Separation of an apartment in case of divorce from a child | Division of property in case of divorce

Contents

Separation of an apartment in case of divorce from a child in Ukraine
The child’s right to an apartment in the event of a divorce in Ukraine
How is the share of the child in the apartment divided in case of divorce in Ukraine?
How to divide a mortgage apartment in case of divorce if you have children in Ukraine
Agreement on the division of an apartment in the presence of children in Ukraine
Distribution of an apartment upon divorce, if there is a sole owner (husband or wife), existing common children in Ukraine

Separation of an apartment in case of divorce from a child in Ukraine

Dissolution of a marriage in the presence of minor children is carried out in court, especially if at the same time the spouses decide the issue of division (distribution) of common property (both movable and immovable).

The most important thing in a divorce is the “housing issue” – the division of an apartment or other real estate between spouses – precisely because it requires the most significant financial costs of the parties (in the form of a court fee for a court or payment of a transaction at a notary), and also because a court decision is often difficult to predict.

The presence of a minor child (children) in the family is not of secondary importance in making a court decision when dividing the shares in the apartment of each of the parties. In this case, the court takes into account:

method of property registration (privatization, mortgage, purchase and sale, etc.);
the social status of each party (first of all – the child – whether he is the owner or a share co-owner of the housing; there is a family with many children and with whom of the parents the children remain, has spouses other housing, etc.);
other circumstances relevant to the resolution of the dispute.

If the parents of the child have the opportunity to peacefully resolve the issue of the division of an apartment or other real estate, they can submit a notarized agreement on the division of property – a document that stipulates the jointly declared rights to real estate of a married couple.

If the child is the full owner or owns a share of the housing, an agreement on this property does not work out, since this is excluded by the current rule of law: the property of minors is inviolable and cannot be divided.

Also useful information on the website “Divorce Online” of the family lawyer Alexei Nikolayevich Scriabin may be for you: how quickly to leave, divorce and children, documents for divorce with children, how do children share in divorce? how to pick up a child from an ex-wife? division of property in case of divorce from children, communication with a child after a divorce, restriction of communication between a father and a child, the wife prohibits seeing the child – what to do?

The child’s right to an apartment in the event of a divorce in Ukraine

Parents, according to family law, are obliged to take care of their children and act as guarantors of the protection of their rights, including residential ones. According to civil law, the place of residence of minor children is the place of residence of their parents. When a child is born, it is the mother and father who must carry out his compulsory registration at the place of residence.

In case of divorce of parents and division (division) of real estate, a child who is not a co-owner of the home does not participate in the division (that is, shares in real estate are divided only between spouses) – this rule is stipulated by the Family Code of Ukraine. If the child has a share in the house / apartment or is the sole owner, this share (or full ownership) is not subject to distribution between the parents.

According to the Family Code of Ukraine, the common property of the spouses is subject to an equivalent division by the court, however, according to another provision, the court has the right to separate a certain share from the equality of shares in favor of a minor child and determine the majority of the father, with whom the children remain.

Example 1.

Spouses K. in marriage acquired an apartment in joint ownership. Upon divorce and division of real estate, housing was divided as follows: the person received 1/3 of the share, the wife (with whom the minor daughter remained) – 2/3 of the share. At the same time, the daughter did not participate in the section, and most of it was allocated in favor of the child’s mother.

If the minor himself is a participant in fractional ownership and has a separate certificate of state registration of property rights or an extract from the state register of real estate (for example, has 1/4 of the share), the child’s property is not subject to division between the spouses either by agreement of the parties or in court.

In this situation, the person with whom the minor remains to live is responsible for the safety of the child’s residential property, and the implementation of any transactions of the parents with him (donation, sale, exchange) on behalf of the minor must be coordinated with the guardianship and guardianship authority.

Section of a privatized apartment in case of divorce

Privatization is the alienation of state (municipal) property in favor of Ukrainian citizens.

If real estate was acquired in marriage through privatization and its sole owner (husband or wife), and the second person refused to privatize in his favor, then a person who did not participate in privatization does not have the right to apply for the allocation of a share in the property.

However, he retains the right to use the living quarters. This happens quite often: since a person can use the right to privatize once in a lifetime, for this reason, some spouses deliberately refuse to privatize and subsequently, when the family union breaks up, regret it.

In the event that the full owner of the apartment is the father (husband), the housing is not subject to division, but the ex-wife and child (children) will be able to extend the right to use the living space (if necessary, including in the absence of another place for their residence) … Moreover, the owner does not have the right to forcibly evict former family members if, at the time of the privatization of housing, one of the spouses and / or children had the right to participate in the privatization, but refused it in favor of the current owner. The situation is similar if the wife is the owner of the property.

How to divide a mortgage apartment in case of divorce if you have children in Ukraine

The division of an apartment in a mortgage is complicated by the fact that until the full repayment of loan obligations, the housing is not the property of the couple, but is in the possession of the creditor bank, therefore, the bank that issued the mortgage loan acts as a third party in the matter of dividing such property.

Methods for dividing mortgage real estate must be agreed with the bank and may be as follows:

Sale of mortgage housing (in this case, the balance of the bank loan is paid on a priority basis from the proceeds, and the rest of the funds are divided between the parties).
Transfer of housing to the sole ownership of one of the parties with the simultaneous release of the second spouse from mortgage obligations (this procedure requires not only the consent of the bank, but also amending the mortgage agreement).
Continuation of joint use of housing while dividing mortgage debt in proportion to the allocated portions.

With the division of mortgage housing, the rule of equal division of shares applies, however, given the presence of a common minor child in the family, the court also has the right (but is not obliged) to increase the share of the father with whom the children will remain after the divorce, when:

the family has many children, and all children remain with one parent;
a disabled child and a father living with her has no other place to live;
a person left without a child owns other real estate;
mortgage housing has a small area (in this situation, the court, with the consent of the bank, has the right to transfer the apartment to the personal ownership of the father and child, who eventually pays the other party a share in the real estate).

If the parties made a decision and agreed with the creditor bank on the sale of a mortgage apartment in order to subsequently divide the proceeds from it, but the child claims a share in the housing, first it is necessary to resolve the issue of discharging the minor into a dwelling of an equivalent or larger area with the consent of the authority guardianship and trusteeship. Deterioration of the child’s living conditions is not allowed.

Agreement on the division of an apartment in the presence of children in Ukraine

According to the Family Code of Ukraine, the division of the spouses’ real estate can be certified by agreement of the parties.

An agreement on the division of real estate is a notarial document, according to the terms of which the shares of each of the spouses in joint ownership are allocated, as well as the procedure for using the living quarters on each side after a divorce (while the parties can deviate from equality of shares on mutually beneficial terms, it is much more difficult to do in court order).

The cost of a notary transaction should be checked with a specific notary office.

When concluding an agreement between spouses with children, the notary takes into account two main aspects:

If the child does not have the right to own the house, the agreement is drawn up without taking into account his right to the property of the parents and the apartment is divided only between the spouses (albeit in unequal shares – for example, they receive a larger share, the father – less).

If the minor is the owner of a part of the housing (share), it is this part that is not subject to distribution. In this case, by agreement of the parties, the remaining living quarters are divided between the spouses.

The procedure for drawing up an agreement:

visiting a notary by spouses (or representatives of the spouses by proxy);
provision of documents:
passports of the parties;
documents for the distribution apartment (sale and purchase agreement, certificate of ownership, etc.);
payment for notary services.

The agreement is drawn up in triplicate on the day of contacting the notary office.

The agreement, carried out taking into account the observance of the legal rights of all parties, frees them from a litigation about the division of property, as well as from paying state fees (which in price significantly exceeds the services of a notary).

Distribution of an apartment upon divorce, if there is a sole owner (husband or wife), existing common children in Ukraine

A person can become the sole owner of housing as a result of its privatization, inheritance of real estate, its acceptance as a gift, etc. In the event that the apartment became the property of one of the spouses by the time of his marriage, the second man has no right to participate in the division of such real estate, since it belongs to the indivisible (Family Code of Ukraine).

However, if in the family, there is a common minor child (or children) who, after the divorce, remain to live with the owner of the home, and with the other parent, the court may determine the right to use the living quarters for him, but without the right to participate in the division of real estate.

EXAMPLE

Igor N. privatized the apartment to himself before the marriage was registered, and children appeared in the marriage. After eight years of marriage, his wife Natalya N. filed for divorce and division of property, including an apartment where she and her two children were registered. On the basis of the Family Code of Ukraine, the court refused Natalie to participate in the division of the apartment, since the property was legalized by Igor for marriage. However, given the fact that Natalya and minor children do not have any other housing, he determined the right to use the living quarters without the right to dispose of this property.