Is a donated apartment divided in the event of a divorce if it was given to the husband or wife before marriage (during marriage)?

Author of the article: Roman Gavrilov Last modified: January 2020 4864

The Civil Code of the Russian Federation does not contain a ban on a gift agreement between spouses. In a legal sense, the fact of marriage, properly registered in the registry office, is important. The marriage must be officially registered. In turn, the Family Code of the Russian Federation provides for 2 modes of property for spouses - contractual and general.

Features of drawing up a gift agreement between spouses

Content

According to Art. 572 of the Civil Code of the Russian Federation, a gift agreement (hereinafter referred to as DD) is an oral or written transaction that signifies the donor’s intention to transfer property or valuables in favor of the donee free of charge. It is possible to transfer a property claim or release from obligations to the donor or a third party.

The transaction is characterized by several legal qualities:

1. Inadmissibility of counterclaim. You cannot ask the recipient to transfer money, valuables, or other things in exchange for a gift, or demand the provision of a certain service.
2. Indication of a specific item for alienation. Information about it must be contained in the DD, otherwise it is considered void.
3. Consensual party: the owner has the right to formalize a contract of promise of donation in the future.
4. The real contract comes into force from the moment of signing: from this time, the donee can begin to re-register the right to the donated real estate.

Important! Donation is a two-way transaction and the consent of the recipient is required. He has the right to refuse at any time (Article 573 of the Civil Code of the Russian Federation). If the gift is given orally, a verbal refusal is sufficient. When drawing up a written deed of gift, the refusal is formalized in writing. If registration is made, the refusal is also subject to registration.

A man and a woman who are officially married have the right to give each other any things, real estate and other valuable items. But it is important to consider: property acquired after marriage is joint property.

Based on this, many lawyers and Rosreestr believe that it is impossible to donate real estate, the owner of which is already the donee spouse. Albeit nominally, the parties each own 50% of the common property.

Legal advice: to avoid problems when donating real estate, it is better to allocate a share and issue a deed of trust for it in favor of the spouse. This will significantly reduce the likelihood of refusal of state registration of the transfer of the right to housing.

How to allocate a share in an apartment?

To allocate a share in the apartment, you need to draw up an appropriate division agreement with your spouse and register the changes in Rosreestr. After this, you can freely dispose of your part, incl. and give it to your spouse.

If a marriage contract has been drawn up

The marriage contract abolishes the legal regime of property and establishes a contractual one. According to it, specific property is distributed between spouses and belongs to them individually. They have the right to give it to each other or to third parties under a deed of gift. Preliminary allocation of shares is not required - the values ​​are already fixed between the spouses under the contract.

Briefly: you can gift real estate to your spouse, but after allocating a share. Alienation of property owned by a citizen personally on the basis of a marriage contract is allowed. Without it or an agreement on determining the parts, the application may not be accepted by Rosreestr, because donating common property loses its practical meaning - everyone has equal rights to it.

If the property was purchased before marriage, received as an inheritance or as a gift

If a spouse acquired the property as a gift before registering the marriage, received it as an inheritance or under a DD from another person, such property is recognized as his sole property (Article 36 of the RF IC). He has the right to dispose of it at his own discretion, without obtaining the consent of the other half.

Determining the owner of property purchased during marriage with money set aside before marriage raises many questions. If a spouse managed to make savings before the wedding, but, for example, an apartment was purchased during marriage, it is officially considered community property.

The sole right of ownership can only be recognized in a prenuptial agreement or in court by presenting evidence of purchase using premarital funds.

Transfer of personal property of spouses as a gift

In accordance with current legislative norms, the following benefits are not included in the category of jointly acquired property:

1. Property received as a gift or acquired under another contract before marriage.
2. Benefits acquired with the personal funds of a spouse during marriage.
3. Objects that were privatized by one of the spouses.
4. Personal bonuses, awards, citizen incentives.
5. Personal household items (for example, personal items: toothbrush, wardrobe items, etc.).
6. Property that was acquired by a spouse before the marriage was concluded.
7. Insurance amounts paid following the occurrence of a special event.
8. Benefits that were acquired during the separation of the spouses.

The procedure for donating personal property is a standard procedure. For example, one of the parties has the right to make the second party to the transaction a beneficiary when receiving insurance compensation in the event of death. Such a procedure is not classified as a gift. But if the spouse receives compensation after reaching a certain age, he has the right to give it to the second spouse.

What can spouses give?

A husband and wife can give each other any valuables that belong to them by right of shared ownership, or acquired as an inheritance, by deed of gift, or before marriage. This includes both movable and immovable DD items.

Important! According to Art. 575 of the Civil Code of the Russian Federation, only a legally capable person has the right to act as a donor. Giving on behalf of an incapacitated spouse is prohibited by law. Transactions with the property of a person with limited legal capacity are allowed, but only with the permission of the guardianship authorities, while the donee cannot act as a legal representative, because is an interested party.

Let us consider the features of alienation as a gift of movable and immovable property between spouses in detail.

Real estate

Real estate includes apartments, houses, buildings, structures, land plots and other objects, the movement of which is impossible without destruction.

The husband has the right to give his wife real estate purchased before marriage, received during marriage as an inheritance or by gift. Alienation of housing owned solely by him on the basis of a marriage contract is also allowed. An alternative option is to draw up a division agreement with the subsequent alienation of a part under the DD.

It is important to consider that the transfer of a private residential building is carried out together with the land plot on which it is built. Separate alienation is prohibited.

Movable property

Movable property is property that can be moved without the threat of loss: money, cars, expensive jewelry, and other valuables. To do this, it is enough to allocate a part of the right by drawing up an agreement.

Important! Unlike real estate, where registration of changes in the number of owners or transfer of rights is mandatory, it is not necessary to register an agreement on the allocation of shares in the right to vehicles and other movable things. Moreover, for the alienation of movable property it is not necessary to put everything in writing - the contract is considered concluded at the moment of transfer of the thing, keys or title documents. Oral form is sufficient.

It should be taken into account that when determining shares in the right, the car is registered under the name of one owner, but in the STS, special notes indicate that the vehicle is in shared ownership.

Allocation of the spousal share before the gift transaction

As a result of a legal action aimed at allocating a marital share of housing, shared ownership of the corresponding residential property arises. After this, housing will be registered in equal shares between married persons.

Equal shares in the property rights with such registration of housing become the sole property of each spouse. Having shared ownership, each spouse can, from a legal point of view, dispose of their own share without receiving notarial consent from their life partner.

Being the legal holders of jointly acquired housing in identical shares, spouses can freely give their share to any person, including the second spouse.

Is the consent of the second spouse required?

According to Art. 35 of the RF IC, alienation of common property in favor of third parties is carried out with the consent of the spouse. If the transaction is subject to state registration, the consent is certified by a notary. As mentioned earlier, it will not be possible to donate common valuables purchased during marriage - they already belong to both parties in equal proportions, although without the actual allocation of shares in the right.

Everything is different if the apartment is in shared ownership, or belongs to a person solely on the basis of a marriage contract, and the alienation is made in favor of the second spouse. In this case, his consent will not be required. In addition, this spouse also acts as a donee, which already confirms the fact that there are no disagreements regarding the transaction - this is confirmed by his signature.

Briefly: a notarized consent of the spouse for a gift to him will not be required. You can donate both movable things and real estate, having previously allocated shares, concluding a marriage contract or a division agreement.

Donation of jointly owned housing

When one spouse donates jointly acquired matrimonial property to the other, a certain legal complexity arises. Experts even talk about the presence of a legal conflict associated with conflicting legislation. Thus, on the one hand, the legislator did not introduce a direct restriction on the conduct of gratuitous transactions between official spouses, and on the other hand, a participant in the transaction, acting simultaneously as both the owner of the property and the donee, according to regulatory requirements, cannot in any way act as both parties to a legal transaction at once. gift transactions.

Based on legal requirements, the spouse, acting as the purchaser of housing in a donation (or purchase and sale) transaction, must simultaneously represent the second party alienating the property, since he must give the second spouse (donor) consent to complete the relevant transaction.

In this situation, lawyers offer two alternative solutions:

• drawing up, before the planned donation transaction, a marriage agreement defining the separate ownership of the relevant residential premises by the spouses;
• preliminary allocation of the marital share of housing to one (donee) spouse with the subsequent donation of the remaining share of the apartment to him.

Is it possible to draw up a deed of gift without a notary?

The contract is subject to notarization if a part in real estate that has several owners is donated. When alienating property in sole ownership, the signature and seal of a notary will not be required.

Legal advice: it is better to contact a notary, even if this is not required by law. Notarization will reduce the likelihood of challenging the transaction and confirms that the citizen at the time of signing the DD was legally capable and not intoxicated, and the recipient did not contribute to the alienation of the “gift” through violence.

Cost of notary services

Certification of a real estate transaction will cost 0.5% of the cadastral value, but not more than 20,000 rubles. When alienating movable property, Art. 22.1 “Fundamentals of legislation on notaries” establishes a notary fee in the amount of 0.3% of the contract amount, at least 200 rubles.

When donation is prohibited: article of the Civil Code of the Russian Federation

The main feature of property donation transactions is gratuitousness. If the transaction is imaginary or feigned, then it may be declared invalid.

The grounds for declaring a transaction invalid are specified in Art. 170 Civil Code of the Russian Federation:

• the transaction was carried out without the intention of achieving legal legal consequences that correspond to it;
• the transaction was carried out with the intention of covering up another transaction (including a transaction concluded on different terms).

It is prohibited to make a gift of property if either spouse is incapacitated or unable to understand the legal consequences of their actions.

The recipient has the right to challenge the transaction in court. The limitation period is 1 year.

The grounds for challenge are as follows:

• the alienated property is subject to the regime of common matrimonial property;
• the donee did not agree to the transaction;
• the donee has evidence that he did not agree to the transaction, which the donor knew about;
• at the time of concluding the transaction, the recipient was in a state of insanity; he took this step due to threats, violence, etc.

Which is better: an oral transfer of a gift or a written transaction?

The law allows you to give movable things without a written document. For example, to alienate a car in favor of a spouse, it is enough to indicate her as the new owner in the title and hand over the keys. However, it is better to draw up a deed of gift: this will allow you to confirm the fact of the transaction if problems arise.

Another argument in favor of a written contract is that it is difficult to challenge. If the donor or a third party decides to take back the gift, he will have to go to court, and only if there are grounds. DD will not be canceled without reason.

How to register a deed of gift for real estate in the name of a spouse: step-by-step instructions

Before drawing up an agreement, you need to agree on the transaction with the donee spouse, then draw up a deed of gift and, if necessary, have it certified by a notary. If real estate is donated, the re-registration of the right is registered in Rosreestr.

Note! You need to decide in advance who will bear the costs of the DD certificate. This is true when spouses have separate budgets. Usually the donor pays for everything, but other terms can be negotiated

Step 1: approval of the deal

During the approval process, you need to find out what will be donated, in what share (size), and whether notarization is required. Also at this stage, expenses are distributed as agreed.

Step 2: drawing up a gift agreement

You can draw up a DD yourself, contact a lawyer or a notary. Lawyer services will cost approximately 2,000-3,000 rubles, notaries charge more - from 5,000 rubles.

Sample contract

It is important to reflect the following points in the deed of gift:

• Full name, registration addresses, passport details of the parties;
• the property regime in force in the family: general or contractual;
• the size of the part alienated in favor of the donee under the DD;
• address, location of the apartment, area, floor, year of completion of the house, technical data;
• details of the certificate of ownership;
• when alienating a car - make, model, color, license plate number, VIN, STS and PTS details;
• date of entry into force of the transaction – from the moment of signing or in the future.

Note! The contract for the promise of a gift in the future must contain a specific date from which the donee will be able to use the gift.

Sample gift agreement between spouses: alt: Gift agreement between spouses

Documentation

The list of documents depends on the item of donation transferred under the DD.

You will definitely need:

• passports;
• marriage contract (if any);
• agreement on the allocation of shares.

Additionally, depending on the availability:

Step 3: Notarization

If the transaction requires certification by a notary, you need to come with a ready-made package of documents and sign everything in his presence. You can order the registration of a deed of gift at a notary office, but the service is paid separately from the tariff and state duty. The amount of the fee depends on the prices established by the regional notary chamber.

Step 4: visit Rosreestr

You only need to go to Rosreestr to register the right to the donee when transferring real estate as a gift. Instead of Rosreestr, you can submit everything through the MFC, having previously made an appointment. Both must be present.

Documentation

When visiting Rosreestr or the MFC, you need to take with you the same written information as for drawing up the DD. The deed of gift for registration is provided to an employee of the institution and is returned after the procedure to the donee with the appropriate note.

State duty

Re-registration of rights to real estate in Rosreestr costs 2,000 rubles.

Step 5: obtaining a new extract from the Unified State Register of Real Estate

After 10 working days, the recipient must come to the MFC or Rosreestr for a new extract, where he will be indicated as the new owner.

Nuances and alternatives

As mentioned above, many people use other options for donating an apartment to their spouse, and most often this is done by drawing up a marriage contract indicating all the details of how the joint property will be used in the family.

Thus, as a result of the divorce process, if this is provided for in the previously drawn up marriage contract, the apartment will become the personal property of the ex-wife, while the man will completely lose his rights to the said property.

It is best to discuss any difficulties associated with the preparation of such documents in advance with qualified specialists who will suggest all possible ways to optimally draw up all contracts.

Challenging a gift agreement

The possibility of cancellation is provided for in Art. 578 Civil Code of the Russian Federation.

The donor has the right to challenge the transaction and return the gift if:

• the donee commits a crime against his life and health, the health of other relatives;
• the recipient treats the donated values ​​in bad faith, there is a risk of irretrievable loss, and for the donor the gift is of non-property interest.

The heirs of the donor who died due to the fault of the donee have the right to contest - by a court decision, the property is alienated in their favor and included in the estate.

If a person has accumulated debts before registration and has filed for bankruptcy, creditors can cancel the deed of gift, provided that it was drawn up no earlier than six months before going to court.

Let's look at a practical example:

A woman gave her husband an apartment purchased before marriage. A few months later, their relationship deteriorated: her husband began to beat her, she demanded a divorce. The donor also went to court to cancel the transaction. The basis was the fact of systematic beatings by the recipient.

Medical certificates and information from the police confirming the existence of grounds were presented to the court. As a result, the claims were satisfied and the apartment was returned to the woman’s ownership. After the decision came into force, she applied to Rosreestr to re-register the documents.

Arbitrage practice

Courts often grant claims to cancel DD if plaintiffs provide sufficient evidence.

Below are some example solutions:

• Decision No. 2-846/2019 dated May 30, 2020 in case No. 2-846/2019;
• Decision No. 2-1941/2018 2-225/2019 2-225/2019(2-1941/2018;)~M-1964/2018 M-1964/2018 dated February 20, 2019 in case No. 2-1941/2018 ;
• Decision No. 2-1238/2017 2-66/2018 2-66/2018 (2-1238/2017;) ~ M-1084/2017 M-1084/2017 dated February 27, 2020 in case No. 2-1238/2017 .

Important! In judicial practice, there are decisions to cancel on the basis of a conclusion under the influence of delusion, when the donee, taking advantage of the helpless state of the donor, “pushes” him to draw up a deed of gift.