Separation of housing in case of divorce

Separation of housing in case of divorce in Ukraine

The division of the property of spouses who are in a registered marriage (as well as former spouses after a divorce) is the procedure for determining the share of spouses in joint property, carried out by a notary or judicial procedure.

At the same time, it is good if the former spouses approached the marriage registration in a responsible manner and took care of concluding a marriage contract in advance, or if, in the process of divorce (or after it), peacefully resolved property issues on their own by drawing up a voluntary notarial transaction – the presence of these documents deprives the spouses from the judicial burden of division (division) of real estate and passes for both spouses on mutually beneficial terms, in a conflict-free environment.

If it was not possible to reach a peaceful agreement, the issue of the distribution of common real estate is possible for a decision only in court.

What can be divided between spouses in Ukraine?

It is important to know that division (section) according to the Family Code of Ukraine is subject only to jointly acquired real estate in a registered marriage, regardless of the name in whose name it was acquired and who specifically from the spouses paid the money (that is, from the income of the husband, wife or general family budget) her. Real estate includes:

• apartment (or room)
• residential building (including summer cottage)
• land plot, garage, etc.

If, at the time of the existence of the family union, the property was purchased at the expense of one family member, and the other during this period did not have his own income for taking care of children and housekeeping, then the latter will still be considered by the court as having the right to participate in the division (chapter ).

Immovable property, which is the personal property of each of the family members, is not subject to division (division). The list of personal (individual) residential property is given in the Family Code of Ukraine:

• property acquired by the owner before marriage or purchased before the dissolution of the family union, but during the period of separation (however, the last condition is quite controversial and the court will need strong evidence of the absence of a common household and separate existence during this period)
• real estate received as a gift or inheritance by a husband or wife;
• housing acquired in marriage at the expense of one of the spouses, accumulated in the parties for the conclusion of a family union – this is also a rather controversial issue that requires evidence and documentary confirmation.

However, the presented list of personal property, which is the sole property of the spouse, may have its own nuances in each specific case. For example, if a house that was inherited or acquired before marriage was improved or transformed at the expense of the second husband, which increased its cost (that is, there are so-called inalienable improvements), then the property is also considered an object of division (division).

EXAMPLE

If the apartment inherited by the husband was repaired at the expense of his wife (for which there is documentary evidence in the form of checks and agreements with repair contractors, confirming her investments), the wife has the right to demand from the court a share in this apartment or monetary compensation for it, since the work of her funds will significantly increase the cost of an apartment, for example, when renting it out or selling it.

It should be remembered that a man and a woman, if they live together for a long time in a civil marriage and even joint children, have no right to claim the division (division) of property according to the norms of the Family Code of Ukraine, since the court only takes into account official marriage relations registered with the registry office.

When can a joint property be divided in Ukraine?

It is erroneous to assume that common property can be divided only upon divorce: it often happens that in fact the family has already broken up and the parties do not live together for a long time and do not conduct a common household, or some time after the divorce they decide to carry out the division (division).

Taking into account various similar situations, the legislation of Ukraine provides for the possibility of citizens to carry out the division (section) of housing:

• during the period of marriage;
• directly at the time of divorce;
• after the dissolution of the family union.

The specifics of each of these options are listed below:

1. the division of property in a marriage is a complex process, since the main thing that will have to be proved to the court is the fact of the separation of the spouses, the actual absence of marriage relations and the absence of a common household. However, in such sessions, the court willingly takes into account the testimony of witnesses (for example, neighbors) who are ready to confirm the upset of a married couple.
2. A feature of dividing housing simultaneously with a divorce is the separation of a claim into two separate proceedings (when one claim will be filed with the court and will raise the issue of divorce, and the other will raise the issue of allocating a share in real estate).
3. division of real estate after divorce has a limitation period of 3 years from the date of termination of the marriage union.

In an exceptional case, this period may be extended if the plaintiff proves to the court that the defendant concealed the presence of acquired real estate, which the plaintiff was not previously aware of – that is, there is a violation of the property rights of one of the parties.

Methods of division (division) of real estate between spouses in Ukraine

The order of division (division) of real estate can be contractual (peaceful) and judicial:

• The contractual order provides for a peaceful settlement of the issue of what gets to whom after the actual breakup of the family on general and favorable terms. The contractual order includes:

1. marriage contract;
2. an agreement on the division of property, in order to provide legal significance, must be notarized.

The contractual order can be observed only with the full consent of both parties on all the nuances of the division (section). The advantages of such a solution to the issue is that it passes without litigation, is cheaper in monetary terms and is much faster in time than a trial on a similar issue.

• The judicial order must be respected if the spouses could not agree not only globally, but also in a minimum of questions, and provides for filing a statement of claim in court.

How to divide real estate in case of divorce in Ukraine?

It should be noted that the very procedure for the division (division) of real estate (which is carried out both peacefully and judicially) is an expensive service, since it depends on the value of the property (the object of division):

• A notary in a notary office will have to pay about UAH 5,000 + 0.5% of the appraised real estate;
• the cost of the marriage contract;
• the court fee when filing a claim with the court can also reach a significant amount.

In addition to the high cost of the procedure, the “housing issue” itself is an acute topic at all times (especially when it comes to the division of jointly acquired property of an already conflicting married couple, whose relations are on the verge or in the stage of divorce, or immediately after it ). Also, the situation can be complicated by the presence of underage children and the legal status of real estate (housing is pledged by a bank – a mortgage, whether it is privatized or is in municipal ownership, etc.).

Also useful information on the website “Divorce Online” of the family lawyer Alexei Nikolayevich Scriabin for you may be: division of spouses ‘property, family code on division of property, legal regime of spouses’ property, common and personal property of spouses. division of the common property of spouses, the procedure and methods for the division of property, division of property during marriage, division of property in a civil marriage, division of various types of property.

How property is divided in case of divorce if there are minor children in Ukraine

When dividing (sectioning) jointly acquired housing, the shares of the spouses are recognized as equal by law, unless otherwise certified by a personal agreement in the married couple. However, if there are minor children in the family, the court may deviate from the principle of equality of shares in favor of the interests of the child or other noteworthy circumstances of the case.

It should be understood that the legal formulation “may” does not provide for the obligation of the court to make decisions on unequal shares. However, in such proceedings, the judges undoubtedly prioritize the interests of the minor and the parent, on whose support he remains after the divorce.

At the same time, a combination of other factors is not taken into account:

1. The financial situation of the second parent;
2. the presence / absence of the parties of other housing;
3. the state of health of the child and his parents, and the like.

As a rule, if the real estate is really shared (without “pitfalls”), then the courts lean towards the mother, who is left with minor children in the event of a divorce, and allocate her a large share of the total housing. However, this decision remains at the discretion of the court and is made on an individual basis (again, taking into account the actual state of the parties).

EXAMPLE

After the marriage, the Zhurba spouses lived in the husband’s apartment with his parents, after 4 years a two-room apartment was purchased for common funds, where this family began to live. The marriage had two children. After 10 years, the husband and wife decided to leave and share the acquired housing. Taking into account the fact that the wife has two children, as well as the fact that the man inherited the apartment of his parents, the court determined the shares as follows: 2/3 of the share of the property was received by the wife, 1/3 – by the man.

How to divide an apartment into a mortgage in case of divorce in Ukraine?

In the last 15-20 years, mortgage lending has become very popular in Ukraine, which is directly related to the rise in real estate prices and low incomes of the population. As a result, today more than 20% of housing is sold using a mortgage (both in new buildings and in the secondary market). Many young families consider this method most often as the only available option to improve their living conditions by purchasing their own housing.

It sounds silly, but in practice it often happens that it is a joint mortgage that is one of the factors that protects families from divorce, which turns into a common family affair, which seals the union of a man and a woman.

However, if the spouses still decide to divorce, having outstanding mortgage debts, then in this situation what and to whom will get it will be determined by the articles of the Family and Civil Codes, as well as Law of Ukraine” On Mortgage “[/ mask_link]. Moreover, the position of the law on the division of mortgage property is that there are no restrictions whatsoever (i.e. the apartment is divided, as usual). However, an important feature of the litigation will be the presence of a third interested party – the bank that issued the mortgage loan, which must be informed in advance about the upcoming division (section) of the mortgage property.

How is a mortgage apartment divided between spouses in Ukraine?

The general provisions of the division (section) of an apartment purchased with a mortgage are as follows:

1. If the apartment was purchased in marriage, it will be divided equally between the spouses, unless otherwise provided by the marriage contract concluded by the spouses.
2. As for the repayment of the mortgage loan, the outstanding debt will be distributed in accordance with the division of shares in the apartment between the spouses – that is, to whom what part of the apartment remains, then in this amount the loan will be repaid.

How to “peacefully” divide a mortgage apartment in case of divorce? There are 2 ways to do this:

1. After the dissolution of the family union, it is necessary, with the consent of the bank, to sell the apartment, thereby repaying the balance of the loan debt and dividing the funds equally (if any remain).
2. Housing is not divided and one of the spouses remains in the purchased apartment, continuing to pay the debt on his own, while the other renounces his rights to this property and ceases to be liable to the bank.

If, nevertheless, the question arises about the division (section) of mortgage housing in court, then this does not take into account:

• who is the owner of the acquired real estate (husband, wife or she was registered in the joint property of the spouses);
• who actually made the monthly payments (even if one of the spouses had no income).

If the mortgage was issued before marriage by one party, then such housing will not be jointly acquired property and, in general, will not be subject to division upon divorce.

But if monthly payments, including early repayments, were made in marriage by the other party (or with her participation), in fact, is not a loan borrower, then you can try to divide such housing through the court (or receive appropriate monetary compensation), supporting your arguments with substantiated evidence.

Section of a privatized apartment in case of divorce in Ukraine

By 2021, the number of privatized housing in Ukraine is several times higher than the number of municipal ones. During the division (section) of the spouses’ privatized real estate, there are certain nuances:

1. If the housing was privatized with the release of particles – in case of divorce, each party will remain with its share of the property;
2. If the privatization took place without the allocation of shares, the husband and wife have the right, by concluding an agreement or in court, to carry out the division (division) of real estate and establish the size of the share;
3. In the case when an apartment or house was registered in the name of one of the spouses, the second has no right to division (division) of this property, since in this situation it is considered individual property.

At the same time, the fact of registration at the place of residence (registration) in a dwelling is not the right of ownership of this dwelling. In such cases, a “deprived” person can count on the maximum right to permanent residence in real estate.

If the divorce decides to divide the housing that belongs not to them, but to the municipality, then it will be impossible to do this either officially by contract or by judicial means. To get out of this situation, you can use the following options:

1. To carry out the privatization of housing and determine the share ownership of each party in it.
2. Exchange an apartment or house for two smaller municipal facilities.
3. After the termination of family relations, continue to use the living quarters (since divorce is considered an obstacle to this), however, the latter option is not entirely correct from the point of view of the moral convenience of the parties.

In this regard, the most acceptable options in this case are the privatization of the apartment or its exchange.

Useful site materials rozluchennya-onlain.com.ua:

1. Marriage contract
2. Statement of Claim on Division of Spouses’ Property
3. Property division agreement
4. Property appraisal
5. Separation of different types of property
6. Division of property in a civil marriage
7. Division of property during marriage
8. Procedure and methods of division of property
9. Division of the common property of spouses
10. Common and personal property of spouses
11. Legal regime of spouses’ property
12. Family Code on Division of Property
13. Division of property of spouses