Purely private apartment. Divorce: what property is not subject to division What is not subject to division during a divorce

Not all property is subject to division between spouses. There are separate categories of property that are not shared between marriage partners under any circumstances. Such property is legally referred to as property that is not subject to division upon divorce.

premarital

Things received into the ownership of each of the marriage partners before marriage are considered the personal property of each of them. This property could be acquired, acquired under a sale and purchase agreement, received under a paid or gratuitous transaction.

Received under a gratuitous transaction

Property acquired by either spouse during the marriage under a gratuitous transaction is also indivisible. The following transactions and legal institutions make it possible to designate the personal property of a spouse during the period of marital relations:

• donation agreement;
• inheritance;
• privatization, etc.

The exception is things that have been significantly improved by the efforts of the second spouse. When housing is privatized, the second partner in marriage has the right to retain the right to reside and register in it.

Things for personal (individual) use

Things of personal use remain with the spouse to whom they belonged personally. These things include:

• clothes;
• shoe production;
• personal hygiene products;
• musical instruments and others.

However, things, including clothing, jewelry related to luxury, are divided in a general manner. Recognition as a luxury in each case is an individual matter of the judge. For example, in one case, a fur coat can be recognized as a luxury item, and in another, not. Here, the cost of such an item is of great importance.

When sharing luxury goods, no one is going to share in the truest sense of the word, but by providing monetary compensation to the second spouse.

Exclusive right to the result of intellectual activity

Exclusive rights to the result of intellectual activity remain with the one who created such a result, that is, with the author.

dwelling

Municipal, service housing, as well as housing for hire is not subject to division, since it does not belong to the spouse on the right of ownership or other similar right.

Indivisible things

Indivisible things that only one of the partners in marriage exploits are not subject to division. An indivisible thing is characterized by the fact that its division entails damage to the functional purpose. For example, a room. However, a full-fledged apartment will be considered divisible.

Other property not subject to division

Things, property acquired in the name of children and for them are not subject to division. This includes clothing, furniture, school items, books, cash deposits. They belong only to the children themselves. The property remains with the parent with whom the child remains during the divorce. It is impossible to divide the property that is assigned directly to the husband or wife under the marriage contract. Complex things cannot be divided.

The property acquired with the personal funds of the spouse, which were received by him before the conclusion of the marriage, will also remain with this spouse. The problem here will be the proof that the property was acquired with the personal funds of the spouse. In addition, often the property is acquired with joint funds. Therefore, it is very important to keep documentary evidence of the ownership of the funds (checks, certificates, statements).

The Family Code of the Russian Federation, as a general rule, states that property between marriage partners in a marriage is divided equally. But there are exceptions to this rule, where, for example, the things of children remain with the partner who leaves the child.

The divorce of a married couple entails not only psychological discomfort for a man and a woman, but also quite certain legal difficulties associated with the division of property.

Divorce proceedings, as a rule, are delayed precisely because of property issues. Each side is trying to prove that it has the right to a larger share.

Sometimes it becomes a revelation for those who are getting divorced that not all the property that the family owned and used is subject to division between the parties in a divorce.

In accordance with the norms of family law, if the marriage union breaks up, only property that will be jointly acquired will be subject to division. The law refers to it everything that the parties have earned or acquired during the period of family life.

Personal property, in accordance with the provisions of Article 36 of the RF IC, is recognized:

1) Property inherited by a spouse. Inherited property, regardless of how it was inherited, by law or by will, will not be recognized as jointly acquired property, even if the inheritance was actually received during the marriage.

2) Property received as a gift. Everything that each of the spouses acquired under donation agreements (gift) is his personal property. The rule applies to both movable property and real estate.

3) Property received under gratuitous transactions. It can be any form of acquiring property for which you did not have to pay. For example, it can be winning the lottery, finding a treasure and receiving a reward for it, privatizing an apartment (privatization of housing is free, and if only one of the spouses participated in the privatization process, then such housing will not be jointly acquired).

4) Any property that each of the spouses owned before marriage. The same rule applies to property that was acquired with money earned before the marriage, even if the actual acquisition of any property was already made during the marriage.

5) Property that can only be used by one of the spouses. For example, curlers for a husband after a divorce are useless, just like a shaving trimmer for a wife will be useless. Such things remain with the person who objectively uses them. The rule does not apply to jewelry and luxury goods, which will be subject to division on a general basis.

6) Hygienic items and wearable items that are used by each of the spouses. Clothing, footwear and all other wardrobe details, as well as personal hygiene items, are not subject to division and remain with the person who uses them.

All of the above things will not be included in the partition object in a divorce. But we must remember that the court will need to provide evidence showing that certain things belong to the personal property of the spouse. Such evidence can be contracts of sale or sales receipts that will help establish the time of transfer of the acquired property into ownership.

Disputes about the division after a divorce of property acquired in marriage are considered complex and lengthy. In general terms, everyone knows the rules for such a division - acquired in marriage is distributed in half between former spouses. But a simple formula hides a lot of pitfalls that may be unfamiliar to citizens.

As the analysis by the Supreme Court of the Russian Federation of one of such decisions on the division of jointly acquired property showed, not everything acquired during the marriage can be divided equally. The subject of the analysis of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation was the process of the division of a one-room apartment. Their marriage lasted three years. It was concluded in September, and a month after the wedding, the wife signed a share agreement with the developer in the construction of a house in which she was to receive a one-room apartment.

A month later, this transaction passed the state registration. Judging by the materials of the court, the wife had her own apartment before marriage, which she sold a month after the wedding, and invested the proceeds in the construction of a one-room apartment.

After the marriage broke up, her ex-husband came to court with a claim for the division of jointly acquired property. The plaintiff argued his claims as follows: at the time of the dispute, the ownership of the one-room apartment for the ex-wife was not registered. They did not conclude any agreement on the division of the common good. But after the divorce, the wife solely uses this one-room apartment, and since it was bought during marriage, it means that he, as a spouse, has every right to half the living space.

The district court denied the plaintiff. The court decided that the ex-spouse bought the apartment with the proceeds from the sale of the property that she had before marriage. Therefore, odnushka does not apply to the common property of the spouses. The ex-husband challenged this decision.

There will be no common property purchased during marriage, but with personal money that the spouse had before the wedding

The appeal sided with the plaintiff and did not agree with the decision of the district colleagues. She canceled it and decided - to divide the one-room apartment in half. In her opinion, the very fact of making money from the sale of personal property as payment under a shared construction agreement has no legal significance for the correct resolution of the dispute "in the absence of evidence of an agreement between the parties on the acquisition by the defendant of the disputed property into personal property."

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with this decision and the division of the apartment.

The high authority reminded colleagues of Article 34 of the Family Code. It states that property acquired during marriage is considered joint property. The article lists in detail what applies to such common property - the income of each of the spouses from labor, entrepreneurial or intellectual activity. Pensions, allowances and other payments received by them that do not have a designated purpose. By the way, earmarked money - material assistance, compensation for damages due to disability and other similar payments - are personal property.

The common property will also be what is bought at the expense of joint income. These are movable and immovable things, securities, shares, deposits, shares in capital contributed to credit institutions or commercial organizations. This list ends with the words "and other property acquired by the spouses" regardless of the name of which of them it was acquired or registered and which of the spouses contributed money.

And Article 36 of the Family Code lists what is not divided. This is property that belongs to each before marriage, as well as what each of them received during marriage as a gift, by inheritance and "under other gratuitous transactions."

There was a special plenum of the Supreme Court, which considered complex issues in claims for divorce (No. 15 of November 5, 1998). At this plenum, the following clarifications were given: common joint property, although acquired during marriage, but purchased with the personal funds of each of the spouses, which belonged to him before marriage, is not common. And yet there will be no common "things for individual use, with the exception of jewelry and other luxury items."

From all that has been said, the Supreme Court draws the following conclusion: a legally significant circumstance in deciding whether to classify property as common property of the spouses is what money it was bought with, personal or common, and under what transactions, paid or gratuitous, one of the spouses acquired this property during the period of marriage. Property received by one of the spouses in marriage under gratuitous civil law transactions (this is inheritance, donation, privatization) is not the common property of the spouses. The acquisition of property during the period of marriage, but with funds owned by one of the spouses personally, also excludes such property from the common joint property regime.

The Supreme Court emphasized that in our appeal dispute such an important, "legally significant" circumstance as the use of funds belonging to the ex-wife personally for the purchase of a one-room apartment, "was mistakenly ignored."

The proceeds from the sale of the old apartment, according to the law, were the personal property of the defendant, since they did not profit jointly during the marriage and could not be the joint income of the spouses.

The Judicial Collegium for Civil Cases of the Supreme Court emphasized that the period between receiving money from the sale of an apartment before marriage and payment under an equity participation agreement in construction was only five days. So, in accordance with Article 34 of the Family Code, a one-room apartment bought with this money could not be recognized as the common property of the spouses.

The result of the analysis - the decision of the district court, which gave the apartment to the ex-wife, the Supreme Court considered correct, legal and left it in force, and the decision of the appeal was canceled.

Every year, more than 100,000 registered married couples break up and file for divorce. Then the spouses face the question of how to properly divide the property that they have acquired together.

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Who will get the apartment in case of privatization and the presence of a child. What property is subject to division in a divorce, and what is not. All this is discussed in this article.

Options for terminating a marriage contract in an official marriage

There are two options for how officially registered spouses can divorce: in the absence of children and with their presence

First option

If the spouses do not have children, then they can submit documents for breaking the marriage union to the civil registration service, that is, to the registry office. Divorce can be issued where the marriage was registered.

If there are no problems with the division of joint acquisitions, then such registration takes place without complications and in a short time.

Another variant

If there are children under the age of majority, divorce can only be through a court, where each spouse must be present. At the court, a person is obliged to present his explanations and reasons for the termination of the union.

It takes 1-2 court hearings to close a case. A person is considered officially divorced after 10 days after the court makes an appropriate decision. In court, it is easy to terminate marital ties with the mutual desire of the parties.

Problems begin when a married couple does not have a common agreement on how to share common property, minor children and other financial assets.

Under such circumstances, court hearings take much longer and division of property and guardianship occurs.

What property is to be divided in a divorce?

All property, things, purchases, equipment that a husband and wife acquired during their life together with the help of common money are the equal property of everyone, acquired by joint efforts. This means that in the event of a divorce, all this property is divided in half.

The house, cars, cash, land, liabilities and much more are shared equally by everyone. Moreover, such a division procedure is done not only during the process of dissolution of marital relations, but also during marriage.

Although there is no exact list of common property, its approximate list may be as follows:

• apartments, houses, dachas, cottages;
• plots of land, as well as the plants that grow on them;
• animals bred for food or various jobs;
• means and objects of labor;
• available transport;
• money;
• the amount of insurance, as well as funds reimbursed to spouses by the insurance company;
• accumulation of share contributions in building cooperatives housing, dachas, garages;
• payments returned by insurance companies for early termination of contractual relations;
• equipment used by one of the parties in the professional field (musical instruments; medical devices, etc.);
• household appliances (vacuum cleaner, microwave, oven, mixer, refrigerator, etc.);
• things of special value (diamonds, diamonds, precious metal products, other jewelry);
• items to satisfy aesthetic needs (paintings, books, televisions, cameras, etc.).

Any things of a financial nature are common property, except for those that are not included in civil circulation (earned wages at work, scholarships, etc.).

It can be:

• transactions;
• contracts;
• money;
• business;
• stock;
• securities;
• bank deposits;
• royalties (received by one of the spouses);
• prizes won.

There are cases when one of the things cannot be physically shared by two people. Then this thing, for example a yacht, goes to one of the couple, and the second gets something else from the remaining acquisitions, while the court valued it in the same amount. And so it applies to all cases.

Video: New rules

What is not divided in a divorce

According to the current legislation, there is something that is not divided in half upon dissolution of the marriage union, but remains in the legal possession of one of the spouses.

What was acquired before marriage

If a husband or wife purchased a car, a house, a plot of land or something else before the marriage was concluded, but this belongs only to his personal possession. The other party has no right to claim this kind of property.

Gifts and inheritance

If during a stay in a marriage union a person received gifts from someone or inherited some things, then this is also not shared with the spouse. Only there is an important detail - for gifts there must be significant evidence or gift agreements, which will confirm the fact of donation.

If the gift is a large amount of money, then it must be notarized. If there are no such documents, then these gifts will also be considered jointly received possession.

Often, contractual documents confirming the fact of donation are used to appropriate certain things personally. In court, such documents are trying to expose and recognize their invalidity.

If evidence is found that such an agreement is fictitious and hides the fact of buying / selling real estate, then it will be divided as common ownership. But it is often not easy to prove and expose such frauds through the courts.

What is purchased with own funds

Own funds may arise from the receipt of gifts, insurance payments and reimbursements, as well as rewards for personal achievement. It can also be money received from the sale of things acquired before marriage.

Permanent income from work during the period of marital union is not personal funds. All earned money is common regardless of whether both worked or only one of the spouses.

If the sale of personal property that a person acquired before marriage was completed, then the purchase for this money will also belong to him. But to prove this fact is very difficult.

If this is not proven, then such a purchase will be considered jointly acquired, due to ignorance of what kind of money the person used at the time of purchase - personal or salary.

The procedure is much easier if the purchase is made using a bank account, where payments and purchases are non-cash. Then it is easier to see where the money came from and what it was spent on.

If their source is personal acquisition, then the purchase of this money is considered personally acquired and indivisible with the marriage companion.

Property that is privatized

If during the marriage period a dwelling or any plot of land was privatized and all the necessary documents, contracts and papers are available, then according to existing legislation, this is private property that is not shared by the lawsuit.

But if the privatization of, for example, an apartment or a house is registered on both persons, then the housing or land is common and can be divided.

Individual things

Individual things are accessories for the personal use of a husband or wife. It can be a women's fur coat, shoes, her jewelry or care products, men's clothing, watches and much more.

All these things are not divided upon termination. They remain with the actual copyright holder. Therefore, a man cannot demand to give or share, for example, expensive clothes and jewelry, just as a wife cannot demand half the cost of his expensive accessories from him.

At the same time, what is the subject of common use is shared, regardless of whether it is used by both sides of the conflict or by someone alone. These include things like appliances, gadgets, cars.

Awards, prizes, prizes

Indivisible are rewards and prizes for personal merit in various fields:

• prize for victory in competitive programs;
• award for participation in sports competitions;
• receiving awards and prizes from the state;
• receiving funds or scholarships to work in scientific fields.

Sharing is always difficult. It was material values ​​that always put the question squarely and complicated the already strained relationship.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and IS FREE!

But it is impossible to exclude this unit from divorce proceedings, because when we live together, we always acquire real estate, jewelry, other necessary and useless things, and, the main acquisition is children, and their interests should in no case be infringed.

Before starting litigation and disputes, it is worth evaluating your positions, what you can claim, and what you will have to give up.

It will not be possible to divide all the property, because some things initially belong to only one of the spouses.

This list includes:

• property acquired before marriage;
• received as an inheritance or gift (by one of the family members);
• copyright, etc.

What do you need to know?

Divorce is not a necessary condition for property division. It is possible to share the good acquired together without parting, literally immediately after the marriage.

The basis for the procedure is the requirement of one of the spouses or his creditor, who wished to recover the debt from the borrower's share.

To whom the property is registered, and which of the four earned more, does not matter much in this situation. Although prolonged parasitism without a good reason or unjustified waste of joint values ​​can play a role.

Marriage contract