One of the most common problems when divorced is a division of property, especially if there is a sharp dispute regarding the right of ownership between the spouses. It happens that expensive items are acquired by her husband and wife together during a marital life, but are made only on her husband. Or vice versa - the legitimate owner of the property is the husband, but the wife makes a claim on the basis of marital relations.
In this article we will try to understand the difficult question - how to share the property if his owner's husband? If, after reading the article, you will have additional questions or you will need an explanation, contact the portal legal advisions - personal advice is free.
Right joint ownership of spouses
According to the family legislation of our state, owners of everything that was acquired during a registered marriage are spouses. Moreover, the shares of spouses in joint property are equal. Even if the husband was engaged in business and made the purchases on his own name, while his wife was engaged in household and child care, they will be equal co-owners.
It does not matter who of the spouses were earned by money, who was concluded by the deal, in the name of whom the acquisition was registered. When divorced, married property should be divided equally.
As an example, it is possible to bring a widespread situation when only one of the spouses are indicated when applying for property ownership of real estate in Russia. At first glance, it may seem that the apartment purchased in marriage belongs only to her husband or wife, since it is indicated in the registration documents. But it is not. If the property was purchased in marriage, the spouse, not specified in the Rosreestra documents, has the same rights as the spouse specified in the registration documents. It is possible to prove this in court, submitting a marriage certificate and purchase agreement (or another guidelines) confirming the fact of acquiring real estate during a marriage.
However, in the process of divorce often the question arises - how to share the property, if the owner is the husband? You can call my husband with a sole owner only in exceptional cases that we consider below.
Exceptions. When is the husband - the sole owner?
So, in accordance with Russian legislation, her husband and wife on equal rights belongs to everything that was acquired in marriage. The exception is only cases when only one of the spouses is the sole owner, in particular ...
- Personal belongings (except luxury goods, jewelry) - even if they were acquired in marriage;
- The property that was acquired by his spouse before marriage;
- The property that was received as a gift is even during a marriage;
- Property inherited by will or by law - even during marriage;
- Property acquired during a marriage, but for funds belonging to the spouse before marriage or married for a gratuitous transaction (under the contract of donation, inheritance);
- Real estate that has passed the ownership of the spouse as a result of primary privatization.
Ownership of a privatized apartment
On the right of ownership of privatized property is worth talking more.
If the privatization of real estate occurred even before registration of the marriage, the sole owner of the apartment is, in this case, the husband. The wife cannot claim an apartment privatized with her husband, even if during a marriage lived in it. According to the Housing Code, the wife must change the place of residence after the dissolution of marriage.
If the privatization occurred already during marriage, the situation is somewhat different. So, if the wife lived or was spelled out in the apartment, but refused to privatization, it does not have ownership of it. The owner of the privatized apartment will be only a husband. But the wife has the right to stay in it, and on an ongoing basis, although without the possibility of disposing to this real estate.
If the spouses privatized the apartment together, they are equal owners of real estate.
Controversial questions about the right of ownership of property
In addition to the above cases in which the ownership of one spouse is almost indisputable, controversial situations often arise. To resolve the question of who owns the property - both spouses in equal or unequal fractions or only one of the spouses on the right of personal property - decides the court.
These situations include the following ...
- The acquisition was made during an officially registered marriage, but during the acquisition period - the spouses did not live together, the married relations between them were discontinued. If it succeeds in prove in court, the ownership of the property purchased in such circumstances will continue to the spouse who acquired it.
- If there are minor children who have minor children who, after terminating, the marriage remains to live with their mother or father, the court can increase the share of this parent in the process of the property section, that is, to carry out an unequal section - to protect the interests of children.
- It is not excluded to reduce the share of one of the spouses. The basis for such an unequal section may be the fact that during the joint residence of this spouse without good reasons did not receive income or unreasonably spent the funds of the family budget. This question is also considered exclusively in court.
note! It is not about those fairly common cases when the wife does not work (often - at the insistence of her husband), but keeps a household, cares for children, while the duty of the material support of the family completely lies with her husband. In such cases, the share of spouses in jointly accommodated property will be equal to 50 to 50. But if there were such circumstances as regular unreasonable spending, loss into gambling, alcohol or drug abuse, refusal to get a job without good reasons - can be required to reduce the share such a spouse in court.
It is necessary to mention that the conditions of the joint ownership section may differ from those provided for in the Family Code of the Russian Federation in the event that a marriage contract was concluded between her husband and his wife. Spouses have the right to provide for any conditions of ownership, use and disposal by joint and personal property, which was acquired before marriage either will be purchased in marriage. The distribution of shares and the division of property occurs in accordance with the terms of the marriage contract. But this does not mean that when a dispute occurs, the husband and wife are not entitled to go to court.
Methods of the section of the marital property
If the marital property is subject to section, despite the fact that it is framed in the name of her husband, it is possible to divide it in the following order:
- Determining the shares of co-owners.
- Cost estimate.
- The section is proportional to shares.
Well, if it is possible to share the property in kind. For example, his wife gets urban apartment, a husband - a car and a garage. Sometimes, even if the property object is only one, for example, a house, you can also implement a section in kind - to redecessing the house and divide into equal parts with separate outputs and communication nodes. A large land plot can also be divided into two plots and reorganize on two new owners.