Division of property in a civil marriage in 2020: law, with children

Family law > Division of property > Is it possible to divide property acquired in a civil marriage?

Recently, citizens of the Russian Federation often turn to law firms with questions about the division of property acquired in a civil marriage. Since now quite a lot of men and women are in no hurry to register their relationships.

Civil marriage is the cohabitation of a man and a woman, which involves living at the same address, running a joint household and having intimate relationships.

This type of relationship is not officially registered, so the man and woman do not have any obligations to each other from a legal point of view.

To many, civil marriage seems very convenient, while others view it as something unstable and without any legal basis.

In fact, from a legislative perspective, unofficial residence is associated with some problems regarding the regulation of property relations between the parties.

Common property in a civil marriage is divided differently than in the case of the breakup of a registered marriage.

Living in an unregistered marriage, people often assume that they will not have to share anything. Such relationships are only a marriage in words, but from a legal point of view, this is not the case at all.

What is a civil marriage

According to international law, a civil marriage is considered to be a family union that was registered by government agencies without the participation of the church. In Russia, such structures include registry offices.

In common parlance, a civil marriage is usually called the cohabitation of a man and a woman who have not registered their relationship, but live in the same territory and run a joint household.

The Family Code does not regulate this type of relationship in any way. A marriage registered in the registry office in accordance with all the rules is recognized as civil.

This procedure primarily affects the property insecurity of the parties. The fact of cohabitation does not give the right to claim jointly acquired property.

Further in the article, cohabitation without proper registration will be referred to as civil marriage.

Changes in the law

In 2020, a bill was submitted to the State Duma for discussion, which, if adopted, would equalize between persons living in an official and civil marriage. But the Committee on Family and Motherhood Affairs did not support the innovation, and the new law was rejected. At the moment, all property disputes between cohabitants are resolved based on Art. 254 of the Civil Code of the Russian Federation and Art. 38 RF IC.

Property acquired in a civil marriage

And although officially property acquired in a civil marriage in 2020 is not equal to property acquired jointly in an official marriage, there are ways to resolve this issue. The process of resolving controversial issues will simply be based on laws that regulate property relations between strangers.

All material assets that are in the possession of common-law spouses can fall into two categories of property:

separate;
joint share.

Let's look at both types in more detail.

Separate property of cohabitants

Property in a common-law marriage usually falls under the category of separate property. According to the Civil Code of the Russian Federation, this means that it will belong to the person for whom it is registered.

If during division in court the question arises of the need to make a decision on the transfer of one or another material value, then the presence of the following facts will be taken into account as evidence:

witness statements;
payment documents for the purchase, indicating the date of purchase, names of owners, etc.;
certificates of inheritance.

If the necessary papers are not completed properly, then subsequently it will be difficult to prove the fact of involvement in the acquisition of any item. Then the court decision will depend on many related factors.

How to divide property acquired in a civil marriage between cohabitants.

Shared ownership

To avoid misunderstandings when dividing property acquired in a civil marriage, the parties can draw up an agreement on common shared ownership. We are primarily talking about real estate. According to this document, property can be divided between persons in strictly established shares.

A sample agreement on determining shares in shared ownership can be downloaded on our website.

It is advisable to draw up this document separately for each object.

How to recognize property as common

If the question of recognizing property acquired in a civil marriage as common property had arisen 10 years ago, the answer would have been unequivocal - it is not feasible. At present, there are enough similar precedents. It should be noted that the property will be recognized only as shared property.

To make such a decision, the parties must go to court, where they will need to prove the presence of the following factors:

The existence of a long-term serious relationship that was perceived by others as a family.
Maintaining a joint household and having a common family budget. As evidence, documents will be accepted here that confirm that the property registered in the name of one of the spouses was purchased using the money of the other party (a receipt for receipt of finance or a check with a non-cash payment by card).
The presence of property that both parties recognized as common. Here, the evidence will be bank loans, for which the second party acts as a guarantor or provides his personal property as collateral to obtain a loan.
Funds for the purchase of the disputed property were provided by both parties.

Should property be divided if the marriage is not registered?

Not really

If you approach the issue correctly and keep the main payment receipts, checks, etc. during your life together, then there is a real chance to get recognition through the court that property acquired in a civil marriage is common property.

The procedure for recognizing property objects as common

Division of property acquired in a civil marriage: how to recognize property as common property? The division of property of cohabitants in court is rather formal in nature. Since the rules of law regulating actual marital relations have not been established, citizens can only hope for the leniency of the court.

To understand whether property acquired in a civil marriage is divided, you can submit an application to the court. However, the applicant must prove the fact of cohabitation and joint expenses on the specified property. Only joint investments matter. If the wife ran the household, and the husband worked and bought property, all objects registered in his name will be recognized as his personal property.

It is reasonable to submit an application to the court for the division of property purchased during the period of cohabitation only if there are common expenses and it is possible to prove them with documents. For example, purchasing goods on credit and keeping payment receipts.

The applicant must prove:

fact of cohabitation (presence of temporary registration in the apartment of the second spouse, joint rental of residential premises);
general housekeeping (witness testimony);
joint use of common property;
the use of funds from each of the cohabitants to purchase property (checks, receipts, bank statements).

Attention! It is worth paying attention in advance to the weak prospects for such proceedings. The applicant can engage a specialist to draw up an application and represent him in court.

Is property acquired in a civil marriage divided?

If common-law spouses cannot come to a common agreement regarding the division of property, then they have only one option left - to file a claim in court.

An example of a sample claim for recognition of shared ownership and for your reference.

The decision made will depend on the quality of the evidence presented. Therefore, before going to court, you need to collect the maximum number of documents that can testify in favor of the plaintiff’s case.

How to divide property in a civil marriage

So, the civil marriage breaks up, and the spouses cannot agree on jointly acquired property. One of the parties draws up a claim and files it in court. If a professional lawyer is not involved in the writing, then the plaintiff himself must indicate that, at his request, non-joint property should be divided, because by law it is not considered as such. The claim is drawn up not according to the rules of the RF IC, but according to the norms of the Civil Code of the Russian Federation. There are two types of these:

claim for recognition of ownership of a share in property;
claim of unjust enrichment.

Before filing a claim, we recommend that you consult with a lawyer who specializes in such cases.

To collect a good evidence base and correctly prioritize the future process. In this case, the judge will be able to form an objective picture of the parties involved.

Claim for recognition of ownership of property

As a rule, property acquired in a civil marriage, due to the inexperience of the parties or their trust in each other, is registered only in the name of one person. But at the same time, funds that were earned by the other party are used for the purchase.

To achieve the division of such property, the other party files a claim in court indicating the following information:

how and with whose funds the purchase process was carried out;
what does the plaintiff see as an infringement of his property rights;
What evidence does he have to confirm the right to the acquired property?

The application is submitted to a court of general jurisdiction. Such cases are subject to the standard statute of limitations under the Civil Code of the Russian Federation, which is 3 years.

The countdown begins from the moment the plaintiff learned of the violation of his rights.

Claim for recovery of unjust enrichment

If a party cannot prove its right to property acquired in a civil marriage, then it is worth trying to return the personal savings spent on its purchase. To do this, you should present to the court a receipt for the money or checks, which show that the money went from the wife’s personal account to pay for property registered, for example, in the name of the husband.

Is it possible to divide property: law

Long-term cohabitation, one way or another, entails the purchase of various types of movable and immovable property. And, of course, in the event of a breakup, neither party wants to leave the relationship with nothing, since most often acquisitions are made using common funds. And if a couple breaks up on a far from friendly note, it is quite natural that there will be disputes and conflicts in resolving the property issue.

The main difficulty in resolving such situations is due to the fact that no relationships between people were recorded at the level of the Family Code. This means that there can be no talk of jointly acquired property, since it simply does not exist. Property, of course, has its place, but it is not common. In this case, actual cohabitation has nothing to do with the specified set of laws in principle.

However, if there is still a need to resolve legal issues regarding the division of property between former cohabitants, it is necessary to rely on something. And here the Civil Code of the Russian Federation plays the main role. Any disputes will be resolved based on its provisions.

Division of property in the presence of children

The presence of joint children does not directly affect the process of dividing property. We should start with the fact that children born in a civil marriage must be recognized by their father. If this does not happen, then the fact of paternity will again have to be proven in court.

If there are children, the division of property after a civil marriage in 2020 is carried out according to the standard scheme. That is, if the second party is able to provide evidence of the fact that it invested personal funds in the purchase, then the property can be divided into shares or the plaintiff will be paid monetary compensation.

How is property divided in a civil marriage if there are children?

In some cases, the court may oblige the parent who owns the apartment to grant his child the right to live in it, and his mother along with him. But this is only provided that the child is recognized by the father in compliance with legal norms and his mother does not have her own satisfactory housing into which they could move after the end of the marriage.

Property rights of minor children in an unregistered union

The presence of joint children does not affect the order of division. Children are not granted property rights to their parents' property. An exception is the situation regarding children's things and items for use by children (clothing, books, children's furniture, gadgets).

In the case of division of property of cohabitants raising common children, the following situations are possible:

paternity has been established in relation to the child;
the minor is considered the child of a single mother.

If paternity is established, the relationship between a man and a child is subject to the rules of family law. A minor has the right:

for financial support from the father;
on items of common property of the spouses that were used exclusively by the child;
on the objects that were purchased for him.

Pregnancy of a cohabitant and a joint (even officially recognized) child under the age of 1 year are not grounds for preserving the marital relationship. In case of cohabitation, a woman is not subject to the rules of family law that protect the wife’s rights to preserve the marriage and financial support in the event of pregnancy and disability.

Credit and financial circumstances section

Items acquired with borrowed funds in a civil marriage are not considered jointly acquired property. The person for whom it was issued must be responsible for the loan. Except in cases where the other party provides documentary evidence that it participated in the payment of the loan debt.

Legal exceptions are provided only in the following situations:

The loan was issued during the existence of a civil marriage, and payments were made after the couple entered into an official marriage. In such a scenario, one of the parties can count on monetary compensation.
The loan of one of the spouses was repaid using a loan issued to the second spouse.

When dividing any loan, it is important to provide evidence that the funds received under it went to the joint needs of the spouses. Otherwise, all responsibility for the loan lies solely with the person in whose name it was issued.

Statement of claim

An application for division of property can be drawn up in two alternative versions:

A claim demanding recognition of rights to a share of property. It is used in cases where the property is registered in the name of one of the cohabitants, but it further turns out that the second spouse also invested his own funds in the purchase.
Allegation of unjust enrichment. This option is appropriate in situations where there is evidence of the transfer of funds from one cohabitant to another.

The last case is worth considering with an example. Let's say, with the total amount of funds during the actual marriage, a house was purchased, which was subsequently registered in the name of the husband. After the breakup, the man sold the property and kept the money for himself. The wife, in turn, wanting to receive part of the funds, filed a claim for reimbursement of the amount from the sale of the common property. In this case, the subject of the claim will not be the right of ownership, but directly the finances in kind.

The claim document itself is drawn up indicating the following information:

plaintiff’s data – passport information, contacts;
name of the application;
grounds for going to court;
a list of property in respect of which the dispute is ongoing;
list of attached documents (evidence);
the plaintiff's request to resolve the issue;
date of application;
signature of the interested person.

Information should be presented briefly, clearly and to the point. Don’t get overly emotional and cite facts that are not relevant to the case.

Can an apartment be subject to division?

In 2020, residential premises purchased during a civil marriage can be divided only in two cases. The first assumes that the spouses have drawn up an agreement on the division of shares. Then the court will focus on him.

The second provides that one of the parties will be able to provide documentary evidence of the fact that her personal savings were used for the purchase. This could be a receipt for receiving money or a check for transferring funds from an account.

The presence of children does not affect the division of the apartment. It is also worth considering the fact that maternity capital is prohibited from investing in the purchase of real estate if the parents are not officially married.

If there are children

Situations where children have appeared in a de facto marriage, and parents have decided to separate, are particularly difficult. Such cases are still not regulated at the level of family law, while the rights of children are protected by the state.

If the paternity of a common-law husband is proven, he is subject to a number of the following obligations:

participation in the educational process;
assistance in organizing education;
payment of alimony.

In addition, the child or children are given first line of inheritance.

If there are no blood ties, a man can quite naturally refuse alimony and other obligations in relation to children.

In addition, if any property is registered in the name of a child, neither parent has the right to dispose of the property for personal purposes. The exception is the sale of a share of real estate registered in the name of a minor and depositing money into his personal account.

Arbitrage practice

The nature of decisions in court cases related to the division of property of common-law spouses has changed significantly over the past 5 years.

Currently, the percentage of lawsuits after which the property of the spouses was divided into shares has increased significantly. But this is only possible if there is a good evidence base.

Without being officially husband and wife, you should not count on significant protection of your material interests. Although both parties can use property in a civil marriage, the property right to it is assigned only to one person, with the exception of a number of cases.