According to the generally accepted legislation, the rules, all property acquired during a marriage, is recognized by the joint property of spouses. This provision applies to debt obligations. However, not everything is so unequivocal. Consider in the article by the situation in which the loan obtained by her husband is generally debt and is subject to paying both parties, and in which, recognized by the personal debt burden of the spouse and is not subjected to section.
Loans husband when divorced
- It is not rare when pairs are disintegrated, it turns out that the parties have out of minded debts. For example, a standard situation: divorce, the husband took a loan, but did not have time to pay it, being in a registered marriage. If you do not take any action on this account, then the spouse continues to independently carry the burden of responsibility for the payment of the specified loan, unless otherwise provided by agreement of the parties. After all, according to the loan agreement, the borrower is a husband, and according to the general rule, no changes in the loan agreement, if this does not precede the mutual consent of the parties or the court decision.
- In other words, the loan itself is not automatically divided by divorce if this provision is not agreed with the credit institution and there is no judicial act on this. Spouses together with the requirement of the division of property or as an independent statement, the issue of debts in court often decide.
According to part 3 of Article 39 of the Family Code, the total debts of the spouses in the section of the common property of the spouses are distributed between spouses to an equal degree - in accordance with them who awarded them.
- Thus, for a start, it is necessary to recognize the debt "common", regardless of which one of the spouses was drawn up by a loan agreement. Judicial practice shows that if the loan is issued personally to her husband or wife individually and the target destination of borrowed funds is aimed at public easily, the court recognizes. And subsequently, on the basis of a court decision, changes are made to the loan agreement and the rest of the debt is paid by both parties.
- For example, being married, her husband took a loan for a new technique in the house, or on a joint trip to the sea. As a result, the marriage breaks up to the complete closure of the loan, repayment of obligations assumed. And the husband in this case is quite reasonable, in court it is entitled to demand to divide the jointly acquired debt.
- But there are also completely inverse situations. When the spouse comes into debt relations with a credit institution, contrary to the will of the spouse, without its knowledge or borrowed funds are spent on the needs of completely unrelated to the family. For example: on leisure husband, new decorations, personal belongings, and so on. In this context, it is impossible to say that debt to the lender "General". Of course, in court, any argument will have to justify, submit evidence, the circle of which the law is clearly not defined.
Credit after divorce
- If during the scroll-proof process, the question of the fate of debts did not arise before the spouses, allow the situation after a divorce. It should be remembered that to declare the requirement of the section is allowed no later than 3 years of age after the official divorce. If the specified time period is missing, then the court simply refuses the party in accepting a statement due to the expiration of the limitation period established by part 7 of Article 38 of the Family Code of the Russian Federation.
- Another important point is that the loan must be signed during the registered marriage. If the debt obligations were married, but in fact the parties did not live together, did not lead a joint economy, the court had the right to refuse to meet the demands on recognition of debt with general.
- Naturally, banks and other credit organizations do not greet such a practice when the borrower's already executed obligations have to share with the other party. Since in this case another citizen who was awarded to pay debt is not always creditworthy. Often it does not fall under general requirements by the Bank to borrowers. Therefore, many credit obligations remain not fulfilled.
- Currently, if a citizen is married and takes a rather solid amount in debt, such as a mortgage, banks try to include another spouse as a coacher or guarantor. Thereby secure yourself at the stage of processing the application for the product. In addition to the client itself, the Bank checks his spouse to the level of income and the presence of so-called credit stories.
- In order to protect themselves from possible trouble when divorced, many lawyers are advised to initially conclude, in which, in addition to property relations, reflect the provision concerning the debt obligations of the spouses. Or demand from the bank in the loan agreement itself to register the item relating to the order of repayment of debt in the event of a divorce.
In general, in order to share debts, decorated with one of the spouses in court, necessarily proves the fact that the borrowed funds were taken to the needs of the family. And only after establishing all the meaning of the moment, the court decides on the recognition of debt obligations to the credit organization shared debt and determines its size for each part. Or refers to the satisfaction of the stated requirements due to the unprotence of the objective orientation of a loan for joint needs, or for other reasons, recognizes the debt is not subject to section.