Section of an apartment in a mortgage in the case of divorce of spouses

One of the actual problems arising during the dissolution of marriage is the division of property. добавляет еще больше сложностей. When a divorce apartment in the mortgage adds even more difficulties. In every situation there are certain nuances. In this regard, there is no single-valued algorithm for allocating duties on the collateral object. . Let's consider further how to conduct a section of an apartment in a mortgage upon divorce .

Relevance of the issue

So, the problem accompanying the section of the apartment is a mortgage. на сегодня не выработала единого подхода к вынесению решений. Judicial practice for today has not developed a unified approach to making decisions. Therefore, often different authorities take opposite decisions. The situation is complicated by the fact that the disputes affect the interests of three parties - husband, wife and credit organization. In many cases, the distribution of duties significantly impairs the rights of any participant. For example, in practice there are many cases when a former spouse deprived of an apartment (or a part of it) during division, has to pay a loan for quite a long time. Problems often arise in banks. For example, credit organizations that want to sell real estate for which there is a delay, are faced with the fact that, by a court decision, it is no longer the sole property of the debtor.

Normative regulation

, обуславливаются в первую очередь недостаточной правовой регламентацией этого вопроса в гражданском и семейном законодательствах. The difficulties that accompany the division of an apartment bought into a mortgage are due primarily to the insufficient legal regulation of this issue in civil and family law. The institutions considering such disputes are guided by the provisions of the UK, the Civil Code, and Federal Law No. 102. In addition, the conditions of the contract concluded with the bank are taken into consideration. In analyzing these acts, the following principle can be singled out. Living space, purchased by spouses in marriage for mortgage funds, is treated as property jointly acquired by them. This, in turn, entails the relevant legal consequences. Joint property is divided equally between spouses, if another order is not determined by the marriage contract. When considering disputes, it does not matter who the object is designed for. Financial obligations are assigned equally to the spouses, regardless of whether they are co-borrowers, or the loan was issued for someone else. Thus, the principle "50/50" applies. , не так просто. Meanwhile, in reality , it is not so easy to carry out the division of an apartment in a mortgage . The thing is that the facility is in pledge with the banking organization. Spouses, being formally owners, can not freely dispose of real estate.

Marriage contract

To avoid various problems, lawyers recommend the newlyweds to conclude a contract. At the same time, the law allows the execution of a contract both before the registration of the marriage, and after it. Meanwhile, in spite of the obvious advantages of this document, not many formulate it (not more than 5%). It can write different conditions. As a rule, the agreement establishes the order of division of property, the maintenance of minors and other important moments.

Guarantees for the bank

Credit institutions try to be reinsured. . When the main contract is drawn up, they form an agreement on the division of the apartment in the mortgage of the spouses . Credit institutions that have repeatedly faced difficulties have acquired sufficient experience in disputes. позволяет банку минимизировать риски. The agreement on division of an apartment in a mortgage allows the bank to minimize risks. Most credit institutions try to make their husbands and wives co-borrowers. This, in general, is beneficial to the citizens themselves. In this case, they can combine their income and get more credit. Many banks include in the contract clause that at the dissolution of marriage by co-borrowers, the terms of the agreement will not change. This moment is an additional guarantee for the credit structure. If the citizens who agreed to this condition terminate the marriage, and one of them subsequently refuses to repay the loan, the financial obligations will be transferred in full to the co-borrower. This condition protects, of course, exclusively the interests of the banking organization.

Solutions to the problem

So, how can you minimize risks and divide the property? – имущество, права на которое ограничены. An apartment in a mortgage is a property, the rights to which are limited. Therefore, co-borrowers can continue to pay the loan after the dissolution of the marriage or quickly find the missing amount to pay it off ahead of schedule. When the debt is liquidated, the real estate is put up for sale. Having realized the object, the former co-borrowers share the amount among themselves. There is another option. Co-borrowers can sell the property with the consent of the bank. It is worth saying that to anticipate the response of a credit institution in this case is quite difficult. The bank can agree to the offer of co-borrowers, demand early repayment of the loan, as the dissolution of the marriage will violate the terms of the main contract, or oblige to continue the repayment of the debt without the sale of the object.

Possible actions of a credit institution

Many banks give their consent to real estate sales. In this case, the organization minimizes the risk of non-payment of arrears. After obtaining consent, the couple need to find a buyer who is ready to purchase an object with such encumbrance. In order for a new owner to obtain the right of ownership, he must first of all reimburse the credit structure for the amount of the debt. He will have to wait until the process of lifting the encumbrance is completed. Only after that, the buyer will be able to formalize his right. Not all purchasers agree on such conditions, since the risks are quite high. However, regardless of the development of the situation with the implementation of the facility, former co-borrowers will be required to continue to repay the debt. Otherwise, their situation can significantly deteriorate.

Bank rights

A credit institution that does not receive payment of arrears can independently sell the property. For this, an auction is organized. It is worth saying that the cost of the facility in this case will be much lower than the market price. Out of the amount received from the sale, the credit structure retains the principal debt, penalties, fines, unpaid interest and costs for organizing the auction. The balance will be distributed among the former co-borrowers. Given this, the spouses in general can remain without housing, and without money.

An Important Moment

The norms set several requirements for co-borrowers who begin the division of property. формально находится во владении лиц, которые согласились на условия банка. The apartment in the mortgage is formally owned by persons who have agreed to the conditions of the bank. Among them - the duty of co-borrowers to notify all changes in their lives. Accordingly, they must notify the bank and the dissolution of the marriage.

Possible outcomes

If the parties can not reach an agreement, they will have to go to court. But, as was said above, it is impossible to unequivocally predetermine the outcome of the proceedings. The court may order the bank to implement the envisaged procedures with real estate, re-form the contract to any of the co-borrowers or order the former wife and husband to continue repaying the loan. This is far from all possible solutions to the problem. If co-borrowers are willing to continue repaying the loan, then to sell the living space, you can still in the marriage section of the apartment. должники очень зависимы от банка. In a mortgage, debtors are very dependent on the bank. Therefore, before any actions they need to apply to the credit structure for approval. до официального расторжения брака, то им нужно написать совместное заявление об этом. Accordingly, if co-borrowers decide to conduct a section of an apartment in a mortgage before the formal dissolution of the marriage, then they need to write a joint statement about this. But even in such a situation there can be problems. For example, the bank has the right to refuse co-borrowers. A credit organization can not arrange the amount of income of one of the debtors, who subsequently will act as an independent obliged person. невозможен по техническим причинам. It may also happen that the division of an apartment in a mortgage is impossible for technical reasons. For example, it consists of one room, and you can not allocate a share. Nevertheless, co-borrowers can challenge the decision of the credit structure.

Alternative option

How else can you divide the spouses' property? переоформляется на одного из них, а второй безвозмездно или за определенную сумму отказывается от прав на недвижимость. The apartment in the mortgage is reissued to one of them, and the second refuses, or for a certain amount, the rights to real estate. At the same time, the former assumes the obligation to continue repaying the loan. If the bank arranges the co-borrower's solvency, the latter can register the transfer of the right to self in the authorized body. Typically, the bank takes a commission for the re-execution of the contract (0.5-1% of the remaining debt).

Section of an apartment on a military mortgage

The process is different in that it is not the citizens, but the Ministry of Defense, who are responsible for repaying the debt. As a participant in the lending program, as well as the owner, the employee acts, regardless of whether he has a family. не требует участия жены/мужа. In this regard, the division of an apartment in a mortgage does not require the participation of the wife / husband. The latter are not involved in other cases. For example, in case of delinquency or other violations of the loan agreement, the obligation to return the loan is assigned only to the employee.

Actual marriage

. Above was considered the section between the spouses of the apartment . , между тем, может быть оформлена и сожителями – лицами, состоящими в "гражданском" браке. Mortgage , meanwhile, can be formalized and cohabitants - persons who are in a "civil" marriage. As is known, for such cases the provisions of the IC do not apply. If at the same time a man and a woman did not enter into a written agreement, then it is likely that the apartment will remain with the person to whom the loan was issued. Of course, not everyone will be satisfied with this, since both were allocated to pay off the obligation. In such cases it is necessary to prove joint participation in payments. For this you need to provide documents confirming the deductions. This can be receipts, account statements, checks, etc. Similarly, you should do the same if you want to prove a joint repair or purchase of expensive household appliances. It is advisable to involve a qualified lawyer in the case.

Credit before marriage

As stated in the UK, everything that is acquired during the period of officially registered marriage is common. If something was acquired before marriage, it refers to a person's personal property. But family law contains a number of reservations. In particular, in accordance with the rules, the former spouse is entitled to rely on the share of the apartment, if payments on the mortgage were made jointly even before the registration of the relationship. Claims in this case may be presented by a non-working citizen. The income of one spouse in such a situation will be considered common. Often disputes are resolved in favor of an unemployed person.

Housing in a new building

The situation with the division of apartments in houses under construction is quite complicated. According to the norms, the ownership of the living space can be formalized only after putting the building into operation. In practice, there are two possible developments:

1. If the borrower at this time terminates the marriage, then he will be obliged to pay compensation to the husband / wife. In making such a decision, the court takes into account the fact of a joint loan repayment. However, the competence of the lawyer will also be of great importance in this situation.
2. If the borrower is married before obtaining the certificate, the court will oblige to allocate a share of the apartment before the divorce.

If one of the former co-borrowers shirks payments

What to do in this case? In this situation, the credit organization re-forms the contract for a solvent former spouse. With the second entity, all obligations are removed. But in return he is deprived of the opportunity to demand a share of living space. In some cases, the delay of one of the co-borrowers may exceed 3 months, but at the same time he does not want to give up his rights. In such situations, you can solve the problem in two ways:

1. The loan is repaid by a solvent co-borrower.
2. The bank realizes the real estate, and the received means are directed to the account of payment.

Typically, a credit institution sells an apartment at a reduced price, roughly equal to the principal debt. This greatly speeds up the procedure.

Mortgage in case of divorce with children

Legislation prescribes, in all actions related to family property, to take into account the interests of minors. Guided by this rule, the authorities considering disputes make appropriate decisions. In the division of mortgage housing, the proportion of children in any case will be registered with the spouse with whom they remain. If a decision is made to sell a house, and a minor is registered in it, it must be written out without fail. Otherwise, the guardianship and trusteeship agencies may be interested in the situation.

Rent of collateral housing

In some cases, the spouses decide to rent a mortgage apartment. It is worth noting that such actions are illegal. The fact that the apartment is mortgaged to the bank, respectively, is burdened. If the situation is critical, and co-borrowers do not have enough money to repay the loan, they must obtain the consent of the financial structure in order to rent out their living space.

Conclusion

Dissolution of marriage is often accompanied by various problems. In general, divorce is not a very pleasant procedure, since it concerns not only personal relations, but also property interests. Often, former close people become real enemies. It is clear that everyone wants to protect themselves. Citizens, making out the mortgage, as a rule, do not assume the presence of any difficulties in the future. However, anything can happen in life. Therefore, lawyers recommend to protect themselves for the future by concluding a marriage contract. This document will avoid many problems, save nerves, money and time. The marriage contract is certified by a notary, which gives it legal force. If the dispute does arise, and it will be necessary to regulate it through the court, the document will become irrefutable evidence of rightness.