Divorce in most cases involves property claims. The most difficult question that arises during the breakdown of a marriage relationship is whether the apartment received by gift is divided when the spouses divorce. The law provides for the division of only property acquired jointly during marriage. As for the personal property of each spouse, it is not subject to alienation after the breakup of the family.
However, the legislative framework specifically reflects exceptional situations that provide for the possibility of one of the parties making claims regarding the allocation of a share from a donated apartment.
Is it possible to divide a donated apartment during a divorce - legislative aspects
Article 36 of the Family Code (FC) of the Russian Federation provides for the recognition of an apartment as the personal property of the spouse who owns it on the basis of a gift, as a result of which it is not subject to division .
The act of donation must be documented by a notary in accordance with Art. 574 of the Civil Code of the Russian Federation and is officially registered in the Unified State Register of Real Estate. Upon divorce, the other spouse does not have the right to claim the allocation of a share of the gifted real estate, in contrast to jointly acquired property, subject to division in accordance with Art. 34 RF IC and Art. 256 of the Civil Code of the Russian Federation.
A donated apartment is not subject to division, regardless of whether it was received before marriage or after registration of the marriage . Only the donee is recognized as its owner.
Even an apartment received as a gift from one spouse to another cannot be divided after a divorce, since it also becomes the personal property of the person for whom the deed of gift is drawn up.
Is a donated apartment divided in case of divorce?
Advice from lawyers:
1. Should the apartment be divided during a divorce if the husband gave his 1/4 share to his wife?
1.1. If the husband does not have a share in the apartment, then nothing is divided, since there is nothing left to divide. Only joint property can be divided.
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2. Is an apartment given to one of the spouses divided during a divorce?
2.1. No, an apartment purchased through a free transaction is not subject to division. Article 36 of the RF IC. Property of each of the spouses 1. Property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (property of each of the spouses), is his property.
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2.2. No. This apartment is not divided, since it was not purchased using the joint funds of the spouses during marriage. All the best to you and good luck!
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3. Is the apartment given to me by my sister shared with my husband in the event of a divorce?
3.1. No, what is given as a gift does not generally belong to jointly acquired property and therefore is not shared, and it does not matter at all to one’s own sister or someone else’s uncle.
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3.2. Hello, if the apartment was registered under a gift agreement, then in the event of a divorce it is not subject to division. With respect and readiness to help, STANISLAV PICHUEV.
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4. Before marriage, I gave my apartment to my mother. Will it be divided during a divorce if the wife is registered in it?
4.1. Dear site visitor! No, it will not. Registration in an apartment has nothing to do with jointly acquired property.
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5. My father is married, but does not live with his mother, he wants to buy an apartment for me, register it in his name and make a deed of gift in my name, but he wants to divorce his mother, will the apartment he bought and gifted to me be divided during the divorce?
5.1. Hello. Will share. Either immediately buy an apartment in your name, or get a divorce first.
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5.2. Good afternoon No one will be able to share your gifts; the gifted item becomes the property of the recipient.
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5.3. Hello! Everything can be made much simpler. You are somehow complicating everything. Your Father can immediately purchase and register an apartment in your name, i.e. You will be the sole owner. Accordingly, nothing will be divided. Moreover, I don’t think that your Mom will try to share property with her child. And if the Father wants to acquire it during marriage and register it in his name, then after the divorce the property is divided as jointly acquired property. If you can't come to an agreement, of course. All the best!
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6. The apartment was given to the daughter by her mother. Then she (daughter) sold it and bought another one. Will this new apartment now be shared with her husband upon divorce or will it go to him after death? Thank you.
6.1. Hello Olga. Please clarify, did your daughter get married before or after purchasing the apartment?
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7. The question is, during a divorce, is the apartment received from the RF Ministry of Defense free of charge, divided by one serviceman, subsequently privatized and given to the son? Thank you.
7.1. No, it cannot be divided, since it is registered in the name of my son.
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7.2. Hello! If the apartment was given to the son, what division are we talking about?
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7.3. Parents have no rights to their children's property. Accordingly, the apartment cannot be divided. She belongs to her son.
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7.4. If you cancel the gift agreement, then something will burn out.
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7.5. Good evening! Well, how can it be divided if the apartment no longer belongs to you. The owner, the son, has the right to dispose of the apartment at his own discretion. Can sell, give as a gift.. - Art. 209-210 Civil Code of the Russian Federation.
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8. Will an apartment given to a spouse by parents in a legal marriage be divided during a divorce and division of property?
8.1. No. This property is not included in the joint venture. Acquired!
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9. In the event of a divorce, is the apartment divided between spouses if it was given to one of them when they were still legally married?
9.1. Hello, Evgeniy! An apartment received as a gift by one of the spouses is not subject to division upon divorce.
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10. Married for 30 years. divorce. Child 29 years old. live separately. My husband and I live in a three-room apartment, officially everyone owns 1/3. Everything is clear here. But both my husband and I have cars. When dividing property, will my car be divided? Because My husband gave it to me, I never asked for a car. But the gift has not been officially formalized. I didn’t work, that’s what my husband wanted! There are witnesses that the car was a gift. He was very proud of it. And one more thing... is his car considered joint property?!
10.1. In general, in court, the fact of donation, in accordance with Article 60 of the Code of Civil Procedure of the Russian Federation, must be confirmed by a gift agreement in writing, Article 572 of the Civil Code of the Russian Federation, and not by testimony. Therefore, during a divorce, both cars will be divided.
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11. The grandmother wants to buy an apartment and give it (register a deed of gift) to her granddaughter. If the granddaughter gets married and changes her last name, will the donated apartment be divided between the spouses in the event of a divorce?
11.1. No, property acquired before marriage or during marriage under a gratuitous transaction is not marital property.
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11.2. Hello Alena! Property received as an inheritance or as a gift is the property of the spouse and is not subject to division.
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12. Is tax charged when donating an apartment? When spouses divorce, is the donated apartment divided?
12.1. Yes, they charge tax if the gift is not between close relatives. A donated apartment is not divided during a divorce. This is expressly provided for in Art. 36 IC RF.
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13. My mother-in-law gave my wife a one-room apartment, we sold it, I added money and we bought a two-room apartment. My mother-in-law lives there. Over the years I built a two-story house. It contains: me, my wife, and my son. My son is 33 years old. My son and I are doing interior decoration on the 2nd floor. My wife has been living in her daughter’s apartment since February 2020. How will everything be divided during a divorce and can the rash get a share in the property.
13.1. Hello, If there are no additional circumstances that you have not mentioned, then the division will be between you and your spouse in equal shares. RF IC Article 34. Joint property of spouses 1. Property acquired by spouses during marriage is their joint property. 2. Property acquired by spouses during marriage (common property of spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose ( amounts of financial assistance, amounts paid in compensation for damage in connection with loss of ability to work due to injury or other damage to health, and others). The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds.
3. The right to the common property of the spouses also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income.
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14. Now my husband and I are married, we are planning to buy an apartment. We don’t want to enter into a prenuptial agreement. How to arrange an apartment so as not to share it with his parents by inheritance? Is it possible for my husband to register it in his name and then give it to me? Is such an apartment divided during a divorce?
14.1. Hello Tatiana. To give a dollar. apartment, which is joint property, you must first allocate this share. You must draw up an agreement on the division of this apartment, certified by a notary (Article 38 of the RF IC), otherwise the notary and the registration authority may not register or certify the transaction. And after that, in fact, donate the share, certifying the transaction with a notary. Or immediately state in the property division agreement that the apartment goes to you. Is it easier to conclude a prenuptial agreement? A will won't help either, TK. parents will have mandatory shares (most likely they are already pensioners).
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14.2. Good afternoon, Tatyana. You can do everything much simpler and without going to a notary and without donating a share of the apartment so that in the end the apartment becomes only your personal property and your husband’s heirs will not be able to lay claim to it later.
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15. I registered an apartment in Omsk for my son using a deed of gift. I am interested in the following question: can his wife claim part of the apartment during a divorce? Is real estate divided if it was given by parents?
15.1. Hello. 1. Property acquired by spouses during marriage is their joint property. 2. Property acquired by spouses during marriage (common property of spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose ( amounts of financial assistance, amounts paid in compensation for damage in connection with loss of ability to work due to injury or other damage to health, and others). The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds. 3. The right to the common property of the spouses also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income.
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16. The father gave his son an apartment when the son was married. If my son divorces, can his wife claim this apartment? Are gifts divided in a divorce?
16.1. Hello, Elena. No, property received by one of the spouses under a gratuitous transaction (for example, under a gift agreement) is not jointly acquired and is not subject to division (in accordance with Article 36 of the Family Code of the Russian Federation and Article 256 of the Civil Code of the Russian Federation).
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16.2. Elena, then you have a privatized apartment, now we are talking about a gift. Gifts are not shared either. The next question will be, should we assume about the apartment inherited during marriage? They don't share either.
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16.3. Hello! Article 36 of the RF IC. Property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (the property of each spouse), is his property.
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17. Is the apartment privatized for one of the spouses? Is privatized housing equal to a gift and is it divided during a divorce?
17.1. Hello! If an agreement has been concluded for the gratuitous transfer of an apartment into the ownership of citizens, then the apartment is considered personal property and is not subject to division. If the other spouse refuses privatization, then he has the right to use it.
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17.2. Housing in this case is not equivalent to a gift. It is personal property because it was acquired during the marriage. Regardless of who it is registered to. Article 33-39 of the RF IC.
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17.3. No to the gift. If the second spouse refuses privatization in writing, he only has the right to lifelong residence in the apartment and it is not subject to division as jointly acquired property. If you did not refuse privatization and were registered in the apartment, challenge your right in court.
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17.4. Hello, Privatized housing is not jointly acquired and is not shared upon divorce. Good luck to you. Anna Titova.
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17.5. If the apartment is privatized during marriage, it is mutually acquired property and is divided in half upon divorce; if it is privatized before marriage, it belongs to one of the spouses.
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18. If the apartment was given as a gift from the wife’s relatives during marriage and transferred to the wife, then in the event of a divorce, will this apartment be divided in half with the husband?
18.1. If the apartment was given as a gift from the wife's relatives during marriage and transferred to the wife, then in the event of a divorce, will this apartment be divided in half with the husband? Property received as a gift is not marital property and is not subject to division between spouses during a divorce.
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18.2. If the apartment was given as a gift, that is, received without compensation, then this apartment is not jointly acquired property, which means it will not be divided between the spouses during a divorce.
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19. If my mother gives me money and draws up a gift document. I will contribute it to buy an apartment and we will take a small part as a mortgage for my husband. Will the apartment be divided during a divorce? And will I receive a 13% tax deduction?
19.1. Good afternoon You can draw up a receipt, in which case, when dividing the property, this amount will be excluded from the cost of the apartment, since this amount will be your property, which is not subject to division. That is, you can pay your spouse compensation for the cost of his share minus this amount.
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19.2. Good afternoon. An apartment acquired during marriage will be divided, but in court you can indicate that you contributed most of the money and the court may decide to award you the larger part. Either spouse can claim a tax deduction, either in part or in whole.
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20. My son and daughter-in-law are married, I want to give an apartment to my son, will it be divided during a divorce?
20.1. — Hello, my son and daughter-in-law are married, I want to give an apartment to my son. Will it be shared during a divorce? If not, you have nothing to worry about. Good luck to you and all the best.
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20.2. Hello! No, it won’t, because... according to Art. 36 of the RF IC, property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (the property of each spouse), is his property.
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I have two apartments, one was a gift from my father, but before that it was shared with my wife.
The mother gave the apartment to her daughter when she was married. Is this apartment shared when a daughter divorces her husband?
During my marriage, my grandmother gave me an apartment as a gift. I sold it and bought a new one, should this apartment be divided between the spouses during a divorce?
The apartment was purchased during marriage. The certificate for the apartment is issued in my name.
An apartment given by a mother to her son will such an apartment be considered jointly acquired property and divided during a divorce?
The company gave me an apartment. Will it be divided in a divorce?
When buying an apartment in Finland, while married, and registering 100% in the name of the husband (to use his right not to pay tax on his first home)
Before marriage, my husband bought an apartment in half with his mother, and I had an apartment in half with my brother,
Married to my husband for 30 years. My mother issued a deed of gift for her apartment in my name.
Grounds for dividing a donated apartment
Despite the fact that the donated apartment is not divided between the former spouses, there are several options on the basis of which the property claims of one of them can be satisfied through the court.
Such exceptions are legally confirmed in Art. 37 RF IC.
Change in property value
A significant change in the cost of the donated apartment, which was the result of investments made during the period of cohabitation of the spouses, may serve as the basis for recognizing this real estate as common property .
Such investments include major renovations of premises, reconstruction of technical equipment, redevelopment and other types of changes to improve the condition and quality of the donated apartment, which significantly increased its value.
The party making a claim to receive a share from the donated real estate must present documents confirming its financial investments that increase the value of the apartment. Among them:
- presentation of receipts for the purchase of building materials;
- receipts for settlements with workers;
- extracts from personal accounts confirming expenses for repair work.
Proving such investments can be quite difficult, and often almost impossible. In this case, the real estate remains only in the possession of the recipient of the deed of gift and is not divided.
If the apartment is gifted to two spouses
In usual practice, it is assumed that a gift agreement is executed for one owner . An exception is a gift for a wedding or during an official marriage .
If there are two recipients, then the donated apartment is considered jointly acquired property . When dividing property in the event of divorce, it is divided on a general basis. True, the size of the shares of each spouse is sometimes reflected in the gift agreement.
Presence of a marriage contract
Article 40 of the Family Code of the Russian Federation provides for the possibility of dividing a donated apartment, provided that this aspect is reflected in the marriage contract.
The determination of shares depends on the provisions specified in this document, which are the priority source for dividing real estate.
Insolvency of husband or wife
In exceptional cases, the court makes a decision on the division of an apartment received by gift due to the financial difficulties of one of the spouses. As an option in this situation, the property owner is required to provide alternative housing to the husband/wife.
More often, a recommendation is made for the right to common use of a donated apartment after a divorce until problems with material issues are resolved.
In what cases is a donated apartment subject to division?
In practice, donated living space can be divided in several cases :
- the property was gifted not to one spouse, but to both, for example, for a wedding;
- in marriage its value was significantly increased;
- The section is provided for in the marriage contract.
The easiest way is to divide an apartment given to both spouses. If the home belongs to one person, you can try to prove that the other person has invested significant funds in its repair or reconstruction.
The court may oblige the owner to divide the property or purchase another home for the ex-spouse if he does not currently have a source of income. Or provide the right to use this housing until their financial situation improves .
They can also take into account the opposite situation: if the owner of the apartment did not work for a long time for unjustified reasons or spent the family budget on himself to the detriment of the family . Then it is possible to pay compensation to the second spouse or divide the property.
Additionally
Registration does not matter : the owner of the apartment after the divorce has the right to register the ex-spouse without the latter’s consent. Family history is also unimportant. The number of years spent in marriage can only slightly affect the amount of compensation.
It happens that the donated property was sold, and another one was purchased with the proceeds . Such living space may also be subject to division after a divorce. It all depends on whether additional family funds or the funds of the second spouse were invested in its purchase, who is the owner of the new home, etc.
It happens that a gift agreement is drawn up as a cover in order to remove real estate from division in the event of divorce. For example, one spouse transfers personal or common family funds to his parents, who buy an apartment and “donate” it to him. If the second spouse manages to prove this scheme, the transaction may be declared invalid.
There are no clear criteria under which a donated apartment can be recognized as jointly acquired property. Only the court has the right (but not the obligation!) to award a share to the other spouse if it finds it convincing.
Increase in the cost of an apartment
If expensive repairs, replacement of plumbing, redevelopment, or reconstruction were made in an apartment donated to a husband or wife during the marriage, the court can transfer such a home to the category of joint property. Similar circumstances are stipulated by Article 37 of the RF IC.
If the second spouse applies for the division of the apartment as a donation, he needs to prove that it was he who contributed significant funds, which significantly increased its value, or took a direct part in the renovation. confirm your material investments using :
- receipts for the purchase of materials, warranty cards with the seal of a trade organization;
- statements from a personal bank account;
- receipts for payment of workers' services or delivery of goods;
- other similar documents (email correspondence with suppliers, etc.).
It will be much more difficult to prove your participation in repair work, which was not accompanied by financial investments. You will have to attract witnesses who can confirm your physical participation in the renovation work, and order an independent examination to compare the current value of the apartment with that recorded in the deed of gift.
Wedding gift for both spouses
If the apartment was given to both spouses, it is considered not personal, but jointly acquired property. In the event of a divorce, such a home can be divided on a general basis - equally.
However, the deed of gift may immediately indicate the size of the parts that will go to the husband and wife. These proportions can be changed if, again, it can be proven that one of the spouses has invested significant material resources.
Information
It happens that only the parents of the bride/groom are listed among the donors, but both spouses are given gifts. In such a situation, it is also possible to redistribute shares during division.
Division in the presence of a marriage contract
If such an agreement exists between the spouses, property during a divorce will be divided according to its provisions, and not on the basis of articles of the Family Code.
Such a contract can provide for a different ownership regime that differs from that prescribed by law. For example, include a condition that an apartment given to one of the spouses after a divorce will be divided in half or in any other shares.
A marriage contract can be concluded at any stage of the relationship , but only after registration of the marriage and notarization does it acquire legal force. The peculiarity of this agreement is that it can be concluded in relation to both existing and property that has not yet been acquired at the time of signing the document.
A properly drafted marriage contract specifies which spouse owns and controls what and who gets what in the event of a divorce.
How is a donated apartment divided?
According to the law, the division of property is carried out within 3 years after the divorce. The allocation of shares to each of the spouses provides several options for resolving this dispute:
- concluding a peace agreement, which involves determining the exact size of shares with the obligatory certification of this document in a notary office;
- an agreement between the parties without official documentary confirmation, which has certain shortcomings - disputes arise regarding common areas;
- filing a statement of claim providing for consideration of the issue of division of the apartment by the court;
- sale of donated real estate with subsequent division of the proceeds;
- you can buy out part of the apartment due to one of the spouses;
- exchange the due share for a car.
Unlike the division of jointly acquired real estate, in which both parties have equal shares after divorce, the division of a donated apartment allows for various combinations .
For example, when concluding a settlement agreement, the parties have the opportunity to independently determine the size of their shares. A prerequisite is the achievement of mutual agreement and the official execution of documents under the contract in strict accordance with established rules .
Cases in which gifted property is subject to division
We talk in detail about how to draw up contents and draw up a marriage contract.
It would seem that there should be no encroachments on the part of the other half if the applicant has a deed of gift for the house. But the law also provides for a number of exceptions. Art. 37 of the Code stipulates situations in which divorced people will divide housing accepted as a gift among themselves. Consider these situations:
- Significant increase in the value of personal property due to the common family or personal money of the second spouse:
- carrying out repairs and reconstruction of the facility;
- equipping the apartment with communications, household appliances, and the car with technical devices;
- construction of new extensions to the building;
- purchase of furniture and interior items.
For example, relatives could give a woman a house that required restoration and repair. The couple restored this home with funds from the general family budget. In this case, upon termination of the relationship, the husband will be able to demand the allocation of his own share of the house.
- Purchase of a new residential property using proceeds from the sale of donated property. For example, there was a gift of a car to the husband from his father. The husband decided to sell the car, the proceeds plus general family savings were spent on buying an apartment. In this case, during a divorce, both spouses will be able to apply for housing.
If you donate money to buy an apartment
A large sum of money given to a young family at a wedding or after it by the parents of the bride/groom allows them to purchase an apartment. When a family breaks up, objective options for dividing it are also considered.
However, such real estate is not always divided in equal parts and may not be subject to division at all. There are some nuances in resolving the issue through the court, despite the fact that the housing was purchased after the marriage was registered.
The reasons for this are factors such as:
- Documentary confirmation that a gift agreement has been drawn up for one of the newlyweds for a certain amount, for which an apartment was purchased after the wedding. In this case, it is not subject to division.
- Investment in the purchase of part of the money by the second spouse becomes the basis for the share due to him, in proportion to the monetary contribution.
- If the apartment was purchased with funds donated to the bride or groom, but the jointly accumulated amount was added to it, then the property is divided in proportional shares or equally depending on the investment.
Dividing a donated apartment after the termination of a marriage relationship is a long and complex process. When making a property claim to a part of such real estate, it is necessary to provide compelling reasons that have evidence and validity in court.
Partition method
The law gives citizens the right to independently dispose of personal objects received under a gift agreement. For example, a husband decides to divide all property, including personal property, in equal parts with his wife. Moreover, he can completely transfer his personal property to her or his children.
But if one spouse believes that the gifted object has ceased to be the personal property of the second participant in the relationship, and claims to be allocated a share of this housing, then he needs to go to court. At the same time, it is important to have a legislative framework that could confirm that the increase in the value of the property and the purchase of a new apartment (house) were carried out with the participation of the couple’s common funds.
It is very difficult to prove that you are right if the applicant has lost receipts, checks and other documents that confirm that he contributed his own funds to repair and improve the disputed object.
What is marital property?
This is what the couple acquired after they registered their marriage in the registry office (Article 34 of the Civil Code, Article 256 of the Civil Code) . This also includes real estate, even if according to the documents one person is listed as the owner, and not both spouses.
Also, in the eyes of the law, it does not matter who worked and to what extent to provide for the family.
Even if the apartment was bought entirely with money earned by the husband, and the wife provided home comfort and, as they say, “worked as a mother,” still everything they acquired is jointly acquired. This means it can be divided in case of divorce.
Reference. This can only apply to legal spouses.
For example, if a couple has not formalized their relationship, then it does not matter where whose money is, who is the owner according to the documents, in the event of a breakup, the thing belongs to him ; in the eyes of the law, these people are strangers to each other.
Or, for example, a couple lived together for some time, the groom bought an apartment, and established himself as the sole owner. And then people signed up and bought a dacha. But after some time they got divorced and the question of dividing property arose - according to the law, country real estate can be divided, but the apartment can no longer be divided.
The exceptions to the concept of “joint property” are not limited to this. This is not considered:
- what is received by a husband or wife through gratuitous transactions - for example, given as a gift or bequeathed;
- personal belongings;
- the fruits of intellectual work;
- purchased for its intended purpose (for example, an apartment with a military mortgage);
- targeted payments (for example, maternity capital);
- acquired during marriage, but with money personally accumulated by one of the spouses the day before (and he can prove it!);
- real estate obtained as a result of privatization.
Main nuances
According to the current legislation, all property received during an official marriage is jointly acquired and in the event of divorce is subject to division in the proportion of 50 to 50, that is, equally. However, not everything is as simple as it might seem at first glance. There are many controversial issues and exceptions to this rule.
If in an officially registered marriage one of the spouses received a gift of real estate - for example, an apartment, then in most cases, upon divorce, the other spouse will not be able to claim this object.
This legislative norm is spelled out in the Family Code of the Russian Federation, in particular, in article number 36. The receipt by a person of any property as a gift is a disinterested transaction, and therefore is his personal property. For example, if the spouses lived in a donated apartment during the marriage, then in the event of a divorce it will completely become the property of one of the spouses, and only he will be able to dispose of it at his own discretion.
A very common myth among people is that if there are common children, the gift apartment in the event of a divorce is divided not only between the ex-husband and wife, but also the children. This point of view is fundamentally incorrect. In accordance with current legislation, a person can apply for a gift apartment during a divorce only in the event of the death of his spouse. In addition, this property must not be transferred by the legal owner to one of his children.
If the husband gave his wife an apartment: is division possible?
If the donation transaction is properly executed with its certification through a notary or the conclusion of an appropriate agreement, the apartment donated by the husband in favor of his wife does not acquire the status of jointly acquired property.
The basis for such a conclusion is the same as for any gift of property. According to Art. 36 of the RF IC, any property of a spouse received as a gift during marriage is not subject to division. An apartment donated by the husband is no exception and will not be subject to division.
Gift deed for an apartment and divorce, is it possible to divide the donated property?
Divorce is an unpleasant process for both partners. It is especially unpleasant when it comes to the division of property acquired during marriage. It is rare that spouses find a compromise on this issue and do not go to extremes when common property begins to be divided and a deed of gift for an apartment takes place.
In Western countries, marriage partners, in order to avoid conflicts, even before entering into a marriage, draw up a contract that stipulates all the nuances regarding the division of property during a divorce. In Russia, this trend is not yet so widespread, so controversial situations often arise about which property can be divided in half and which cannot. Thus, the question often arises: is property received under a gift agreement subject to division?
All property acquired during an official marriage and acquired with common funds is subject to division between married persons.
But if it was inherited or received as a gift by one of the partners during or before marriage, then such property is considered personal property, and no one has the right to claim it. The donation of an apartment is a gratuitous transaction in which the donor donates his property (house, apartment, land) to the recipient without reciprocal obligations. Most often, such transactions are carried out by close relatives (parents, children, grandparents).
Thus, in the event of a spouses’ divorce, the donated apartment is not divided between them, because the housing belongs to the owner as a personal property. According to Article 36 of the Family Code of the Russian Federation, personal property cannot be divided upon divorce of spouses, since the law confirms the undivided ownership of it.
There is a misconception that if both married partners lived in an apartment that was donated to one of them, then the deed of real estate in the event of a divorce is divided between the spouses, like all other joint property.
In fact, this is not so. No matter how many years the husband and wife live together in this living space, it will still belong as personal property to one of the spouses who received it as a gift under a gift agreement. It is not divided even if the second half was written in it. After a divorce, the owner has every right to evict the second spouse from the living space.
Another erroneous opinion: if children were born during the marriage, then the donated housing during the divorce process is also divided among the children. Based on the same Law “On Undivided Ownership of Donated Property,” real estate can be divided among heirs only after the death of the owner of the living space (donee) and only if it was not transferred by the owner to a third party (child, parents and other persons) under a gift agreement.
It is important to know here that if a deed of gift for any specific property belongs to one of the children, then other heirs cannot lay claim to it.
With such a problem, you can often hear the question: is there justice in this situation? Is it possible to challenge a deed of gift for real estate?
Of course, on the part of the partner who is the owner of the gifted property, everything is very fair. But what should the other half do in such a situation, how to defend their interests after a divorce, if a large amount of money was invested in housing in order to improve living conditions?
Thus, according to Article 37 of the Family Code of the Russian Federation, if one of the spouses invested in the donated living space an amount in such an amount that this real estate began to cost several times more, then during a divorce the deed of gift can be challenged and declared invalid. And then this property will be divided equally, because it will be considered joint property acquired during the marriage.
Housing improvements include:
- redevelopment;
- extension of premises;
- construction of additional structures;
- expensive repairs;
- technical equipment of housing.
For example, the house originally had two rooms and cost 20 thousand dollars. But during the marriage, the couple added several more rooms, an extension in the yard, a garage, and the cost of housing increased to 50 thousand. Then this property, despite the presence of a deed of gift upon divorce, will be divided equally.
Only a judicial authority can make a decision to recognize the donated real estate as the joint property of the marriage partners.
