The life of most newlyweds begins beautifully and cloudlessly. Joint plans, common goals, the first property that appeared in marriage, a separate apartment … It is she who sometimes becomes the cause of numerous disputes and courts during divorce. How can you prove during the division of property that the right to housing purchased with your parents' money should remain with you?
Much to the chagrin of lovers who are starting a family, the division of property in a divorce is often inevitable. It is good if the parties come to an agreement on this issue. But there are also situations when one of the spouses is forced to prove that the housing was bought not with the money that was earned with the other half, but with his personal funds and financial investments of his parents. Confirming the use of parental money can be very difficult. And, since the property was purchased during an official marriage, during the divorce proceedings, it will be divided in equal shares.
Articles 34 and 39 of the Family Code of the Russian Federation state that "the property acquired in marriage is the joint property of the spouses," which means that in case of divorce it must be divided equally. Of course, in this case, the contribution to the purchase of housing for each member of the married couple will be disproportionate. Only if, when concluding the marriage contract, the spouses provided for a different property regime (for example, common shared ownership), then the shares in divorce can be of different sizes.
When dividing real estate, a loan agreement between a husband or wife and his parents or a donation agreement for financial resources does not always help to prove the ownership of the money used to purchase housing in the ownership of one of the spouses or his parents, and, therefore, the right of this spouse to sole ownership of this property … Judicial practice is such that in case of divorce, the property will be divided in half.
According to the director of Est-a-Tet (a network of real estate offices), Alexei Bernadsky, even if the second spouse is unemployed, it is very difficult to prove that the property was purchased with money belonging to one of the spouses and his parents during divorce proceedings and division of property. … Even if at the time of the acquisition of the property, the relationship between the couple was practically terminated, the court does not always take this into account.
The Collegium for Civil Cases, whose judicial practice was reviewed by the Supreme Court of the Russian Federation, believes that "the property acquired during marriage, but the funds that belonged personally to one of the spouses, are not subject to the regime of joint ownership."
The Family Code of the Russian Federation in clause 1 of Article 36 says that “the property belonging to one of the spouses before marriage, as well as property that one of the spouses inherited during marriage, received as a gift or otherwise free of charge, is personal property. transactions.
At the Plenum of the Supreme Court of the Russian Federation, held on November 5, 1998, Resolution No. 15 "On the application of legislation by the courts when considering cases of divorce" was adopted. The explanations to this decree state that “common property, acquired even during marriage, is not a common property, but with the personal funds of one of the spouses, which belonged to him before marriage, received as a gift or by way of inheritance”.
Consequently, from a legal point of view, a significant factor for the inclusion of purchased housing in common ownership is that on personal or jointly earned funds and under what transactions (gratuitous or reimbursable) the property was acquired by one of the spouses during marriage.
The purchase of a married home, but with the personal financial resources of one member of a married couple, automatically deletes this property from the list of common property.
So, being in an official marriage, planning to buy an apartment and invest in it a significant amount of personal financial resources or parental money, you need to stock up on good reasons to exclude this property from joint ownership. If parents' money is used to buy a home, then an agreement is required confirming the donation of money by the parents to one of the spouses. At the same time, it is necessary to indicate in the contract that the amount of money should be directed to the purchase of real estate.
If the parents have a large sum of money as a result of the sale of their real estate and they donate this amount to their child who is married to buy a home, you should be prepared for the fact that they will have to provide information about their lack of major purchases (real estate, land, cars) at the same time.
It is easy to prove that the apartment was bought with the parents' money if they paid for the purchase in full, there are supporting documents and only after that it was presented to the daughter or son. In this case, the property is considered the personal property of the child and will be excluded from the list of property acquired in marriage.
