At the stage of divorce, many issues are resolved between spouses, some of them amicably, others go to trial. It is more difficult to dissolve a union when there is common housing (house, apartment) and children. But this is not the only problem that a couple faces during a divorce. In addition to the division of acquired property, there is a division of living space.
A divorced person is concerned about a pressing question: after a divorce, can he be evicted from his apartment without his ex-wife’s consent? The problem arises when the ex-spouse does not want to be discharged voluntarily and ignores all the ex’s requests.
How to expel your ex-wife from the apartment
In this situation, there is only one solution - to go to court. The judicial state body is obliged to consider the issue and issue an extract in accordance with the judicial procedure. In the current circumstance, the following points must be present:
- the property was purchased outside of the official union
- the wife is not the owner of the apartment
- wife does not live with ex-man
According to Article 36 of the RF IC, a woman does not have the right to her husband’s living space. If the wife does not live with her husband, then it is possible to resolve the disagreement mutually; to do this, you need to send a telegram to the place of residence with a request for discharge. If the woman does not respond, then you should contact the courts.
To confirm the application, the owner will need to collect some papers:
- a report from the house register, which indicates that the ex-wife ignored her husband’s telegram with a request to be removed from the register
- document on marriage and its dissolution
- excerpt from USRN
- cash account details
- agreement of donation, purchase and sale, etc. (depending on the basis for ownership of living space)
- check for payment of state duties
After collecting all the necessary documents, the husband files a claim with the justice authorities.
Sample statement of claim
If there are minor children in the former family, then in this situation it will not be so easy to remove the ex-wife and child from the register. According to the law, daughters or sons who have not reached the age of majority can be registered with any parent. Even if mom and dad give their consent to remove their child from the register, this issue will still be resolved only with the participation of the guardianship authorities.
If a child is the owner of part of the home, then the sale, exchange or removal from the register becomes a considerable problem for the former spouses. Another option is if the man is not the biological father of his ex-wife's children. In this situation, he is not their relative and can discharge the children at any time.
Important! On average, this procedure can take from 4 to 6 months, but if unforeseen circumstances arise (appeal, postponement of meetings, etc.), the waiting time can drag on for a year.
If you need to leave a city (municipal) living space, then the whole process is much more complicated, because the spouses are equal owners of this apartment. The most acceptable conditions for deregistering a wife are:
- when the wife refuses to pay utility bills
- if the ex does not live in a municipal apartment for a long time
- if the living space is used as a warehouse or as a retail outlet
- if the wife caused any damage to city housing
There are other situations that require careful consideration. With this problem, you should contact a lawyer who will explain all the nuances in each individual case.
Please note! Before contacting the courts, you must write a complaint to the municipality.
Municipality employees must visit the living space, interview neighbors (if necessary) and verify the validity of the complaint. After this procedure, the ex-wife will be given a warning; if ignored, she should immediately file a claim with the justice authorities.
Parting
Deregistration of a family member
If the spouse registered in the apartment does not live in it, and does not pay utility bills, he cannot be discharged. This is evidenced by Art. 71 of the Housing Code of the Russian Federation, which states that the absence of the tenant or members of his family will not be grounds for depriving him of the right to this apartment.
Such questions no longer cause surprise, because relationships between people change at an unpredictable speed. The reasons may be different: someone is getting divorced, someone’s relatives have decided to move to another country or their children have decided to get married, and someone just wants to buy a new apartment.
A house, room or apartment was purchased during the marriage, but with money from the sale of another home owned by one of the spouses before the wedding. Unfortunately, quite often people do not care about the careful execution of such transactions.
The following documents must be attached to the application:
- plaintiff's passport. If the interests of the plaintiff are protected by a lawyer, then a power of attorney issued by a notary is required. If the plaintiff is under 18 years of age, a birth certificate must be attached;
- a document confirming ownership of the apartment: a certificate of ownership or an extract from the Unified State Register for the apartment;
- the agreement on the basis of which the apartment was purchased: a contract of sale, gift, privatization or certificate of inheritance;
- extract from the house register;
- certificate of divorce;
- check for payment of state duty.
In practice, this period is 10 - 14 days. You can call the court office to find out if a copy of the court decision is ready. The court will send the decision to the defendant by registered mail.
If the ex-wife does not live in the apartment, the lawsuit should be called “termination of the right to use the residential premises.” If she still lives in the apartment, then a statement is drawn up “for termination of the right to use the residential premises and eviction.”
The law gives the rights of users, in addition to the owner’s wife, to:
- his children;
- parents;
- other relatives, and in some cases other persons moved into the apartment by the owner.
Moreover, you will have to prove that you are not doing this with the aim of making a person homeless or to take revenge for something.
It should be remembered that even after the divorce, the former spouse retains the right to reside in the premises. Therefore, a spouse can be discharged by agreement or under Art. 91 LCD.
If the apartment became the property of the husband through privatization, that is, free transfer of ownership of housing to citizens, this does not affect the wife’s rights to use the owner’s housing.
It is established by law that the owner of property (real estate or any other) has the right to own, use and dispose of it at his own discretion (according to the Civil Code of the Russian Federation).
The court must draw the attention of the cohabitant that she can live in the apartment only with your consent, and she has no reason for further residence.
About your residential address
When being discharged, the following questions are often asked: “The common-law husband/wife has moved out of the apartment and I don’t know where he/she lives. What address should I indicate in the documents? Or is it necessary to indicate the actual address?”
According to judicial practice, the defendant’s place of residence is considered to be his registered address - clause 63 of the Resolution of the Plenum of the Supreme Court of June 23, 2020 N25. Therefore, in the statement of claim and other documents, we indicate the address of residence of the common-law husband/wife with the address of his/her registration, that is, the apartment from which we will demand to be discharged. The plaintiff is not required to know where the defendant actually lives.
All subpoenas to the common-law husband/wife will be sent to the address of the apartment according to registration, where he/she may not live - Art. 113 Code of Civil Procedure of the Russian Federation. If the defendant does not receive a summons (because he does not live there), the court will still consider him to have been served with notice. Receiving any correspondence is a citizen's responsibility. Therefore, everything is according to the law. If the defendant does not appear in court, the case will be considered without his participation - clause 4 of Art. 167 Code of Civil Procedure of the Russian Federation.
Eviction of a wife with a minor child
This process is much more complicated than it seems at first glance, since you cannot simply evict a minor child from your home. He must have an actual place of residence.
In cases where the mother lives separately from the father and the child has a place, the father has the right to submit documents to remove the child from the apartment (Article 20 of the Civil Code of Russia). In this case, the actual place of residence of the child will be the mother's home.
Before submitting an application, you must obtain permission from the special commission of guardianship and trusteeship. But the claim must indicate that the child actually lives with the mother.
In practice, it is very difficult to discharge a mother and child from a privatized apartment, because the court will constantly protect the interests of the minor child and take his side. In such cases, it is recommended to enlist the help of an experienced lawyer.
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How to register a common-law wife?
How to register a common-law wife? Hello! Eviction through court is possible. the owner of the property can file a lawsuit to terminate the right of use on the basis of a court decision; you can remove it from registration Nikolai, Hello. You must file a claim in court to remove your used property.
We recommend reading: Broken leg insurance payment
and. from registration, in connection with the loss of the right to use residential premises
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Grounds for an extract - we build a chain of articles of law
- There is no such thing in law as a common-law husband, common-law wife, cohabitant or cohabitant. Only a registered marriage gives rise to marital and family relations - clause 2 of Art. 1 and Art. 10 IC RF. A common-law husband/wife does not have the status of a family member or relative; they are considered strangers.↓
- When the owner of an apartment registers a common-law husband/wife with him, it is considered that they have entered into an agreement between themselves for the free use of the apartment orally - clause 2 of Art. 30 LC RF and clause 1 art. 689 of the Civil Code of the Russian Federation. That is, the owner allowed the common-law husband/wife to live and use the apartment for an indefinite period.↓
- The owner has the right to unilaterally terminate oral agreements with strangers to live in his apartment - clause 1 of Art. 699 Civil Code of the Russian Federation.↓
- Registration of a common-law husband/wife violates the owner’s rights to freely dispose of the apartment, therefore he has the right to demand that this violation be eliminated - Art. 304 Civil Code of the Russian Federation.↓
- In addition: even if the apartment was purchased in a civil marriage (although there is no such thing), it is not jointly acquired property. Only registered spouses have a regime of joint ownership - Art. 256 Civil Code of the Russian Federation, Art. 33 and art. 34 RF IC.
It makes no difference whether the common-law husband/wife paid for utilities. The main thing is to inform that the oral accommodation agreements have been terminated.
What if a common-law husband or wife lives in an apartment?
It makes no difference whether he lives or not. This fact does not affect the court's decision in any way. In most cases, the court does NOT leave registration to strangers for a certain period of time.
There are, of course, minor differences only in the judicial procedure. The main thing here is to competently draw up a statement of claim and prepare for court. Read about this below in my detailed instructions.
Our law office "Bessonov and Partners" offers residents of Moscow or the region. We will take on all the possible work - we will draw up a correct statement of claim, collect all the necessary documents and submit them to the court. You will not need to come to court hearings; the office's lawyer will participate in them and will do everything possible to win the case. At the end of the trial, we will bring you a copy of the court decision.
We have been working in the field of court records since 2008 and have won 84% of court cases.
The cost of the service is 50 - 60 thousand rubles. For visitors to this site there is a discount of 5% to 10%. To receive it, say that you came from the website “Prozhim.com”. For all questions and for a free consultation, call the number (daily from 9:00 to 21:00 Moscow time / only for residents of Moscow and the region).
