The child’s right to housing after parents’ divorce, law and description

How to divide an apartment during a divorce if there are minor children

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The division of property after divorce is regulated by the Family Code, as well as the Civil Code. In addition, Federal laws and a number of by-laws may be involved in this procedure. The division of real estate during a divorce, if there are children, is also based on the specified legal documents. They allow the interests of minor citizens to be fully taken into account when determining the right to own and use property, both their own and their parents’, even after divorce.

Children's rights to real estate during parental divorce

The division of jointly acquired property in the RF IC is devoted to Art. 38, according to which all property falling within this definition must be divided in equal shares between husband and wife. However, the presence of minor children in such a family may slightly change the size of the allocated shares. Departure from equality of shares is allowed under Art. 39 RF IC.

The court's decision on the division of property in 2020 will actually be affected not so much by the presence of a child as such, but by the material property status of the spouse with whom this child will live after the divorce.

This means that if the mother, with whom the child remains after the divorce, no longer has any housing and does not have a high income, then when dividing the apartment, a large part should go to her. But this will be her part, and not the children, if they were not initially allocated shares in this real estate.

Recommendations for registering property rights for minors

You should be especially careful when registering real estate for young children. In the event of a divorce in such a situation, neither spouse will have rights to residential property, and the judge will exclude this property from the list to be divided (clause 4 of Article 60 of the Family Code). In such a situation, the right to live in the living space will remain only with the spouse with whom the minor remains. And in the future, the father or mother may lose the right of residence if the matured son or daughter does not give his consent to this. Thus, registering a purchase transaction for minors may lead to the loss of all rights to the property of both parents. Moreover, the further sale of such housing is significantly complicated by the need to coordinate the transaction with the guardianship authorities, which will take into account the preservation and improvement of the property status of the children.

How is the child's share divided?

If a child has a share in the property in an apartment or other real estate, then in the event of a divorce this part remains with the child. It is not included in the amount of property that is divided between spouses. Parents will not be able to establish their rights to it either in court or by agreement.

A child can receive a share in an apartment both through inheritance and in the case of using maternity capital, as well as by agreement between the parents.

If the child is underage

If at the time of divorce the child has not reached the age of majority, then the parent with whom the minor child remains is responsible for the safety of the property that belongs to him. The guardianship and trusteeship authorities are required to monitor this process. They have the right to impose a ban on any housing transaction if they see it as an infringement of the rights of the child.

For example, if spouses decide to sell an apartment during a divorce in order to further divide its value, then regulatory authorities may impose a ban on the transaction or declare it illegal in court after the fact. If permission to sell is given, then the parents will be required to document the funds received from the sale of the child’s share. Such money can only be spent on his needs, but not on the needs of his parents.

If there are two or more children

If a family has two or more children who have their own share in the property, then this fact will not affect the division process itself. Those. everyone will have to get their share. The apartment, with the consent of the guardianship authorities, can be sold, and then a new one can be purchased with the proceeds, with shares allocated to everyone. Or, one of the spouses will remain living in the shared apartment with their children, and the other will be paid compensation for his share. In this case, this very part of the housing will be recognized as the property of the spouse remaining in the apartment, and the children’s shares remain unchanged.

Requirement for allocation of shares

If housing is purchased with the family’s personal savings and capital, then the procedure for allocating shares is simplified: it is enough to indicate in the DDU or purchase-sale agreement that the mother, father and children receive rights to the apartment in the established shares. If shares are allocated after the purchase of housing, an additional agreement is drawn up.

When a residential property is issued with a mortgage loan using funds from maternal capital, the situation becomes more complicated. Lenders put forward requirements for registration of an apartment exclusively for the borrower, without children. And the Pension Fund will not transfer maternity capital funds to the bank if the shares are not allocated to the children and spouse. In this case, the borrower, along with an application for the use of maternal capital, sends to the Pension Fund a written obligation to provide the spouse and children with shares after paying off the mortgage. The obligation is certified by a notary. After this, the Pension Fund transfers funds to the bank to pay off the mortgage, and the bank receives housing as collateral, registered exclusively in the name of the borrower.

Buying an apartment with the allocation of shares to children is complicated by the reluctance of banks to take this step, since in the future, if clients encounter financial difficulties, the lender risks encountering problems when selling the apartment to repay the unpaid loan.

In order to increase the chances of mortgage approval, you can offer the bank collateral (for example, a car or other housing), or transfer other property to the children. You can also use the services of those banks that work according to AHML standards and are more loyal to processing such transactions.

The same procedure must be followed if the spouses plan to pay share contributions to the housing cooperative using materiel capital. Until contributions are paid, there is no right of ownership and shares cannot be allocated. And if there are no shares, maternity capital will not be issued. In this situation, the spouse provides the Pension Fund with an obligation to allocate shares within a 6-month period from the moment of payment of the share and registration of ownership of the apartment.

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The role of guardianship and trusteeship authorities

According to Federal Law No. 48, parents can carry out transactions with real estate in which shares are allocated to minor children only with the consent of the guardianship and trusteeship authorities. The duty of such a body is to certify the fact that in the event of a transaction, a minor child will not be infringed on his rights.

If he gives permission to sell the apartment, then only on the condition that the child will be allocated an equal share in the new housing or the proceeds will be deposited into his bank account.

The rights of a minor child to an apartment when dividing property between parents.

To protect the rights of the child, the guardianship authorities, together with the Prosecutor's Office, have the right to appeal transactions regarding real estate owned by the child. If the court finds it invalid, then according to Art. 167 of the Civil Code of the Russian Federation, the sold part must be returned to the ownership of the minor owner.

Specifics of home sales

If a child lives in the apartment or he is a co-owner of this property, then the sale of such an object requires prior permission from the guardianship authorities. If this document is missing, the sale may be invalid.

Obtaining permission from the guardianship to sell such a property is quite difficult, since the parents must already have another property that will be used to register the baby.

To obtain such consent, you must correctly draw up an application that clearly states the purpose of selling the property, and also indicates the address of another property where the child will live. Guardianship officials must make sure that the rights of a minor are not violated in any way.

It is also important to determine whether the child will be resettled in poor living conditions. If no violations are identified, then permission to sell such an object can be obtained.

If the apartment was purchased with a mortgage

It is most difficult to divide apartments during a divorce if they are mortgaged. If the loan for such real estate is fully repaid, then no special problems should arise. Such housing, if it is joint property, will be divided based on Art. 38 and 39 of the RF IC, i.e. in certain shares between all owners.

If such an apartment belongs to one spouse legally (for example, the mortgage was issued and fully repaid before marriage), then after the divorce it will be recognized as his property.

And if the mortgage debt has not yet been repaid, then there are several options for division. And all of them must be pre-approved by the bank where the mortgage loan was issued, because... Until the debt is fully repaid, the apartment is collateral, and the spouses cannot dispose of it in full.

The division is especially difficult if there are minor children in the family, and even more difficult if money from maternity capital was contributed as a loan contribution.

Most likely, the spouses will first have to completely repay the mortgage debt, and then only divide the apartment. In such situations, a scheme is also practiced in which the apartment is sold, the proceeds go to pay off the debt, and the remaining money is divided in certain shares between the spouses. But if there is a child, then the guardianship authorities may not give their consent to the sale of such an apartment.

Alternatively, the bank will allow you to divide the balance of the debt between the spouses, and each of them will independently pay their part. Upon completion of payments, the apartment will be divided in shares established by law.

If the apartment was purchased with maternity capital

Federal Law No. 256 determines that maternity capital, in particular, can be spent on improving the family’s living conditions. And the same Law establishes that if real estate is purchased with this money allocated by the state, then it is divided in equal shares among all family members. This means that if the capital was given out after the birth of the second child, then during the divorce the apartment should be divided into 4 equal parts.

In this case, it does not matter what other funds and in what quantity were invested in the purchase.

If the acquisition of real estate took place with the participation of only a certain amount of maternity capital, then such property is divided in equal shares among all family members.

This rule cannot be changed either by the terms of the marriage contract or by the clauses of the property division agreement.

Privatized apartment

According to Federal Law No. 1541-1 “On Privatization”, if an apartment was privatized during the marriage by both spouses, then it becomes their common shared property. If during privatization one of the spouses officially refused to participate in it, then the apartment will be recognized as the property of only one of the spouses and, accordingly, will not be subject to division after a divorce.

Should the interests of children be taken into account?

Not really

Minor children under 14 years of age must be included in the privatization agreement, regardless of their place of registration and residence. Only on the grounds that this living space is being privatized by his parents. This means that part of the apartment is their property after privatization. And during the division, this share remains with the children.

All transactions on such real estate are carried out by parents as legal representatives, but only with the consent of the guardianship authorities.

The essence of the law

Bill No. 809049-7, introduced into the Civil Code of the Russian Federation back in October 2020, on the obligation of parents to bear additional expenses for children on an equal basis, was adopted in the third reading without much debate. This is explained by the fact that assigning responsibilities to one of the spouses left with the children may be an unbearable problem for him. Often the financial situation of a parent left with minor children does not allow them to solve housing problems and create living conditions.

According to the new law, the spouse who left the family will not be able to limit himself only to paying alimony. He is obliged, voluntarily or by a court decision, to take part in providing abandoned minor children with conditions for normal living.

If, after a divorce, a family with children has nowhere to live, then the separated spouses, by law, must participate in paying for a rented apartment or mortgage, and bear the same expenses.

This applies if the following circumstances exist:

after a divorce, the spouse does not have his own living space to live with children;
the amount of alimony paid is insufficient to pay for rented housing;
when the residential premises in which children live require expensive major repairs;
the spouse does not have enough funds to repay the mortgage loan.

In the event of existing housing difficulties, each of the divorced spouses with children has the right to file a claim in court for reimbursement of costs incurred in providing the family with housing conditions.

During the investigation, the court determines:

child's right to housing after parents' divorce
the need to provide housing for a child living with a divorced parent;
that the spouse who left the family after the divorce is not disabled and is considered able to work;
the amount to pay for housing, which is assigned in addition to alimony;
the amount is determined individually for each case and has a constant component value and is paid monthly.

When making a decision, the court takes into account a number of facts:

financial capabilities of each of the divorced spouses;
average regional cost of rental housing;
monthly mortgage payment amount;
the applicant parent and the child do not have officially registered living space, including their own or with the right to use;
the parent filing the claim must document his or her insolvency;
for calculation purposes, it is taken into account that the total amount of payment, including alimony, cannot be more than 75% of the defendant’s total salary.

According to deputies, after the law comes into force, there will be a significant reduction in cases where a divorced woman with children is left without a means of subsistence and cannot provide the children with normal housing. It is not uncommon for a father not only to get a divorce, but to literally throw his ex-wife and children out into the street.

In such cases, after going to court, a decision will be made obliging the unconscious parent to financially help the children and participate in paying part of the housing costs.

Important !
The new law allows not only to involve the parent who left the family to participate in providing housing for the children left behind, but will also eliminate excess expenses and improve the overall financial situation of the family after a divorce.

If the child is registered in the apartment

Permanent registration at the place of residence does not give ownership rights, but only fixes the right to reside in a specified territory. Therefore, the presence of registration cannot in any way affect the division of the apartment in 2020. The parent with whom the child remained after the divorce will probably be allocated a larger share in the property. But not because of registration, but because of the presence of a minor child. Registered children have the right, even after a divorce, to live in the apartment where they are registered until at least 18 years of age.

What to do if you can’t change your apartment?

Quite often it happens that people, having received a share of property and their own personal account, cannot get along with each other. The best option is when the total value of the housing stock allows one of the property participants to receive his share in kind and purchase isolated housing. When going to court, Article 252 of the Civil Code of the Russian Federation protects the owner’s right to allocate a share from property belonging to the entire family. Moreover, the court has the power, on its own initiative, to order compensation to be paid to the owner, whose share is insignificant and he does not use the common property. An owner who receives compensation for a property share loses all rights as an owner. As for the participants in the property who have proven a significant interest in its use, the court, examining the evidence, takes into account their ability to work, age, and the presence of dependents. Under certain circumstances, if we are talking about an undivided apartment, possible damage to property, the court may decide in favor of the one who has a significant interest in the use of common property. The court awards compensation to the remaining co-owners of the property for their share in the property.

Is it possible to register an apartment for children?

Russian legislation does not establish age restrictions for the possibility of obtaining ownership of real estate. Therefore, a minor child can become the owner of an apartment upon the following transactions:

participation in housing privatization;
apartment purchase. Naturally, it is carried out by the parents, but the child may be indicated as the owner;
inheritance of real estate;
receiving housing under a gift agreement.

Starting from the age of 14, a child receives the right to sign documents on these transactions, but only with the consent of official guardians.

On our website you can download a sample deed of gift for real estate.

Agreement on the division of an apartment in the presence of children

The decision on the division of real estate may not necessarily go through the court.

Spouses have the opportunity to enter into an agreement that will regulate the right to own and use common property (Article 38 of the RF IC). This document can be drawn up both during the existence of the family and after its collapse. Notarization is required.

The agreement specifies how and in what shares this or that property will be divided during a divorce (or marriage).

The main thing is that this document does not contradict the law. So, if a child has ownership rights to a share in real estate, then by agreement it cannot be divided between the spouses. Otherwise, the document will be considered void.

On our website you can download a sample settlement agreement on the division of property between spouses.

How is a child’s right to a share in an apartment formalized?

Registration of ownership rights to real estate is carried out by Rosreestr. To register a share in an apartment for a child, you need to go there and submit all the necessary documents. You will need:

Documents on the basis of which the right of ownership arose (deed of gift, certificate of inheritance, court decision, purchase and sale agreement, etc.).
A document confirming that the right to a share in the apartment has been registered.
Child's birth certificate or passport.
Passport of the child's representative.
Application for registration of a share of an apartment for a child.
A receipt indicating that the state fee has been paid.
Consent of the second spouse, if required.

A child may be the owner of a share in the apartment. He can obtain this right for various reasons. To avoid making mistakes, obtain legal advice before registering a share for a child.

Sources:

Right to housing.

Moving the child into the home.

The legal capacity of a child upon marriage.

Acquiring legal capacity through emancipation.

Arbitrage practice

Judicial practice in cases of division of real estate in the presence of minor children in 2020 is very extensive. It shows that interested parties should approach the issue of dividing an apartment with a mortgage or purchased in a building that has not yet been built with special care.

In any case, the judge primarily takes into account the interests of minor children.
Therefore, it will request documents from the bank and other involved structures. For example, there is no point in hiding the fact of contributing maternity capital. All the same, this information will be at the disposal of the judicial authority. The division of property during a divorce is not a pleasant procedure. The presence of minor children in the family can make it even more difficult. Therefore, it would be useful to get qualified advice from a lawyer before starting the process, who will tell you how to act to protect the interests of the child in such a situation.