One of the urgent problems arising from the dissolution of marriage is the division of property. With a divorce, an apartment in a mortgage adds even more complexity. Each specific situation has its own nuances. In this regard, at present, there is no unambiguous algorithm for the distribution of responsibilities for the collateral object. Let’s further consider how to divide an apartment in a mortgage during a divorce .
Relevance of the issue
So, the problem that accompanies the section of the apartment is a mortgage. Judicial practice today has not developed a unified approach to decision-making. Therefore, often different authorities take opposite decisions. The situation is complicated by the fact that the disputes affect the interests of three parties - the husband, wife and credit institution. In many cases, the distribution of duties significantly infringes on the rights of a participant. For example, in practice there are many cases when a former spouse, deprived of an apartment (or part thereof) during the division, is forced to pay a loan for a sufficiently long time. Problems often arise with banks. For example, credit organizations wishing 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
The difficulties that accompany the section of an apartment purchased in a mortgage are primarily due to the insufficient legal regulation of this issue in civil and family laws. The institutions considering such disputes are governed by the provisions of the SC, Civil Code, and Federal Law No. 102. In addition, the terms of the agreement concluded with the bank are taken into account. When analyzing these acts, the following principle can be distinguished. The living space acquired by spouses in a marriage with mortgage funds is considered as property acquired jointly by them. This, in turn, entails legal consequences. It is customary to divide joint property equally between spouses, unless another procedure is determined by a marriage contract. When considering disputes, it does not matter to whom the object is framed. Financial obligations are imposed equally on the spouses, regardless of whether they are co-borrowers, or if the loan was issued to one of them. Therefore, the 50/50 principle applies. Meanwhile, in reality, dividing an apartment in a mortgage is not so simple. The fact is that the object is pledged to a banking organization. Spouses, being formally owners, cannot freely dispose of real estate.
Marriage contract
In order to avoid various problems, lawyers recommend that newlyweds conclude an agreement. At the same time, legislation allows for the execution of a contract both before and after marriage. Meanwhile, despite the obvious advantages of this document, not many draw up it (no more than 5%). It can prescribe various conditions. As a rule, the agreement establishes the procedure for the division of property, maintenance of minors and other important points.
Guarantees for the bank
Credit institutions are trying to be safe. When drawing up the main contract, they also make an agreement on the division of the apartment in the spouse's mortgage . Credit institutions, which have repeatedly encountered difficulties, have gained sufficient experience in disputes. The agreement on the division of an apartment in a mortgage allows the bank to minimize risks. Most credit institutions try to make husband and wife co-borrowers. This, in general, is beneficial to the citizens themselves. In this case, they can combine their income and get a larger loan. Many banks include in the contract a clause stating that upon dissolution of the marriage by the co-borrowers the terms of the agreement will not change. This point is an additional guarantee for the credit structure. If citizens who agree 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 a banking organization.
Options for solving the problem
So, how can you minimize risks and carry out the division of property? Mortgage apartment - property for which rights are limited. Therefore, co-borrowers can, after the dissolution of the marriage, continue to repay the loan or quickly find the missing amount in order to repay it ahead of schedule. When the debt is liquidated, the property is put up for sale. Having realized the object, the former co-borrowers share the amount among themselves. There is one more option. Co-borrowers can sell the property with the consent of the bank. It is worth saying that in this case it is rather difficult to predict the response of a credit institution. The bank may agree to the proposal of the co-borrowers, demand early repayment of the loan, since the dissolution of the marriage will violate the terms of the main contract, or oblige to continue to pay off the debt without selling the object.
Possible actions of a credit institution
Many banks agree to the sale of real estate. In this case, the organization minimizes the risk of non-payment of debt. After obtaining consent, the spouses need to find a buyer who is ready to purchase an object with such an encumbrance. In order for the new owner to obtain ownership, he must first repay the amount owed to the credit structure. He will have to wait until the process of lifting the burden is completed. Only after that the buyer will be able to draw up his right. Not all purchasers agree to such conditions, since the risks are quite high. In this case, regardless of the development of the situation with the implementation of the facility, the former co-borrowers will be obliged to continue to repay the debt. Otherwise, their situation may deteriorate significantly.
Bank Rights
A credit institution that does not receive payment of debts can independently sell real estate. For this, an auction is organized. It is worth saying that the value of the object in this case will be much lower than the market price. From the amount received from the sale, the credit structure holds the main debt, penalties, fines, unpaid interest and the costs of organizing the auction. The balance will be distributed between the former co-borrowers. Given this, spouses can generally be left without housing, and without money.
Important point
The norms set several requirements for co-borrowers who begin the division of property. An apartment in a mortgage is formally owned by persons who have agreed to the terms of the bank. Among them - the obligation of co-borrowers to notify of all changes in their lives. Accordingly, they must notify the bank of the dissolution of marriage.
Possible results
If the parties cannot agree, they will have to go to court. But, as was said above, it is impossible to unambiguously determine the outcome of the proceedings. The court may oblige the bank to carry out the provided procedures with the real estate, renew the contract for one of the co-borrowers or order the ex-wife and husband to continue repaying the loan. These are far from all possible solutions to the problem. If the co-borrowers are ready to continue repaying the loan, in order to later sell the housing, you can still divide the apartment while married . In a mortgage, debtors are very dependent on the bank. Therefore, before any action, they need to contact the credit institution for approval. Accordingly, if the co-borrowers decide to divide the apartment in the mortgage before the official divorce, then they need to write a joint statement about this. But in such a situation there can be problems. For example, a bank has the right to refuse co-borrowers. A credit institution may not be satisfied with the amount of income of one of the debtors, who will subsequently act as an independent obligated person. It may also happen that the division of an apartment in a mortgage is not possible for technical reasons. For example, it consists of one room, and it is impossible to allocate a share. However, co-borrowers can challenge the decision of the credit structure.
Alternative option
How else can you partition the property of the spouses? An apartment in a mortgage is reissued for one of them, and the second waives real estate rights free of charge or for a certain amount. In this case, the first assumes the obligation to continue to repay the loan. If the bank arranges the solvency of the co-borrower, the latter can register the transfer of the right to itself in an authorized body. Typically, the bank takes a commission for reissuing the contract (0.5-1% of the remaining debt).
Section of the apartment on a military mortgage
The process is different in that the obligation to repay the debt is not assigned to citizens, but to the Ministry of Defense. An employee, regardless of whether he has a family, acts as a participant in the lending program, as well as the owner. In this regard, the section of the apartment in the mortgage does not require the participation of a wife / husband. The latter are not involved in other cases. For example, in case of delay or other violations of the loan agreement, the obligation to repay the loan rests solely with the employee.
Actual marriage
The section between the spouses of the apartment was considered above . Mortgage , meanwhile, can be executed by cohabitants - persons who are in a “civil” marriage. As you know, the provisions of the UK do not apply to such cases. If at the same time a man and a woman did not conclude a written agreement, then with a high probability the apartment will remain with the one for whom the loan was issued. Of course, far from everyone will be satisfied with this, since both allocated funds to pay off the obligation. In such cases, it will be necessary to prove joint participation in the payments. To do this, you need to provide documents confirming deductions. This can be receipts, account statements, checks, etc. The same should be done if there is a desire to prove a joint repair or purchase of expensive household appliances. It is advisable to involve a qualified lawyer.
Credit before marriage
As indicated in the UK, everything that was acquired during the period of officially registered matrimony is common. If something was purchased before marriage, then it relates to the personal property of a person. But family law contains a number of reservations. In particular, in accordance with the rules, the former spouse has the right to count on the share of the apartment, if payments on the mortgage were made jointly even before the registration of the relationship. In this case, a non-working citizen may also submit requirements. The income of one spouse in such a situation will be considered total. 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 right to ownership of housing can be issued only after the commissioning of the facility. In practice, two scenarios are possible:
- If the borrower at this moment divorces, then he will be obliged to pay compensation to the husband / wife. When making such a decision, the court takes into account the fact of joint payment of the loan. However, the competence of a lawyer will be of great importance in this situation.
- If the borrower is married before receiving a certificate, the court will oblige to allocate a share of the apartment before the divorce.
If one of the former co-borrowers evades payments
What to do in this case? In this situation, the credit institution reissues the contract for a solvent ex-spouse. In this case, all obligations are withdrawn from the second entity. But in return, he loses the opportunity to demand a share of the 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, there are two ways to solve the problem:
- The loan is repaid by the solvent co-borrower.
- The bank sells real estate, and the funds received are sent to the payment account.
As a rule, a credit institution sells an apartment at a reduced price, approximately equal to the principal debt. This significantly speeds up the procedure.
Mortgage for divorcing children
The legislation prescribes that any actions related to family property should take into account the interests of minors. Guided by this rule, the dispute resolution bodies make appropriate decisions. In the division of mortgage housing, the proportion of children will in any case be registered for the spouse with whom they remain. If a decision is made to sell housing, and a minor is registered in it, it must be written out without fail. Otherwise, the guardianship and trusteeship bodies may become interested in the situation.
Rental security
In some cases, spouses decide to lease a mortgage apartment. It is worth noting that such actions are unlawful. The fact is that the apartment was mortgaged to the bank, respectively, burdened. If the situation is critical, and the co-borrowers do not have enough funds to repay the loan, then in order to lease housing, they must obtain the consent of the financial structure.
Conclusion
Divorce is often accompanied by various problems. In general, divorce is not a very pleasant procedure, since it concerns not only personal relationships, but also property interests. Often, former close people become real enemies. It is clear that everyone wants to protect themselves. Citizens, issuing a mortgage, as a rule, do not assume the presence of any difficulties in the future. However, anything can happen in life. Therefore, lawyers recommend protecting yourself for the future by concluding a marriage contract. This document will avoid many problems, save nerves, money and time. A marriage contract is certified by a notary public, which gives it legal force. If a dispute still arises, and it will be necessary to regulate it through the court, the document will become irrefutable evidence of the truth.