The procedure for the division of the common property of spouses is enshrined in the UK. Article 38 provides for general and special rules. Consider the norm in more detail.
General information
38, article SK allows the division of property in marriage or after the termination of a relationship. The applicant may be one of the spouses or a lender who enforces the share of the wife / husband.
Spouses may also share the common property by agreement. Clause 2 38 of article SK stipulates that it must be certified by a notary.
Dispute Resolution Rules
In the current edition of Art. 38 of the RF IC stipulated that if the spouses did not reach an agreement, the division and determination of the shares of each of them in the property are carried out in court.
At the request of the husband / wife, specific values are established to be transferred. If one of the spouses receives property whose price is higher than the share due to him, the second spouse may receive monetary or other compensation. To determine it, a property assessment is carried out. The court in such cases suspends the proceedings and makes a decision on the appointment of an examination.
According to paragraph 4 of Art. 38 of the IC of the Russian Federation, the court has the right to recognize the values acquired by the husband and wife during their separate residence from the moment of termination of relations, separate property of each.
Nuances
Items purchased to meet the needs of children are not subject to division. They must be transferred to the spouse with whom minors live. Compensation is not paid. The corresponding provision is enshrined in paragraph 5 of Art. 38 SK RF. These items include clothing, sports, school supplies, clothing, musical instruments, etc.
Deposits that were made in the name of common children from common property are recognized as belonging to minors. In the section they are not taken into account.
Additionally
When dividing property during the period of marriage, the undivided part and acquired values subsequently comprise the joint property of the husband and wife.
In paragraph 7 of Art. 38 SK RF established a statute of limitations on the requirements. The spouse has the right to submit an application to the court within 3 years from the date of divorce.
Art. 38 SK RF with comments
In judicial practice, there are many difficulties when considering cases on the division of shared values in the framework of the divorce proceedings. Explanations on one of them were given in the Resolution of the Plenum of the Armed Forces No. 15 of 1998.
According to the provisions of paragraph 12 of the said act, when deciding on the possibility of considering the requirements for the division of property within the framework of the divorce proceedings, the courts must take into account that if the procedure affects the interests of third parties, it is necessary to separate the relevant claims into a separate proceeding. This rule follows from 3 paragraph 24 of article SK. We are talking, in particular, about situations where the values belong to a peasant (farmer) farm, housing cooperative or another cooperative whose participant has not yet repaid the obligation to make a share contribution and, therefore, has not received ownership of the relevant values.
The rule enshrined in Article 24 of the UK does not apply to the division of contributions made by husband and wife to credit organizations from total revenues. At the same time, it does not matter to which spouse the funds were paid.
A slightly different procedure applies when third parties donate money to spouses, and they donate it to a credit institution in their own name. In such situations, third parties may file a claim for a refund according to the rules established by the Civil Code. Such requirements should be considered in separate proceedings. Similarly, disputes involving peasant farmers and other persons may be resolved.
According to the rules of paragraph 5 of Art. 38 SK RF, deposits opened in the name of children (minors) are not considered in the section.
Features of the procedure
The sharing of values acquired together can be one of the grounds for terminating the common (joint) property of a wife and husband. The law allows it to be carried out at the request of any spouse both during and after the termination of the marriage.
The section may be based on the requirements of creditors to enforce the share of the wife / husband in the common property. In addition, the procedure is carried out in the event of the death of the spouse. In such a situation, a section is necessary to determine the share due to the heirs and the remaining spouse.
The procedure may be voluntary or mandatory. In the first case, the provisions of the agreement entered into by the spouses apply, in the second - a statement is sent to the court. However, in both situations, the section means the completion of joint ownership. Each spouse as a result acquires the rights to a certain part of the property. In other words, the wife and husband become independent owners.
Voluntary Section
As mentioned above, spouses can issue an agreement. Its form in the law is not defined. However, the notarized document is expressly prescribed in the commented norm.
Under article 74 of the Fundamentals of Legislation on Notaries, an authorized person has the right, upon a joint application of his wife and husband, to issue to both of them (or to one person) certificates of ownership of a part of the common property acquired during the marriage. A document for a residential, garden house, cottage, garage, apartment, land is issued at the location of the property.
Forced section
This procedure is applied if the subjects do not reach an agreement. The court in this case independently determines which objects are transferred to each of the spouses.
The share of husband and wife is determined, as a rule, in fractions on the basis of the ideal share. After that, the court establishes a list of specific items that go to each spouse. When implementing the section, the wishes of the parties, the presence of professional interest in certain objects, the state of health and other significant circumstances should be taken into account.
If indivisible objects are in the common property, arithmetic (ideal) shares are determined. At the same time, each spouse is given the right to use, dispose of and own his part.
As a rule, it is not possible to separate immovable objects ideally. In such situations, deviations from the arithmetic fraction are compensated by money or other values. The calculation is based on the conclusion of the expert who assesses the property.
Important point
In paragraph 17 of the Resolution of the Plenum of the Supreme Court No. 15 of 1998, it is noted that in sharing common property, the court is entitled in some cases to depart from the principle of equal shares, taking into account the needs of minors or one of the spouses.
It is, in particular, about situations where one of the parties for a long time without good reason did not receive income or spend common values to the detriment of family interests. For example, a husband lost money in gambling, abused alcohol, etc.
The court must also take into account circumstances beyond the control of the spouse, but entailing the inability to receive income. For example, a wife cannot find a job because of her health, due to the fact that she is being trained, she accompanies her husband on a long business trip in a remote area, etc.
Animal disputes
Often there are difficulties in deciding who the animal will remain with. Courts usually find out whether there was any ill-treatment by one of the spouses, whether there are conditions for his detention. When solving the issue, the cost of the animal is also taken into account.