Mortgages are a popular form of lending, which is mainly formalized by spouses for a long time. But given the size of the loan received and the timing of its repayment, the issue of protecting one's own interests becomes important. For example, a prenuptial agreement with a mortgage during marriage is a kind of financial "safety cushion". Given the number of divorces, the conclusion of such a contract is necessary so that in the event of the termination of the union, you do not worry about defending your interests.
The definition of this concept is given in the Family Code of the Russian Federation. In accordance with Art. 40 of this regulatory legal act, this is a mutual agreement between a husband and wife, establishing their property rights and obligations upon dissolution of the union.
The conclusion of this contract is allowed both before the wedding and after registering your relationship.
Important! This document is drawn up only in writing, no oral agreement is legally binding.
The number of such contracts is growing rapidly and one of the reasons for such popularity is the acquisition of living space on a long-term loan.
When buying an apartment on a mortgage, lenders welcome such an agreement.
When a prenuptial agreement is required for a home loan
Why do banks require the conclusion of a prenuptial agreement (DB) for a mortgage apartment? The creditor's position is explained by the fact that this contract regulates the legal relationship between husband and wife.
When it comes to pledged property, it is extremely important to accurately determine the degree of responsibility of each party to the agreement. For example, if the loan for the living space was paid only by the wife, but after the dissolution of the marriage (divorce), the husband or the spouses decided to divide the property after the termination of the family union. In these and other situations, the financial risks of the bank increase, because the procedure for paying off the debt becomes uncertain.
The situations when it is necessary to draw up a marriage contract for a mortgage apartment are varied, but there are several typical cases when the bank considers the presence of such a document to be a key factor in making a decision on the application. They are as follows:
- Unequal income for husband and wife. In such a case, the conclusion of a marriage contract makes it possible to assign responsibility for paying the debt to one of the spouses, and also helps to protect his interests if the family ties are terminated.
- The presence of delinquencies on existing debts from one of the borrowers. In such a case, the bank is extremely reluctant to issue a joint loan, even if the second spouse has an ideal state of accounts and there is not a single complaint about repaying loans. And the contract concluded by the borrowers among themselves separates their rights and obligations of the parties, which reduces the financial risks of the lender.
- Unwillingness of one of the borrowers to take out a loan. The decision to buy a living space on credit is not always a joint decision. In such a situation, the concluded agreement also separates the rights and obligations of the parties, which allows the lender to issue a loan, because the obligation to repay it falls only on the spouse who wants to receive it.
- Inability to prove income. Even if one of the borrowers makes good money, but at the same time cannot provide a supporting certificate, he cannot count on a mortgage. It will be issued to an officially working applicant. And if its full or partial repayment is made by a co-borrower who receives a "gray" salary, the conclusion of a contract is an opportunity to protect his interests in the event of the termination of the marriage bond.
- The spouse is not a citizen of the Russian Federation. Often in such situations, the bank asks to exclude the foreign citizen from the transaction.
- Conviction of a spouse or his absence in connection with the execution of a sentence by a court decision.
- Registration of a mortgage loan before the wedding. Already at the stage of planning a joint life, a couple gets the opportunity to determine their rights and obligations for the further repayment of the housing loan and the disposal of the living space by concluding an appropriate contract.
- Purchase of real estate with the money of the parents of one borrower. If the financial burden is borne by only one party, the OB is necessary to protect its interests in the event of the termination of the spousal relationship of the children.
- Division of liabilities for a home loan and real estate collateral. If one of the borrowers evades the loan repayment, this infringes the financial interests of the other party. The database is compiled to prevent such a development of cases.
It turns out that both before the marriage and after the official registration of the relationship, the prenuptial agreement when receiving a housing loan is a way to protect yourself from financial risks of debt repayment.
Repayment of a home loan upon divorce
According to the RF IC, when purchasing a mortgage housing, the second spouse is automatically registered as a co-borrower.
If the marriage relationship is terminated, the loan recipients must still make monthly payments. The payment procedure depends on the type of property:
- If it is equity, the property is divided equally between the parties after the loan is repaid.
- If it is separate (if there is a database), the debt is repaid by only one borrower, who, after paying the entire amount, becomes the full owner of the real estate.
- If it is common, the debt is paid by the borrowers equally, or by one of them, if the other refuses its obligations. With this form of ownership, the apartments are divided equally after the debt is paid off.
Thus, the procedure for paying off the debt depends on the form of ownership and on who is the main borrower for a home loan.
Features of the database when registering a housing loan before registering a marriage
Pre-marriage property is the personal property of the person who bought it. Therefore, entering into a family union with a person paying a mortgage and taking part in paying off a debt, it should be understood that obtaining rights to real estate in the event of a divorce is possible only at the personal request of the borrower or according to a court decision. In the second case, you need documentary evidence of your payments.
The conclusion of a marriage agreement in such a situation allows you to prescribe separate conditions governing the rights and obligations of each party.
For example:
- the borrower pays off the debt himself and, in the event of the termination of the marriage relationship, receives the sole rights to the living space, which will not allow the other party to declare its claims even if it contributed to the payment of the loan and can document this;
- the spouses establish an obligation to jointly pay the debt and determine the portions due to each party in the event of the dissolution of the union.
It turns out that with a mortgage, the conclusion of a marriage contract allows you to protect the rights of the borrower if he personally repaid the debt, and the husband or wife requires part of the property. On the other hand, this contract is a guarantee that the rights to real estate of the second spouse will be respected if he contributed to the payment of the loan.
Features of the DB with a housing loan during marriage
In the case of drawing up a contract after registering a family union, this is a way to establish the rights of each party. It is also the only loan option if the second spouse does not agree to a home loan.
In addition, if the husband or wife takes personal responsibility for paying off the debt, the bank will only take into account his income when determining the loan amount.
Features of DB for a home loan with maternity capital
According to the law, real estate purchased with maternity capital funds is registered in the joint ownership of the husband and wife, as well as their children. If in such a case there is a prenuptial agreement, according to which the property belongs only to the one to whom it is registered, and the other party to the agreement does not claim its rights, you can count only on that part of the living space in the acquisition of which the maternity capital was not used.
Also, the law establishes only the need to allocate a share, and its size is determined individually (in this case, each party, with the exception of minor family members, has the right to refuse it). In this case, the prenuptial agreement helps to reach agreement on the distribution of parts of the living space.
Pros and cons of compiling a database for a home loan
The conclusion of a marriage contract when registering a mortgage has both advantages and disadvantages. The pluses of the agreement include:
- a clear distribution of the rights and obligations of the parties, failure to fulfill which allows you to defend yourself in court;
- the possibility of obtaining a loan even in case of disagreement of one spouse or other problems with him;
- the possibility of a clear distribution of property and an obligation in the event of divorce.
Cons of a prenuptial agreement:
- reducing the size of the mortgage loan;
- less favorable terms of the loan agreement due to the absence of a co-borrower and total income.
Is it possible to make a marriage mate after a divorce
If the husband and wife decide to draw up a prenuptial agreement after the dissolution of their union, they will not succeed. According to family law, the conclusion of this agreement is allowed only before or during the marriage.
If the family ties are terminated, the property and financial rights and obligations of the parties are governed by mutual agreement, current legislation, or in court.
Therefore, having made a decision on divorce and the need to conclude a marriage contract, it is worth signing it before submitting an application to the registry office.
How and where to draw up a marriage contract
This document is drawn up in writing and must be signed by each party to the agreement. The procedure for registering a marriage contract depends on when it is concluded. If, before applying for a mortgage, you need:
- determine what conditions need to be reflected in the document;
- contact a lawyer or notary to draw up a document;
- notarize the agreement.
If the decision to obtain a mortgage is made in the presence of a drawn up prenuptial agreement, changes must be made to it regarding lending.
If the agreement is concluded at the stage of filing an application with the bank, the corresponding templates and forms will be provided by the financial institution.
What the contract should contain, sample document
Having decided to draw up a contract, you should discuss in advance the clauses on the mortgage that need to be included in it. The text should state the following:
- statuses of spouses in relation to the bank - name of the borrower and co-borrower;
- the procedure for making an initial payment (who undertakes to make it, if both, then how much is paid by each);
- obligations for monthly payments (who makes it, who is responsible for paying the loan itself, and who is responsible for interest and other payments (for example, insurance);
- by whom the debt will be paid in case of termination of family ties (taking into account the form of ownership);
- explanations about the division of property and debts, upon termination of the marriage relationship;
- from what income the debt will be paid (salary or other sources);
- conditions for a mortgage (if any property is provided, for example, a family car);
- the responsibility of the borrower (co-borrower) who does not fulfill the obligations imposed on himself (due to his own reluctance or due to external factors);
- circumstances that may cause changes in the terms of the agreement.
It is also necessary to indicate in the document information about the acquired real estate (full description), the financial organization issuing the loan (its details) and the loan (the amount of funds issued, the terms of their use and other terms of agreement).
Termination of the contract, invalidation of it
The agreement between the spouses can be canceled as follows:
- by their mutual consent - then the property is divided according to the law;
- on the initiative of one of the parties, if the other ignores its obligations. Here, the person who is the borrower must inform the lender of the cancellation of the agreement (Article 46 of the RF CC). In such a situation, the financial institution reserves the right to change the terms of debt repayment or make a demand for its early repayment. The latter possibility, if it is found that this state of affairs increases its financial risks.
You need to know that when buying an apartment with borrowed funds, the contract concluded by the spouses is not an absolute guarantee of protecting their property and financial interests, but it can significantly increase the chances of a peaceful separation in case of termination of family relations.
We will discuss these issues in more detail in the next post about.
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