Unfortunately, about eighty percent of families, according to statistics, fall apart during the first three years after marriage. If the spouses currently have a mortgage agreement with the creditor bank, the section of the mortgage apartment becomes a serious problem for both parties, which may take more than one year to resolve. In this paper, we will try to comprehensively address this difficult question and talk about how to divide an apartment in the mortgage after the divorce of former spouses.
How is a mortgage divided from the point of view of the law?
The division of property after a divorce creates many difficulties. It is necessary to solve a lot of questions, and first of all we have to ask ourselves: “If we divorce, then how will we divide the apartment in the mortgage between us after the divorce, which is pledged to the bank, how will we build relations with the co-borrowers, if any? To whom and in what proportion to pay the rest of the mortgage loan in the future? ”
Complications in the situation with a mortgage loan also arise because the problems affect the interests of both the former spouses and the credit organization, whereas the division of property, if it is not burdened with a mortgage, requires only agreement between the divorcing spouses. From here we can state considerable difficulty in making a decision that could satisfy all three parties. At the time of agreeing obligations for the repayment of the mortgage and the division of the mortgage housing object, this often results in infringement of the interests of one of the parties.
There are situations when a creditor bank, who decides to sell mortgaged housing, if the mortgage loan is not repaid, is faced with the fact that the court, after filing the claim, decides to deprive the borrower of the sole ownership of the mortgage apartment after the divorce procedure ends, or having lost the apartment, he has to continue repaying the mortgage loan.
Due to the specifics of each individual situation, which is abundant in various kinds of nuances, we note the absence of a single plan at the moment that would allow making unequivocal decisions in the section of the parties ’responsibilities after the dissolution of the mortgage loan and real estate mortgage. In law enforcement practice today there are no precedents on which the courts could navigate in situations of this kind. Therefore, in similar cases, we observe that, after filing a lawsuit, the courts often take completely different decisions, even contradicting each other. The emergence of legal problems in a situation where the court has to divide the mortgage apartment after the divorce of spouses, due primarily to the lack of clear legal regulation and a corresponding evidence base in the current legislation of Russia.
Sharing an apartment between the spouses after the divorce and solving the problem of further payment by the husband or wife of the mortgage is due to the courts based on the provisions of the Federal Law “On Mortgage”, the Civil and Family Codes of the Russian Federation and the mortgage agreement between the husband and wife, depending on which of them is the borrower and pays the loan.
The main criterion by which today the mortgage property is divided between husband and wife after the marriage is dissolved, we see that if the housing was purchased by the spouses during the period they were married, using the funds from the mortgage, then treat it follows both to jointly acquired property. From here we observe the consequences of a legal nature, which lead to the fact that this property is divided in half. The division of property that was acquired by the husband and wife for borrowed funds, and housing mortgage loan, in particular, does not depend on which of the spouses the mortgage loan was issued, unless a different solution to the problem was agreed to by the marriage agreement, if one exists. Among the ex-spouses are also divided financial liabilities available to the bank, regardless of whether the mortgage loan was issued for someone specifically or they are co-borrowers.
Russian family law, therefore, unequivocally forces the spouses to divide in half any joint property, although in practice we can observe a number of deviations from this principle, because with the housing pledged to the creditor bank, the owners cannot perform any legal procedure .
Ways to share a mortgage apartment between spouses
The choice of ways of dividing mortgage housing between the former spouses after they broke up the marriage is determined by several factors. It all depends on whether the man and the woman were officially married, whether the mortgage agreement was concluded with the bank before or after the creation of the family, whether there is a marriage contract, which is a source for contributing funds to pay off the debt, the degree of participation in the payments of each co-borrower, the presence of children, the time of purchase of the apartment and some others. Consider the basic situation in more detail.
A civil marriage, which in practice is a form of cohabitation of the so-called de facto spouses, is legally deprived of a legal basis, and the norms of family and civil law do not apply to it. In addition, in the absence of an agreement in the form of a marriage contract, the mortgage loan loan, like the real estate itself, with the greatest probability will continue to be listed on the person it was registered on. There may be a need for proof of the equal participation of both formal spouses in the mortgage, the repairs they have made, the purchase by them of some things or household appliances. They will most likely have to solve the problem after filing an appropriate lawsuit in court and attracting witnesses and evidence in the form of checks or payment receipts, statements from personal accounts and the like. To file a lawsuit and create an evidence base for it, they will have to enlist the support of an experienced lawyer.
The number of problematic issues related to the apartment in the mortgage can be significantly reduced by entering into a marriage contract upon marriage. Moreover, according to the current legislation, such an agreement can be executed both before the moment of the creation of the family, and after it. However, according to statistics, only five percent of our citizens go to design such marriage agreements, despite all their advantages.
A marriage contract should provide for all the nuances of the division of real estate, taking into account the mortgage, even if there is a mortgage loan taken before the conclusion of the marriage. Such a document, notarized, will be the key after filing a lawsuit to consider the issue in court. In the presence of a marriage contract, the mortgage section will be held in accordance with the contract.
Mortgage before marriage
The property acquired before marriage, in accordance with the Family Code, is personal and cannot be divided in case of divorce. But the same Family Code allows one of the spouses to make a claim for a share in the apartment, since the mortgage was paid from the general budget of the former family. Such requirements are reasonable even when they are put forward by an unemployed person because, in a marriage, the material contribution of one of the spouses is considered to be the total budget of the family. From judicial practice, we know that the court often decides in favor of such an unemployed spouse in the presence of checks, extracts and other evidence and a good lawyer. The most difficult are apartments from new buildings taken under a mortgage agreement. Ownership of such housing in accordance with the law comes only at the time of the start of operation of such objects. There are two options for the development of the situation. If the borrower dissolves the marriage before receiving the mortgage certificate, the court will apply to it the obligation to allocate the share of the former spouse or spouse at the time of the divorce, since the mortgage was paid off by them jointly. If one of the borrowers is married, then by a court decision, he will have to allocate a share in the real estate to the other party upon the dissolution of the marriage.