According to statistics, today in every second family the idyll sooner or later comes to an end. Then the couple most often decide to start a new life separately, dissolving the marriage. If, however, they live in an apartment purchased on a mortgage, then the family will inevitably face additional problems.
Mortgage with a divorce is a difficult task for both spouses and the bank. How should I handle encumbered real estate and who will have to carry the burden of credit further? What rights does the third party have - the bank? How can he react to such a turn of events in the family of borrowers as a divorce?
Mortgage apartment: how to be?
According to article 33 of the Family Code of the Russian Federation, spouses have the right to share property in equal shares. The only exceptions are cases separately indicated in the marriage contract.
How do you divorce an apartment in a mortgage? An apartment burdened with a mortgage is also the property of the spouses, and therefore both claim equal parts of the property after a divorce. Again, subject to a prenuptial agreement. The only difficulty is that while the mortgage is in effect, the third party - the bank - has the right to impose restrictions on the right to use housing.
Without the consent of the bank, none of the spouses has the right:
- apartment sales;
- exchange;
- gifts;
- transfers as collateral to another bank.
There are also restrictions on the introduced redevelopment and registration of relatives.
Thus, a lot depends on the position of the bank. This greatly complicates the process of dividing property during divorce. The bank may try to impose its terms, for example, demand to close the debt ahead of schedule. If the case is considered in court, other options are possible - obtaining the consent of the financial institution for the sale of an apartment or re-issuing a loan. The main thing - in no case do not hide from the bank the fact of divorce of spouses!
The outcome of the divorce and options for resolving issues with the division of property depend on what conditions were spelled out in the mortgage agreement initially. The same conditions will ultimately determine the person responsible for paying the mortgage loan to the bank.
How can a mortgage be arranged?
There are several options:
- spouses are co-borrowers, are jointly and severally liable for the loan;
- a loan was issued for one of the spouses, while the second agreed to conclude an agreement and acted as a guarantor;
- a marriage agreement has been concluded between the spouses, a loan is issued for one of the spouses, the second does not have the right to own housing and is not responsible for a mortgage loan;
- a mortgage was issued to one of the spouses before marriage;
- the mortgage is registered for spouses of a common-law marriage.
How is a mortgage divided in a divorce? Depending on the option of processing the transaction, the conditions for repaying a loan and using property may also be different.
Spouse co-borrowers
Banks increasingly prefer to arrange a mortgage for both spouses at the same time. In this case, the income of both parties is taken into account, and if one of them is insolvent, the bank is less likely to receive a loan default. Co-borrowers are jointly and severally liable for the loan, and the purchased apartment belongs to both equally.
But housing is not always divided equally between spouses, if the apartment is in a mortgage with a divorce. If there is a child, then the division takes into account the interests of minors.
How are loan obligations divided
The options for sharing debts between co-borrowing spouses are as follows:
- Spouses continue to repay the loan together, after repayment, each receives his part of the housing.
- One of the spouses pays the loan on their own. After closing the mortgage and removing the burden, he receives all the housing in the property or compensation from the second spouse. This option is possible both on a contractual basis by agreement of both parties, and by a court award.
- The mortgage agreement is reissued, and each of the former co-borrowers independently pays its part. This only happens with the consent of the creditor bank.
- If the income of one of the spouses allows, with his consent, the mortgage is reissued to him. Part of the funds paid before the divorce is paid to the second spouse. In this case, the first becomes the full owner of the entire housing and is independently liable for the loan.
Loan issued for one spouse
In this case, only the borrowing spouse is responsible for the loan. But the second has no less rights to the acquired property, in accordance with Law 33 of the Family Code of the Russian Federation.
In the event of a divorce, the following options are provided:
- The apartment is divided into parts-rooms between the spouses (if it is not a one-room apartment), the bank agrees to reissue the loan, and each of the spouses begins to independently pay for their part.
- If the apartment cannot be divided into rooms, then with the shares it is impossible to come to the previous option, since part of the housing cannot be pledged by the bank. The borrowing spouse continues to pay the mortgage on their own. But he can reissue the mortgage agreement only for himself (with the consent of the husband / wife) or recover his half of the funds after closing the loan.
Mortgage before marriage with a divorce
If one of the spouses purchased the property before entering into a legal marriage, then no one can challenge his right to property. If the housing was purchased on a mortgage, then he owns only the part that he managed to pay before marriage.
After the union is concluded, the husband and wife write a statement to the bank, and the second spouse becomes the co-borrower or guarantor of the mortgage loan. In the event of a divorce, the couple will share the part that was paid together. The rest of the apartment will be distributed according to one of the above options.
Civil marriage
Persons in an unregistered marriage do not fall under Article 33 of the Family Code of the Russian Federation. They are subject to slightly different laws and regulations. Jointly acquired property in an illegal marriage after the run-up of cohabitants is not divided in half. What if people managed to get an apartment in a mortgage?
If the common-law spouses draw up a mortgage, the bank enters into a loan agreement with joint or several liability. The apartment is made into the ownership of the main borrower. In case of divorce, the second spouse will have to deal with the court. He will have to prove the fact of the relationship, as well as confirm the fact of making mortgage payments using the family budget.
Another option is also possible. Today, banks are increasingly beginning to have a different attitude to the concept of "civil marriage." The mortgage begins with a questionnaire, in the column of marital status which indicates: official marriage / civil marriage. A mortgage facility is acquired in joint ownership. As a result, the apartment is divided equally between the spouses, and the mortgage after the divorce is still paid jointly.
Marriage contract
A notarized agreement between spouses is the solution to all possible problems. The fact is that the contract concluded by the spouses before marriage or marriage, immediately before the mortgage is registered, prescribes options for the division of property and liability for a mortgage after a divorce.
Most often, a marriage agreement is concluded if one of the parties does not have the opportunity to be a borrower on a loan or does not plan to become the owner of real estate for several reasons. Then the second spouse becomes the full owner of the apartment and responsible for the loan. No additional intervention of the bank or court is required, everything is already defined.
The following points in case of a divorce may also be described in the contract:
- the size of the share due to each spouse;
- the possibility of debt compensation by other property;
- distribution of the mortgage amount between spouses;
- compensation to one of the spouses in case of his refusal of a share of the property.
When an apartment is not divided into equal parts
In some cases, an apartment, which is a mortgage agreement, is not divided equally between spouses:
1. Military mortgage. When divorcing between spouses, only the part that is paid from the family budget will be distributed.
2. In the event that a mortgage is provided on your own housing purchased with personal funds. This is the money that one of the spouses received as a gift, as an inheritance, as a result of the sale of personal property. To prove this fact, supporting documents, for example, a deed of gift, acts of privatization, wills will be required.
If there are minor children
If the spouses cannot agree peacefully, and the court takes part in the division of property, he will certainly take into account the interests of the children.
In this case, the fact of finding property in the possession of a minor is of great importance. This is possible if the child is the heir to residential property or is included in the privatization list. The law also provides for cases when a child has the right to independent transactions with real estate upon reaching the age of 14.
If the son or daughter has his own share in the apartment, then part of it is added to the part of that parent with whom he / she remains.
If the child is registered in the apartment, but the spouse is the full owner, then his wife will still receive a share, if the minor remains with her, and she has not yet acquired her own real estate.
How to be with a certificate
There are frequent cases when maternity capital is used to improve housing conditions. And in most families, it helps to repay the mortgage. Maternity capital + divorce is also a fairly common problem in modern families. The fact is that it is not entirely clear how to divide an apartment in which a part is paid for by a state certificate.
Most often during the court it is recognized that maternity capital was provided to one person - the mother, and it can be attributed to the gift agreement. That is, property purchased at the expense of the certificate is personal and cannot be divided or seized by the bank to pay off the debts of the spouses.
There are exceptions. A share of an apartment acquired for a state subsidy may be awarded to a spouse in case the mother abandons the child or deprives her of parental rights.
Conclusion
The division of mortgages during a divorce, as well as the division of property, is a very complex, long and laborious process, in which not only spouses, but also the bank are forced to take part. The interests and principles of the latter are also taken into account in the case of a court hearing, since the institution in any case has the right to receive debt from borrowers and is not involved in their personal affairs. Therefore, a mortgage during a divorce in various cases can be reissued, extended, or prematurely closed. Sometimes a bank is forced to sell an apartment through an auction, the costs of which are borne by the spouse.
As a result, the outcome of a divorce can cause serious material damage to both or one of the spouses. It will not be very pleasant to start a new life with the burden of housing that belongs to another person.Therefore, the best option, in order to avoid possible problems, is to draw up a contract before marriage or immediately before the mortgage. A peace agreement between the spouses can also successfully resolve the matter, since sometimes the court can be on the side of the bank and make a decision not in favor of the family.
Nevertheless, finding the strength to preserve the union is the most wonderful way to resolve the situation. After all, there is nothing better than peace and love in the family.
