Is it possible to divide an apartment that was purchased before marriage? Lawyers' answers

Marriage entails not only moral obligations, but also legal ones. Thus, everything that was purchased by the spouses at the time of the official marriage is their common property, and then upon divorce is subject to division in equal parts.

It would seem that everything is clear - what is common is divided, what was bought before marriage is not, remains the property of the one who bought it. But if it were that simple, there wouldn't be a fair share of litigation. And as for the division of property during a divorce, this is exactly the case - under some circumstances, even indivisible property can be divided.

Is an apartment purchased before marriage divided during a divorce?

The division of an apartment during a divorce is a standard process associated with the dissolution of a marriage.

Usually it does not raise any special questions, since Article 254 of the Civil Code of the Russian Federation directly states that any jointly acquired property is divided into equal parts. However, the situation becomes much more complicated when the apartment is purchased before marriage.

Article 256 of the Civil Code of the Russian Federation (clause 2) states that property that belonged to either spouse before marriage is considered personal property. As a result, it is not subject to division. This can be said about the apartment, regardless of whether the spouses lived in it or not. However, there are exceptions to this rule. If, while married, the spouses made major repairs, re-equipped or added additional premises, the housing may be recognized as joint.

In this case, the costs of funds, time or effort spent on the listed actions are of great importance.

Example: Vasily bought an apartment before marriage. After the wedding, major renovations were carried out, significantly increasing the value of the property. Under such conditions, during the divorce process, the wife has every right to demand her share. Vasily can give it up voluntarily or in court. And if the repairs were purely cosmetic in nature and too much money was not spent on it, Vasily could simply pay his ex-wife monetary compensation in the amount of half of the funds spent on cosmetic repairs.

Aftertaste of marriage

After the divorce, the spouses begin to divide property and decide with whom the child will remain. If with the second issue everything is most often resolved quickly and before the courts, then with the division of property everything is much more complicated.

Property acquired by spouses during their marriage can be divided in the following ways:

1) Voluntarily, without drawing up the appropriate documents on the division (an extremely risky option).

2) By signing an agreement on the division of jointly acquired property with a notary (expensive, but peaceful).

3) In court (mostly difficult morally for the parties, and it takes a long time).

4) In accordance with the marriage contract (if there is one).

Options for dividing an apartment purchased before marriage

There are four main options for dividing real estate acquired before marriage, provided that the other half actually has the right to claim part of the apartment.

The owner of the apartment sells the property and divides the proceeds into two equal parts. He gets one of them, the second - the ex-spouse.

Example: Vasily’s apartment, purchased before marriage, but in which major renovations were already carried out during marriage, costs 2 million rubles. He sells the property for the specified amount and takes 1 million for himself. The second million goes to his ex-wife.

This option is relevant in two situations: when the original owner of the property plans to keep the home and when the expenses incurred to improve the living conditions of the marriage were not particularly significant. In any of these cases, the owner can offer the other half a cash payment corresponding to their due share.

Example: In Vasily’s apartment, which he bought before marriage, during his life together with his wife, minor cosmetic repairs were made, the total cost of which amounted to 50 thousand rubles. The court will most likely recognize that in this case, Vasily’s ex-wife does not have the right to a share in the real estate, but may demand compensation from the owner of the property for part of the expenses incurred. In this case, it does not matter who exactly spent and earned money in the family. With a high degree of probability, the wife will have to pay 25 thousand rubles in monetary compensation, even if she did not actually work and did not help in any way with the repairs.

Exchange

This is another alternative option for dividing property during a divorce, in which one of the spouses receives other property in exchange for their allotted share in the apartment.

Example: An apartment was purchased by Vasily before marriage, but due to major renovations carried out during their marriage, the wife can claim her share in the property. However, she, in fact, does not need this part of the property. At the same time, the wife would like to receive full ownership of the dacha, which the former spouses acquired during their marriage. If Vasily agrees, the spouses enter into an agreement according to which Vasily retains the apartment in full, and in return transfers the dacha to his wife as personal property.

Section in kind

A rare option in which an existing apartment is divided into two separate living spaces. Not applicable in most cases, since housing usually does not have two kitchens and/or bathrooms.

Example: Before marriage, Vasily purchased not one, but two adjacent apartments, which he combined into a single living space, with the appropriate execution of all the necessary documents. Such a property can be divided into two without any problems, returning it to its original state. The wife may demand such a division, but only if she really has the right to such actions. For example, if already during marriage, repairs or significant refurbishment were carried out in the united apartments at the expense of the family budget.

Is an apartment purchased before marriage divided during a divorce?

Everything that was stated above regarding the personal property of a husband or wife is also true for real estate. If the apartment was purchased before marriage, it is not subject to division and after divorce remains the property of the original owner.

However, there are exceptions to the general rule. Let's consider what are the features of owning, using and disposing of real estate purchased before marriage in various life circumstances.

If your ex-spouse is registered

The apartment that belonged to the husband or wife before marriage remains his sole property throughout family life and after divorce. He can dispose of it as an owner, including registering his spouse in it. But, according to the provisions of housing legislation, spouses and other relatives do not acquire ownership of residential premises on the basis of permanent residence or registration. They can use the residential premises, but not dispose of them (sell, donate, rent, mortgage).

Thus, if you are the sole owner of the apartment in which the husband or wife is registered, after the divorce it will still remain your property and will not be subject to division.

You can prove sole ownership of an apartment using documents confirming the fact of purchasing real estate before marriage or after divorce, privatization, receipt as a gift, or inheritance.

After the divorce, the spouse who is registered in the apartment, but is not its owner, is obliged to check out. The extract can be made...

• voluntarily - the spouse himself applies to the housing and welfare office and is discharged;
• forcibly - the owner of the apartment applies to the court with a claim for the forced eviction of the spouse and receives a court order, with which he himself applies to the housing and household office.

If repairs are made using common money

Perhaps this is the only case provided for by law in which the husband or wife of the sole owner of an apartment can achieve the allocation of a share in the property or payment of equivalent monetary compensation.

If an apartment that belongs to one spouse has been renovated using joint funds or the funds of the second spouse, while the apartment has been significantly improved or has significantly increased in price, the spouse can file a lawsuit to recognize it as joint and divide it. As a rule, good repairs in an apartment are done jointly or using funds accumulated by one of the spouses. Therefore, there is every chance to achieve recognition of the right to a share in residential premises.

But to do this, you need to take the preparation of the statement of claim seriously, and especially the collection of documents. The plaintiff will have to prove the fact of monetary investments in repairs, reconstruction, and redevelopment of residential real estate. Evidence may include checks, receipts for the purchase of construction and finishing materials, plumbing fixtures, equipment, contract agreements, certificates of work performed, and other documents. What share will be allocated to the spouse will be determined by the court, depending on how significant his contribution was.

In most cases, we are not talking about dividing into equal parts, but about paying monetary compensation. But often the court refuses to divide the apartment. Firstly, because not every repair is a basis for dividing the personal property of one of the spouses if it does not significantly affect the cost of housing as a whole. The law does not establish the amount at which housing improvements will be considered significant - in each specific case the court evaluates the circumstances at its own discretion. Secondly, not everyone can prove that home improvements were made with their efforts and funds - supporting documents are rarely preserved. In such cases, you can attract witnesses, or even better, an expert who can estimate the cost of the repairs made and the amount of investment.

If there are children

According to the provisions of the family legislation of the Russian Federation, children cannot claim the property of their parents, and parents cannot claim the property of their children. If one of the parents is the sole owner of the apartment in which a family with children lived, this will not in any way affect the right to personal property in the event of a divorce - he will remain the owner. The question of which parent the children will live with after the divorce is also in no way connected with the question of the possible division of personal property. Similarly, property acquired for children and in the name of children (including real estate) is not subject to division between parents.

Although in practice, of course, there are attempts to divide such property during a divorce.

If the apartment is taken out on a mortgage

One of the most common disputes about the division of marital property is the division of an apartment that was purchased by one of the spouses before marriage on credit, but loan payments were made jointly during married life.

As a rule, regular payments on a mortgage loan are made from joint funds, and not from the personal funds of the spouse who took out the mortgage. Such real estate can be recognized as joint property if the payment of the mortgage from the joint funds of the husband and wife is proven in court.

Depending on the contribution of the second spouse in repaying the loan, the court will divide the real estate.

A marriage contract was concluded

The presence of a marriage contract, which spouses have the right to conclude before marriage or already during married life, can significantly change the property regime and the procedure for dividing property during a divorce. It all depends on what conditions are established in the marriage contract.

For example, spouses can reach an agreement that the personal property of one of them, for example, an apartment purchased before marriage, becomes joint property and is subject to division.

So, if there is a marriage contract, the procedure for dividing property is significantly simplified and accelerated - this document allows you to resolve possible controversial issues in advance.

If one of the parties fails to comply with the agreements reached, the other party may apply to the court with a claim for forced compliance. Neither the husband nor the wife can challenge the provisions provided for in the marriage contract if the contract was concluded voluntarily, without violations of civil law

How to divide an apartment purchased before marriage

There are 2 main ways to divide an apartment purchased before marriage:

• voluntarily
• judicially.

Let's take a closer look at them.

Voluntary section

This option is relevant in a situation where the spouses, despite the disagreements that led to divorce, retained the ability to negotiate with each other.

A separation agreement can be entered into while still married, during a divorce, or even after it.

In this case, a family law attorney will help the spouses.

The statute of limitations for division of property after divorce is 3 years.

Procedure:

1. The spouses discuss among themselves all the nuances and features of the division of their property.
2. The apartment is being assessed. This is necessary to clarify the value of the property in the agreement, which in turn will affect the amount of the state duty.
3. In accordance with the agreements reached, the couple enters into an agreement (see sample below).
4. The agreement is certified by any notary. In the case of real estate, it is more convenient to choose a notary at the place of residence and/or location of the apartment in question, but this is not a mandatory rule.
5. State fees and notary services are paid.

Documents and agreement

A voluntary agreement between spouses does not imply the need to prove the correctness of one or the other party. In this case, all that is required is the agreement itself (and it’s easier to draw it up with a notary, since he will still have to pay for the services) and the spouses’ passports (or other identification documents).

Expenses

The state fee for notarization of such agreements is 0.5% of the value of the property (Article 333.24 of the Tax Code of the Russian Federation). In our case, apartments. The minimum payment amount is 400 rubles, and the maximum is 20,000.00 rubles. In addition, an additional expense will be payment for notary services. Regardless of whether the agreement is drawn up with him or separately, you will still have to pay about 3-4 thousand rubles (the price depends on the region of residence and the notary). And the last cost will be payment for re-registration of ownership of the property (provided that this is implied in the agreement, and options with monetary compensation, sale, exchange for other property or division in kind are not used). For this you will have to pay another 2 thousand rubles.

Example: A married couple is going to share an apartment worth (according to the appraisal report) 1.5 million rubles. The state duty will be 7500.00 rubles. Notary services will cost 3 thousand rubles, and subsequent re-registration of property rights will cost another 2 thousand rubles. The total expense will be: 7500+3000+2000=12500.00 rubles.

How is property acquired before marriage divided?

As in the case of jointly acquired property, property acquired before marriage can be divided by concluding a settlement agreement or through the court. The first method is the least expensive and faster, but, of course, this is only possible if the spouses are able to come to an agreement peacefully. When concluding a settlement agreement, any things may be included in the divided property, including those acquired before marriage.

More difficulties arise if the spouses are unable to independently agree on the division of property purchased before marriage. In this situation, the best solution is to go to court. To do this, you will have to prepare a statement of claim, as well as collect evidence confirming that the applicant has grounds to claim the disputed objects. If you still have to go to court, the division process will consist of the following steps:

• filing a claim (evidence must be attached to it);
• participation in meetings on the case (during court proceedings it is important to competently argue your position);
• obtaining a court decision;
• execution of the decision.

Property purchased before marriage can be divided both during the divorce process and after the marriage is dissolved. Former spouses can divide real estate, cars and other things for 3 years after the divorce (3 years is the statute of limitations).

Trial

It is possible to divide real estate in court, but this will cost significantly more. True, the plaintiff, who pays the state fee, has every right, if the case wins, to demand compensation from the defendant for the amount spent.

1. Conduct a real estate appraisal. As in the case of a voluntary agreement, this is necessary to determine the amount of the state fee.
2. Draw up a statement of claim (see sample below).
3. Send an application to the court at the place of registration or location of the disputed property.
4. Pay the state fee.
5. Wait for the court's decision (it is recommended to attend the hearing). If the situation is complex/controversial, it is better to seek the services of a divorce lawyer.
6. Act in accordance with the court decision. If one of the parties refuses to fulfill its obligations specified in the court decision, it can be forced with the help of the enforcement service.

Documents and statement of claim

In addition to the statement of claim, the specifics of its preparation are regulated by Article 131 of the Code of Civil Procedure of the Russian Federation, the court will also need to provide:

• Passport.
• Documents confirming the fact of purchasing an apartment before marriage.
• Documents confirming the fact of major repairs or other types of work, due to which the value of the property has increased significantly.
• Marriage certificate.
• Certificate of divorce.
• Other documents affecting the consideration of this case. For example, a certificate of inheritance, under which the heir received a significant amount, which he spent on renovating the property.

Claims of this type are related to property and therefore payment of the state duty is regulated by subparagraph 1 of paragraph 1 of Article 333.19 of the Tax Code of the Russian Federation. The maximum payment is 60,000.00 rubles, and the minimum cannot be less than 400 rubles (the latter is not relevant in our situation, since the apartment will obviously cost more).

Real estate usually costs over 1 million rubles and only in some cases less. Let's look at two examples:

Example No. 1: The cost of an apartment is 4 million rubles. 1 million is automatically deducted from this amount. Only 3 million are taken into account, of which 0.5% is calculated. A fixed payment of 13,200.00 rubles is added to the amount received. The total payment will be: 15,000.00 + 13,200.00 = 28,200.00 rubles.

Example No. 2: An apartment costs 800 thousand. In this case, 200 thousand is subtracted from the amount. Of the remaining 600,000.00 rubles, 1% is determined, to which a fixed payment of 5,200.00 rubles is added. The total expense will be: 6,000.00 + 5,200.00 = 11,200.00 rubles.

Marriage contract

If at the time of marriage the spouses signed a prenuptial agreement, then everything described above is taken into account only to the extent that it does not contradict the terms of the marriage agreement.

Example: If the marriage contract states that, regardless of when this or that property was acquired, all of it is considered the personal property of the husband, then there can be no talk of any division during divorce.

Mortgage

The apartment could have been purchased before marriage, but on credit. As a result, subsequent payments were paid to the bank from the family budget. This may become the basis for recognizing the property as joint property. Alternatively, the property owner can reimburse half of the loan repayment costs to the other half after the divorce.

Example: Vasily bought an apartment with a mortgage before marriage. After the wedding and until the divorce, the couple deposited 1 million rubles into the bank to pay off the debt and interest on the loan. Vasily can allocate the corresponding share in the apartment to his ex-wife, or he can simply compensate for expenses by paying half of the amount of payments: 500 thousand rubles.

The division of property during a divorce is not only very stressful for both parties, but also a difficult task that only an experienced family law attorney can handle.

Before taking any action, we offer a free consultation with our specialists.

In the future, they can also provide more effective assistance both in terms of working with a notary and in terms of defending your rights in court.

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To understand whether property that was acquired by a husband or wife before marriage is divided during a divorce, you should refer to Art. 36 of the Family Code. According to its rules, such property is recognized as the personal property of the person who acquired it, both during the existence of the marriage and after its breakup. Existing exceptions to this rule are also recorded in articles of the RF IC and the RF Civil Code.

Let's look at the question in more detail.

Typical cases

It is impossible to say unequivocally whether an apartment is divided during a divorce or not. You need to assess the situation completely.

If your ex-spouse is registered

Registration of a place of residence does not give ownership rights, no matter how long a person lives in the apartment. Therefore, if one spouse registered the other in his apartment, which was purchased before marriage, after the divorce this property is not divided.

As for the discharge, on the basis of Article 31 of the Housing Code of the Russian Federation, the owner has the right to discharge the former spouse, since family ties between them have ceased.

If the ex-husband or wife does not want to voluntarily deregister, then this issue can be resolved in court. The reason for deregistration will be divorce, which entails a severance of family ties, and the owner has the right to deregister a third party who did not participate in the privatization of the apartment.

Lawsuits are almost always successful. Next, with the court’s decision, the owner of the apartment applies to the MFC and removes the ex-spouse from registration.

If repairs are made using common money

This situation is an exception to the rule. If the second spouse, who is not the owner, proves in court that he invested his money in improving the technical condition of the apartment, due to which it became more expensive, then he will be allocated a share or the owner of the apartment will be required to pay compensation.

But, you will need to prove with documents that you invested your own money. Such evidence could be the following:

1. contracts with contractors for construction work;
2. an extract from the card, which confirms the purchase of building materials, payment for the services of repair teams;
3. receipts, checks, and other payment documents, which will also confirm the plaintiff’s expenses for repairing the apartment.

Additionally, you can attract witnesses and a technical expert who will give an official assessment of the work that was carried out in the apartment.

Judicial practice shows that often a share in an apartment is not allocated, but is required to pay financial compensation.

If there are children

This fact will not affect the division of the apartment, which was purchased by one of the spouses before marriage. Children's property cannot be divided between parents, and vice versa.

Deciding on the issue of where children will live after a divorce, whether they will live with their mother or father, also does not in any way affect the division of property, which is indivisible by law.

If the apartment is taken out on a mortgage before marriage

Situations are common when one of the spouses took out a mortgage on an apartment before marriage, and it was paid from the family budget.

If during a marriage the loan agreement was not reissued for two spouses, then formally nothing changes - it remains the same as there was one owner and borrower. The bank doesn't care who pays the bill, as long as it's done on time.

But, in court, such real estate can be recognized as common and divided by law. Spouses can divide the loan agreement and each pays for themselves, or one remains the owner and gives the other half of the amount that was paid for the mortgage during the marriage.

If there is a marriage contract

In this case, the division of property will occur as provided for by the terms of the agreement. A document can be challenged or some of its terms can be declared invalid in court, but there must be good reasons for this.

Divisible and indivisible property

The RF IC (Article 34) and the RF Civil Code (Article 256) define jointly acquired property of spouses, which is subject to division during marriage or after its dissolution in 2020. Let's look at the examples in more detail:

The law determines that property classified as divisible is equal property for spouses, i.e. In case of divorce, it is divided in half. If the property is registered as personal property, then it is not subject to division between spouses.

Legal basis for division of property

As a general rule, spouses can only divide property that was acquired during the marriage (i.e., property acquired jointly). The exception is objects related to personal belongings of one of the spouses (for example, clothing) and property received as a gift and by inheritance.

Property acquired after the formalization of the relationship, but with the personal money of one of the spouses (for example, with money earned before the creation of a family) does not apply to jointly acquired property.

At first glance, it may seem that the law does not allow the division of property acquired before marriage, but not everything is so simple: sometimes its division is still possible. According to current legislation, the other spouse can claim the division of premarital property of one spouse if it has been significantly improved during family life, and such improvements have led to an increase in its value.

Also, in a number of situations, it is possible to divide those property assets that were purchased on credit (if the loan was issued before marriage, but the spouses paid it off together).

If the ex-spouse is registered

Let's consider whether an apartment purchased before the wedding is divided if during the marriage its owner registered the spouse in it. Such an apartment cannot be divided during a divorce in 2020. It will remain the property of the person who purchased it. After the divorce, the second spouse will be required to leave the occupied living space.

If he does not agree to do this voluntarily, then he will have to be deregistered by a court decision. In some cases, the court agrees and allows the ex-spouse, who is not its owner, to live in the apartment if he does not have his own home. But the period of such residence cannot exceed 6 months, i.e. until a new place of residence is found.

The RF IC determines that neither parents have rights to their children’s property, nor, accordingly, children have rights to their parents’ property. This means that the apartment purchased before marriage by the father or mother remains their personal property. The presence of children will not affect this fact in any way.

If a child has official registration in this apartment, then it does not give him the right to claim ownership of part of it. However, in this case, the child can continue to live in this apartment even after the parents divorce. If the housing belongs to the husband, and the court left the child with the mother, then his mother can live in this apartment until the child comes of age.

Provided that the child does not have permanent registration in the apartment, the decision on his further residence will depend on the availability of his own housing with the parent with whom the child remains in court. If there is no such provision or it is recognized as unequal, after the parents’ divorce and until the child reaches adulthood, the court may allow the child to live in the apartment with the parent who is recognized as the main guardian. If housing is available, the child and this guardian must move to live with him.

How does the division of premarital property occur in the presence of a marriage contract?

It is possible to conclude a marriage contract, which will regulate the procedure for resolving all property issues, both at the time of marriage registration and after the creation of a family. If such a document is available, property purchased before marriage will be divided in accordance with the terms of the agreement.

Thus, spouses can establish that after registering a marriage, all personal property will become joint or, conversely, exclude any encroachments on objects belonging to them. The main thing is that the provisions of the contract do not conflict with the norms of law.

If, despite the existence of a marriage contract, one of its parties evades fulfilling its obligations, the second has the right to go to court. If a court decision is not executed voluntarily, the enforcement mechanism comes into play (through bailiffs).

Thus, it is still possible to divide property purchased before marriage (or received as a gift), but only under a number of special circumstances. If you encounter any difficulties during the divorce process, we recommend contacting a lawyer: having professional legal support will help you avoid wrong actions and complete the divorce process with maximum benefit for you.

Sources:

Civil Code of the Russian Federation (part one) dated November 30, 1994 No. 51-FZ

Family Code of the Russian Federation dated December 29, 1995 No. 223-FZ

Federal Law “On Enforcement Proceedings” dated October 2, 2007 No. 229-FZ

Apartment in a new building

If the apartment was purchased before marriage in a house under construction, then the further development of the situation will occur in the same ways as with mortgage housing.

So, if the buying spouse is able to prove that joint funds were not spent on such an apartment, then it will be recognized as purely personal property. If the construction was completed during the period of marriage, then for such property during a divorce, either the division of shares or the payment of a compensation sum of money to someone who will not get this apartment is provided.

If an apartment in a new building purchased before marriage was put into operation only after the husband and wife divorced, then one of the spouses has the right to file a claim in court to recognize such an apartment as joint property. But only after the final delivery of the house. While it is under construction, it is not possible to divide the apartment, because... Legally, it doesn’t even exist yet.

Is the apartment jointly owned property?

In order to understand which housing can be included in the common marital property and which cannot be included in this list, you need to cite several standard cases.

Let’s say that housing was purchased by a spouse before their marriage and has a single owner.

In this case, such living space cannot be classified as common. The proof can be a purchase/sale agreement.

The housing was purchased by one of the spouses before the marriage was registered, and the second took possession after the marriage.

Under these circumstances, the property also cannot be classified as common, since it was acquired with the funds of only one spouse, who is its sole owner. Even if the spouse allocates a separate share for his wife and children, then during a divorce the property will not be subject to division.

The spouse acquired the housing by transferring it through a deed of gift or in the process of inheritance.

Such housing also cannot be classified as general housing, so its section is excluded. As evidence, a deed of gift or testamentary document must be presented to the court.

The spouse purchased the apartment with personal funds that he had accumulated even before the marriage, even though the housing was purchased while already married.

Such living space will most likely be considered common in court, since it will be quite difficult to somehow prove the fact of exactly what funds were used to purchase the property.

The couple purchased living space in a house that was under construction.

Even if at the time of the divorce the construction of the house had not yet been completed, the apartment will be considered common and can be divided, provided that the spouses take ownership.

How is a mortgaged apartment divided during a divorce?

Read about the division during divorce of an apartment purchased with maternity capital here.

Read about the division of property after divorce at the following link:

The living space was purchased using maternity capital.

For example, when a spouse had a certain amount of funds before marriage or they got it from the sale of certain property. The difference was made with the help of maternity capital.

Since maternity capital itself is a subsidy that is due to the family, and not to one of the parents, housing purchased with its help will be considered property acquired jointly. A similar case applies to the purchase of housing on credit by one of the spouses before marriage and repayment of the balance of the loan amount through maternity capital.

Naturally, there can be a lot of options, since life makes its own adjustments to situations outlined by law, adding to this list. For this reason, if you need to obtain benefits during a divorce, the best solution would be to contact a lawyer who specializes in property division in divorce cases.

When property is recognized as common

If the court determines that the second spouse should be allocated a share in the apartment purchased before marriage, then there are several options for further division:

• spouses officially determine shares in real estate and continue to use it jointly;
• the existing apartment is sold, and the proceeds are divided according to the shares allocated to each;
• housing is recognized as the property of one spouse with the need to pay monetary compensation in favor of the second according to the allocated share;
• The spouses are exchanging an apartment. For example, they change it to a room and a one-room apartment;
• division in kind. The option is possible, but difficult to implement. The most suitable for its implementation is a private house, which has two entrances and at least the ability to make a division in such a way as to build an isolated bathroom and kitchen in both parts of the house. This option is also possible for apartments that were created by combining two adjacent ones.

Arbitrage practice

The practice of dividing apartments acquired as personal property is very extensive.

• Citizen Smirnova applied to the court with a request to divide the apartment that her husband bought immediately before the wedding. According to the purchase and sale agreement, the cost of the apartment upon purchase was estimated at 2.5 million rubles. The plaintiff stated that during the marriage, which lasted 2 years, a lot of renovations were done in the apartment. An independent appraiser was invited to determine the value at the time of the divorce. The apartment was valued at 4 million rubles. The judge ruled that the apartment will remain the property of the plaintiff’s husband, and he will be obliged to pay her compensation in the amount of 750 thousand rubles, i.e. half the amount by which the cost of the apartment increased.

Thus, in 2020 the wife will be able to divide the husband’s apartment, purchased before marriage, only in exceptional cases. If she proves that the cost of this housing has increased due to her personal savings or funds from the general family budget.

Let's summarize: is it possible or not to share an apartment purchased before marriage?

According to general rules, this is impossible. But there are exceptions to every rule and here they are:

1. a share can be allocated if they prove in court the fact of investing their money, due to which the cost of the apartment has increased;
2. if the apartment has a mortgage and it was paid during the marriage, the property can be recognized as common;
3. if the marriage contract provides for the division of such property.

And since this topic has a lot of pitfalls, it is better to consult with a lawyer who will give a legal assessment after analyzing your situation.
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Examples

Before marriage, the husband purchased a car, which the wife also used during the marriage, but after the divorce, the car remained the property of the husband.

With the money accumulated by the wife before marriage in a deposit account, furniture and household appliances were purchased to improve the joint apartment. After the divorce, the spouses divided the apartment, but all other property purchased with the wife’s personal money became her personal property.

The couple lived together in the apartment, which the wife inherited from her grandmother. The husband was registered in the living space, so after the divorce he demanded that his share be allocated.

However, the apartment remained the personal property of the wife - according to Article 36 of the RF IC, it is not subject to division.

However, there are exceptions to the general rule that a husband or wife has undivided ownership of property acquired before marriage.

According to Art. 37 of the RF IC and clause 2 of Article 256 of the Civil Code of the Russian Federation, the personal property of one spouse can be recognized as joint if, at the expense of the second spouse or joint funds, this property has been improved (repaired, reconstructed), as a result of which the value has increased significantly.

If the apartment was renovated using common money

There are cases when the division of living space acquired before the legalized relationship by one of the spouses is still carried out. This happens because during the period of official relations, significant repairs were made to the premises using common money.

After this, its price was increased. Now, in a divorce, everyone can get exactly half. But the spouse interested in the division will have to prove the existence of this right. What can serve as evidence:

• assessment results;
• documents confirming that the repairs were made after the wedding;
• documents that confirm that the repairs were made with joint money;
• witness statements.

The size of the share invested in repairs by the second spouse must be significant

Note! You can't always win a lawsuit. If the repairs were paid for by a third party, the other party can provide their evidence. For example, a wife bought a living space before marriage. After the wedding, her parents paid for the renovation. If the husband bids for separation, he will most likely lose.

If the property was purchased on credit

Buying apartments and cars on credit is a fairly common occurrence, so in the event of a divorce with the division of this property (especially if it was acquired by one of the spouses before marriage), many problems arise. Can one spouse count on division if the loan was issued before marriage to the second spouse, but the debt was repaid jointly?

In such a situation, the answer will be positive, provided that there is evidence that the payments were made from the general family budget. The division takes place taking into account the amount of the second spouse’s contribution to repaying the debt (most often, the owner is not paid compensation or is awarded other property in this amount).

If there are children

According to the Family Code of the Russian Federation, minors have the right to own property, but they do not have rights to parental property purchased before marriage. Children have the right to own real estate only when it was given to them or received by them as an inheritance. The child has the right to use living space belonging to the parents. But if one of the parents owns any real estate, the child has no rights to own it.

What belongs to children cannot be divided

What does it mean? By law, parents are required to provide for their children until they reach adulthood. But immediately after the child reaches the age of majority, the parent has every right to discharge him. As in the previous case, children can live in a home purchased by parents before the wedding, but they do not have ownership rights.

In the opposite situation the same thing. Parents have no right to claim the child's property. Living space acquired before registration of the relationship belongs only to the owner and is not subject to division. The second spouse has no rights to it. If the second spouse has invested in improving living conditions, he has the right to claim part of the living space. The division of real estate purchased with a mortgage is carried out depending on who the mortgage was issued to and who made the payments. In general, all questions have caveats depending on the situation.

If the apartment was purchased before marriage under the DDU

Question:

If the Equity Participation Agreement (EPA) was concluded before marriage, and the ownership of the purchased apartment was registered during the marriage, will the apartment be the common property of the spouses? Or not?

Answer:

This mercantile question can unexpectedly arise before newlyweds when their passion turns into a legal marriage precisely during the completion of the house. At the same time, one of the spouses managed to buy an apartment in a new building even before marriage, concluding an Equity Participation Agreement (EPA). And he carried out the acceptance of the apartment from the Developer and registration of ownership for himself while he was already married.

Hence the doubt arises: will the property be shared by both spouses? Or will it still be entirely the property of the person for whom the contract is drawn up? What does the law say about this?

If anyone doesn’t know, let us explain where such exciting interest comes from. The fact is that, according to the law, all property (including real estate) acquired by spouses during marriage is their common joint property. Regardless of which spouse it is issued to (Article 34 of the Family Code of the Russian Federation).

But in the case of purchasing a new building, the question arises: when exactly is the apartment considered acquired (purchased) - at the moment when the DDU was concluded (before marriage), or when the apartment was registered as ownership after the house was handed over (already during marriage)? And is it necessary to obtain the notarized consent of the second spouse (who is not in the DDU) upon the subsequent sale of such an apartment?

If the property was improved using common money

In order to understand how to divide property purchased before marriage, if it was improved by the efforts of both spouses, you need to refer to Art. 34 of the Family Code of the Russian Federation and Art. 256 of the Civil Code of the Russian Federation. Studying these norms allows us to conclude that such objects, even if they were purchased before marriage, can be divided, but taking into account certain features. First of all, you should find out what is hidden under the concept of “improved”. So, the following will be considered an improvement:

• carrying out major repairs;
• performing work on the reconstruction of the facility;
• carrying out re-equipment.

A spouse claiming to share an item acquired before marriage by a husband or wife must provide evidence of his participation in its improvement (and, accordingly, in increasing its value). Checks, receipts and other documents may serve as evidence.

What objects can be divided in this way? The law does not contain a specific list of property purchased before marriage and subject to division as a result of improvement, but, as practice shows, real estate, vehicles, and expensive equipment can be divided. Let's look at specific examples.

• Situation 1. The wife owned a house before marriage, but its condition was far from ideal. After marriage, the husband decided to carry out a major renovation of the house, as a result of which all communications, window and door structures were replaced, and the area of ​​the house was increased (due to the construction of an extension). Accordingly, the cost of the house has increased significantly. To carry out the work, money earned by both spouses was used. In this case, the spouse can count on the allocation of a share to him upon divorce.
• Situation 2. Two years before the wedding, the husband bought a car, but due to numerous faults he practically did not use it. After the marriage was registered, they decided to repair the vehicle. A new engine and other expensive parts were purchased. In this situation, despite the fact that the property was acquired before marriage and the owner is the husband, the wife also has the right to claim a share.

It should be noted that if the case comes to court, then most often a decision is made to leave the property purchased before marriage to its owner, and to pay compensation to the other party. However, such a decision is not always made by the courts. For example, not every repair can lead to a significant increase in the value of a car or apartment - accordingly, there will be no reason for the second spouse (not the owner) to count on allocating a share.

The difficulty lies in the fact that the law does not establish the amount by which the increase in value guarantees the division of property purchased before marriage. When resolving this category of disputes, courts focus on the circumstances of each specific situation. To determine the amount by which the cost of the property has increased, you should contact independent experts.

When is an apartment purchased under the DDU a common property?

The situation here is ambiguous and has some nuances. Although some careless realtor may tell his client: “No problem! If the Share Participation Agreement was concluded before marriage, ownership of the apartment was registered after marriage, then this real estate will not be considered the common joint property of the spouses.”

And this is partly true. But only partly!

In fact, what is important here is not the moment of ownership of an apartment purchased in a new building, but which of the spouses participated financially in the purchase of this apartment. It is the actual monetary costs that determine for future spouses whether the property will be considered jointly owned or not. What are the options here?