During a divorce, disputes and conflicts often arise, which can only be resolved by a court. Particularly many questions are raised by the division of property, which can lead to lengthy litigation.
By law, in accordance with Articles 34 and 39 of the Family Code of the Russian Federation, all property acquired in marriage, including the apartment, is the joint property of the spouses, unless otherwise provided by the marriage contract. Nevertheless, in particular cases, only the Supreme Court of the Russian Federation can resolve disputes. Such a controversial financial moment, if the husband and wife decide to divorce, is the division of the apartment, bought with the money of the parents of one of the spouses. If the second spouse wants to take his share, the court may refuse him.
Housing received as a gift
Often the only opportunity to leave an apartment or other housing in their full possession. This case is an exception, such property is not considered jointly acquired. It does not matter which of the spouses the apartment is registered to.
The main point is that housing was purchased not with family money, but with other people's money, which was received by the spouses as a gift, free of charge. The court must prove that the funds were donated. This requires documentary evidence.
There are several common cases when an apartment bought with parents' money is divided:
- mothers and fathers of both spouses took part in the purchase of real estate, while giving money to their son or daughter;
- the mother and father allocated money to the young family for the purchased apartment, and not specifically to their child.
In the first case, it is possible to divide housing according to the contribution of each parent, if the spouses are able to peacefully settle the dispute and provide evidence to the court. In the second case, the general rules apply - the section of the apartment is 50/50.
If the parents independently purchased an apartment and allocated the real estate to the couple, various legal nuances play a role. It is important for whom the donation agreement is drawn up, who is the owner of the apartment according to the documents.
A donation agreement can be concluded with either one spouse or two. In the first case, it is quite simple to prove that the housing is not jointly acquired property - you need to take a document and present a donation agreement and the apartment will remain to the spouse who owns the housing. Housing donated to a family is divided according to the 50/50 rule.
In order for the donation agreement to reliably protect against the loss of real estate in case of divorce, it must be notarized. If this is not done, the court may suspect that the documents are forged and issued retroactively. Another way is to invite witnesses who are ready to confirm the transaction in court. But such testimony has low probative value in relation to notarial certification. Therefore, the formatting of this document is recommended.
It is taken into account when dividing the divisible property and investing spouses in the renovation of the premises after its purchase. Even if this new apartment was bought with the money of the parents of the husband or wife, and there is confirmation of this in the form of a notarized deed of gift, the spouse who spent his money on repairs has the right to claim a share.
Arbitrage practice
Now, in practice, various decisions are made and the verdicts of the courts of different instances often contradict each other. Many contradictions are caused by cases when not the apartment itself was donated, but the money for it. So, if one of the spouses wants to file a claim against the other with the requirement to give half of the apartment, and the other spouse provides documents confirming that the parents gave the money, the court can still make a positive decision on the claim. They will be guided here by the fact that the funds were voluntarily spent on general needs, which means that the acquired property is jointly acquired property.
Other courts, including the higher courts, may consider such a decision to be a violation of substantive law, and the first spouse has the right to demand a reconsideration of the decision and return the share back. Paragraph 1 of Article 36 of the Family Code states that the property received by one of the spouses as a gift, inheritance or other gratuitous transactions is his own. Also not common property purchased during marriage, but with personal funds. Therefore, in the case described above, the court is obliged to divide the apartment in accordance with the funds actually invested. The second spouse will receive a partially received share.
