How is an apartment purchased with maternity capital divided during a divorce?

What is maternity capital?

The issuance of maternity capital is one of the measures of state assistance to families with children. Maternity capital is issued in the form of a personalized certificate in the name of the mother who gave birth to or adopted a second, third or next child. And only she, as the recipient of the certificate, can dispose of the capital.

The size of the monetary amount of maternity capital depends on the number of children in the family (for example, for the third child the mother will receive a larger amount than for the second). Capital can be used for one of the purposes provided by law:

improvement of living conditions;
payment for the child's education;
increase in mother's funded pension.

One way or another, mat capital comes to the family. Therefore, in the process of divorce and division of property, spouses ask a reasonable question - how maternity capital is divided during a divorce.

What is a maternity capital certificate and how is it divided?

A maternity certificate is a kind of government support measure aimed at families with children. The procedure for providing this payment is directly regulated by Law No. 256-FZ of December 29, 2006.

Currently, the right to a certificate is available only to those families who have two or more children, whether adopted or their own. Moreover, since the document is usually issued in the name of a woman, therefore, only the mother, as the recipient, will have the right to dispose of it in one of those ways provided for by domestic legislation.

Maternity capital during divorce

Maternity capital (certificate) is issued to a mother who has given birth to her second and subsequent children (adopted children are also treated as such). A specifically established amount, which is subject to annual indexation, is provided as assistance not to children, but to the entire family. Thus, additional funds flow into the social unit. Therefore, in the divorce process, the question arises: is it possible to divide maternity capital when spouses divorce.

Spouse's rights during divorce

In case of divorce, the right to maternity capital is not divided : the ex-husband after the divorce cannot issue a certificate for himself or dispose of half of the funds if a woman has the right. If a man is the owner of the certificate , then his wife also cannot claim half of the capital.

The ex-husband, if he is the father (adoptive parent), may receive the right to a certificate when the woman loses it . This occurs if the owner of the certificate:

died (declared dead);
deprived of parental rights;
committed a deliberate crime against the person of a child;
canceled the adoption.

If the father is deprived of the right to maternity capital, then it is acquired by children : minors, or adults, but studying full-time.

If a child remains after a divorce from his father

There are cases when the divorce of spouses leads to the fact that the child remains to live with the father, who in such a situation wonders whether I have the right to re-register the maternity capital in my name. Unfortunately, there is nothing to please single fathers in terms of receiving maternity capital. Of course, if the mother was officially deprived of parental rights, then the father has the right to receive funds.

However, if she simply handed over the children to be raised by their father, but retains parental rights, maternal capital will remain with her in the event of a divorce. The only consolation here can only be the fact that if such a mother decides to use targeted funds to purchase or improve real estate, then each of the children will receive their own part in it. However, if she invests money in the funded part of her pension, then it will belong only to her.

Section of a mortgaged apartment with the participation of maternity capital

Most often, it is impossible to buy real estate solely with maternal (family) capital, and in order to secure the required amount, you have to take out a loan or mortgage from a bank. This further complicates the division of property after divorce.

How is property divided after divorce?

Read about the divorce process here.

How to divide a mortgaged apartment during a divorce, read the link:

Several options are possible:

The mortgage has been repaid in full. In this case, each party has the right to a share of the property registered in its name;
The mortgage has not yet been paid off. According to the provisions of the Family Code, in such a situation, loan obligations arising during the marriage are divided equally between the parties. In this case, the property is not subject to redistribution: each party owns only the share that is registered in its name;
The mortgage is not repaid and one of the parties refuses to pay the loan. In this case, the debt can be collected from the second co-borrower, that is, the ex-spouse. Situations arise when the mortgage agreement is terminated, the property becomes the property of the bank, is sold and the loan is repaid with the proceeds. To prevent such a development of events, you should, having entered into an agreement with the bank, pay off the mortgage ahead of schedule and register ownership of the home. Afterwards, you can recover the overpaid funds from the other party through the court.

Upon completion of the division of property, the ex-spouse (most often the father) has the right to exchange his share of the real estate, agree on its purchase by the other party, or, having concluded an agreement, refuse it on account of the assigned alimony.

In order not to be deceived, such an agreement must be drawn up and certified by a notary. The document must stipulate that the property share becomes the property of the children, not the ex-wife. If this is not done, it turns out that the father simply gave the share to his ex-wife, without being freed from the obligation to pay alimony.

No one has the right to force a person to get rid of his share in any way, and if he wishes, he can continue to use it - regardless of whether maternal capital was used when acquiring the property or not.

How is maternity capital divided during a divorce?

As was written above, maternity capital is not subject to division. But you need to understand under what conditions and to whom it will belong in order to correctly divide property during a divorce.

When buying an apartment

According to the law “On State Support Measures for Families with Children” (Part 4, Article 10), if real estate was purchased using maternity capital funds, it must be registered in equal shares for all family members, including children. In this case, it does not matter what part of the amount was reimbursed by the state.

Example : The Kovalev family purchased an apartment using maternity capital. The family has two adults and two children. The property must be registered in equal parts for each family member. The father and mother receive 25% of the apartment, and each of the children receives another 25%.

When registering shares, you should take into account not only the child who became the reason for receiving maternity capital, but also the first son or daughter, since without him receiving government assistance would also be impossible.

Thus, in the event of a divorce, the ex-husband and wife will share only half of the apartment among themselves (25% for each), and not the whole of it. This does not apply to the rest of the property.

When applying for a mortgage on an apartment, the bank usually requires that the additional co-borrower be the spouse of the main borrower. In a divorce, they simply divide the remaining debt into two parts and each pays their share.

Example : The Kovalevs, who have two children, buy an apartment with a mortgage. The first payment is made at the expense of maternity capital. In the event of a divorce, each of them will be required to pay 50% of the loan, regardless of the fact that they actually own only 25% of the property.

Even before the divorce, it is recommended to notify the bank of your plans. Together with the lender's representative, you can find the most optimal way to solve the problem. Otherwise, the financial institution has every right to demand early repayment of the debt.

When carrying out major repairs and/or other construction work aimed at improving housing conditions, maternity capital is calculated in the same way as when used to purchase real estate. As a result, children automatically receive their share and sharply reduce the amount of property that parents can divide among themselves during a divorce.

Section methods

There are 4 main ways to divide real estate acquired using maternity capital

Replacement. The husband or wife with whom the children remain offers their ex-other half to exchange her share in the apartment for other property. For example, for a garage, car, cottage, household appliances, land, and so on.
Compensation. This is the actual sale of a share to a second party. For example, a wife may suggest to her husband that he transfer his share in exchange for monetary compensation in an amount corresponding to the cost of this part of the apartment.
Sale. A rarely used option, especially in situations with maternity capital. In theory, the ex-spouses sell the property and each gets their share. It should be taken into account that when purchasing a new home, the area allocated for each child should not be less than it was in the previous apartment.
Isolation in kind. The least popular option. It is understood that the spouses continue to live in the same living space, but it is actually divided into several parts, one of which goes to the husband. In practice, it is impossible to divide an apartment in this way, if only because the kitchen, toilet and bathroom in it are usually presented in one copy. Relevant only if several apartments were purchased during marriage, later combined into a single living space.

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Between children

Maternity capital is primarily intended not for parents, but for children. This is implied even in the intended purpose. Property is divided between children in equal parts, regardless of their number.

Example : The Kovalev spouses have two children. They buy an apartment. It is issued to four owners, each of whom (two spouses and two children) receives 25%. If a third child (5th family member) is born, the parents are obliged to redistribute the shares in the real estate, distributing them now into 5 parts. In such a situation, everyone will receive 20%. The same is true at the birth of each subsequent child.

With husband

Maternity capital is not divided between husband and wife. However, it may not belong to the mother, but to the father. This is implied in Federal Law No. 256, Article 3. This situation can only arise in exceptional conditions:

A mother commits a crime against her child.
The mother was killed, declared dead or missing.
The mother was deprived of parental rights or abandoned the child.

Also, the father receives the right to maternity capital in the case when he independently raises more than 1 child, including adopted children. Under such conditions, even if the man subsequently marries and plans to divorce, this money will also not be subject to division.

If the money is spent on training

If during a marriage the spouses used maternity capital to pay for their children’s education, it will not be possible to recover the money for obvious reasons. Firstly, such assistance is intended exclusively for minors. Secondly, this money is not considered joint property.

Division of property purchased with maternity capital

According to Art. 34 and 38 of the RF IC, real estate acquired during marriage is automatically recognized as the joint property of the spouses. A standard divorce involves a 50/50 division of property between husband and wife. Investing maternal capital when purchasing real estate complicates its division.

The Law “On Measures of State Support for Families” (Article 10 of Federal Law No. 256) establishes the obligation of the certificate holder to allocate shares to all family members. If maternity capital was used when purchasing a home, the property must be registered as common property. The size of shares is not regulated by law. The Supreme Court ruled that such property should be divided into equal shares between all owners, that is, parents and children.

Spouses can divide housing purchased during marriage with the participation of maternal certificate funds in two ways: by agreement and through the court. Division without a legal dispute is the simplest, but spouses do not always manage to agree.

How is property acquired with maternal capital divided?

Housing purchased, built (reconstructed) with maternity capital is divided during a divorce, taking into account the norms established by Art. 38— Labor Code of the Russian Federation and Art. 10 of Law No. 256-FZ, the rights of children and spouses to such living space must be taken into account . The division of property can be carried out both during marriage and after divorce. If the spouses cannot come to an agreement, then the property is divided in court : at the request of the husband and wife, it is decided what property goes into the possession of each of them.

Part 1 art. 39 establishes that in the event of a divorce, the shares of the husband and wife in common property are recognized as equal , unless other conditions are established in the contract. If one of the spouses receives property the value of which is more than the part due to him, then he must pay compensation.

During a divorce, the following cannot be divided :

Individual property of husband and wife.
Deposits made in the name of minor children of spouses at the expense of common property.
Things to meet the needs of minors - they are transferred to the parent with whom the children will live.

You can file a lawsuit demanding division of common property within three years from the date of divorce.

Since when purchasing, constructing or restoring a home, shares in it must be allocated to each of the family members, the living space will be divided differently, depending on whether the obligation has been fulfilled or not. If the shares were allocated, then after the divorce the spouses and children will each remain with their own part. If not, then the division of the living space will be carried out in several stages:

It is established what part of the housing was purchased with maternity capital.
This area equally between parents and children: the smaller the acquired part, the smaller the shares in the housing will be. 1/4 of the cost of an apartment was paid with maternal capital , then the minimum share of each family member will be 1/16 of the living space .
The rest of the living space is divided in half between the spouses , unless other conditions are determined by the court or agreement.

If the cost of housing was fully paid by maternity capital , and no shares were allocated, then the entire living space is divided equally .

If the spouses have entered into a marriage contract, then the housing is divided according to it, but shares must be allocated to children and spouses .

Is an apartment purchased with maternity capital divided during a divorce?

Maternity capital is a type of state assistance, expressed in monetary terms and issued after the birth of the first or second child in the family. As a rule, these funds can be used to pay for the child’s education, create the most favorable living conditions, and so on.

However, the highest priority when allocating this type of assistance is considered to be improving the quality of life of children. To achieve this goal, maternity capital funds are invested in the purchase of an apartment.

If the housing was purchased using certificate funds, then the children are required to receive a share of such real estate. When registering real estate, the child’s parents give a notarized commitment when purchasing a home. You can immediately make an entry in favor of the children to save money on re-registration of housing.

Find out more about how to allocate shares to children after closing a mortgage with maternal capital.

In some cases, housing obtained with the help of the specified state assistance must be registered only in the name of the children. Thus, during divorce proceedings, the apartment cannot be an integral part of joint property and, as a result, is not subject to division.

The remaining options provide for the division of the apartment between all family members on equal terms.

The rules for dividing this real estate are always the same, regardless of the characteristics of the residential premises.

How an apartment purchased with maternity capital is divided during a divorce

If maternity capital funds were used to purchase new residential real estate, then during a divorce, the disputed apartment can be divided.

No.	Section options	Comments
1	Sale of residential premises and division of proceeds between all family members based on the principle of equality	This case provides some nuances. For example, the sale of housing for the purchase of which funds from maternity capital were used for the birth of a child is possible only after the approval of the guardianship and trusteeship authorities. And only after they are convinced of the inviolability of the legally protected rights of children during the specified operation.
2	Payment of compensation for the share of one of the spouses	If a husband and wife decide to refuse the possibility of selling an apartment, then in this case one of the spouses has the right to receive compensation in the form of other property commensurate with the latter’s share of the divisible apartment, for example, a car, furniture, expensive equipment, and so on. The specified compensation can also be expressed in monetary terms.
3	Allocation of shares of disputed housing in kind, that is, division of an apartment into two	This section is practically impossible due to the fact that in order to carry out this procedure, newly created premises must have separate entrances, bathrooms, kitchens and other similar premises. In most cases, dividing apartments in this manner is not feasible. The most likely opportunity for implementing this method is the division of residential real estate, which previously consisted of two apartments and has all the prerequisites for compliance with the building rules and regulations established by law during its actual division.

How to divide an apartment purchased with maternity capital during a divorce

The most appropriate and appropriate way to divide residential property during divorce proceedings is to enter into a voluntary agreement between the spouses.

Important! According to practice, this document reflects the fact that common children remain in the care of the spouse. While the husband is preparing a donation agreement for his part of the apartment for the common children, receiving in return other commensurate property, for example, a garage.

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In addition, the agreement may stipulate the husband’s ability to transfer his share of the disputed real estate, in exchange for release from the obligation to pay alimony.

Both versions of the agreement must be drawn up in writing and subsequently sent to the judicial authorities.

Once the document has been reviewed for compliance with the rights of minors, subsequent division of property will be carried out in accordance with the provisions of the specified agreement.

If the conclusion of a voluntary agreement due to certain circumstances is impossible, the division of the disputed housing is carried out through judicial proceedings.

In any case, division of children's shares is not permitted. The only thing that can be done with them is to sell them in agreement with the guardianship and trusteeship authorities or exchange them for equivalent or better real estate residential property.

At the same time, the division of an apartment that was purchased with a mortgage, but part of it or the full amount was closed with the help of maternity capital, also has its own characteristics.

How to divide a mortgaged apartment during a divorce?

If, during a divorce, the mortgage for the purchase of housing, taken out using maternity capital, has not yet been repaid , then it is impossible to allocate shares for the obligation, since the encumbrance has not been removed . As in other cases, the area purchased with the certificate funds is equally distributed between parents and children, and the rest is divided equally between the spouses.

Liabilities for the unpaid loan amount, despite the fact that it was repaid with maternal capital, will be distributed equally between husband and wife , since, according to Part 3 of Art. 39 of the Family Code of the Russian Federation, debts are divided between spouses in proportion to the shares awarded to them . A different distribution may be established by a court decision.

To sell an apartment in which maternity capital has been invested, if the mortgage has not yet been repaid , you need to receive:

permission from the Guardianship and Trusteeship authorities;
consent of the credit institution.

What to do if the certificate is used as a down payment when buying a house or apartment

Buy housing with funds. capital can be used in different ways. One method involves making these funds as a down payment on the loan. In this case, the funds can be used in whole or in part.

How is a house bought with maternity capital divided during a divorce?

If the house was purchased with the funds of the certificate, then it is divided taking into account whether the parents fulfilled the obligation to allocate shares or not. As in the general case, if the shares were not distributed, then the part of the house purchased with maternity capital is divided equally between family members , and the remaining area - between the spouses . Parts when dividing a house, as a rule, turn out to be larger than when dividing an apartment, due to the lower cost of such premises.

If the house was fully paid for with the certificate, then its area is divided equally .

If maternity capital is used to repair residential real estate, expand or rebuild

As in previous cases, the main requirement is to register residential real estate as common shared ownership. In this case, the shares of each family member must be equal. The division of real estate is carried out on a general basis.

On the division of property acquired using maternity capital funds

According to statistics, half of registered marriages in Russia end in divorce.

During a divorce, the spouses face the question of dividing their jointly acquired property.

And if this property was acquired using maternity capital funds, how is it divided between spouses upon divorce?

Analyzing the conclusions of the Supreme Court of the Russian Federation (“Review of judicial practice in cases related to the exercise of the right to maternal (family) capital” (approved by the Presidium of the Supreme Court of the Russian Federation on June 22, 2016) regarding the division by spouses of property acquired using maternal (family) capital funds, one can make the following conclusions:

— only jointly acquired property is subject to division between spouses, to which MSC funds, having a special purpose, do not apply. Those. with such a division, the children must be allocated their shares, both by a court decision and a settlement agreement, a notarial agreement on the division of jointly acquired property;

- during division, it is impossible to infringe or “bypass” the property interests of both adult and minor children who have the right to a share in housing purchased (built, reconstructed) using MSC funds;

- when dividing housing purchased (built, reconstructed) exclusively at the expense of MSC funds, the shares of spouses and children are recognized as equal;

- type of ownership of housing purchased (built, reconstructed) using MSC funds - common shared ownership of parents and children;

— a mortgage on a property (a residential building, an apartment) acquired using MSK funds does not prevent the division of this property and the determination of children’s shares in the ownership of this property.

1. The Supreme Court of the Russian Federation stated that if residential premises acquired using maternal (family) capital were not registered as the common property of parents and minor children, when resolving a dispute about the division of the common property of spouses, the court should put this issue for discussion between the parties and determine the children’s shares in the ownership of this residential premises.

Example:

K. filed a claim against the ex-husband V. for the division of the apartment, which was acquired by her and V. during the marriage at the expense of their common income, credit funds, as well as maternal (family) capital, into the common shared ownership of V. (2 /3 shares) and their adult son D. (1/3 share).

The plaintiff asked to recognize the residential premises as jointly acquired property and to assign her and the defendant 1/3 of each share in the right of common ownership of the apartment.

Considering that K. and V., in addition to the adult son D., also have a minor daughter N., V. did not fulfill the obligation to re-register the apartment into common shared ownership for all family members after the removal of the mortgage encumbrance from the residential premises, the court put it up for discussion between the parties the question of fulfilling the obligation to register the children’s ownership of the apartment, after which K. changed the claims and, acting in her own interests and in the interests of minor N., asked to divide the apartment taking into account the right to this residential premises and minor N.

These demands of K. were satisfied by the court.

In raising the above issue for discussion between the parties, the court was guided by the following.

Based on the provisions of Articles 12, 196 of the Civil Procedure Code of the Russian Federation (Civil Procedure Code of the Russian Federation) and taking into account the explanations contained in paragraph 5 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2003 No. 23 “On the court decision,” the court has the right to go beyond stated claims (to resolve a claim that was not stated, to satisfy the plaintiff’s claim in a larger amount than it was stated) only in cases expressly provided for by federal laws.

In accordance with Part 4 of Article 10 of the Federal Law of December 29, 2006 No. 256-FZ (as amended by the Federal Law of July 28, 2010 No. 241-FZ), residential premises acquired (built, reconstructed) using funds (part of the funds ) maternal (family) capital, is registered as the common property of parents, children (including the first, second, third child and subsequent children) with the size of shares determined by agreement.

According to subparagraph “d” of paragraph 8, subparagraph “c” of paragraph 9, subparagraph “c” of paragraph 10, paragraph five of paragraph 10(2), subparagraph “e” of paragraph 11, subparagraph “c” of paragraph 12 and subparagraph “g” of paragraph 13 The rules for directing funds (part of the funds) of maternal (family) capital to improve housing conditions, approved by Decree of the Government of the Russian Federation of December 12, 2007 No. 862, are among the documents that are provided by the owner of the certificate to the territorial body of the Pension Fund of the Russian Federation in the case of sending funds (part of the funds) of maternal (family) capital for the improvement of living conditions, a written obligation, certified in accordance with the procedure established by the legislation of the Russian Federation, within six months from the occurrence of the circumstances specified in these norms, to register the residential premises in the common ownership of the person who received the certificate and his spouse , children (including the first, second, third child and subsequent children) with the determination of the size of shares by agreement.

Consequently, the acquisition of residential premises using funds (part of the funds) of maternal (family) capital obliges persons using these funds to fulfill the obligation to register the property rights of family members of the certificate holder, including minor children.

According to Article 309 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation), obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with customs or other usually imposed requirements.

The protection of the rights and interests of children rests with their parents. Parents are the legal representatives of their children and act in defense of their rights and interests in relations with any individuals and legal entities, including in the courts, without special powers. Parental rights cannot be exercised in conflict with the interests of children. Ensuring the interests of children should be the main concern of their parents (clause 1 of article 64, clause 1 of article 65 of the Family Code of the Russian Federation).

Parents, purchasing residential premises at the expense of maternal capital, act both in their own interests and in the interests of minor children, and therefore in a dispute between parents about the division of property in the form of residential premises acquired using funds (part of the funds) of maternal ( family) capital, parents represent both their interests and the interests of minors in respect of whom they have an obligation.

From the provisions of Part 4 of Article 10 of the Federal Law of December 29, 2006 No. 256-FZ, it follows that the legislator determined the type of ownership of residential premises acquired (built, reconstructed) using funds (part of the funds) of maternity capital - common shared ownership of the parents and children.

When the deadline for registering children’s ownership of property in accordance with the obligation given by the parents arrives, the latter, by virtue of the above norms of the Civil Code of the Russian Federation and the Federal Law of December 29, 2006 No. 256-FZ, are obliged to register the residential premises in common shared ownership, including children, but this obligation was not fulfilled.

Conclusion

, which the Supreme Court of the Russian Federation came to: The division of residential premises acquired using maternal (family) capital, without taking into account the interests of children who, along with their parents, have the right to such residential premises, is impossible.

2. The Supreme Court of the Russian Federation indicated that the law directly determines the type of ownership of a real estate property acquired (built, reconstructed) using maternal (family) capital - such an object is in the common shared ownership of spouses and children.

Example:

By the decision of the court of first instance, upheld by the ruling of the appellate court, B.V.’s claim was satisfied. to B.Yu. on the division of jointly acquired property: for B.V. ownership of a 1/2 share in the ownership of an unfinished construction project was recognized - an individual residential building, ownership of B.Yu. 1/2 share of this house has been terminated.

By the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, these court decisions were canceled and the case was sent for a new trial to the court of first instance on the following grounds.

As established by the court of first instance, the construction of the house was carried out by B.Yu. during the marriage with the plaintiff without the involvement of a construction organization using maternal (family) capital. B.Yu. obliged, within six months after receiving the cadastral passport of an individual housing construction project, to register this property as the common property of the person who received the certificate, the spouse, and children, determining the size of the shares by agreement.

The court of first instance, with which the appellate instance agreed, came to the conclusion that the unfinished construction project (individual residential building) is jointly acquired property, however, since the house is not completed and not put into operation, the children’s shares in the ownership of this object cannot be determined.

Canceling court decisions and sending the case for a new trial to the court of first instance, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation indicated that, by virtue of Part 4 of Article 10 of the Federal Law of December 29, 2006 No. 256-FZ, residential premises acquired (built , reconstructed) using funds (part of the funds) of maternal (family) capital, is registered in the common property of parents, children (including the first, second, third child and subsequent children) with the size of shares determined by agreement.

Consequently, the norm of the Federal Law of December 29, 2006 No. 256-FZ, which specifically regulates the relevant relations, defines the circle of entities (parents and children) into whose ownership residential premises acquired using maternal (family) capital are received, and the type of ownership is established - common share arising from the named entities for the acquired residential premises.

In accordance with Articles 38, 39 of the Family Code of the Russian Federation (FC RF), only common property acquired by them during marriage is subject to division between spouses. Property acquired during marriage (common property of spouses) includes, among other things, monetary payments received by each of them that do not have a special purpose (clause 2 of Article 34 of the RF IC).

Meanwhile, having a special purpose, maternal (family) capital funds are not jointly acquired property of the spouses and cannot be divided between them.

Based on the provisions of these norms, children must be recognized as participants in shared ownership of a property acquired (built, reconstructed) using maternity capital funds.

Thus, the disputed property is subject to division taking into account the requirements of Articles 38, 39 of the RF IC and Part 4 of Article 10 of the Federal Law of December 29, 2006 No. 256-FZ.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation No. 18-KG15-224 of January 26, 2020)

3. The shares of parents and children in the ownership of a residential building acquired exclusively from maternal (family) capital are equal.

Example. The decision of the district court satisfied the application of the prosecutor, who applied in defense of the rights, freedoms and legitimate interests of minor children, to I. and A. (the children’s parents) to impose on them the obligation to register the residential premises as common shared ownership. In support of the demand, the prosecutor indicated that, despite the repayment of the loan debt, the restriction on the right of mortgage in favor of the credit consumer cooperative had not been lifted from the apartment and the obligation to register I. and A. of the residential building as the common property of the parents and children had not been fulfilled.

The court found that in connection with the birth of the second child, the mother of the children I. was issued a state certificate for maternal (family) capital.

A loan agreement was concluded between I. and the consumer credit cooperative, under the terms of which I. was provided with funds to improve living conditions.

The territorial body of the Pension Fund of the Russian Federation transferred funds from the maternal (family) capital to the account of the credit consumer cooperative to repay the entire amount for the purchase of a residential building, the copyright holders of which were I. (3/4 shares) and A. (1/4 shares).

According to paragraph 5 of Article 60 of the RF IC, in the event of the emergence of the right of common property of parents and children, their rights to own, use and dispose of common property are determined by civil law. In accordance with paragraph 1 of Article 245 of the Civil Code of the Russian Federation, if the shares of participants in shared ownership cannot be determined on the basis of law and are not established by agreement of all its participants, the shares are considered equal.

Guided by the above standards, and also taking into account that the residential building was purchased entirely at the expense of maternal (family) capital, the court, having satisfied the prosecutor’s request, came to the correct conclusion that the shares of spouses I. and A., as well as their two minors, were equal children in ownership of a residential building.

4. The presence of an encumbrance in the form of a mortgage on a real estate property (a residential building, an apartment) acquired at the expense of maternal (family) capital cannot serve as a basis for refusing to satisfy the spouses’ request to divide this property and determine the children’s shares in the ownership of this property.

Example:

K. and S., acting in their own interests and in the interests of M.’s minor son, filed a claim against A. for the division of jointly acquired property and other demands. A. presented a counterclaim for the division of the apartment and recognition of the rights of children M. and K. (S.’s son from his first marriage) to a 1/4 share of the apartment each.

By decision of the city court, the apartment acquired with the use of maternal (family) capital was divided: S., A., K. and M. were each recognized with ownership of a 1/4 share of the apartment.

Challenging the court's decision on appeal, the representative of the OJSC (bank) referred to the fact that the court of first instance did not take into account that the residential premises acquired by S. and A. during the marriage were encumbered with a mortgage, and the obligation under the loan agreement was not fulfilled. Since the encumbrance has not been repaid, the determination of shares in the ownership of the apartment could only be made with the consent of the mortgagee (bank).

The appellate court left the decision of the first instance court unchanged, and the appeal of the bank representative was not satisfied.

In this case, the appellate court correctly proceeded from the following.

In accordance with paragraph 2 of Article 346 of the Civil Code of the Russian Federation, the pledgor does not have the right to alienate the subject of the pledge without the consent of the pledgee, unless otherwise provided by law or agreement and does not follow from the essence of the pledge. In the event of alienation by the mortgagor of the pledged property without the consent of the mortgagee, the rules established by subparagraph 3 of paragraph 2 of Article 351, subparagraph 2 of paragraph 1 of Article 352, and Article 353 of the Civil Code of the Russian Federation are applied.

Meanwhile, in this case, the shares of the spouses and their children in the ownership of the apartment are determined, which does not require the consent of the mortgagee and does not affect the legal relations established by the mortgage agreement, since the mortgaged property (apartment) is in the common ownership of these persons.

In accordance with paragraph 2 of Article 353 of the Civil Code of the Russian Federation, if the subject of the pledge remains in the common ownership of the acquirers of the property, such acquirers become joint mortgagors.

Procedure for division upon divorce

Parents can choose one of two ways to divide the apartment: by agreement or through the court.

The first option is the fastest and most profitable. It comes down to the fact that the parties voluntarily sign an agreement. This document must reflect information about what and to what extent each party to the transaction will receive. At the same time, first of all, when drawing up such a document, it is important not to in any way infringe on the property rights of children. For example, according to the terms of the agreement, the husband can renounce his share of the apartment, receiving appropriate compensation for it. The following are attached to the agreement:

certificate of divorce and birth of children;
fee payment receipt;
conclusion on property valuation;
information that certificate funds were used to purchase an apartment.

The drawn up agreement will be valid only if it is notarized.

The second method is usually used by those citizens who cannot divide property on their own. A statement of claim is sent to the court, which sets out the requirements for the division of property.

To him in order Art. 132 of the Code of Civil Procedure of the Russian Federation, the same documents are attached as in the case of drawing up an agreement, as well as copies of the claim according to the number of participants in the process.

Based on the results of consideration of the claim, the court must decide on an equal division of shares. At the same time, the court will take into account that the apartment was purchased partially at the expense of maternal capital, therefore, only half of it will be divided, since the second part belongs to the children of the plaintiff and defendant, which the parents have no right to claim.

So, a maternity certificate is government assistance for families with children. However, only the parent in whose name it is issued can use the certificate. If the document is used to purchase real estate, then the purchased housing upon dissolution of the marital union will be divided equally among all family members, and if a mortgage is issued using it, debt obligations will fall equally on both co-borrowers.

Step-by-step instructions for dividing housing with maternity capital

The division of property can be carried out according to one of two schemes:

Drawing up a settlement agreement on the division of property.
Judicially.

The first option is more beneficial for spouses. However, it is not always possible to reach an agreement. Let's talk in more detail about each of the schemes.

Formalization of the agreement

The husband and wife need to agree among themselves about what property and in what amount each of them will receive. The division can occur at their discretion - it is not necessary to divide everything equally. For example, one of the spouses may cede a share in an apartment in exchange for a car, etc.

The algorithm of actions will be as follows:

Determining the list of property to be divided.
Discussion of who will receive what property.
Property valuation.
Drawing up the text of the agreement.
Notarization.
Payment of state duty.
Re-registration of ownership rights in accordance with the terms of the agreement.

The value of the property must be stated. This figure is important for calculating the state duty. There are no other requirements for the text, but to avoid ambiguity and incorrect drafting, we recommend contacting a lawyer.

The following documents are required for notarization:

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general civil passports of spouses;
marriage or divorce certificate (if already received);
confirmation of the intended use of maternity capital funds.

The procedure is subject to a state fee. It will be 0.5% of the amount of property divided by agreement. The payment amount varies from 300 to 20,000 rubles.

In addition, you will have to pay for the technical work of a notary (3-4 thousand rubles) and the re-registration of property rights (2 thousand rubles).

Judicial order

If the spouses cannot agree among themselves, they will need to go to court. As a result of the trial, most likely, the property will be divided equally. However, in the case of maternity capital, only that part of the apartment that belongs to the spouses will be divided. The rest is the property of the children.

The algorithm will be as follows:

Valuation of property subject to division.
Drawing up a statement of claim.
Submitting a claim to court.
Payment of state duty.
Waiting for a court decision.
Actions in accordance with the court decision.
Contact the Federal Bailiff Service if the second spouse refuses to comply with the court order.

To go to court, you must correctly draw up a statement of claim. The requirements for this document are listed in Art. 131 Code of Civil Procedure of the Russian Federation. If they are not followed, the claim will not be accepted.

It is recommended that you contact professional lawyers to draw up a statement of claim.

The text of the statement of claim must include the following elements:

name of the judicial authority;
identification data of the plaintiff and defendant;
cost of claim;
claim to court;
list of attached documents;
signature and date.

The following must be attached to the statement of claim:

general passports of the plaintiff and defendant;
power of attorney, if a representative acts;
property valuation report;
marriage certificate;
certificate of divorce;
property valuation report;
confirmation of the intended use of maternity capital funds;
birth certificate of the child for whom the certificate was issued;
other documents relevant to the case.

The list of documents varies depending on the situation. The plaintiff and defendant have the right to submit to the court those papers that prove their case.

Claims of this type are of a property nature, therefore the amount of the state duty will be calculated according to the formula presented in Art. 333.19 Tax Code of the Russian Federation. The amount of state duty can vary from 400 to 60,000 rubles.

Section methods

There are 4 main ways to divide an apartment. It should be borne in mind that most of them are relevant for those married couples who were able to come to an agreement among themselves.

Compensation

The ex-husband or wife receives ownership of the entire apartment, but undertakes to pay the second owner, who renounced his rights, monetary compensation corresponding to his share in the valuation of the apartment.

Example : An apartment costs 3 million. Due to the use of maternity capital, only a share of 1.5 million rubles is actually subject to division. Each ex-spouse has rights to 750 thousand. One of them refuses his share, but demands payment of this amount in return.

Cash compensation of this type is subject to personal income tax (Letter of the Federal Tax Service No. BS4-11/4624 dated March 15, 2017).

Sale

This option in the case of purchasing real estate using maternity capital is practically impossible to implement, however, in theory, it remains possible. The apartment is sold and each party receives its share. But immediately after this, the children need to be provided with another living space, in which the number of square meters per child will not be less than in the previous property.

Replacement

This option can be considered as a type of compensation, but in this case, not monetary. If one of the spouses gives up his share in the apartment, then in return he may demand other property. For example, a car, garage or cottage.

In most cases, for such a division, a preliminary assessment of the property is carried out to make it more convenient to determine who, how much and what exactly can demand for the assignment of a share in the apartment.

Division of an apartment during divorce.

Some husbands perceive the child support as a joint income that should be divided equally in the event of a divorce. Maternity capital funds are not subject to division, and real estate acquired during marriage becomes jointly acquired property. There are several options for dividing it between spouses:

Exchange. One of the spouses exchanges his share for other property - a car, a garage, etc.
Selling a share. A woman has the right to buy back the part that belonged to her ex-husband.
Sale of an apartment. The proceeds are divided between the owners of the object in proportion to the shares in the right. There is one essential condition for this - minor children must, in return for the sold shares, receive living space no less than what they had. A transaction for the alienation of real estate must be approved by the guardianship and trusteeship authorities.
Section in kind. If there is a physical possibility (a separate entrance, sanitary facilities, kitchen, etc.) and compliance with the requirements for residential premises, one property can be divided into several separate premises.

If the spouses are divorced, can they use maternity capital?

The emergence and termination of the right to maternity capital occurs under the conditions provided for by the Federal Law “On Additional Support Measures...” No. 256 of December 29, 2006. And in this law there is not a word that the divorce of spouses in any way affects the right to use maternity capital.

As mentioned above, the maternity capital certificate is personal. In most cases, it is the mother who receives it, regardless of whether she is married or divorced. Even if the mother’s marriage to the children’s father is dissolved, she still has the right to use maternity capital.

If housing/a share in an apartment is purchased using maternal capital after a divorce, its owners will be the mother and children. What will be the procedure for dividing housing purchased before the divorce, read below.