they determine and control the ratio of payments themselves. After the full payment of the debt, the former spouses become co-owners of the apartment and can do whatever they want with it. For example, they can sell it and split the money in half. Banks are reluctant to agree to this option, since there is a great risk that one of the spouses will not make his part of the payment, and a delay is formed.
- Separation of the mortgage agreement. The previous agreement is terminated, and two new agreements are concluded with the former spouses. At the same time, housing is divided into two parts, and each of the parties pays according to its own agreement, buying out its part. This method is convenient for banks, since the responsibility of the spouses is shared, and there will be someone to collect debts from in case of delays. For the owners, this is not very convenient: the encumbrance from the living space can be removed only after the other party pays its mortgage.
- Early repayment, sale of living space and division of money. If the balance of the debt is small, then it is best to repay it. Money for this can be issued on credit at the same bank, explaining your intentions to the loan officer.
- Refusal of a mortgage by one of the spouses. In other words, the apartment becomes the property of the spouse, but he will have to pay the other half half of the current cost of housing.
- Sale of mortgage housing to the bank. The most extreme option is to transfer the collateral to the bank. A credit institution sells an apartment through its own channels - most often in the form of an auction, with the money received, the mortgage debt is paid off, the balance is paid to the spouses in the same proportion.
If the former spouses fail to agree or their option does not suit the bank, then you need to go to court.
In practice, the bank most often sues the court, since protracted negotiations usually lead to delays. The court decision is binding on all three parties. Most often, it is accepted in favor of the applicant, so efficiency is important in this regard.
If there is a prenuptial agreement
If the spouses have entered into a prenuptial agreement, then the separation should take place in accordance with its provisions.
The conditions for dividing a mortgage apartment in the contract must also be agreed with the bank, and even at the stage of drawing up the document. The provisions of the marriage contract can not be challenged by any party - neither the spouse, nor the bank, but you can challenge the legality of the document as a whole. For example, if the spouses entered into an agreement without notifying the bank, then the pledgee has the right to file a lawsuit in court demanding that the marriage contract be declared invalid.
Actual marriage
The existing articles of family law do not apply to common-law spouses. If a prenuptial agreement has not been drawn up, then the mortgage remains only on the one for whom it was originally issued.
If both common-law spouses participated in the payment of the loan, then there are several ways to prove this. For example, you need to find witnesses and evidence in the form of checks, account statements, receipts, etc.
If the ex refuses to pay
It often happens that one of the spouses who decided to end the marriage no longer wants to pay the mortgage. In this case, you can reissue the contract for someone who is solvent. All obligations are removed from the second, however, he is deprived of the right to claim a share in housing.
If the spouse does not want to pay the mortgage within 3 months, but also does not give up his share of the living space, then the problem can be solved as follows:
- The mortgage is repaid at the expense of only one party.
- Housing is sold by the bank, and the money received is used to pay off the loan. Usually, lenders sell apartments at a low price, which is equal to the balance of the debt. This is due to the fact that it is more profitable for the bank to sell housing as soon as possible.
When divorcing children
If there are minor children, then a large share of the property goes to the one with whom they will live. It is according to this rule that the mortgage section is made.
Important! If the apartment purchased at the expense housing loan, put up for sale, then the children need to be urgently discharged from it. Otherwise, representatives of the guardianship authorities will definitely come to the parents. In addition, they may raise the issue of deprivation of parental rights, since the child is not provided with normal living conditions.
Shares in housing that is shared can be uneven. It depends on the following points:
- amount of children.
- at what point the mortgage was taken: before marriage or during it.
- how much each of the borrowers contributed to the repayment account, etc.
The shares are determined in court.
For the division of the mortgage in the presence of minor children, the following documents must be submitted to the court:
- Marriage certificate.
- birth certificates of children.
- a receipt for payment of the state fee.
- certificate of family composition.
- spouses' passports.
- mortgage agreement.
- an extract from the bank on the balance of mortgage loan debt and other documents.
There are several options for dividing an apartment if you have a child:
- If the husband refuses to share in the apartment, the remaining debt is made out to the wife, but provided that she has enough funds to pay off monthly payments. If she does not have enough money, then the husband should remain among the co-borrowers and be responsible for mortgage payments.
- Those who live with children receive most of the living space. The court can divide the mortgage either equally or according to the shares. In some situations, for example, when the mother is on maternity leave, the share of the spouse who is with the child in the monthly contribution may be reduced. And alimony and mortgage for some time become the responsibility of the second parent.
- If the mortgage was issued with the help of maternity capital, then minor children in mandatory become the owners of the apartment. In this case, the share in the apartment of the spouse who remains with the children increases. The housing loan debt is usually divided equally, since both parents are responsible for supporting minors.
- After the divorce, the mother can pay off her part of the debt with the help of MK. However, she can only dispose of her share in housing in any way after full repayment credit.
If we are talking about a military mortgage
In this case, the partitioning process differs from the standard one, since all payment obligations are borne by the Department of Defense. The owner of the home is a soldier, regardless of whether he has a spouse or children. Therefore, the section is produced without the participation of those indicated.
Program participant military mortgage does not have the right to re-register the loan in order to share the apartment. If the serviceman does not fulfill the conditions of the program, then in the future he will still have to fulfill the obligations under the mortgage loan, and not the spouse.
When maternity capital was attracted
If MK was used, then the property is distributed in equal parts to all family members. A parent who, after a divorce, remains with children, has the right not only to his share, but also to theirs. The shares remain at the disposal of the guardian until the children come of age.
Lawyers advise to act in the following ways:
- formalize a peace agreement.
- among themselves to determine the procedure for making monthly contributions.
- decide which of the spouses will own the property after the full repayment of the mortgage debt.
- after full payment, sell the apartment, and then divide the proceeds.
All this will help to avoid litigation.
Is it possible after a divorce not to pay on the mortgage
There are many reasons why a spouse stops paying. In any case, the consequences are the same: fines and penalties are charged, suffers credit history... And this applies to both, regardless of who does not pay. In addition, the debt begins to increase and may become such that the lending institution will have to sell housing, and the spouses will lose their money.
Having an outstanding mortgage and dividing up mortgaged real estate adds a lot of complications to divorce.
In this situation, divorcing spouses have many questions at once. How to share an apartment pledged by a credit institution? Who and in what part should pay off the mortgage loan in the future? How to resolve the issue with co-borrowers?
At the same time, each situation has many specific nuances, therefore, there is still no unambiguous solution and algorithm for dividing responsibilities for mortgages and mortgage real estate. Moreover, the law enforcement judicial practice has not yet developed precedents that would serve as guidelines for the courts' decisions in similar situations.
It is not surprising that absolutely different court decisions are made in similar cases, up to the opposite.
The situation with a mortgage is complicated by the fact that in these legal relations the interests of three parties at once (divorcing spouses and a bank) are affected, in contrast to the division of property that is not burdened with a mortgage, where it is enough to agree only to the former spouses. Therefore, finding a solution that satisfies all stakeholders at once can be much more difficult.
In many cases, when dividing mortgage housing and commitments to repay the loan, the interests of one of the parties are significantly infringed. For example, there are precedents when a borrower, deprived of an apartment during a divorce, is forced to repay the loan for a long time. Or a bank wishing to sell a mortgage apartment for which the loan is not paid, faced with a situation that a mortgage apartment on judgment is no longer considered the sole property of the borrower.
Legal regulation
These difficulties in the division of mortgage housing in the event of a divorce are primarily associated with insufficient legal regulation of this issue in Russian family and civil legislation.
When considering divorce cases, where the issue of mortgages is raised, courts are guided by the Family Code, The Civil Code and the Federal Law "On Mortgage", as well as a mortgage agreement concluded between the bank and the borrower.
The basic principle of the division of mortgage property in case of divorce, set out in the named regulatory legal acts, is that:
- dwelling space acquired by spouses during marriage at the expense of mortgage funds is jointly acquired property, which entails corresponding legal consequences;
- the joint property of the former spouses should be divided in half, unless a different procedure is spelled out in the marriage agreement;
- when dividing property acquired by spouses with borrowed funds, including mortgage apartment, it does not matter at all for whom the mortgage was issued.
Financial obligations to the bank are also imposed equally on the divorced spouses, regardless of whether they acted as co-borrowers or whether the mortgage was issued to one of them.
Thus, based on the requirements of Russian family law, the principle of "fifty-fifty" applies to the division of any joint property of the spouses. However, in practice, dividing a mortgage apartment in half is quite problematic, since the housing is pledged by a credit institution, and the owners cannot perform any legal actions with it.
How to avoid partition problems
Most conflicts and controversial situations related to a mortgage apartment can be avoided by first signing a prenuptial agreement. Russian legislation allows you to draw up a marriage agreement both before the registration of the family, and during the period of family life. Nevertheless, statistics show that, despite all the advantages of marriage contracts, such contracts are drawn up by no more than 5% of Russians.
Another important legal guarantee that is used to protect the interests of all parties to a mortgage is a mortgage agreement. Currently, lending institutions, which have repeatedly faced problems with the payment of mortgages by ex-spouses, have gained quite solid experience in litigation mortgage disputes. As a result, mortgage agreements formalized by banks minimize the lender's risks in the event of divorce of the borrower spouses.
The overwhelming majority of banks try to make both spouses co-borrowers on a loan, which, in principle, is beneficial for the married couple themselves, since it is possible to combine income and get a large loan amount.
In addition, many banks began to include an important clause in their mortgage agreements: "Upon termination of family relations between spouses-co-borrowers, the terms of the mortgage agreement do not change." This clause of the agreement is additional insurance for the bank. If the spouses who agree to this condition of the mortgage agreement divorce, and one of them refuses to pay the mortgage, then the financial responsibility for the payments will be completely transferred to the other.
Unfortunately, such a legal guarantee protects exclusively the interests of the bank, and divorcing spouses will still have to defend and protect their interests.
In fact, divorcing spouses have only three options:
- continue to pay the loan;
- find the missing cash money and repay the mortgage ahead of schedule. After that, you can sell the apartment at a bargain price and divide the proceeds in half or by agreement of the parties;
- sell a mortgage apartment with the consent of the bank.
To carry out the section of a mortgage apartment, you can contact directly credit organization who issued the mortgage, asking to approve the sale of the common matrimonial apartment.
It is difficult to predict the reaction of a particular bank to such an offer. A credit institution in this situation can:
- agree to sell a mortgage apartment;
- demand early repayment of the mortgage by the spouses, justifying this by the fact that the upcoming (or already registered) divorce violates the agreed conditions credit agreement;
- oblige the spouses to pay the mortgage without selling the apartment.
In many cases, the bank agrees to the sale of a mortgage apartment, as this reduces the risk of non-payment of debt by divorced spouses. If the bank's consent is obtained, the spouses need to find a buyer for their mortgage housing who has agreed to purchase an apartment with encumbrances.
In this situation, the buyer, in order to enter into ownership, must first compensate the bank for the amount of debt for mortgage and wait until the whole process of removing the encumbrance from the purchased apartment is over.
Of course, not all buyers will agree to such a difficult option, as the risks increase and time drags on. Therefore, divorcing spouses who want to sell a mortgage apartment often have to lower the price of their home in order to interest a potential buyer.
Regardless of the development of the situation with the sale of an apartment by a divorcing spouse, you need to continue to pay mortgage payments. Otherwise, the situation can only get worse. A bank that does not receive loan payments has the right to sell a mortgage-backed apartment at an auction, and the price of the sold housing, as a rule, is much lower than the market price.
From the proceeds from the sale, the credit institution will withhold the principal debt, fines, penalties, unpaid interest and the costs of organizing the auction, and only the remaining amount will be divided between the former spouses. As a result, you can be left homeless and without financial compensation.
One more important rule in case of divorce of persons who are borrowers of mortgage funds, it is necessary to notify the credit institution of the divorce. Under the terms of any mortgage agreement, borrowers are required to immediately notify the bank of significant changes in their lives, including divorce.
If the parties to the mortgage agreement cannot agree, you need to go to court. As already mentioned, the unambiguous development of the situation with trial does not exist. The court may compel the credit institution to perform operations with the mortgage apartment, oblige to reissue the mortgage agreement for one of the divorced spouses, oblige the spouses to continue payments until the loan is repaid. Other solutions are also possible.
If the spouses decide to pay off the loan in order to then sell the apartment, it is possible to split up during the divorce period mortgage property whether it is necessary. To do this, they need to apply to the creditor bank with a statement.
However, here, too, problems and "pitfalls" are possible. For example, the bank will refuse this option. He may not be satisfied with the income of one of the spouses, who, upon registration shared ownership must act as an independent borrower. Or the mortgage is studio apartment, the division of which into shares in kind is not possible. Such property, according to the Federal Law "On Mortgage", should not act as an independent subject of mortgage.
The bank's refusal can also be appealed to the courts.
Another option for a divorce section is one of the divorcing spouses for free or for monetary compensation signs a waiver of his share in a shared housing burdened with a mortgage, and the other agrees to take on all mortgage payments.
If the bank is satisfied with the solvency of the second spouse, then the transfer of ownership of the mortgage housing is registered with the territorial registering authority. As a rule, the bank charges a commission for the renewal of the loan agreement (0.5% - 1% of the remaining debt).
