Is it possible and how to discharge an ex-husband from an apartment through the court in 2020?

Find out how to get your ex-husband out of your apartment, as well as whether it is possible to deprive your ex-husband of registration if he is in prison or has not lived at the address for a long time, from our articles.

In this article we will try to outline all the nuances of canceling a registration after a divorce, as well as give a number of practical tips on how to carry out the registration correctly.

About the opportunity

Of course, living together after a divorce has been filed is extremely difficult.

Former spouses strive to run away and establish a new life, forgetting about the old one.

It’s great if, even before the divorce was filed, you managed to come to an agreement on the order in which the deregistration will be carried out, who will get the specific property taken, and other legal issues that your family acquired during the marriage.

The legislative framework

The issue of deregistering an ex-wife is regulated by a number of legal acts that both explain the nuances of the procedure and provide justification for certain circumstances.

How can I deprive my spouse of registration if she is not the owner? Article 31 of the Housing Code allows a woman to be discharged from a living space that was purchased before marriage and whose actual owner is her ex-husband .

Since all family relationships are severed through divorce, the woman therefore loses the basis for the right to use real estate.

If housing was purchased during marriage , but there are grounds for removal other than divorce (for example, rowdy behavior, failure to pay utility bills and actual residence in another place in accordance with Article 90 - 91 of the Housing Code), then the spouse may also insist on withdrawal his ex-wife from the registration register.

It often happens that you are the owner , but for some reason, the ex-spouse refuses to sign out, and the court does not oblige her to do so.

In this situation, you can draw up a gift agreement for a third party (Article 572 of the Civil Code) and he can already deregister in accordance with the fact that this person is not a former relative, and Article 292 of the Civil Code says that The transfer of ownership from one person to another deprives all the rights of the family members of the former owner.

Read about whether the owner can discharge a registered person without his consent, as well as whether it is possible to discharge a person to nowhere.

Possible difficulties

A list of potential problems that people encounter most often:

The apartment is the joint property of the spouses and the court decision on divorce did not clarify the situation in any way. Simply put, the ex-husband and wife never agreed on who should receive what portion of the property. It will not be possible to evict a man under such conditions, because the apartment is also his property. The simplest and most convenient option is to sell the home by agreement and divide the proceeds from the transaction equally.
The apartment is in collateral. In such a situation, there may already be problems on the part of the bank. It is recommended to discuss all the specifics of the further division of property after a divorce and the eviction of a spouse in the presence of a bank representative. He does not have the last voice at such a “meeting.”
There is no alternative place of residence. This problem occurs very often. If the person being evicted has no other housing, then it is also impossible to evict him. You can't just throw people out onto the street. It is logical that a person most likely will not stay on the street and will rent an apartment, but from the point of view of the law, it is impossible to evict under such conditions. The best option is to negotiate a voluntary discharge. Sometimes this requires providing the evicted persons with other housing at the expense of the plaintiff, which is very inconvenient and extremely unprofitable.
If the child, by court decision, remains with the husband, and not with the wife (former), then eviction will also be impossible. You cannot discharge a child without a parent and you cannot discharge a parent without a child, especially if there is a court decision according to which the minor must remain with the man. In such a situation, it is easier to give the apartment to the ex-spouse and make a claim on other property.

Eviction from an apartment after a divorce is a rather controversial and ambiguous procedure. During its implementation, various questions and problems almost always arise, which are almost impossible to cope with without the help of an experienced lawyer. At a free consultation, qualified lawyers will talk about the main nuances that deserve attention. They can also represent the client’s interests in court and when communicating with responsible persons at the MFC. In practice, the very fact of the presence of an experienced specialist allows problems to be resolved much faster and, almost always, in favor of the client.

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Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

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Without her consent

Is it possible to write your ex out without her consent? As often happens in practice in cases involving divorce, a party may not agree with the desire of the ex-spouse to issue an extract . The registration of an ex-spouse can be canceled without consent only in court and only in accordance with the following grounds:

the housing was purchased by the spouse before marriage;
the housing was received by the spouse as a gift;
the spouse violates public order;
the spouse does not pay for utilities in the prescribed amount;
accommodation is impossible due to problems with alcoholism.

All these grounds are possible for filing a claim in court with a request to carry out an extract.

Find out from our articles about how to check out of an apartment while in another city, whether this can be done through the MFC, State Services or by proxy, as well as how to check out from your previous place of residence at the same time as registering for a new one, and what documents are required for deregistration.

What to do if you have children?

How to discharge your ex-husband from an apartment through the court

The most common situation is when a man no longer has rights to housing, he is not a co-owner (for example, by a court decision during a divorce), but continues to live in the apartment (or remains registered there). In the latter case, usually the man simply does not want to deal with other people’s problems, focusing on the fact that “you need it, you can write it out.” Not particularly beautiful, but a common situation. Let's consider the procedure for discharging a former spouse in just such cases.

Procedure

Based on the divorce certificate, contact the MFC and ask to discharge the man.
There will be a refusal, this is logical.
Based on the refusal, a claim must be sent to the man demanding that he be discharged from the home.
If there is a refusal here (or there is no reaction at all), prepare to go to court.
Collect documents.
File a claim.
Send an application to the court and pay the state fee.
Wait for the court hearing and attend it.
Receive a court decision and wait until it comes into force.
Based on the court decision, contact the MFC again and demand that your ex-spouse be discharged.
If a man does not live in the apartment, but simply remains registered there, then this will be enough. If he really lives in the apartment and refuses to evict even on the basis of a court decision and discharge documents, then he will have to contact the SSP and forcefully evict his ex-husband.

If everything is done correctly and the situation is standard, then the court’s decision will almost always be on the plaintiff’s side, since the ex-husband really has no reason to live in the apartment. Unfortunately, situations are not always clear-cut. Often, you still have to seek help from experienced lawyers to resolve controversial issues.

Procedure

Let's take a closer look at the entire procedure for discharging a former spouse through the court.

First contact with the MFC

It is logical that the MFC will refuse to discharge a man without his consent and presence, but a written refusal must be obtained, this is a prerequisite for subsequent going to court. Without such a document, the court may conclude that the applicant did not try to solve his problem pre-trial and will refuse to satisfy the claim. In fact, the probability of such an outcome is vanishingly small, but you should always play it safe in such situations.

Claim against a man

The next important document is the claim. Since the applicant had previously been denied the discharge of a man without his consent, this consent should be obtained. The ex-spouse must submit a claim. Even if he lives in the next room, it is better to do this by registered mail in order to receive confirmation that the document was transferred. Alternatively, you can try to submit the claim in the presence of witnesses, but the situation with registered mail is still a higher priority.

In rare cases, the ex-spouse grabs his head and, shouting “how could I forget,” runs to the MFC to voluntarily check out of the apartment. But more often than not, such claims are simply ignored. For the claimant, this does not matter; the main thing is to send it and confirm this fact in court. Together with a written refusal from the MFC, this document will prove the fact that the plaintiff really tried to solve the problem pre-trial.

Going to court

In order to file a claim in court, you need to collect all the required documents, evidence and draw up a statement of claim. See below for more details. Separately, it should be noted that for each document it is necessary to make copies for the number of interested parties. At least 3 pieces: for the plaintiff, the defendant and the court.

Second appeal to the MFC

When the meeting takes place and a certain decision is made, after it comes into force, you can contact the MFC again and demand that your ex-spouse be forcibly discharged. Since in this case there are no violations of the law and the responsible persons are no longer responsible for possible problems, because there is a court decision, they will not be able to refuse an extract.

Forced eviction

Often, the ex-spouse refuses to move out of the apartment even though he is provided with a court decision and documents from the MFC confirming the fact of being evicted from the apartment and the lack of rights to reside in this premises. If this is the case, then the person will have to be forcibly evicted. To do this, you should contact the SSP (Bailiff Service). Such an eviction may take quite a long time, but ultimately, one way or another, the man will be forced to move.

Statement of claim

One of the main documents when going to court can be considered a statement of claim. It must be drawn up according to all established rules. To do this, you should be guided by Article 131 of the Code of Civil Procedure of the Russian Federation.

Content

The statement of claim of such a plan must include the following information:

Data of the court, defendant and plaintiff . It indicates where the application is sent, by whom and regarding whom. Usually, the name of the court, the full name of the plaintiff and the defendant, their addresses and contact information (phone number and email address) are sufficient.
Description of the situation . This part of the claim describes the divorce itself and its features.
Specific problem . This section of the claim continues the previous one, but the problem is already described here. In this case – registration of the former spouse and refusal of voluntary discharge.
Requirements for the defendant . Here the plaintiff must clearly describe, without phrases that have a double interpretation, what exactly he wants. For example, recognizing a man as not having the right to live in an apartment, his discharge, forced eviction, payment of compensation, and so on.
Attached documents . Here is a list of all the papers that are submitted simultaneously with the claim. They are an inseparable part and the basis for the court to make a decision. That is why it is better to select evidence documents with the help of an experienced lawyer. However, in the case of eviction of a former spouse, in addition to a written refusal from the MFC and confirmation of the transfer of the claim, a certificate of divorce will be sufficient.
Date and signature . The date must be current at the time of application.

Sample

Documentation

All documents can be divided into two categories: those that are needed for the claim and those that are required to apply to the MFC.

For a statement of claim

In addition to the application itself, the following documents will also be required:

Plaintiff's passport.
Written refusal of an extract from the MFC.
Confirmation of the fact of filing a claim.
Certificate of divorce.

These papers can be accompanied by others that confirm that the plaintiff is right. For example, a court decision obtained during a divorce, on the basis of which it becomes clear that the defendant really does not have any rights to this apartment and he has no reason to maintain registration at its location.

For forced discharge

The following documents will need to be submitted to the MFC:

Applicant's passport.
Application for forced eviction.
The court's decision.

Price

The deregistration is free of charge, regardless of whether it is forced or voluntary. When going to court, you will have to pay a state fee of 300 rubles (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation). Also, if you plan to go to court or the MFC through a representative, you will need a power of attorney drawn up in his name and certified by a notary. The cost of such a document varies between 2-5 thousand rubles.

Deadlines

Approximate time frames for the forced discharge of a former spouse through the court:

Receiving a waiver from the MFC: up to 1 week.
Waiting for a response to a claim: about 1 month (maybe more, at the request of the applicant).
Waiting for a court hearing: up to 2 months.
Entry into force of the court decision: 1 month.
Forced discharge through the MFC: up to 2 months (usually 1-2 weeks).
Forced eviction by the SSP: from 1 month.

Together with the child

If there is a need to discharge both a wife and a minor child, then certain difficulties .

After discharge, the spouse must have a place where she will be registered and only then will the court allow the discharge of the child, who will be registered with the mother.

Neither the guardianship authority nor the court will allow the child and mother to be removed from the register “to nowhere” until they reach adulthood.

You may be able to register your spouse by court order, but the child will remain registered with you until the woman manages to register elsewhere.

Under what conditions can you not evict?

There are nuances in which it will be problematic to discharge a wife from an apartment, even when the area is the sole property of the husband.

As a rule, the situation arises:

A thorough/major renovation was carried out at the property from the general family budget, as documented.
The family has children under 18 years of age who, after the trial, remain registered at their father’s address.
The spouse has ownership rights to part of the apartment.
When concluding a marriage agreement, a contract was signed, where the issues of division of property were thoroughly described.
Real estate is collateral for a mortgage loan from a banking organization.

Alone without a child

Is it possible to discharge the ex-wife and leave the child?

The court may satisfy your request , but subject to the following conditions.

The spouse must give her consent to such an action.

If she registers in another area and insists on the baby being discharged in order to register her with her, the court can satisfy her request on legal grounds (mothers are given preference).

You can find out how to expel the mother or father of a minor child from an apartment on our website.

Nuances:

If the husband is the owner

Alienation of an apartment from the owner occurs extremely rarely. Therefore, if it is not the wife, but the husband who is the owner, he cannot be deprived of his only apartment or house (Article 40 of the Constitution of the Russian Federation). Rather, the husband will register his ex-wife as the manager of the residential premises.

From a privatized apartment

A less troublesome option is to write your ex-husband out of the privatized, i.e. private apartment. There are two options on how to do this:

Forced ejection from the owner’s apartment – the provisions of Art. 31 Housing Code of the Russian Federation.
Extract from the apartment with the consent of the ex-spouse is the only possible option for deregistration in the case of jointly acquired property.

As mentioned earlier, the husband’s refusal of his share during privatization gives him the right to lifelong residence in the house. It is impossible to discharge such a person without providing alternative housing!

From a council apartment

Social housing belongs to the municipality. Issues of expelling tenants and tenants through the court are resolved at the level of the city (district) administration. Tenants can only be discharged through the courts. Together with the employer, his family members are also removed from the registration register.

The rental agreement will need to be reissued. The procedure requires judicial approval. It is advisable not to take any steps without a lawyer, as it is very easy to get confused in the situation. Persons registered in the apartment are discharged at the request of the owner - the municipal authority.

Step-by-step instruction

How to discharge your ex-wife from a privatized apartment? In order to expel a spouse with whom you have reached an agreement , you must:

collect a package of documents;
appear at the passport office;
submit documents;
make an application;
pick up a passport with a new registration after the lapse of time.

How to discharge your ex from a municipal apartment? If the housing is municipal property, then you must submit an application drawn up together with your spouse to the local government authority.

The application must be accepted along with the divorce papers. Upon review, the woman will be discharged from this housing, but only on the condition that she also agrees to such a step.

If agreement is not reached, the woman can only be discharged through a court.

This is done so that the court can hear all the arguments of the parties and decide on the correctness of one of them.

To apply, the plaintiff must not only draw up a statement of claim and pay a state fee, but also provide arguments according to which he considers joint use of living space impossible.

How to discharge a wife from an apartment after a divorce with a child?

A woman and her child can also be discharged only through the court .

In this case, guardianship and trusteeship authorities may be present at the meeting. If they have not been notified, you are obliged to contact the guardianship authority and notify that the child may change his place of residence.

If the mother is going to register in another housing, she has an area where she can live with the child under normal conditions , then the court may satisfy your request.

Where to go?

Voluntary discharge is issued by government agencies. This could be the nearest passport office or a multifunctional center.

What documents are required for discharge? For checkout you need:

passport of a citizen of our country;
divorce certificate;
a statement from a woman that she wants to deregister.

If a woman cannot perform the procedure herself, she can issue a power of attorney to any person she trusts. In this case, the power of attorney is also included.

Where to submit documents? Documents are submitted to the passport office or multifunctional center .

If your capabilities allow, you can use the services of special companies involved in registration.

Terms and cost of registration

The processing time can range from three to seven working days , depending on the workload of the authority.

But the law does not regulate the responsibility of the authorities for its excessive delay, which can be as long as two weeks.

In practice, such cases occur quite often.

However, if it has been delayed too much, you can refer to the internal regulations of the passport office workers and demand quick processing.

The deregistration procedure is absolutely free.

What will they give out?

What documents are issued after discharge? After discharge, the woman is given a certificate indicating that she is no longer registered at a specific address, and is also required to re-register within a month.

If registration was also issued along with the extract, a passport with the appropriate stamp will be issued.

○ Advice from a lawyer:

✔ Are there any differences in the discharge from a communal apartment?

Communal apartments, as relics of the “resettlement” programs that operated in the Soviet Union, survive today in fairly small numbers. Several families live in such a living space, and each of them must have their own room, which belongs to them by right of ownership or ownership. The eviction of a former family member from a “communal apartment” takes place in a manner similar to a privatized apartment. However, in fact, a person can continue to live in a residential area, but in a different room and with another resident, if the latter agrees to registration and occupancy.

✔ What if the person being discharged has nowhere to register?

The absence of any residential premises in which one can register after eviction from an occupied apartment is the main basis that allows the court to recognize the right of a former family member to remain. The spouse is given a certain period during which he must not only live, but seek the opportunity to either acquire ownership of a separate home or enter into a lease agreement (commercial, social or residential premises of a social use fund). If these actions are not carried out, sanctions may be applied by the court.

✔ Is it possible to discharge a tenant from a municipal apartment?

Deprivation of the registration of the tenant himself is often fraught with a similar effect for the former spouse, since he is in fact equated with family members, who, in turn, also leave the apartment upon termination of the contract. It is possible to remain in the residential premises only if the ex-spouse himself has the grounds established by Art. 51 and (or) 91.3 of the Housing Code of the Russian Federation, is in line for housing and has no reason to be discharged.

Video

How to expel your ex-spouse from your own apartment? Lawyer Sergey Anatolyevich Bogatkov tells

Published by: Vadim Kalyuzhny , specialist of the TopYurist.RU portal