Does the husband have the right to an apartment if the owner of the apartment is his wife?

Apartment owner husband: what rights does the wife have?

It is important that with the consent of the persons living together with him, the tenant has the right to accommodate not only members of his family, but also other persons (for example, a common-law wife, if the marriage is civil).
But no one’s consent is required to settle with the parents of their minor children (Article 70 of the Housing Code of the Russian Federation). Historically, for the vast majority of our fellow citizens, housing is the most valuable property. If an apartment or house belongs to only one of the spouses (for example, if the owner is the husband), even with good relationships in the family, questions often arise, what rights does the second spouse (for example, the wife) have? In the event of a divorce, the situation often escalates to the point of litigation.

Advice 1: Does the husband have the right to an apartment if the owner of the apartment is his wife?

Also, according to the marriage contract signed by both spouses, the rights of each spouse to an apartment or any other property can be either expanded or reduced. If there is a marriage contract, the husband's rights to his wife's apartment are determined by this document.

However, if during the marriage the husband spent money on improving housing and its value after these improvements increased significantly, during the divorce he has the right to demand that the court allocate part of the apartment to him in accordance with his investments.

The right to 50% of the property or another amount under the marriage contract

In accordance with Art. 42 of the RF IC, when drawing up a marriage contract, spouses can independently regulate issues regarding existing or future property. If it states that in the event of a divorce, half of the property goes to the spouse, she will receive her share regardless of whether she worked during the marriage or not.

Another question is what to do if, according to the marriage contract, all property goes to the spouse during a divorce?

Here you can be guided by Art. 44 of the RF IC and recognize the document as invalid, because it worsens the situation of one of the parties. Subsequently, the property is divided equally in court, and if a child remains with the woman, her share can be increased.

In the absence of a marriage contract, the wife can count on 50% of the total property, excluding:

Personal belongings;
Property donated to one of the spouses or inherited by them;
Property purchased before marriage or funds deposited in bank accounts.

How to make your husband an owner 1

The apartment that you will purchase, being officially registered, is your joint property, the shares in which, as a general rule, are recognized as equal, that is, 1/2 for each. To prevent your husband’s daughter from claiming a share of the inheritance in the future, there is only one way out - the entire apartment must belong to you. This can be done by drawing up a gift agreement between you and your husband; you can also draw up an agreement on the division of jointly acquired property, according to which it is stipulated that the apartment belongs by right of ownership only to you. The Family Code of the Russian Federation allows you to do this:

Thank you, everything is clear. I have one more question. My husband and I are planning to buy a joint apartment when we are married. I have no children, and he has an adult daughter (26 years old), how can I make sure that I am the heir and do not share with his daughter. I am not satisfied with the will because it can be changed. Maybe make a deed of gift to each other, being married, and then only he and I will have rights to the apartment, without relatives.

Wife's rights during divorce

In accordance with the law, upon divorce, the wife has the following rights:

Leave your husband's last name or return it to your maiden name.
Register part of the property as property.
Keep the baby and receive child support for his maintenance.

Important! If, before or after marriage, a valuable gift was given to one of the spouses through the preparation of a deed of gift, after the divorce this property is not subject to division, and the child will not have anything to do with it.

Also, the scope of rights can be increased due to a number of circumstances: the wife’s need for care, her pregnancy, disability and other factors that will be discussed in more detail in this article.

The husband is the owner of the apartment, how can the wife become the second owner?

What will you do if a child of your deceased spouse from your first marriage appears? This is the most typical case. The surviving spouse, of course, knows about him, but begins a song that this child did not maintain a relationship with the deceased for a long time, etc. And a child is, in fact, already an adult. comes to the notary and leaves an application for inheritance. The notary often tells him that the apartment does not belong to the deceased, but to the spouse. But if the heir is literate, then you won’t fool him with such tales and he begins the legal process to allocate the share of the deceased. Well, that is if it is not possible to reach an agreement amicably and by agreement of the parties. As a rule, this does not work .

The apartment is owned by the husband: what rights does the wife have?

The conclusion of a contract allows divorcing spouses to get rid of disputes and division of their property. All conditions for such division are clearly stated in the document. In addition, this document can also establish the procedure for dividing property that the spouses plan to acquire in the future, which is very convenient, because there is no need to constantly make changes to the contract.

Accordingly, if no disagreements arise between the spouses, they may well separate peacefully and independently divide all their belongings. In such a situation, they simply divide all their property into two equal parts; in addition, it is possible to conclude a special division agreement. However, such a document will be expensive for divorcing spouses, because it must be certified by a notary office.

The apartment was purchased during marriage, but there is only one owner

If the apartment is privatized in the name of the husband, then he can voluntarily transfer part of the living space to his wife and children. But by law they can oblige him to do this only in rare cases. Until the court's decision, the owner cannot change the layout, make major repairs, rent out or sell the property.

However, in the case of privatization during marriage, even only for one of the spouses, if the second has issued a refusal to participate in it, does not affect the right to use and live in such an apartment even after a divorce. The law considers that such a person has renounced his share in favor of the owner, and therefore is not subject to eviction.

Right to demand reconciliation

If the judge, when considering the case, decides that there is no complete discord in the family and there is an opportunity to save the marriage, he can set a deadline for reconciliation.

This is also possible if one of the parties requests this. If the wife is sure that her husband’s demand for divorce is a sudden emotional outburst, she has the right to demand that a deadline be set for reconciliation.

Before making a decision, the judge may ask the following questions:

For what reason did you decide to get a divorce?
How was family life going before filing for divorce: were there any quarrels, how did you spend your leisure time together, etc.
Does either spouse have bad habits: alcoholism, drug addiction, etc.
Is it possible for spouses with children to continue to live peacefully? The child's rights and interests should not be infringed.
What is the financial situation of both parties?

The maximum period for reconciliation is 3 months. It can be extended only through the expression of the will of one of the spouses at the next meeting, if one of the spouses wants to divorce, and the second believes that it is possible to save the family and asks for more time to reach agreement in the family. But in practice, such an extension rarely occurs.

It is also possible to shorten the period for reconciliation if the judge considers that there are grounds for this:

There are reasons why divorce is inevitable (separation of spouses, the husband having an illegitimate child from another woman, infidelity, etc.).
Both spouses apply for a reduction in the reconciliation period or categorically refuse it.

The husband is the owner of the apartment, how can the wife become the second owner?

If one of the apartment owners wanted to sell his share, can the other co-owners prohibit him from doing so? Under what conditions can shares in kind be allocated? Do all participants in shared ownership have equal rights to use the property? What is the difference between common shared and common joint property?

Is it possible to force one of the owners to sell their share? How can you sell the entire apartment if it is in shared ownership? Does a transaction for the sale of a share require notarization? How to register new tenants in an apartment if it is in shared ownership? How can one of several apartment owners buy out their shares from others?

How to divide an apartment during a divorce, if the owner is a husband or wife, if there are children

If an apartment that is not subject to division was received by one of the spouses, then the second spouse has the right to file a claim in court for the division of this property when, with his financial, labor assistance or funds from the general budget, the property has significantly increased in value.

by voluntary consent of the spouses, if one or both of them decided to change the terms of the agreement, the new terms can be stated in the agreement, which is certified by a notary;
By the tribunal's decision. A spouse who does not agree with the terms of the contract can file a claim in court so that the division of property in the event of a divorce occurs in accordance with the Family Code of the Russian Federation.

Refusal to divorce during pregnancy and for 1 year after childbirth

During pregnancy and after childbirth, a woman needs the help and support that her husband can provide.

The law protects this right of a woman, therefore it does not allow a husband to divorce a pregnant wife or a wife who gave birth to a child less than 1 year ago (even if the newborn child was stillborn or died before living for a year) - without the wife’s consent. The wife has the right not to give consent and keep the family together during a difficult period. Only a year after giving birth will the husband be able to file for divorce.

This is provided for in Art. 17 of the Family Code of the Russian Federation and Resolution of the Plenum of the Armed Forces of the Russian Federation No. 15 of November 5, 1998. Thus, maternity is protected by the legislation of the Russian Federation .

The only exceptions are the cases provided for in Art. 19 of the RF IC, when a divorce from a wife does not require (or cannot be obtained) her consent:

Wife's incapacity;
Recognition of the wife as deceased;
Imprisonment of the wife for a period of more than 3 years.

At the same time , the wife is not limited in her right to divorce her husband . She can file for divorce both during pregnancy and during the first year after giving birth. The husband’s consent or disagreement will not matter (see “How to divorce your husband without his consent”).

How is property divided during a divorce if the owner is the husband?

Similarly, the spouse receives sole rights to the privatized living space if the second one issues a legal refusal (it will not have retroactive effect). A minor child also has the right to participate in privatization, even without permanent registration in the apartment being registered, on the grounds that it is being privatized by one of his parents.

It so happens that property is acquired during marriage with common money, but only the husband is noted as its owner in the documents. This situation does not mean that only the husband has property rights. If the property was not acquired before marriage, received as a gift or by inheritance, then the issue of division is resolved in favor of both spouses.

How is property divided during a divorce if the husband is the owner?

Note ! We are not talking about those fairly common cases when the wife does not work (often at the insistence of her husband), but runs the household and takes care of the children, while the responsibility for providing financial support for the family lies entirely with the husband. In such cases, the spouses' shares in jointly acquired property will be equal - 50 to 50. But if there were such circumstances as regular unreasonable spending, gambling losses, alcohol or drug abuse, refusal to get a job without good reason - you can demand a reduction in the share such spouse in court.

One of the most common problems in a divorce is the division of property, especially if there is a heated dispute between spouses regarding ownership. It happens that expensive items are purchased by a husband and wife together during their married life, but are registered only in the name of the husband. Or vice versa - the husband is the legal owner of the property, but the wife makes claims on the basis of marital relations.

Surname after divorce

The wife is given a choice:

Keep her husband's surname, which she bore during marriage;
Restore the surname she had before the marriage.

To change the surname of joint children, spouses must agree. If children bear the husband's surname, he must agree to change the children's surname, and vice versa. The parent’s opinion is not taken into account only if he is deprived of parental rights (see “How to change the surname and patronymic of a child after a divorce”).

The husband is the owner of an apartment purchased during marriage, what rights does the wife have?

By decision of the court (the claim is filed by the husband-owner), she can be evicted from the premises. However, in the case of privatization during marriage, even only for one of the spouses, if the second has issued a refusal to participate in it, does not affect the right to use and live in such an apartment even after a divorce. Contents What rights will the wife have if the apartment is privatized to her husband? If the apartment is not privatized. Nuances of the right to use the apartment during a divorce. If privatization occurred before or during marriage - what is the difference?

alienate her;
receive income from it for rental use;
the right to live in it;
use it for its intended purpose;
register other people in it and sign out of it;
dispose of the apartment at your own discretion;
carry out redevelopment in the apartment and register it.

If there is a child

Father and mother are equal in parental rights and responsibilities to children: raise, support children, promote harmonious development, maintain relationships, spend leisure time together, make decisions regarding place of residence, education, treatment, and health of children.

According to Art. 24 of the RF IC, in divorce proceedings the court must resolve the following issues relating to children:

Determine with whom the minor children will live after the divorce;
Determine which parent will have child support obligations.

Read more about alimony in the article “Paying alimony after divorce.”

Right to live together with children

In most cases, after a divorce, young children remain to live with their mother, which is due to the special physiological and psychological relationship between mother and child. The International Declaration of the Rights of the Child contains the same guidance: young children (under 3 years old) without good reason . Such reasons may be a serious illness that prevents the care of the child, mother-child abuse, alcohol or drug addiction, or mental disorder. In other cases, the court leaves the small child with the mother.

As for children over three years old, the father can also apply for cohabitation with them.

Before deciding with whom to leave the child, the court examines all the circumstances, such as...

living conditions;
material well-being;
the child's attachment to each parent;
parents' health;
environment familiar to the child;
ability to care for a child due to employment.

Expert opinion

Dmitry Nosikov

Lawyer. Specialization: family and housing law.

The final decision of the court must be based, first of all, on the interests of the child, and only secondarily on the intentions and desires of the mother or father. Judicial practice shows that in most cases older children also remain to live with their mother . At the same time, the mother does not have the right to limit the father in exercising legal parental rights in relation to joint children (see “Who will get the child in a divorce”).

The right to receive child support from your husband

If the children, after the divorce, remain to live with their mother, she has the right to claim financial assistance from the father, and personally manage the sums of money received from the father for the maintenance of joint children.

Spouses-parents can determine the amount and procedure for monetary payments themselves (in a written and notarized agreement), or they can determine it in court (simultaneously with the divorce or in a separate trial).

As a rule, child support is calculated as a percentage of the father's regular official earnings. The father must pay:

25% – for a child;
33% – for two children;
50% - for three, four, five children.

But if the father’s earnings are not constant, the amount of alimony payments may be fixed - by virtue of Art. 83 RF IC.

The right to meet, raise and support children if they live with their father

If children remain to live with their mother, she directly raises them, maintains relationships with them, spends joint leisure time, takes part in education, treatment, health improvement, and also bears material expenses for the children.

But if the children live with their father (by mutual agreement of the parents or by court decision), the mother cannot be deprived of the right...

meet with children (by prior agreement or schedule);
raise children;
spend joint leisure time with children on weekends and holidays, vacations, vacations;
make decisions regarding the choice of educational or medical institution;
give or refuse consent to children leaving the country.

If the children remain with the father, child support obligations fall on the mother. The amount and procedure for payments for child support are established by the parents (by written, notarized agreement) or by the court (see “Can a father file for alimony”).

According to Art. 66 of the RF IC, the father has no right to prevent the mother from fulfilling her parental rights and responsibilities. The conditions for meetings and spending time together between mother and child are negotiated by the parents - in a written agreement - or determined by the court. If the mother's rights are violated, she can appeal to the local guardianship and trusteeship authority or court.

And only if the mother’s behavior poses a threat to the child, she can be limited in parental rights or even deprived of parental rights - exclusively in court.

How an apartment is divided during a divorce if the owner is a husband

Example: During the marriage, the spouse bought an apartment and registered it in his name. Those. According to documents, he was the owner. The wife was pregnant at that moment and she had no time to deal with all the “bureaucratic” intricacies. And the relationship was great. The family moved into this apartment. Four years later, the couple decided to divorce. The husband declared sole ownership of the apartment. The wife filed a lawsuit and the court sided with her. Because regardless of who the apartment was registered in, it is joint and purchased during marriage. The court divided the apartment “in half” and awarded each person ½ share.

If expensive repairs were made to the apartment during the marriage or redevelopment was done that increased the market value of the apartment, then the spouse has the right to part of the living space. What part? This will depend on the investments that were spent on renovating the apartment. The court is already considering this.

About raising and maintaining children

If, according to the court, the child lives with his mother, the father should not be infringed on his parental rights.
Parents have certain financial obligations for their children who have not reached the age of majority, for example, alimony. Even if the above funds are paid, no one exempts them from education. After a divorce, each parent has the right to implement the educational process, control studies, place of residence, and meetings with their child.

When a decision is made that the child will live on the territory of the mother, the powers and capabilities of the second ex-spouse must be fully realized and without unnecessary obstacles on the part of the ex-wife. But in order for one of the parents to take their child abroad after a divorce, they will have to take permission from the ex-spouse.

If the second parent is obstructed by the first in relation to the exercise of rights to a minor child, an application for guardianship should be filed. Taking into account children's interests, meetings will be arranged and their intensity will be adjusted.

Termination of the rights of a parent may be based on the fact that the behavior of one of them threatens the health or normal life of the child. This circumstance may include the presence of a psychological disorder that prevents being left alone with the baby due to lack of control over the disease. All grounds that serve as a reason for deprivation of parental rights will serve as an obstacle to raising a child after a divorce.

Is an apartment purchased during marriage divided if there is only one owner?

If the owner is one spouse, then it is almost impossible to divide the property, since the apartment will not be considered jointly acquired during marriage. The only measure that the court often resorts to is to give the second spouse the right to live in the apartment for a certain time if he has no other living space. If there are children in the family who remain under the guardianship of a parent without living space, then the amount of alimony for them may be increased.

Husband is the owner of the apartment - what rights does the wife have in 2020?

At the same time, according to Article 46 of the Family Code of the Russian Federation, the borrower is obliged to notify the lender of the termination of the agreement. If he does not do this, he is personally liable to the bank, regardless of the content of the agreement.

According to Art. 60 of the Housing Code, such housing is occupied by users under a social tenancy agreement. Under such conditions, even if the spouse received housing under the contract, he has the same rights as his wife and children, and has the right only to own and use it, without the right of disposal.