Real estate and divorce | Q&A Session

Education & Training with Rel Real Estate

The division of property upon divorce is a question that usually arises with the spouses at the period of separation. In such a situation, any jointly acquired property is subject to division. But are there any exceptions, what documents are required to file a claim, and which court should the spouses contact? By means of some divorce site and several experienced lawyers, we have prepared answers to the most popular questions about the real estate division during a divorce proceeding.

There are two cases of ownership when purchasing an apartment. The apartment can be a property of one of the spouses, and both at the same time (for example, both spouses are specified in the sale contract at once). However, most often, the right of ownership is made out only on one of the spouses.

Does this mean that the one on whom the immovable property is registered, can renew it without the knowledge of the other spouse?

The lawyer’s answer to the division of an apartment is: a legal way to effect such alienation is impossible. Notary offices protect the rights of the other spouses. They are legally obliged to check whether the apartment was not acquired during the marriage. And if the notary establishes that the condo was purchased in marriage, alienation is impossible without the written, notarized consent of the other spouse.

However, according to the norms of the law, everything acquired during the marriage, in addition to personal items, is subject to the right of joint property of the spouses. According to the general rule, the lawyers share the wealth of spouses according to the principle of equality of shares of each spouse in the universal joint property. That is, each of 50% of the divisible property. However, the question arises.

How is it possible to divide an apartment in a building (not a private detached house) during a divorce just for a half? And is it possible?

The main thing you need to know about the legal side of the division of an apartment during a divorce is that the apartment belongs to the category of real estate and is, as a rule, a unified thing. Lawyers for the division of property of spouses often hold difficult debates in the courts, proving the correctness of one or another method in the division of an apartment as a unified thing.

What does an apartment mean as a unified thing?

An indivisible thing (such as an apartment, which is divided during a divorce by spouses) is a thing of the material world that cannot be divided into parts. Both spouses can fully use it, but separately from each other. As a rule, it is impossible to equip separate entrances for spouses, and it is also not possible to separately use common areas (bathroom, toilet, kitchen, corridors, balconies, loggias) by the spouses.

So, for example, if during the division of an apartment 50% of the condo is allocated to each spouse, none of them will be able to use such parts of a divided apartment for its intended purpose. The battered spouses cannot quietly live in such an apartment. Therefore, with this version of the division of a residence during a divorce, the spouses will be forced by an additional appeal to the court to establish the procedure for the use of living quarters in a divided apartment.

As for any conflict in the sphere of property and non-property rights, there are two main ways to resolve it. The first way is a “peaceful way” (voluntary, contractual,) and the second one is judicial. When settling the issue of real estate voluntarily, there are three main ways to do this:

-entering into a marriage contract;
-the conclusion of the agreement on the division of property;
-verbal agreement.

An oral agreement is a frequently used, but extremely unreliable way of resolving a conflict with the division of property. Even if one of the spouses agreed to re-register the park for a second and such re-registration was completed, this does not provide a guarantee of refusal to appeal against such legal action in court in the future. In practice, the case of filing a lawsuit about recognizing an agreement (even verbal) invalid in the future is one of the most common examples. Therefore, a written contract is preferable.

A marriage contract may include, among other things, provisions for the division of property in the event of a divorce. The conclusion of the marriage contract by the spouses will protect both parties from further legal proceedings after the dissolution of the marriage. Contrary to popular belief, the parties, both before the marriage, and during life, may conclude the marriage contract together.

The parties may agree on the division of property after the dissolution of the marriage. A mandatory element of such an agreement is a detailed description of all property that one and the other receives. Besides, only contracts certified by a notary will be considered valid. Real estate can also be divided between spouses in court. A claim on the division of real estate may be filed by one of the spouses in the framework of the process of divorce or separately.

If the claim is filed separately, its jurisdiction is determined by the location of the immovable property. The court is entitled in its decision not only to identify the person who receives the park but also to divide the property between the spouses in certain proportions. Also quite common is the situation of payment of compensation by one of the spouses and the transfer of all real estate to him.

The procedure and the result of the division of real estate vary depending on the legal regime of such property. In determining the real estate division mode, the key is the moment of property privatization. The simplest is the division of property privatized by spouses during their stay in a marriage with the establishment for each of them of the apartment or house. In such a case, during a divorce, a part of each of the spouses is determined, and as a result, each of them receives this part. If during privatization the rights to a part of the house or apartment of the couple’s children were also indicated, then these parts are not divided between the spouses and remain in the ownership of the children.

The situation is different if the apartment was privatized in a marriage, but part of one of the spouses was not defined in the documentation. In such a case, this spouse will not have such a right by default on the part of the property. To obtain a divorce of his role, the husband or wife will need to file a lawsuit with a request for determining the right to a part of the property. The main argument, in this case, can be the proof that the apartment has undergone significant changes, thanks to the material contribution of this spouse (for the money earned by him, an expensive home repair was carried out).

In the case of a peaceful settlement of the issue, spouses can agree on the sale of privatized real estate and the division of funds among themselves. Such an agreement may also be accepted by the court (in this case, its non-execution may entail a more serious responsibility).

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