Answered by K. Yu. Sc., Chairman of the Arbitration Court of Construction Organizations, lawyer Yulia Verbitskaya:
Yes, in accordance with Art. 34 of the Family Code of the Russian Federation, all property that you or your spouse acquires during marriage will be your joint property, unless you change the regime of joint ownership by signing a marriage contract with a notary. Since you are spending money that is your joint property, obtaining your spouse’s consent to complete the transaction is highly desirable. If consent to purchase real estate from your spouse is not provided, the body that registers rights to real estate may suspend registration actions in relation to your transaction and request additional documents, namely the consent of your wife or a statement that you are married you are not a member. So it is advisable to prepare and submit these documents in advance.
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Procedure for obtaining written consent
If we consider the technical side of the procedure, there is nothing complicated here. The document is drawn up in writing and certified by any notary office. This guarantees that the spouse who gave his consent is fully aware of the essence of the transaction and is aware of the possible consequences. Let's briefly go through the main points.
What documents will be required
Participants' passports and a certificate confirming marriage registration are required.
Sample marriage certificate
If the spouses have entered into a marriage contract, it is also included in the list of required documents. This is necessary so that the notary can see that consent to the transaction does not contradict the terms of the contract.
Sample power of attorney
The law does not provide for a unified form of consent to purchase an apartment. However, the document must contain the following information:
- Name.
- Passport details of the parties.
- Marriage certificate details.
- Information about the presence or absence of a marriage contract.
- The essence of the agreement.
- Information about the property.
- Signatures of the spouses.
Sample consent to purchase real estate
The need for notarization of consent
To confirm the consent of the second spouse to complete the transaction, the participation of a notary is a prerequisite. The fact is that agreements on such transactions without notarization or orally have no legal force. Consequently, in the future the fact of purchasing an apartment can be challenged in court. In addition, if real estate is purchased with borrowed funds, the bank will necessarily require a notarized document of consent to complete the transaction. This is due to the fact that mortgage lending automatically extends financial obligations to both spouses.
Attention! Certification occurs only in the personal presence of both parties. There are no exceptions to this rule.
It is important to understand that this agreement is valid only for one transaction, in our case, the purchase of real estate.
Price
Notary offices provide services on a paid basis.
Registration of consent to purchase an apartment does not have a fixed price, so the cost may vary depending on the region of residence and the tariff schedule on which the notary works. In any case, the service includes:
- Legal advice on the issue under consideration.
- Documenting.
- Assurance.
On average across the country, the cost of the service varies between 2,000-3,000 rubles. Here it is necessary to clarify that the spouse can draw up the consent on their own and bring it to the notary in finished form. In this case, the lawyer will simply certify the document in the presence of the parties. Considering that there is no need for documentation from the office, the price of this option will be lower.
How long is the agreement valid?
This is another question to which there is no clear answer.
On the one hand, such documents cannot be of unlimited duration in order to protect the interests of the spouses after the transaction is completed. On the other hand, the law does not regulate the duration of the agreement. If the spouses have a preliminary contract for the purchase and sale of housing, they must complete the transaction within 12 months. If there are no agreements with the real estate seller, the spouses can choose the duration of the agreement themselves. However, many lawyers are of the opinion that consent should be valid for no more than a year, and it is this period that is indicated in the document when certified.
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Sergey Parinchenko, Director of Legal Affairs at iResidence, answers:
According to paragraphs 2 and 3 of Article 35 of the Family Code of the Russian Federation, entry into ownership of a real estate object for a married person is possible only with the consent of the spouse. Conducting some transactions in relation to joint property is possible without the consent of the spouse, only if these transactions do not require mandatory state registration. Their legality can be challenged in court only at the initiative of the spouse who did not consent to their commission. But the acquisition of real estate is a transaction that requires state registration. Thus, you really can’t do without a notarized document.
How and where to obtain your spouse’s consent to sell real estate
If the other party agrees to the sale (or donation), you must go to a notary and certify your permission in writing. This can be done in any locality where there are private practicing notaries or notary offices. Costs will range from 800 to 1,500 rubles (an additional state fee will be charged).
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As a result, the parties will receive a document that will indicate:
- surname, name, patronymic of the person agreeing;
- place and date of signing the document;
- the address where the property is located and its exact name;
- the period during which the document is valid.
There are no strict requirements for the content - the permit can be drawn up in free form. But the more specific it is, the better for all parties to the transaction. This eliminates the possibility of challenging the document in the future.
Irina Novikova, a lawyer at the law firm “Protection System”, answers:
You can, of course, purchase any property. But if you and your wife have not entered into a marriage contract and a separate property regime has not been established between you, then it is mandatory to draw up a document confirming her consent from a notary. This means that the acquired property becomes joint property and will be divided in half in the event of a divorce. And even if you draw up a document only for yourself, this will not at all mean the unconditional emergence of ownership rights of only one of the spouses. Your spouse can go to court and demand that the transaction you made be declared invalid, and she can do this within a year from the day she becomes aware of the purchase.
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Can I donate my share in the apartment without my wife’s consent?
How and when is it better to obtain the spouse’s consent to the alienation of real estate in the event of a divorce?
Breaking up is a rather painful procedure. Therefore, the couple often postpones dividing property until later. When it comes to a change of ownership, the ex remembers his rights. Or the husband (wife) already lives in another city - a problem arises with obtaining the required document.
It also happens that in words the spouse does not claim the apartment, but does not agree to sign an official refusal. Therefore, it is better to settle property issues immediately and do it in writing.
If you manage to reach an amicable agreement, it is enough to visit a notary and formalize the division of property. Also, the husband/wife can draw up a deed of gift for their share to the second spouse. If there are material claims, you will have to go to court and divide the property there.
Important! Family law is quite confusing and may not take into account all the nuances of the cohabitation of several people in the same territory. To avoid frustrating litigation, plan for the worst-case scenario. Take permission from your current spouse and file your claims to property immediately after the divorce.
Senior Legal Adviser Dmitry Smakovsky answers:
In accordance with paragraph 3 of Article 35 of the Family Code of the Russian Federation, in order for one of the spouses to conclude a transaction for the disposal of property, the rights to which are subject to state registration, a transaction for which the law has established a mandatory notarial form, or a transaction subject to mandatory state registration, it must be obtained by a notary certified consent of the other spouse.
However, the spouse, whose notarized consent to carry out the specified transaction was not received, has the right to demand recognition of the transaction as invalid in court within a year from the day when he learned or should have learned about the completion of this transaction.
As we can see, this rule does not give a clear answer to the question of the need to obtain the consent of the spouse to purchase real estate. However, earlier the Supreme Court of the Russian Federation indicated that transactions, although subject to state registration, but not related to the disposal of the spouses’ common property, do not require the consent of the other spouse to conclude them. In order to avoid unpleasant red tape in completing the transaction in the future, we recommend that you obtain this consent.
What documents are needed to obtain a spouse’s consent to sell an apartment?
To visit a notary, you will need passports (to verify the identity of visitors), confirmation of marriage (certificate), title documents for housing and money to pay the fee. If the wife issues the permit, the husband, in principle, may be absent. But you need to take his documents.
Important! The spouse who gave permission may refuse his intentions. The cancellation of the spouse's consent to the sale of real estate is issued through the same notary who issued the permission. You need to contact him with a corresponding application.
Yulia Simanovskaya, Director of the Department of Legal Support of Transactions at Tekta Group, answers:
According to the current Family Code of the Russian Federation and the legislation regulating the registration of real estate transactions, the notarial consent of the second spouse is required only for the sale of jointly acquired property. Without it, the property sale transaction will not be registered.
To purchase real estate for one of the spouses, the consent of the other is not required, since it is assumed that the spouses, when purchasing real estate, dispose of jointly acquired funds jointly, without special permission for each other.
It should be taken into account that real estate acquired during marriage, but registered in the name of one of the spouses, is subject to the regime of joint property. This means that in the event of a divorce, the property will be divided equally, even if only one spouse is named on the title deed.
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Does a power of attorney exclude obtaining the consent of a spouse for a real estate transaction?
Sometimes a husband trusts his wife to sell an apartment (or vice versa). And he believes that with this option there is no need for consent. After all, when acting by proxy, the other party a priori agrees to the transaction.
However, permission is required in this case as well. After all, from a legal point of view, a power of attorney and a permit are different documents. The definition of a power of attorney is given, and permission to transact is given. Theoretically, a woman can sue her husband if he sold real estate without the consent of his wife. Even if she herself acted as a trustee during the transaction.
It is another matter if the power of attorney is issued by both spouses to a third party. Then it is equivalent to a permit document.
