According to state statistics, up to 60% of newly registered marriages in Russia are disintegrated. Family tragedies are almost always accompanied by a section of common property, as well as debt obligations. Divorce and mortgage in Sberbank is a topic that is constantly discussed in newspapers and on legal forums.
Most of the housing loans are made up with newlyweds who want to live separately from their parents. Own housing avoids the conflict of generations and parental intervention in the life of a young family. Husband and wife who have official employment seek as quickly as possible to make a mortgage and start a child. They hope that in the future they are waiting for a career takeoff and increasing income.
The loan is issued for a long time (up to 30 years). During this time, various force majeure may occur. The most important problem is the loss of the workplace. The unemployed usually become people working in small companies. After losing work, one of the borrowers of the home budget income falls sharply. The deplorable financial situation is exacerbated by the presence of one or more children, the content of which requires significant costs. Divorce and mortgage in Sberbank often correlate with each other.
Most of the economically active population does not possess financial literacy And it does not understand the economic terminology. People hope for the best and do not create reserves. money. Sudden material difficulties caustic a young family and dramatically lower the standard of living of her members.
The conservation of a healthy family is a difficult task that requires time, emotional participation and material investments. The maintenance of general economy requires constant compromise and mutual concessions from men. Small household troubles cause quarrels and scandals. Only the most patient and attentive partners are able to keep home the hearth.
Divorce and mortgage in Sberbank often go hand in hand. The most frequent reasons for divorces in Russian Federation are:
- Low salary;
- Alcoholism and drug addiction;
- Inability to compromise, excessive egoism;
- Assault and "domestic" violence;
- Dissatisfaction with sexual life;
- Married treason and unreasonable jealousy;
- Social networks and dating sites.
The last item is especially relevant for modern society. Many close people seek to control the electronic correspondence of each other. Doubt causes any "Like", "repost" or a personal message. The number of divorces caused by social media is constantly increasing. In some cases, national, religious and political disagreements become a stumbling block. People having a different worldview are difficult to find a common language.
The disintegration of the family causes an indelible psychological trauma to children. Boys and girls who grew up in incomplete families, repeat the fate of their parents. Someone lives all his life alone, afraid to repeat the mistakes of the dad and mom. Only units manage to find their love and celebrate the "golden" wedding.
The family union is terminated by the registry office or judicial instances. The first option is carried out in the following situations:
- Husband and wife do not have joint children and approve the cessation of relationships;
- The spouse is listed missing;
- Family member is recognized as incapable by decision of the Medical Commission;
- The spouse is convicted to a long prison sentence (more than three years).
In other situations, divorce requires a court decision. After required document It will be obtained, former spouses will be able to contact the registry office and cancel the marriage union. The husband is obliged to know that he will not be able to divorce her pregnant wife (this is possible only with her written consent).
Divorce and mortgage in Sberbank require certain legal action. To form a divorce:
- Passports husband and wife;
- Statement of the established sample;
- Original marriage certificate;
- Receipt of the payment of state fee;
- A copy of the court decision that joined legal force (We are talking about paper confirming the loss of a citizen without any incapacity).
The collected set of documents must be submitted to the registry office or multifunction center at the place of registration. A public institution officer will issue spouses receipt for receiving a package of packets. A certificate of termination of marriage is issued within 30 days.
Citizens who do not want to share common material valuesmay recognize the family tandem invalid. This legal category is used in the following situations:
- One of the spouses hid the fact of the presence of a marriage relationship, before the conclusion of another marriage;
- Family relations are recognized as fictitious;
- Marriage concluded forced;
- Husband or wife did not achieve adulthood at the time of receipt of the marriage certificate;
- Spouses are blood relatives;
- Marriage is concluded between guardian and adopted;
- The spouse is recognized as invaluable to marriage;
- The partner hidden hazardous infectious diseases or AIDS.
The listed facts are confirmed documented. The marriage is invalid by the decision of the magistrate. The claim is served at the place of residence of the defendant. The date of the meeting is appointed within 14 days.
If the mortgage loan was drawn up after the marriage is concluded, then the mortgage housing is considered to be shared by the property. The title borrower is usually the head of the family, which together with his wife gave way to a housing loan. If, after the divorce, the co-worker refuses to make its part, then, by virtue of the law, a regressive requirement for debt repayment arises. A citizen has the right to apply to court and demand the execution of debt obligations.
If the deposited apartment was purchased to a hike in the registry office, then it is not considered joint property. The co-worker has the right to claim part of the living space if he has invested his own funds in an expensive repair or redeemed a part of the loan from own funds. The fact of payment must be proved in court. For this you need to present receipts, checks and other reporting documentation.
There is a relatively peaceful option to solve issues related to divorce and mortgage in Sberbank. Former spouses should agree, in which shares will be divided by depositous living space. After signing a notarized agreement, customers are obliged to contact Sberbank and divide the mortgage debt in pre-agreed proportions. All nuances of future financial relationships can be consolidated in a mortgage agreement. According to the current legislation, the lender has the right to demand early repayment Mortgages with deterioration of debt return guarantees.
The spouse is entitled to completely abandon his share in the depository apartment. In this case, it has the right to compensate for the costs produced during the loan repayment. At the request of the spouse, the share of indoors can be transferred free of charge. Former spouses can sell mortgage housing and repay the balance of debt due to reversed funds. Real estate requires the consent of the pledgee (Sberbank).
An unscheduled repayment of the mortgage is unprofitable for Sberbank. When selling a depository apartment, she will lose a significant part of the percentage margin. Before implementing the collateral, you need to carefully read the loan agreement. There may be an item obliging a person to pay commission a fee in favor of Sberbank in the event of an apartment. This provision may be challenged in judicial order.
Separately, it should be said about housing acquired under the program "Military Mortgage". In this case, the debt on the housing loan pays the recipient of budget funds. The spouse of the serviceman has no right to claim a share in the residential premises. An exception to this rule is made for a citizen who paid annuity contributions due to its own funds.
If the former spouses cannot agree, the apartment is divided into a compulsory manner. The court can take one of two solutions:
- The collateral becomes the property of one of the borrowers together with the debt balance of the mortgage loan. Spouse, deprived of ownership of residential premises, receives compensation in the amount of half the amount transferred to the account of the mortgage;
- The apartment is divided into shares that are paid by each borrower separately. Most of the living space usually goes to the spouse with whom the child lives.
Divorce and mortgage in Sberbank are often linked. Mortgage itself is often the cause of the divorce. Large housing loan It has a great pressure on the home budget. The situation is aggravated economic crisis or other force majeure circumstances. The unwillingness to be responsible for the decisions taken leads to the emergence of disagreements and conflict situations.
Competent mortgage borrowers We strive to constantly reduce the cost of a domestic budget and are looking for new sources of income. They use different possibilities in order to reduce the mortgage percentage. Someone is arranged on the second job or engaged in private practice. Others open their own business or buy securities on the stock market. The main goal of the family is the early repayment of the mortgage, which will allow to get rid of permanent financial and psychological pressure.
The marriage contract (BC) is called an agreement regulating the property relationships of official marriage. Also, this document regulates the rights arising from spouses in case of divorce. The contract concludes spouses or persons who submitted a statement of registration of family relations (according to Art. 92 of the RF IC). A man and a woman in the so-called civil marriage can not conclude a marriage agreement.
The contract is drawn up in writing and is certified by the notary in obligatory. When signing the document, both spouses should be present. The agreement acquires legal force since notarial assurance. Any changes made to the contract should also be registered in the notary office. BC does not regulate the terms of life, relations with children, as well as personal relationship between husband and wife. Divorce and mortgage in Sberbank should not infringe the rights of children.
BC allows you to change the rules established by the current Family Code. This document allows you to establish the following material ownership modes:
- Joint property (the share of the owners is not determined);
- Share ownership (the contract stipulates the amount of the shares of each of the spouses in general property);
- Separate property (assets and revenues are the property of one of the family member).
Contracts should not be present items obliging to transfer property to be state registration. Such transactions require the signing of a separate agreement, on the basis of which real estate is produced. Some pairs include in the BC item establishing a payer property tax. This provision allows you to transfer the tax burden with the property owner on the partner on the marriage union.
If the terms of the contract put one of the parties in an extremely disadvantageous financial situation, they can be challenged in court. Currently, a single information base has been created in Russia, containing information about all BCs concluded in the country. This base will establish the legal status of the common property of citizens and prevent fraudulent actions by third parties.
How is mortgage divided when divorced?
The presence of an outstanding mortgage loan and the real estate section of the burdened mortgage, adds a lot of difficulties when divorced.
In this situation, a lot of questions arise at the divergent spouses. How to divide an apartment located in a pledge of a credit organization? Who and in which part should continue to pay a loan on the mortgage? How to solve the issue with coaches?
At the same time, each situation has a lot of specific nuances, so the unambiguous solution and the algorithm of the section of responsibilities for mortgage and collateral real estate has not yet exist. Moreover, law enforcement arbitrage practice There has not yet developed precedents today, who would be reference points when making decisions in similar situations.
It is not surprising that absolutely different court decisions are made by similar cases, right up to the opposite.
The situation with the mortgage is complicated by the fact that in these legal relations there are interests of three sides at once (based on spouses and the bank), in contrast to the division of property, not burdened by mortgage, where it suffices to consent only former spouses. Therefore, to find a solution that meets at once all interested parties is much more complicated.
In many cases, in many cases, the interests of one of the parties are significantly inflated by the interests of the loan. For example, there are precedents when the borrower devoid of apartment is forced to pay a loan for a long time. Or a bank who wants to implement a collateral apartment, which is not paid by the loan, faced the situation that the mortgage apartment for a court decision 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 law.
Courts in the consideration of divorce cases, where the issue of mortgages is addressed, are guided by the Family Code, Civil Code and the Federal Law "On Mortgage", as well as a mortgage agreement, issued between the bank and the borrower.
The basic principle of the section of mortgage property during the divorce set out in these regulatory legal acts is that:
- residential premises acquired by spouses during the period of marriage due to mortgage funds, is jointly acquired property that entails relevant legal consequences;
- the joint property of former spouses should sharing in half, unless other order is not registered in a marriage agreement;
- in the division of property acquired by spouses on borrowed funds, including mortgage apartment, It does not matter at all the mortgage loan.
Financial obligations to the Bank are also assigned to equally on divorced spouses, regardless of whether they played with coaches or mortgage was drawn up on one of them.
Thus, based on the requirements of Russian family law, in the section of any joint ownership of the spouses, the principle of "Fifty-fifty". However, in practice, it is quite problematic to divide the mortgage apartment in half, as the housing is pledged by the credit institution, and the owners cannot make any legal actions with him.
How to avoid problems in the section
Most conflicts and controversial situations associated with the mortgage apartment can be avoided by pre-enclosing the marriage contract. Russian legislation allows you to arrange a marriage agreement both before the registration of the family and in the period family life. Nevertheless, statistics show that, despite all the advantages of marriage contracts, such contracts make up not more than 5% of Russians.
Another important legal warranty that is used to protect the interests of all sides of the mortgage is a mortgage agreement. Currently, credit institutions have already repeatedly faced problems with the payment of mortgages former spouses, have acquired a fairly solid experience in judicial mortgage disputes. As a result, mortgage agreements made by banks minimize the risks of the lender with the divorce of borrowing spouses.
The overwhelming majority of banks are trying to make both spouses with coaches on the loan, which, in principle, is beneficial and the family pair itself, since it is possible to combine income and get a large amount of credit.
In addition, many banks began to include in their mortgage agreement An important condition: "When divorced family relations between spousers-coaches, the terms of the mortgage agreement are not changed." Such an agreement point is an additional insurance for the bank. If the spouses who agreed with this condition of the mortgage agreement are divided, and one of them refuses to pay a mortgage, then financial responsibility for payments will be completely transmitted to another.
Such a legal guarantee protects, unfortunately, the interests of the bank are exclusively the interests of the bank, and the spouses will have to still defend and protect their interests.
In fact, there are only three options in the prequering spouses:
- continue to pay a loan;
- find the missing monetary money And pay off the mortgage ahead of schedule. After that, you can sell an apartment at a bargain price and divide the existed amount in half or by agreement of the parties;
- sell \u200b\u200ba mortgage apartment with the consent of the bank.
To carry out a section of a mortgage apartment, you can turn directly to the credit institution that issued a mortgage, with a request to approve the sale of a common marital apartment.
The reaction of a specific bank on such a proposal to predict is difficult. The credit institution in the current situation may:
- agree to the sale of a mortgage apartment;
- require early repayment of mortgage spouses, justifying this by the fact that the upcoming (or already registered) divorce violates the agreed conditions credit Agreement;
- commit spouses to pay a mortgage without selling an apartment.
In many cases, the Bank agrees to sell a mortgage apartment, as it reduces the risk of non-payment of debt divorced spouses. If the Bank's consent is obtained, the spouses need to find a buyer who agrees to acquire an apartment with the burden on their mortgage housing.
In this situation, the buyer to join the right of ownership, must first compensate for the bank the amount of debt on mortgage loan And wait until the whole process is ends with the removal of burdens from the purchased apartment.
Of course, not all buyers will agree on such a difficult version, as risks increase and the time is delayed. Therefore, based spouses wishing to implement a mortgage apartment, often it is necessary to interest the potential buyer, reduce the price of its accommodation.
Regardless of the development of the situation with the sale of an apartment, a declaration of spouse, you need to continue to pay payments on a mortgage loan. Otherwise, the position can only worsen. The bank not receiving payments on the loan is entitled to sell a deposit apartment at the auction, and the price of the accommodated housing is usually much lower than the market.
From the amount exeted from the sale credit organisation Hold the principal debt, fines, penalties, unpaid interest and expenses for the organization of auction trading, and only the remaining amount will be divided between the former spouses. As a result, you can stay without housing, and without financial compensation.
Another an important rule When divorced persons who are borrowers of mortgage funds - it is necessary to inform the credit institution about divorce. Under the conditions of any mortgage agreement, borrowers are obliged to immediately notify the Bank meaningful changes In their lives, including the termination of marriage.
If the sides of the mortgage agreement fails to agree, you need to go to court. As mentioned, the unequivocal development of the situation during the trial does not exist. The court can force a credit institution to perform operations with a depository apartment, oblige to reorganize a mortgage agreement on one of the divorced spouses, to oblige spouses to continue payments to repayment of the loan. Other solutions are possible.
If the spouses decide to pay a loan to then sell an apartment, it is possible to divide mortgage real estate during the divorce. To do this, they need to contact a creditor bank with a statement.
However, there are problems and "pitfalls". For example, the Bank will refuse such an option. It may not arrange income of one of the spouses, which when designing dolly ownership Must perform an independent borrower. Or mortgage pledge is one bedroom apartment, the section of which is not possible on the fraction in nature. Such property according to the Federal Law "On Mortgage" should not act as an independent mortgage.
Bank failure can also be appealed in courts.
Another version of the divorce - one of the ranking spouses is free or for monetary compensation Signs a rejection of its share in general housing, burdened by mortgage, and the other - agreements to take on all payments on the mortgage loan.
If the bank arranges the solvency of the second spouse, the transfer of ownership of mortgage housing is recorded in the territorial registering authority. As a rule, the Bank for re-issuing a loan agreement charges the Commission (0.5% - 1% of the remaining debt).
The complexity of the divorce is exacerbated by the need to partition. But the joint is considered not only the right, but also the obligations arising in marriage.
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How in 2019, when divorced to share a mortgage apartment? The marriage termination procedure is regulated by law in fairly detailed.
Existing standards and existing judicial practice allow us to divide almost any joint property.
At the same time, the practice of acquiring housing on credit is widespread. How shall the apartment divided when divorced if it is in mortgage in 2019?
Total moments
The principle of the division of mortgagestone is to divide it equally between spouses. It concerns this and apartments acquired in the mortgage during the period of marriage.
And the fact that the loan is issued is not so important. Financial obligations are equally carried by both spouses, and they are obliged to fulfill them even after the dissolution of marriage.
The optimal option is the joint payment of mortgages after the divorce on the previous conditions. After the removal of the former spouses peacefully decide how to divide the apartment.
Ideal if there is the possibility of early repayment of the loan. Then the apartment can be sold and the reversed amount divided between spouses.
In practice, such solutions are extremely rare. More often, spouses after the divorce do not want to have joint commitments, preferring to immediately share all the property.
The borrower on a mortgage loan is the person with whom a loan agreement is concluded. It is the borrower that is fully responsible for the return of funds.
But along with the borrower in the transaction, a co-co-career who carries a solidarized loan can participate.
As a rule, the spouses act up with mortgage coaches. That is, they are equally responsible for the return of debt. But other situations are also possible.
Actual, or civil marriage, today is not uncommon. In this case, the norms of family law on spouses do not apply, since the statement of marriage is not recognized.
Mortgage apartment gets to those who are decorated. Of course, you can prove that the second formal spouse participated in the payment of mortgage.
But for this you will need to provide testimony and weighty evidence. For example, payment, checks and so on.
The trial of the situation will require a professional lawyer's services. If the mortgage is decorated before marriage one of the spouses, then the apartment is not subject to divorce.
The former spouse can claim part of the apartment, since payments were carried out from the total family budget.
But again you will need the help of an experienced lawyer and a good evidence base. There will be no problems with the section of mortgage housing in the presence.
If the spouses agreed on the division of the property before marriage or in the period of marriage and documented in detail the order of division, then not need to go to court.
Mortgage will be divided according to the terms of the contract. Special attention deserves the acquisition of apartment in the mortgage.
The right to such housing occurs only after the commissioning of the facility. And maybe two options for developing events.
If the apartment is transferred to the property at the time of marriage, the main borrower is obliged to allocate the share of the former spouse when divorced.
When the divorce occurs before the actual receipt of the apartment, the spouse, which is not the main borrower, can apply only to compensate for joint payments.
And yet the section of the mortgage apartment is very ambiguous. The situation may complicate due to various nuances. This is the presence of children, and the use of statesubsidium when making a mortgage, etc.
Permissible causes of termination of marriage
Causes of the divorce can become different circumstances - incompatibility of characters, marital treason, material difficulties, domestic violence, etc.
Either the loan is partially paid at the expense of funds presented to the spouse relative. Corresponding to evidence that payments carried out only one of the spouses or payments were paid from the joint budget.
You can use documents confirming the use of various, etc.
At any stage of the trial, a conclusion is permissible if the spouses can independently agree on the order of the apartment.
Procedure section
Sometimes it is quite difficult to divide the mortgage apartment because of the objections from the lender.
Banks do not welcome the change in the mortgage agreement and even the agreement of spouses on the division of debt is not a guarantee of the conclusion of a transaction on new conditions.
Lawyers advise apply the initial on the section of joint property, not mentioning the joint debt section.
In this case, the court is obliged to be guided exclusively by family legislation. The consent of the lender becomes optional.
The procedure looks like this:
Submission to one of the spouses about the section of common property Since the bank in the section of the apartment does not lose the right to the requirement of fulfillment of obligations, its consent is not required for the decision-making decision Appeal to Rosreestr and renewal of property rights In accordance with the court decision. Included record about the share in the apartment of each spouse Appeal to the bank-lender with the provision of a court decision Joint statement of former spouses and specifically confrontations on an apartment where the share of each spouse is indicated Renewal of the mortgage contract And the creation of two separate contracts for each fraction of the apartment. Since real estate is already divided and decorated, then the bank does not make sense to object The RF IC states about equal rights of spouses, because the apartment is divided equally. But the circumstances of an unequal section or the transfer of housing are also possible in the sole ownership of one spouse.
If there are children
By law, children cannot claim the property of parents and vice versa. How is the apartment in the mortgage when divorced if there is a child?
The presence of children from a couple can affect the unequal section of the apartment, increasing the share of the parent, with whom children stay.
For example, raising a child with limited features Allows the parent - to apply for an increase in the housing.
If during the section of the juvenile children will have to move to housing with the worst living conditions, the court can leave an apartment in the sole use of one spouse (with children), obliging it to pay the cost of the share of the former spouse.
When the family is recognized as many families and all children stay with one of the parents, the share of another spouse decreases in proportion to the number of children.
The number of divorces in the Russian Federation is growing every year, there may be various circumstances to this, but the result is always one - the collapse of the family. The presence of a mortgage does not make it possible to disperse in different sides without mutual claims.
Spouses have to decide how to divide not only the real estate itself, but also the remaining mortgage debt. The resolution of these issues is often produced in court if it is impossible to agree with each other.
Spouses who have entered into official marriages are endowed with certain responsibilities. They drive general farming And all that they are earned and started on the landscaping of life, is considered joint. When divorced, it is necessary to share the acquired between her husband and wife. The property section can be made in several ways:
- By law, namely equal shares between the spouses.
- For a joint agreement - in any proportions that arrange each other.
- On a marriage contract.
Many families today, when marriage enter into marriage, conclude an agreement. This is a convenient form that allows you to avoid many conflicts in the future, if they try to dilute suddenly. It is prescribed any conditions that will be achieved by the parties to married relations.
In the absence of a marriage contract best way The separation of the property is considered mutual agreement. If former husband and wife retained a normal relationship, they can settle questions peacefully, deciding to someone and in what fractions it will get. If you have children, their interests can be taken into account.
Unfortunately, often divorce is accompanied by a serious offense of the sides on each other, which excludes peaceful negotiations and the achievement of a joint agreement. Such situations can occur everywhere and are permitted with the intervention of courts, which are guided by the exceptionally existing legislation in this area.
Legislative regulation
The law regulates the legal relations of spouses among themselves. The Family Code of the Russian Federation in Article 38 regulates that the property of spouses can be divided during the period:
- Walking in marriage.
- After its termination.
To file a lawsuit on the section can any of the parties, as well as the lender, which pays for one of the spouses. Family Code provides a section in two ways:
- By agreement of the parties, the official document is drawn up, which is assigned in the notary.
- On the court when the section is made on the basis of legislative norms, excluding the wishes of each side.
In the section of the property, except for the RF IC, it is necessary to focus on the following legislative norms:
- Civil Code of the Russian Federation.
- Civil Procedure Code of the Russian Federation.
- Tax Code of the Russian Federation.
In the section of property, various aspects can be taken into account that can increase the share of one spouse and reduce part of the other.
Mortgage decoration in marriage
To buy housing and make real estate in the mortgage often comes in marriage. Reasons to do these are several:
- Registering relations people, more seriously think about the future and wish to build their joint existence.
- Planning children or their presence predisposes to acquire their own apartment.
- The presence of double income is a salary of a husband and wife, allows you to increase general budget. Often alone a person is not under the power to take a loan and pay mortgage contributionsBut in the family to make it much easier.
When making a mortgage in marriage, a loan is taken by one of the spouses, but the second is the coacher, which does not reduce its rights, but equalizes them with the main borrower. This fact says not only that the apartment belongs to the equal parties to both parties, but also the fact that carrying a mortgage loan obligations is necessary in equal shares.
The credit institution may make claims to any spouse or immediately to two. Since the rights and obligations are divided into robust, then the property is subject to 50/50 by divorce.
Section of the mortgage apartment
When divorced, the spouses seek to divide not only their lives, but also all the property acquired in married. The property purchased in the mortgage is divided by law equally, unless otherwise stated when it acquired in a notarial agreement. The section of the mortgage apartment can be produced:
- Voluntarily, without going to court.
- Forced when applying for a lawsuit.
The presence of a voluntary joint agreement implies a greater number of variations. In fact, you can be guided by law or invent your schemes. The main thing is that both sides agree with the decision made and outlined it on paper, assuring her at the notary. There are many options, someone will refuse complaints completely, and someone wants to reissue the mortgage, etc.
When considering Claim through court, concomitant factors will be taken into account, for example:
- The presence of good circumstances that allow one of the spouses to qualify for most of the real estate. For example, taking into account the interests of juvenile children who remain with her mother or father.
- The living space was framed solely on one spouse. Such an opportunity exists in marriage, but is more often practiced if the premises were acquired before the conclusion of marriage relations.
The section of the mortgage apartment is made in one way:
- Real estate, like the remaining debt, is divided into equally between her former husband and wife.
- In coordination between the spouses, the premises gets only one of them, together with the obligation to repay the loan shifted on it. In this case, the compensation of the part of the property with money to the second spouse should be provided.
Apartment section agreement
Achieving mutual agreements without the attraction of court instances is the best way out of the situation. With such a solution to the question saves time, money and, which is important, nerves. If the spouses are willing to break up peacefully they must resort to the following scheme:
- Discuss various options and come to one common denominator.
- Share all the points of agreement on paper.
- Relaim the agreement at the notary.
Please note that, despite the fact that voluntary agreements can be expressed by any conditions, it is better to adhere to legislative norms. Notary until the point of agreement studies the Agreement. He must testify that everything outlined is voluntary will, and there is no pressure on one side. It is also important to comply with the legality of the distribution of property, if there will be a clear overcast in one direction in the contract, it may cause questions, and subsequently pour into the trial. The more transparent partition scheme, the greater the likelihood that no deception and pressure from any side was observed.
Section through the court
Guided by the current practice, it can be said that it is not always possible to solve the issues of the property of the property in the peaceful thing for former spouses. In the overwhelming majority of cases, the question is solved in court.
Subtle statement of claim To section mortgage real estate Maybe any of the divorced.
By more, it does not matter who the applicant does not matter, and who is the defendant, the court will take into account the interests of both parties, and especially children if they are. If there is no ultimate clarity between the spouses in the issues of property hold, it is better to go to court than "to live" the case on your own. The trial allows you to express the final points on all issues. The judge acts as an edible arbiter in this dispute, while maintaining a cold head and guided by no emotions, but exclusively by legislative norms.
In addition, you should not forget that the outstanding mortgage implies that a member of the dispute is not only husband and wife, but also a credit institution. His opinion is also taken into account, and produce any manipulation without a creditor notification is prohibited. And the judicial instance makes an official decision, which is taken into account by the bank as legal.
Accounting for children
The interests of children in the division of property are not always taken into account. Family Code does not provide a mandatory division of real estate share not only on spouses, but also for children. Today there are considerable disputes on this, but regulations So far do not contain a paragraph about accounting for juvenile interests. Theoretically, when divorced, real estate is divided into equally, but practically the court can take into account the fact of the presence of children and to award a large share of the parent, with whom the minors remain. It should be understood that together with the increase in the share in a mortgage apartment, the amount of credit obligations to the bank increases.
A little different things are the case when part of the housing was acquired for maternal capital. Since this money has a targeted purpose, it is also impossible to say that only parents are already impossible to say that the owners of housing are.
Judicial order
Application for the section of property in court can be:
- Being in legal marriage.
- After divorce.
The presence of a previously signed agreement is not an obstacle to the trial and even, on the contrary, it may provoke it if the agreements reached by one of the parties are not respected.
To initiate a trial, the applicant will need to pass the following way:
- Create a claim.
- Collect the package of documents.
- The entire packet of papers to register.
The date of consideration of the claim will be established after the documents will be considered. Both parties are notified about the day of the meeting in writing. The judge will make a decision based on documentary evidence and testimony.
Preparation of documents
The first step K. judicial proceedings Property disputes are considered to collect documentation for submission to court. Start follows from the claim itself. This statement is written in a conditionally arbitrary form, but should not underestimate its importance. Often, it is a competent claim that can increase the chances of the planned outcome of the case. It can be compiled independently, if you first get acquainted with the rules for writing and examples of applications. However, the easiest way to contact a lawyer or a lawyer to not only make a statement, but also to obtain a consultation of a competent specialist.
IKSI is accepted by the court in the event that they are supported by documentary justifications. In each case, the packet of papers will be varied, and it is better to clarify its completeness separately in court or in a lawyer. However, there is a list of mandatory, without which it will not be possible to do the applicant. It includes:
- Photocopy of passport.
- Credit agreement for mortgage.
- Extract from the bank about the amount of the remaining debt on the loan.
- Documents on the apartment.
- Certificates of the birth of children.
- Marriage contract (if it was compiled).
- Other documents, if they are directly related to the merits of the dispute.
Appeal to the Court
When submitting the entire package of documents do not forget about mandatory payment state duty. It is paid before and in the absence of a receipt, it is not worth counting on the acceptance of the claim. When real estate, the size of the state duty is considered to percentage ratio from the cumulative amount of the claim. Subsequently, the money spent can be divided equally between the participants of the trial.
With full completion of documents, the Secretary of the Court accepts a claim for processing.
For its consideration, the court is given no more than a month. After 2-3 weeks, the first should be appointed court hearing. In most cases, it is not always possible to solve the issues of the section from the first time, therefore additional meetings can be appointed.
The court's decision
The decision of the court makes it in the event that both parties provided an exhaustive amount of evidence and there is nothing to add. Guided by proven facts, the judge displays a decision. A few days later, the judgment of the court outlined on paper is issued to both parties to the participants. Each of the spouses may challenge the decision, submitting an appeal to the superior instance. If there are no disputes about the fairness of the foreclosure, the decision goes to the credit institution, which on its basis shares the accounts of borrowers on established shares.
The court decision may be operated in various ways, including with the involvement of bailiffs.
Registration of property rights
Most court decisions Redistinate ownership of the available real estate. It can be expressed as follows:
- The previous owner is deprived of rights, and the apartment is transferred to the second spouse, along with a debt on the mortgage.
- The room is divided by shares between the two owners.
And in that, and in another case, it will have to register property rights. To arrange real estate in your name, you will have to:
- Collect the package of documents that will be required under state registration, apply to Rosreestr.
- Get a certificate of ownership of your name. At the same time, the encumbrance will remain up to full repayment Mortgage.
Spouses should not forget about their debts before a credit institution. Payment of payments should be carried out on time, which are marked in a loan agreement. If the other side will shy away from paying money for their share, then recovery monetary sum Can be implemented through the judicial authority.
Features of the section of a trunk apartment
Each one knows that the partition bought before marriage is not subject to. But the apartment acquired in the mortgage before marriage is one of the category of real estate and does not always fall under this rule and has other consequences. This is due to the fact that, by the spouse, let him and had to start the procedure before creating a family, but he continues to pay mortgage contributions already in marriage. Debentures Payment for money, which after marriage is considered to be a joint budget. There may be a different situation when the second half, which is actually not related to this real estate, helps to pay a loan by their means. When divorced, the question arises whether the second spouse claims part of the mortgage apartment. By law, it is unlikely possible if the living space is bought before marriage. But another spouse will be able to count on paying monetary compensation.
Arbitrage practice
One of the bright examples of the mortgage real estate section was considered in the Soviet District Court of Voronezh. Primary lawsuit subit ex-husbandwhich put forward the requirements of the section of joint property. The spouse put forward a response lawsuit in which it was about separating all the two minors acquired, taking into account the interests of two minors. It said not only about the apartment bought in the mortgage, but also about another property, in particular, land, country house, car, appliances and furniture.
Each of the spouses brought its own settlements of the section, justifying them from their point of view of rational arguments. The requirements of both sides were satisfied only partially. As for the mortgage apartment, it was divided equally, as well as the remaining loan debt.
It will be interesting for you
One of the current problems arising from the dissolution of marriage is considered property division. When divorced apartment in mortgage Adds even more difficulties. Each particular situation has its own nuances. In this regard, the unambiguous algorithm for the distribution of responsibilities on the mortgage object is currently not. Consider further how to spend.
Relevance of the issue
So the problem accompanying section Apartments - Mortgage. Arbitrage practice Today I did not work out a single approach to making decisions. Therefore, often different instances take opposite decisions. The situation is complicated by the fact that the disputes are addressed by the interests of the three sides - her husband, wives and a credit institution. In many cases, when distributing duties, the rights of any participant are significantly infrinced. For example, in practice there are many cases where the former spouse, deprived of the apartment (or part of it) in the section, is forced to pay a loan enough time. Problems often arise from banks. For example, those who want to sell real estate, according to which there is a draw, are faced with the fact that, by the court decision, it is no longer the sole property of the debtor.
Regulatory regulation
Difficulties that are accompanied by section of the apartment purchased in the mortgageare primarily due to the lack of legal regulation of this issue in civil and family legislation. The instances considering such disputes are guided by the provisions of the SC, GK, as well as the Federal Law No. 102. In addition, the terms of the contract concluded with the bank are taken into account. When analyzing these acts, the following principle can be distinguished. Acquired by spouses in marriage for mortgage products, is considered as them. This, in turn, entails the relevant legal consequences. Joint Property It is customary to divide the equally between the spouses, if another order is not determined by the marriage contract. When considering the disputes, the value does not have, to whom the object is decorated. Financial obligations are assigned equally on spouses, regardless of whether they are coaches, or a loan has been issued for someone. Thus, the principle of "50/50" works. Meanwhile, actually hold the section of the apartment in the mortgage, not so easy. The fact is that the object is in pledge banking organization. Spouses, being formally owned, cannot freely dispose of real estate.
Marriage contract
In order to avoid different problems, lawyers recommend newlyweds to enter into an agreement. At the same time, the legislation allows for the execution of the contract and before registration of marriage, and after it. Meanwhile, despite the obvious advantages of this document, not many declared it (no more than 5%). In it, you can register various conditions. As a rule, the agreement establishes the procedure for the separation of property, juvenile content and other important points.
Warranties for the bank
Credit institutions are trying to reinforce. When making the main contract, they constitute and agreement on the sale of apartments in the mortgage of spouses. Credit institutions that have repeatedly faced with difficulties acquired sufficient experience in disputes. Agreement on the section of the apartment in Mortgageallows the bank to minimize risks. Most credit institutions are trying to make her husband and wife with coaches. This, in general, favorably and citizens themselves. In this case, they can combine their income and get larger credit. Many banks include a statement that when terminated by the marriage, the terms of the agreement will not change. This moment is an additional guarantee for the credit structure. If citizens who agreed on this condition will terminate the marriage, and one of them will subsequently refuse to repay the loan, financial obligations In full turn to the co-coacher. This condition protects, of course, the interests of the banking organization are exclusively.
Options solving the problem
So, how can you minimize risks and spend property division? Apartment in Mortherec- Property, the rights to which are limited. Therefore, co-coaches may continue to pay a loan or quickly find the missing amount to repay it early. When the debt is liquidated, the property is set for sale. Realizing the object, former coaches share the sum of each other. There is another option. Coskers can sell the object with the consent of the bank. It is worth saying that to predict the answer of the credit organization in this case is quite difficult. The bank can agree to the proposal of co-coaches, demand ahead of time to repay the loan, since the dissolution of marriage will violate the conditions of the main contract, or to oblige to continue repayment of debt without selling an object.
Possible actions of a credit organization
Many banks agree to realize real estate. In this case, the organization minimizes the risk of non-payment of debt. After receiving the consent, the spouses need to find a buyer, ready to acquire an object with such an encumbrance. In order for the new owner to receive ownership, it is necessary, first of all, to reimburse the credit structure of the amount of debt. He will have to wait until the process of lifting the burden is completed. Only after that the buyer will be able to make his right. Not all acquirers agree to such conditions, since the risks are high enough. At the same time, regardless of the development of the situation with the implementation of the facility, former co-coaches will be required to continue to repay debt. Otherwise, their position can deteriorate significantly.
Bank rights
A credit institution that does not receive payments by debt can sell real estate independently. This organizes auction. It is worth saying that the cost of the object in this case will be much lower than the market price. Of the amount received from sales, the credit structure keeps the principal debt, penalties, fines, not expelled interest and the cost of organizing the auction. The residue will be distributed among former coaches. Given this, the spouses can stay without housing, and without money.
Important moment
Conducts set several requirements for coaches starting property division. Apartment in Mortherec Formally is in possession of persons who agreed to the conditions of the bank. Among them - the duty of co-coaches to notify all changes in their lives. Accordingly, they must notify the bank and the dissolution of marriage.
Possible results
If the parties cannot come to agreement, have to go to court. But, as described above, it is impossible to definitely predetermine the results of the proceedings. The judicial instance may oblige the bank to implement the necessary real estate procedures, re-inform the contract for anyone from the coaches or prescribe former wife and husband to continue repaying the loan. This is not all possible options solutions to the problem. If co-coaches are ready to continue repaying the loan, then to sell the living space, you can still spend in marriage section apartment. In mortgagedebtors are very dependent on the bank. Therefore, before any actions, they need to contact the credit structure to obtain approval. Accordingly, if the co-coaches decide to hold a marriage to official termination, then they need to write a joint statement about it. But in such a situation there may be problems. For example, the Bank has the right to refuse to coaches. The credit institution may not arrange the amount of income of one of the debtors, which will later act as an independent person. It may happen that it is impossible for technical reasons. For example, it consists of one room, and it is impossible to allocate a stake. Nevertheless, the co-coaches may challenge the decision of the credit structure.
Alternative option
How else can you hold a section property spouses? Apartment in Mortherec Reissued on one of them, and the second free or for a certain amount refuses real estate rights. At the same time, the first assumes the obligation to continue to repay the loan. If the bank arranges the solvency of the coacher, the latter can register the transfer of the right to itself in the authorized body. Typically, the Bank takes a commission for reissuing the contract (0.5-1% of the remaining debt).
Section of the apartment in military mortgage
The process is characterized by the fact that obligations to repay debt are not assigned to citizens, but on the Ministry of Defense. As a member of the lending program, as well as the owner, serves as a family, regardless of his family. In this regard, it does not require the participation of his wife / husband. The latter are not attracted in other cases. For example, when delaying or other violations loan agreement The duty to return the loan is assigned only to the employee.
Actual marriage
Above was considered section between spouses apartments. MortgageMeanwhile, it can be framed and cohabitants - persons consisting in the "civil" marriage. As is known, such cases of the SC position do not apply. If at the same time the man and the woman did not conclude a written agreement, then with the high probability of the apartment will remain at whom the loan was issued. Of course, far from everyone will arrange, since the funds for repayment of the obligation were allocated both. In such cases, it will have to prove joint participation in payments. To do this, provide documents confirming the deductions. These may be receipts, account statements, checks, etc. It should be treated in a similar way then, if there is a desire to prove the joint repair or the acquisition of expensive household appliances. It is advisable to attract a qualified lawyer to the case.
Credit before marriage
As indicated in the SC, everything that is promoted during the officially registered marriage period is common. If something was purchased before marriage, then it refers to the personal ownership of a person. But family legislation contains a number of reservations. In particular, in accordance with the norms, the former spouse is entitled to count on the share of the apartment if the mortgage payments were carried out together even before the registration of relations. Requirements can present and non-working citizen. The income of one spouse in such a situation will be considered common. Often disputes are allowed in favor of an unemployed person.
Housing in new building
The situation with the section of apartments in the houses under construction is quite complicated. According to the standards, the ownership of living space can be issued only after commissioning of the structure. In practice, two options for developing events are possible:
- If the borrower is terminated at this moment, it will be obliged to pay compensation to her husband / wife. When making such a decision, the court takes into account the fact of the joint loan payment. However, the competence of a lawyer will also have great importance in this situation.
- If the borrower is married before receiving the certificate, the Court will make it allocate the share of the apartment to the divorce.
If one of the former coaches evades payments
What to do in this case? In this situation, a credit organization reissues a contract for a solvent spouse. From the second subject, all obligations are removed. But in return, he is deprived of the opportunity to demand the proportion of living space. In some cases, the proceedings of one of the coaches may exceed 3 months, but at the same time he does not want to give up his rights. In such situations, it is possible to solve the problem in two ways:
- Credit repays a solvent co-career.
- The bank implements real estate, and the funds received are sent to payments.
As a rule, a credit organization sells an apartment at a reduced price, approximately equal to the principal debt. This significantly accelerates the procedure.
Mortgage when terminated for marriage with children
Legislation prescribes with any actions related to family property, take into account the interests of minors. Guided by this rule, the instances, treating disputes, take appropriate decisions. When shared housing, the share of children in any case will be framed on the spouse with whom they remain. If it is decided to sell housing, and a minor is registered in it, it must be written in obligatory. Otherwise, the situation may be interested in guardianship and guardianship authorities.
Rent of mortgage housing
In some cases, the spouses make a decision to rent a mortgage apartment. It is worth noting that such actions are illegal. The fact is that the apartment is laid down, respectively, burdened. If the situation is critical and the co-coaches lacking funds for repayment of the loan, then to rent a living space for rent, they must obtain the consent of the financial structure.
Conclusion
Marriage dissolution is often accompanied by various problems. In general, the divorce is not a very pleasant procedure because it concerns not only personal relationships, but also property interests. Often, former close people become real enemies. It is clear that everyone wants to protect themselves. Citizens, making up a mortgage, as a rule, do not imply any difficulties in the future. However, anything can happen in life. Therefore, lawyers recommend to protect themselves for the future, concluding a marriage contract. This document will avoid many problems, save nerves, money and time. Marriage contract Required by notary, which gives it legal force. If the dispute will still arise, and it will be necessary to regulate it through the court, the document will become irrefutable proof of the right.
