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Section of the jointly acquired property of the spouses judicial practice. The Supreme Court explains how to share an apartment bought with the money of one of the spouses

Andrey Klymyk

Not all couples are destined to live happily ever after. When the spouses fail to resolve the issue of property peacefully, the property is divided through the courts. Disputes are considered in accordance with the norms of the Family Code.

With the division of property, you can apply to the magistrate's court if the amount of the dispute does not exceed fifty thousand rubles. The division of property is established by the jurisdiction of the Civil Procedure Code.

Living together in marriage implies that the spouses have a common household. If the husband worked, and the wife was engaged in the household or raised the children, the acquisitions are considered common.

Other conditions, how to divide real estate and other property, can be determined by the husband and wife. For example, spouses can determine that the property is being transferred to separate ownership. The document receives legal force after certification in a notary office.

If the spouses manage to resolve the issue peacefully, an agreement on the division of property is signed. All material aspects are specified in the agreement.

Determination of the value of property

The division of the spouses' common property is carried out after the market price of the property has been determined. The appraisal is carried out by the examination. In the claim, you can indicate the cadastral price. If the second party has objections, the cost of housing is determined by an examination. The appraisal procedure is determined by the Law on Appraisal Activities.

Reasons for a property appraisal:

  • find out the amount of the fee. The amount of the payment directly depends on the value of the property.
  • clarify the amount of compensation payments. Property appraisal will show the real price. Compensation is paid for a fair division of property.

Example of determining the value of property

The Kuznetsovs decided to divorce. During the period of their life together, the wife and husband made property: an apartment, a car, a summer house and a land plot. Kuznetsova calculated that her share was one and a half million rubles. The man did not agree with the demands of his wife. The appraisal company came up with a different answer.

Expertise report

  • the price of an apartment on the market is one million rubles;
  • worth five hundred thousand;
  • the price of a country house with land is seven hundred thousand.

Bottom line. The total value of the property acquired during the period of living together amounted to two million two hundred thousand rubles. Each party is entitled to a share in the amount of one million one hundred thousand rubles.

According to the bureau of technical inventory, a different cost is determined. An apartment costs seven hundred thousand, a car costs three hundred thousand. The price for a country house and land plot is five hundred thousand.

The result of the appraisal: the price of the property is one million five hundred and fifty thousand rubles. The share of each party was seven hundred and fifty thousand.

Calculation of duty

The amount of the payment depends on the price of the property. The division of property in court is not carried out until a receipt for payment of the fee is presented.

Table for calculating the amount of duty

Property price Payment amount
Up to twenty thousand rubles Four percent of the amount of the claim. It cannot be less than four hundred rubles.
From twenty thousand and one ruble to one hundred thousand Eight hundred rubles + 3 percent of the amount in excess of twenty thousand
From one hundred thousand and one ruble to two hundred thousand Three thousand two hundred + 2 percent of the amount in excess of one hundred thousand
From two hundred thousand and one ruble to one million Five thousand two hundred rubles + 1 percent of the amount in excess of two hundred thousand
Price exceeds one million Thirteen thousand two hundred rubles + half a percent of the amount in excess of a million. The amount of the payment cannot exceed sixty thousand.

Rules for filing a statement of claim

Disputes worth more than fifty thousand rubles are considered in the district court. As a general rule, an application is submitted to the court in the place where the defendant lives.

The statement of claim is sent to the court office at the place where the property is located. When several objects are divided, the claim is filed at the location of one of them.

Important! The parties have the right to independently determine where to divide the property in case of divorce, if it is necessary to dissolve the marriage union, or to obtain payments for children.

The nuances of drawing up a statement of claim

The answer to the question of how to win a court on division of property depends on two factors:

  • correct preparation of the statement of claim;
  • availability of evidence.

7 main points of the claim:

  1. The name of the judicial authority.
  2. Surnames, names and patronymics of the parties.
  3. The essence of violations.
  4. Circumstances of the case.
  5. Evidence of the plaintiff's position.
  6. The amount of the claim.
  7. List of applications.

Advice. Do not forget to attach a proof of receipt to your claim. Otherwise, the judge will issue a ruling to leave the claim without progress.

Answer the questions in the claim:

  • are you married;
  • Do you ask to terminate the marriage;
  • what property do you ask to allocate in your favor;
  • reasons for this section option.

Attachments to the statement of claim

The following attachments are also attached to the application:

  • several copies of the claim. The number of copies depends on the number of persons who take part in the division of property during the division;
  • calculation of the cost of claims;
  • power of attorney, if the interests of the party are represented by a lawyer;
  • evidence of claims;
  • a receipt confirming the payment of the fee for the division of the jointly acquired property of the spouses.

The lawsuit specifies the date of purchase of the property and the cost. You can specify separately how much the price of each property for the spouses is. The claimant has the right to declare interim measures.

Important! You can ask the judge for interim measures if you believe your opponent will take action to donate or sell property.

Share improvements that cannot be separated

In practice, the joint property of the spouses is difficult to divide. For example, a couple bought an apartment. We made repairs, installed built-in furniture. The nuances of dispute resolution are determined by judicial practice on the division of property.

An example from the practice of the Gagarinsky District Court of the city of Moscow

The crux of the matter. The parties were married for six years from 2004 to 2010. Until this time, a woman was in a marriage union with another man. The land plot and the house were bought in the first marriage. During the divorce, the spouses had disputes over the division of property.

Plaintiff's position Defendant's position
Recognize the land and the house as common property. The land was purchased during the first marriage. The house was built in 2003 before the marriage was concluded with the plaintiff.
To recognize construction, finishing and repair work as common property. Landscaping and renovation works completed by 2003. The work was carried out for alimony, which the woman received from her first spouse.
Recognize that furniture and household appliances are equally owned by the parties. The house, by agreement with the first husband, was transferred to the ownership of their common child
To oblige the spouse to compensate for more than a million rubles The plaintiff has no rights to the house and land

Conclusions of the court

  1. The purchases made by the husband and wife in the marriage union become joint property (article 34 of the Family Code).
  2. Separate ownership is property that a husband and wife received prior to the official registration of the relationship. Separate ownership is also property received by each party as a gift or by inheritance.
  3. The court of first instance found that the house was built by a woman together with her first spouse. Also, during the period of the first marriage, the main work on the improvement of houses was carried out. During the period of living together with the plaintiff, only minor improvements were made to the house and the adjacent territory.
  4. Witnesses confirm that the improvement work was done by the defendant together with the first spouse.
  5. Evidence of the defendant's position: testimony of witnesses, audio and video recordings, documents.
  6. There is no reason to trust the testimony of witnesses on the part of the plaintiff. There is no evidence that the plaintiff's witnesses entered the house. In addition, the witnesses have disagreements in their testimonies.
  7. The testimony of experts and documents confirm that during the period of their life together, the parties performed work and purchased things for the amount of 220398.86 rubles.
  8. Furniture and things bought for the plaintiff's child are not subject to division.
  9. The court acknowledges that the parties were equally involved in the purchase of furniture and household appliances. Therefore, the plaintiff is entitled to compensation in the amount of 146,363.68 rubles.
  10. There is no reason to demand from the defendant the gifts made by the plaintiff, since there is no evidence that the gifts are in the possession of the plaintiff.

Final verdict

The house and land remain in the ownership of the defendant. Some items of home furniture, other purchases made in marriage, as well as monetary compensation in the amount of 146,363.68 rubles are transferred to the plaintiff.

Judicial practice on the division of the property of a wife and husband after a divorce shows that it is not easy to win a dispute. Evidence must be presented to prove inseparable improvements. The set of evidence used in a divorce through a court was determined by the Civil Procedure Code.

Main evidence in the trial:

  • receipts, checks;
  • testimony of witnesses;
  • video and audio recordings.

When dividing the property of spouses, judicial practice shows that all types of evidence provided by law are used.

Property division decisions are based on the Family Code. Purchases made during the period of life together are transferred into common ownership. Gifts made by a husband to his wife in the division of property are common property.

Example. The Vasilevs decided to divorce. During the period of marriage, the man gave his wife a mink coat, as well as a ring and earrings with diamonds. For the division of property between spouses, things donated to the wife will also be considered joint property.

The court decision on the division shows that acquisitions registered in the name of the child are not subject to division. For example, parents bought a wall for their child to play sports and made a monetary contribution. The acquisitions remain the property of children and are not shared.

How liabilities are divided

The spouses' debts are also shared. If, during the period of their life together, a couple took out a loan for a car, then the money will have to be returned to the bank by joint efforts.

In judicial practice, the debts of the wife and husband are divided according to article 39 of the Family Code. The amount owed depends on the size of the shares awarded to each of the parties.

Over the past few years, I have developed a certain practice in cases of the division of jointly acquired property of spouses.

This is not to say that I love doing things in this category. On the contrary, family disputes have never attracted me. But somehow in recent times most of the clients who turn to me for help come with just such cases.

With interest, I closely watched the progress of the process and the results of such cases with colleagues I knew. And naturally, he shoveled most of the available judicial practice on the issue in question. In short, I definitely have something to say on this topic.

Let's start with an overview of the general provisions, so that there is something to start from.

The main norms of the law that govern the court and on the basis of which the property of the spouses is divided are set out in Articles 34 - 39 of the Family Code of the Russian Federation, and also the court is guided by the Resolution of the Plenum of the RF Armed Forces of 05.11.1998 N 15 "On the application of legislation by the courts when considering cases of divorce."

To begin with, I must say that from all judicial practice it follows a general conclusion that the division of property in court is less beneficial for the parties than the settlement of the issue amicably. This primarily applies to real estate.

As a rule, having broken a lot of copies, spent a lot of money on lawyers and finally received a court decision by which all the property was divided in half in equal shares, the former spouses begin to puzzle over how to divide this property now in kind and how to dispose of it. And now the former spouses begin to negotiate and conclude agreements. That is why I paid a lot of attention to the question.

And now let's start studying judicial practice on the division of the spouses' common property.

1. The court always adheres to the principle of equality of shares. It is extremely rare when the court deviates from this principle and increases the share of one of the spouses. There are very few reasons for this: either a disabled child is in the care, or the property was acquired before marriage, or the property was donated to one of the spouses.

2. For the court to recognize the circumstances for increasing the share of one of the spouses, there must be indisputable, direct, iron-clad evidence.

3. Debts are divided only in cases where there is evidence that the debts have been spent on the common interests of the family. Or there must be evidence that the second spouse has agreed to the loan.

4. The court may award property to one party with payment of compensation for the share in monetary terms to the other party, only with consent this (second) party to receive compensation. The exception is indivisible property that is in the use of one of the spouses (as a rule, this is a car), as well as if the share in this property is disproportionately small. A common share ownership is established on real estate without consent to compensation (with rare exceptions).

5. When determining the value of the property, the court is guided by market value only at the time of consideration of the case. Therefore, an appraisal examination of the disputed property is always carried out. It is not necessary to carry out a market appraisal of the property on which the common share ownership is established (real estate, for example) or is divided in kind.

6. Legal expenses (state duty, examination) are imposed on the losing party. For example, one party files a claim for the division of property, and the other party objects, then the court decides on the division and imposes the costs of the case on the other party.

Statement of claim for the division of jointly acquired property

A court case, as you know, begins with the preparation of a statement of claim. At first glance, there is nothing complicated in drawing up a claim. But at the same time, even experienced lawyers have to clarify (change) the statement of claim in the process. This is due to the fact that in the initial drafting of a claim, some property (the same cars), debts, circumstances of acquiring property, inseparable improvement of property, etc. are often not taken into account. And also, more often than not, a claim is drawn up only on the basis of the point of view of the plaintiff, and not on the basis of the law. This gives rise to a counterclaim, which additionally indicates other property and other circumstances, as a result of which, it is necessary to change the original claim.

I would advise you to entrust the drafting of the claim to a lawyer, even if you are going to deal with the case yourself. But the topic will not be disclosed without an example of a statement of claim. In principle, if you carefully consider the case, then it is quite possible to draw up a claim on your own.

Sample statement of claim for the division of jointly acquired property

To the N district court

Plaintiff: Ivanov AND.AND.

Defendant: Ivanova M.A.
N-sk, Moskovskaya st., 1, apt. 1

3rd person: CJSC "N-skiy bank"
N-sk, Lenin st., 4

Statement of claim
on the division of the jointly acquired property of the spouses

On April 01, 2001, the Civil Registry Office of the city of Nsk registered our marriage with M.A. Ivanova. (hereinafter - the Respondent).
The marriage with the Defendant was terminated on December 31, 2010 by the decision of the magistrate of plot No. 7.
An agreement on the division of property that is common joint property has not been reached between us.
During the marriage period, on May 20, 2006, under the contract of purchase and sale No. 5, we purchased an apartment with a total area of ​​57 sq.m., located at the address: N-sk, Moskovskaya st., 1, apt. 1 ... The apartment is registered in the ownership of the Respondent. The cost of an apartment in accordance with clause 3.1 of the contract is 2,000,000 rubles.
The apartment was purchased with borrowed funds under the mortgage agreement No. 12 dated 05/01/2006. In accordance with the specified agreement, it is pledged by ZAO N-ski bank. According to the Certificate of State. Registration of the right of 20.06.2006, the property right is encumbered with a mortgage.
According to clause 4.1 of the loan agreement, the loan is repaid in monthly installments in the amount of 10,000 rubles.
According to part 1 of article 39 of the RF IC, when the common property of the spouses is divided and the shares in this property are determined, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses.
According to part 3 of article 39 of the RF IC, the total debts of the spouses when dividing the common property of the spouses are distributed between the spouses in proportion to the shares awarded to them.

In accordance with the above and on the basis of Art. Art. 34, 38, 39 of the RF IC, Art. Art. 131, 132 Code of Civil Procedure of the Russian Federation,

I BEG:

1. To divide the jointly acquired property in equal shares, as follows:
To recognize Ivan Ivanov as having ownership of ½ share of an apartment with a total area of ​​57 sq.m., located at the address: N-sk, Moskovskaya st., 1, apt. 1.
To recognize Ivanova Maria Aleksandrovna as ownership of ½ share of an apartment with a total area of ​​57 sq.m. located at the address: N-sk, Moskovskaya st., 1, apt. 1.

2. To make a division of joint debts, distributing in equal shares, as follows:
To recognize for Semin Boris Ivanovich and Semina Vera Anatolyevna, for each, the obligations under the mortgage agreement No. 12 dated 05/01/2006, to attribute the payment obligations in equal shares from January 01, 2011.

Applications:

2. Receipt of payment of state duty.

4. A copy of the sales contract.
5. Copy of the mortgage agreement
6. A copy of the certificate of ownership.

Plaintiff ___________________ / I.I. Ivanov /

"___"________ ___ G.

____________________________________________________________________________

In the ___________________ district court

Plaintiff: _________ Address: _________
telephone: _______,

Defendant: ________

address: __________

telephone: ________,
Claim price: ____________________

STATEMENT OF CLAIM
on the division of the common property of the spouses

"___" ________ ___ by the decision of the magistrate ____ of court district N ____, _____________, which entered into legal force, the marriage between me ____________________________ and the defendant __________________________ was dissolved. The requirement to divide the jointly acquired property was not announced.
At the moment, a dispute has arisen between the plaintiff and the defendant about the division of property jointly acquired in marriage. Voluntary section agreements
property we have not reached. We did not enter into a marriage contract. During the marriage, we jointly acquired the following property:
_______________________________________
_______________________________________,
(list of property, dates of acquisition, types of transactions (purchase and sale, creation of a new one, etc.), price (or value), indication of who the property is registered for)
total for the amount of ___________________ (_________________) rubles.
Article 39 of the Family Code of the Russian Federation establishes that when dividing the common property of the spouses and determining the shares in this property, the share of the spouses
are recognized as equal.

Thus, I own ___ (1/2 or other options) share in the joint ownership of the disputed property, totaling
_____________ (_______________) rubles.
In accordance with the above and on the basis of Art. Art. 38, 39 of the RF IC, art. Art. 131, 132 Code of Civil Procedure of the Russian Federation

I ASK FOR COURT:

1. Divide the property jointly acquired during the marriage between the plaintiff and the defendant as follows: _____________________________________________.
(list, price (or cost), indication of whom to transfer)

2. To award the plaintiff monetary compensation in the amount of ___________ (___________) rubles.

Applications:
1. A copy of the statement of claim for the defendant.
2. A document confirming the payment of the state fee.
3. A copy of the decision on divorce.
(If necessary: ​​4. Copy of the child's birth certificate.)
5. Documents confirming the value of the property.
6. Documents confirming ownership of the disputed property.
7. Documents confirming the calculation of monetary compensation.
8. A copy of the power of attorney (if the applicant is acting through a representative).

Plaintiff (representative of the plaintiff) ___________________ / ___________________ /
(signature) (full name)

"___"________ ___ G.

CALCULATION TO THE CLAIM

The cost of the garage is ______ rubles.

The cost of each spouse's share in the garage is _________ rubles.

The cost of the car is ____________ rubles.

The cost of each spouse's share for a car is ________ rubles.

Compensation from __________ for the garage - _______ rubles.

Compensation from __________ for the car - _______ rubles.

Total: compensation from ______ is _____ rubles. - ___ rub. = ___________ rubles.

Plaintiff
_________________

"___"___________ ____ G.

How to increase the share in the division of property? When is property recognized as the property of one of the spouses?

In accordance with Article 36, the property received by one of the spouses during marriage as a gift, by way of inheritance or other gratuitous transactions is his property.

If everything is clear with inheritance and the gift, then the concept of a gratuitous transaction may require clarification. A gratuitous transaction - in which one party transfers property (right) to the other unilaterally, without receiving anything in return. In practice, this is usually a gift or privatization... Privatization is a free deal.

It should be remembered that the court considers the privatized property of one of the spouses to be the property of that spouse, which cannot be divided. As a rule, privatization takes place for one of the spouses, while the other refuses to privatize. This is done by the parties for the convenience of registration. But when the property is divided, this argument is not recognized by the courts - since he refused to participate in privatization, then you will not be charged. So, the privatized property is not divided, since it is a gratuitous transaction (equated to a donation).

The situation is much more complicated with property purchased with the personal money of one of the spouses. For example, the wife owned an apartment before marriage, which she sold during marriage and bought another one with this money. By law, this apartment bought in marriage must be recognized as the property of the wife. But in practice, evidence is needed that the money was spent on the purchase of this apartment from the sold apartment and not more than this amount. It can only be confirmed by contracts and bank statements. The dates of contracts and the movement of money must coincide, practically, day after day, otherwise the proof is no longer indisputable. And still, even with such evidence, one cannot be sure that the court will recognize such property as the property of one spouse. Since the property was not formally donated, but purchased, and at the same time the notarial consent of the other spouse was obtained for the purchase (there are different court decisions).

Any kind of contract for the donation of money, drawn up retroactively, the court may not recognize as indisputable evidence. Such evidence can only be a notarized agreement indicating the purpose of the donation (for example, to buy an apartment) and bank statements. Since it is difficult to prove that it was the donated money that went to buy the property. And again, the formal side remains - the notarial consent of the spouse to purchase real estate, without which the property cannot be registered.

On this issue, the courts do not have a single opinion and often different instances make different decisions. But still, in the overwhelming majority of cases, the principle of equality of shares is observed. Higher authorities more often cancel decisions that increase the share of one of the spouses.

Many people mistakenly believe that the property bought with the salary of one of the spouses is his personal property. According to Article 34 of the RF IC, any income of the spouses is common. Accordingly, the property acquired with the income of one of the spouses is common.

How are the interests of children taken into account when dividing property?

This question worries, first of all, mothers. Since in the overwhelming majority of cases, the court leaves the children of the mother (to live with the mother).

After reading part 2 of article 39 of the RF IC, many believe that the court increases the share in the property of the person with whom the children stay. But this is absolutely not the case.

Let me remind you what this item looks like: “The court has the right to deviate from the beginning of the equality of the spouses' shares in their common property based on the interests of minor children and (or) based on the noteworthy interest of one of the spouses, in particular, in cases where the other spouse did not receive income for unjustifiable reasons or spent the common property spouses to the detriment of the interests of the family. "

In each specific case, this is decided by the court according to the circumstances. There must be compelling circumstances and strong evidence.

In judicial practice, this means that the child must be disabled and need special care or a separate room (this applies to real estate). More often this clause is used in relation to movable things and cash. One of the circumstances that can be taken into account is the evasion of the other party from the payment of alimony and participation in the upbringing of the child.

In general, the court proceeds from the premise that after divorce, parents retain equal rights and obligations in relation to the child. Therefore, this rule (part 2 of article 39 of the RF IC) is applied very rarely. You shouldn't bet on it. Nevertheless, of course, it always makes sense to fight to the end.

The second aspect is the non-receipt by one of the spouses of income for disrespectful reasons, or spending of funds to the detriment of the interests of the family. Such circumstances are even more difficult to prove. Although in practice there are cases when the court established the circumstances of expenses to the detriment of the family, but these expenses must be substantial (large leaks in a casino, hidden purchase of property for other persons, etc.).

Monetary compensation for a share in common property

Often, one of the parties asks the court to recognize her right to property in full, and to oblige the other party to pay compensation. This requirement is usually associated with real estate. The benefits are obvious: firstly, even half of the value of the whole property is more than the value of a separate share, and secondly, the payment of compensation can be delayed, and the property can be disposed of or continued to be used.

Legislators and judges are well aware of this and therefore there are corresponding provisions in the law ( Part 4 of Article 252 of the Civil Code of the Russian Federation) and clause 36 of the Resolution of the Supreme Court of the Russian Federation of 07/01/1996 N 6/8 "On some issues related to the application of part one of the Civil Code of the Russian Federation", which states that payment to a participant in shared ownership by other owners compensation instead of allocating his share in kind is allowed with his consent.

As a rule, when real estate is divided by spouses, there are no cases when the share of one of the spouses turns out to be insignificant. Accordingly, if the other party does not agree to compensation, then it makes no sense to demand from the court to recognize the right to real estate entirely for one party with the payment of compensation to the other. Demand, of course, can and should be, but one should not hope for satisfaction.

Another issue is when a party demands to recover compensation for a share in common property. In this case, the court is guided by the market value of the property at the time of the consideration of the case. Therefore, the assessment should be carried out immediately before filing a claim. The expert opinion in the process can be challenged. The court may itself appoint an appraisal examination.

Compensation is also collected for common property sold after marriage.

Section of the spouses' debts. How to divide property purchased on credit?

This question seems to be problematic only at first glance. In fact, this issue does not present any difficulties for the court.

In such cases, the courts are guided by Part 3 of Article 39 of the Family Code of the Russian Federation, according to which, when dividing the common property of the spouses, the total debts are distributed in proportion to the shares awarded.

However, only those debts that were spent on the common interests of the family (purchase of housing, furniture, household appliances, for children, etc.) are recognized as common debts of spouses.

If a loan is taken for the purchase of indivisible property (a car, for example), then the debt is recognized for the spouse for whom the right to this property is recognized.

If the second spouse demands compensation for his share of the indivisible property bought on credit, then the remainder of the debt is distributed according to the shares.

Debts in respect of which there is no evidence that they were spent on the needs of the family are recognized for the spouse for whom they are registered. For example, a favorite trick of the disputing parties is to pull out of the sleeve an agreement (receipt) on a loan taken from a third party and demand that the debt be distributed equally. At the same time, the loan, often fake, was signed with a close friend. In such cases, the court does not recognize the debt as general, on the grounds that there is no evidence that funds were spent on the needs of the family.

Since we are talking about debts and evidence, another misconception must be dispelled. Very often, the parties begin to drag their acquaintances to court in order to confirm the circumstances of the debts with testimony. This is a pointless and tedious exercise. Everything related to funds and their movement can only be confirmed by direct written evidence.

After the division of property, many people have the question of how to use or dispose of their share in the common property (for example, shares in an apartment). So, in order to sell your share, it is necessary to determine the procedure for using this property in court. This can be done in one process with the division of property. For example, when dividing an apartment, you can ask the court to determine the procedure for using the apartment (by room) as a separate item. It must be remembered that participants in shared ownership have a pre-emptive right to purchase an alienated (sold) share (Article 250 of the Civil Code of the Russian Federation). This means that when selling your share, you must first offer to buy this share to the second shareholder. This rule does not apply when giving a share, i.e. You can give without asking another shareholder.

Perhaps the article turned out to be discordant and not at all like an excerpt from Wikipedia. But I can assure you that there is a wealth of practical information here. In fact, this is an extract from judicial practice. In due time, this information would have saved me a lot of energy.

The issues of common property of spouses are governed by the norms of Ch. 7 RF IC, Ch. 16 of the Civil Code of the Russian Federation. Clarifications on some of these issues are contained in the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 "On the application of legislation by courts when considering cases of divorce."

When considering cases on disputes related to the division of the spouses' common property, it is necessary, first of all, to find out its legal regime: legal or contractual (the latter may include elements of a legal regime, a regime of separate property, etc.).

According to official statistics, the legal regime is most widespread. When resolving issues related to the joint property of the spouses, it is necessary under the provisions of Art. Art. 14, 50 of the Civil Procedure Code of the RSFSR (hereinafter also referred to as the Code of Civil Procedure of the RSFSR) rules to determine legally significant circumstances. Their circle is designated by the norms of the material law governing family property issues. Such circumstances will make it possible to correctly establish the legal regime of property, the grounds that allow in some cases to deviate from the principle of equality of shares, as well as to resolve other issues that are the subject of proof. See: Bespalov Yu. Proceedings on the division of the spouses' common property. // Russian justice. - 2002. - No. 9. - P. 14.

Analyzing these norms, we can conclude that such circumstances should include: the time of marriage; grounds and moment of origin of common property; composition, type and value of property, its location; reasons for changing the regime; grounds for derogation from the principle of equality of shares; the presence or absence of encumbrances of the property with the rights of third parties, as well as its turnover capacity; limitation period; list of property transferred to each of the spouses (former spouses). A full study of these circumstances occurs in the process of considering the relevant case.

When deciding whether to accept an application for proceedings, the judge first of all determines the circle of persons who have the right to go to court with a claim. This right is possessed by: spouse, ex-spouse, guardian of spouse (ex-spouse), prosecutor, heir, creditor of the spouse (see Appendix 2), creditor of the testator.

The statement of claim must comply with the requirements of Art. 126 of the Code of Civil Procedure of the RSFSR. It, in particular, must indicate the property acquired during the marriage, the time of its acquisition, the property to be allocated to the plaintiff, the value of the property, existing encumbrances and other circumstances relevant to the case (see Appendix 3). Jurisdiction for this category of cases is determined by the place of residence of the defendant (Article 117 of the Code of Civil Procedure). On the case accepted for proceedings, preparation is carried out within the framework indicated by Art. 141, 142 Code of Civil Procedure of the RSFSR. The parties are invited to prove their allegations and objections according to the rules provided for by Art. 14, 50 Code of Civil Procedure of the RSFSR.

One of the subjects of proof is the time of marriage, which includes the moment of its conclusion and termination. The first moment is confirmed by a marriage certificate, and in the case when the marriage is dissolved before the entry into force of the Family Code of the Russian Federation, - a copy of the record of acts of marriage. The time of the marriage is the day of the state registration of the marriage (the date of drawing up the marriage record). The moment of termination of the marriage is determined depending on the order of termination of the marriage. A marriage dissolved in a civil registry office terminates from the date of state registration of divorce in the civil registration book. A marriage dissolved in court shall be terminated from the date on which the court decision enters into legal force. An extract from the court decision within three days from the date of entry into force of the court decision must be sent to the registry office at the place of state registration of marriage.

The grounds and the moment of origin of the right of ownership, the composition, type, value of the property and its location are other legally significant circumstances. As you know, common property arises when two persons (spouses) take possession of the property, provided for by the norms of Ch. ch. 14, 16 Civil Code and Ch. 7 SC.

The composition and type of property, determined on the day of the termination of the marriage, are also important. So, if there is real estate in the common property, it is required to find out whether the rights to this property or transactions with it are registered, whether the building is unauthorized, whether the construction is certified. Unauthorized construction may be evidenced by the construction of a building on a land plot not allotted for this purpose, without obtaining permission from the competent authorities, in violation of urban planning, building codes and regulations. The parties must be offered to resolve the issue of allocating a land plot for the erected building, to eliminate the shortcomings, having received the appropriate permits, or to re-equip, rebuild the object. See: Bespalov Yu. Decree. op. - P. 15. When the construction of an object is not completed, it can be divided if the degree of readiness allows you to select separate parts with the subsequent technical possibility of bringing the construction to completion.

An indivisible thing is sold to one of the spouses (former spouses), to another eligible person, and the other is paid compensation, which is the difference in the value of the property and its share in the ownership of the property. If there are securities in the property, it is necessary to take into account the time of their acquisition, the grounds and time of the emergence of the right to them.

If one of the spouses (former spouses) was engaged in entrepreneurial activity during the marriage, it is necessary to find out the presence of property in kind on the day of termination of the marriage, as well as the value of the property. It should be borne in mind that the entrepreneur's property is in circulation. See: I. Rykova, Family Business Section. // Home lawyer. - 2002. - No. 3. - S. 14-15.

In the composition of the property subject to division between spouses, stocks, shares, participation interests in commercial companies and partnerships, as well as shares in production cooperatives are increasingly appearing. It seems that the shares, bonds, and other securities included in the matrimonial property should be divided equally, not according to their par value, but according to the value in accordance with the exchange quotation that they have at the time of the consideration of the dispute in court. The nominal value can be used as the basis for the assessment only if certain shares are not quoted on the financial exchange. The same applies to government securities of different types, as well as issues, series, etc., giving different levels of profitability. Only low-yield securities cannot be allocated to the share of one spouse, and high-yield securities to the share of the other. It can be assumed that in the near future the court will be forced to appoint a financial expertise to assess the securities portfolio subject to division. See: Chefranova E. Decree. op. - S. 36.

In accordance with the Federal Law “On Joint Stock Companies”, joint stock companies are required to maintain a register of shareholders, which contains information about each registered shareholder, nominee shareholder, the number and categories of shares registered in the name of each registered person. The Registrar is required to provide all required information at the request of the court. If the structure of the property subject to division contains shares of an open joint-stock company, then the court's decision on recognizing the ownership of the shares is the basis for the holder of the register to make changes to the register of shareholders of the company. This is necessary both to participate in the management of the affairs of the society, and to receive dividends on shares. Otherwise, the issue of shares of a closed joint-stock company should be resolved, which, firstly, are distributed only among the founders of the company, and secondly, the number of their holders cannot exceed fifty people. The approach should be the same for cases when the composition of the property acquired by the spouses includes shares (contributions) in business companies, partnerships, shares in production cooperatives, as well as shares in closed joint-stock companies. These cases unite the fact that the alienation of a share, a share, a share is impossible, as a rule, without the consent of other participants, shareholders, founders, members, and also the fact that, unlike open joint-stock companies, where capital is combined, there is not only the pooling of capitals, but also the pooling of labor, and, in addition, there is an element of confidence in the persons who signed the constituent documents. As a general rule, by a court decision, if such an opportunity is not provided for by the constituent documents of a company, cooperative, partnership, it cannot be obliged to accept an outsider as a participant in an enterprise created as the owner of property. From the above, it follows that, in appropriate cases, the court obliges the spouse - participant (co-founder, shareholder, member, shareholder), on the basis of the data contained in the balance sheet of the enterprise, to pay the other spouse free money to oblige the latter to alienate his share, share, shares , the jurisprudence has yet to be answered. It is appropriate to recall that by virtue of Art. 38 of the RF IC, the division of the property of a peasant (farm) economy is carried out according to the rules provided for by Art. Art. 252 and 254 of the Civil Code of the Russian Federation and the Law of the RSFSR "On Peasant (Farm) Economy". The principle of the indivisibility of property is applied to such an economy. This means that when one of its members leaves the farm, fixed assets (equipment, implements, buildings) are not subject to division and allotment. The share attributable to the allocated share is compensated to him in monetary terms. The term for payment of compensation may not exceed five years. Thus, a residential building cannot be divided in kind between spouses-farmers; the court can only determine the procedure for using it.

If one of the spouses alienated the common property or used it up at their own discretion against the will of the other spouse and not in the interests of the family, or hid the property, then this property or its value is taken into account in the division.

When the property is encumbered with the rights of third parties, it is necessary to discuss the issue of attracting them to participate in the case, and, if necessary, according to the rules provided for in Art. 128 Code of Civil Procedure, to separate the case into a separate proceeding.

By no means always, the spouses who divide the joint property are content with securing an ideal property share for them. The real division, the real part of the property they own, is the main and often the only goal of their claims. Therefore, not only the plaintiff, but also the defendant in the dispute resolved by the court usually specifies what things, what value, in what monetary limits they want to receive. But it is not always practically possible to make all calculations in strict accordance with the share due to the spouse. That is why Art. 252 of the Civil Code and clause 3 of Art. 38 SK are allowed in cases where one of the spouses is transferred property, the value of which exceeds the share due to him, to award the other spouse appropriate monetary or other compensation, while paragraph 35-37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation ", which defines in more detail how the share is separated from the common property. The impossibility of dividing this property in kind does not exclude the right of a participant in the total share value to declare a requirement to determine the procedure for using this property, if this procedure is not established by an agreement. When resolving such a requirement, the court takes into account the actual procedure for the use of property, which may not exactly correspond to the shares in the right of common property, the need for each of the owners in this property and the real possibility of joint use of it.

Naturally, when dividing property that has a certain assessment, which is given by the competent authorities on behalf of the court, not only the mercantile considerations of the spouses are taken into account. Professional interests, habits, inclinations, opportunities, etc. circumstances, in their own way, also influence the fate of the things about which there is a dispute. Moreover, clause 5 of Art. 38 UK gives an approximate list of such things. These include not only clothes, shoes, school and sports supplies of a minor, but also his musical instruments, a children's library. The same can be said about the contribution to the bank made by the spouses (one of them) at the expense of their common property in the name of their common minor children. Such deposits, regardless of their size, are considered to belong to these children and are not taken into account when dividing the property of the spouses-parents.

Among the circumstances that can affect the change in the property regime and subject to study, the following should be attributed: whether during the marriage there were investments that significantly increase the state of the property of each of the spouses; whether there is property purchased to meet the needs of minor children; whether the property was acquired at the expense of one of the spouses, which belonged to him before marriage; whether the property was acquired by one of them under gratuitous transactions; whether the property was acquired after the termination of the marriage relationship.

Let us consider one of the examples of judicial practice in which a problem arose regarding the determination of the spouses' common property.

Alekseev in 1994 filed a lawsuit against Alekseeva for divorce and division of property acquired during the marriage, including a VAZ-21063 car.

Alekseeva considered the car not to be included in the common property of the spouses, since in 1992 it was allocated to her at work as a production leader for 100 thousand rubles, while its actual value at that time was 430 thousand rubles.

The Krasnoarmeyskiy District Court of the Volgograd Region on October 26, 1994, the marriage between the Alekseevs dissolved and divided the property, allocating the vehicle to the defendant. In this case, the court proceeded from the fact that the total funds of the spouses for its acquisition amounted to? from the cost of the car.

On November 30, 1994, the Judicial Collegium for Civil Cases of the Volgograd Regional Court canceled the decision of the district court regarding the division of property and sent the case for a new consideration.

When re-examining the case on January 23, 1995, the same district court recognized it funds of the spouses, and the circumstances of the receipt of the car indicated by the defendant are not the basis for recognizing the rights of Alekseeva's personal property. Taking into account the difference in the value of the property allocated by the parties in the case of Alekseeva, monetary compensation was determined at the expense of Alekseev.

On July 21, 1995, the Presidium of the Volgograd Regional Court canceled the decision of the District Court of January 23, 1995 and sent the case for a new examination.

As the presidium of the regional court acknowledged, canceling the decision of the court, the court of first instance did not fully determine the list of things that constitute the property of the spouses to be divided, and also did not take into account the fact that the car was donated to the defendant by the plant for many years of work with payment? the cost of the car.

In a new examination of the case on April 4, 1996, the same court allocated the car to the defendant on the grounds specified in the decision of the Presidium of the Regional Court, setting its value at 31,835,700 rubles.

The case was not considered on appeal.

The Deputy Chairman of the Supreme Court of the Russian Federation, in protest, raised the issue of canceling the decision of the Krasnoarmeyskiy District Court of April 4, 1996, as ruled in violation of the substantive law.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation on February 10, 1997 satisfied the protest on the following grounds.

In accordance with both the previously valid legislation (Art. Art. 20-22 of the RSFSR CoBS), and with the currently valid Art. 34, 36, 38 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property. Property that belonged to spouses before marriage, as well as received by one of the spouses during marriage as a gift, by inheritance or other gratuitous transactions, is the property of each of them. When the common property is divided, the shares of the spouses are recognized as equal.

From the materials of the case it can be seen that the car, about which the dispute arose, was allocated to Alekseeva for the way of her work for 100 thousand rubles, with the cost of the car being 430 thousand rubles as an incentive for long conscientious work in connection with the 35th anniversary of the enterprise. This circumstance was not denied by the plaintiff either. At the same time, Alekseeva did not dispute the statements of her ex-husband that the 100 thousand rubles paid by her for the car was a loan at Alekseev's place of work, and recognized this amount as their common funds.

Under these circumstances, the court's introduction that the car is the property of Alekseeva cannot be recognized as correct, since the court did not assess the fact that it was bought with the common funds of the spouses. The court also did not take into account that the purchase of Alekseeva's car at a reduced price at the place of work does not indicate that it was transferred to the defendant free of charge in the form of a donation and, therefore, should be recognized as her personal property.

Thus, the decision of the Krasnoarmeyskiy District Court of 4 April 1996 is to be canceled and the case sent for a new trial.

When the property is divided, the shares of the spouses are recognized as equal, but deviations from this right are possible on the basis of paragraph 2 of Art. 39 of the RF IC. The size of the shares in these cases is determined by the court based on the circumstances of the case. When deciding on a deviation from the principle of equality of shares or on the priority of one of the spouses in the transfer of specific property, the court in its decision is obliged to give the appropriate reasons.

At the request of one of the parties, the limitation period may be applied. The beginning of the calculation of its term is associated with the time when the person learned or should have learned about the violation of his right. It is not always associated with the moment of termination of the marriage.

The total debts of the spouses upon division are distributed among them in proportion to the shares awarded to them. When a foreign element participates in relations, the legislation of the state in whose territory they had a joint residence, and in the absence of such a law of the state in whose territory they had their last joint residence, shall apply. If the spouses did not have one at all, Russian legislation is adopted.

A court decision on divorce must be lawful and based on evidence comprehensively verified in court.

In the operative part of the court decision on the division of common jointly acquired property, it is necessary to indicate which specific property is transferred to each of the spouses (former spouses), the value of the property (including things), the amount of compensation (if it is paid), an indication of the termination of the right to common property and other court decisions in accordance with the subject of the claim. If the property is not subject to division in kind and the law does not allow the payment of compensation without the consent of the spouse (ex-spouse), it is necessary to indicate the amount of shares in the ownership of the property. It should be borne in mind that without the consent of the spouse (ex-spouse), compensation may be paid in the event that the share is insignificant, cannot really be allocated, there is no interest or need for the use of this property.

When the property was divided in kind, the plaintiff asked to transfer the Sang Yong Korando and Toyota Land Crowser cars to the defendant against the cost of his share, since he used them during the marriage and is using them at the present time, as well as the funds contributed by him under the contract of participation in shared construction , concluded with LLC Developer of an apartment, since the contract for participation in shared construction No. 17-B6 dated November 20, 2008. concluded by the defendant, and after the completion of the construction of the apartment, their joint residence with the defendant in a one-room apartment is not possible. The plaintiff also asked to recover from the defendant in her favor monetary compensation in the amount of? share in the property acquired in conscience, which amounts to 1,050,175 rubles.

I asked to recover from the defendant the costs of paying the state fee in the amount of 9 351 rubles.

Subsequently, the plaintiff clarified the claims (case sheet 118) by abandoning the claims for section 1 403 350 rubles paid by the defendant under the contract for participation in shared construction No. 17-B6 dated November 20, 2008. LLC S in the purchase of an apartment and asked to make, collecting from the PP in its favor a monetary compensation in the amount of 348,500 rubles, since the total amount of purchased cars amounted to 697,000 rubles. In the future, the defendant alienated the cars and disposed of the funds received at its own discretion, in connection with which, the plaintiff asked to recover from the defendant? share of the market value of the property sold by the defendant, which is 348,500 rubles. Also, the plaintiff asked to collect a state fee of 3,000 rubles, expenses for the services of a lawyer - a representative in the amount of 30,000 rubles.

By the definition of the District Court of Moscow dated August 31, 2010. proceedings regarding the claims of the OP on the division of funds in the amount of 1,403,350 rubles, paid under the contract for participation in shared construction No. 17-B6 dated November 20, 2008. LLC Stroitel Apartments was terminated due to the refusal of the plaintiff from the claim in this part.

At the hearing, the OP supported the stated requirements in full. She gave the court similar explanations.
The defendant PP did not appear at the hearing, was duly notified of the time and place of the trial (ld 122), presented a statement in which he asked to consider the case without his participation.

The court, after listening to the plaintiff's explanations, examining the written evidence in the case, came to the following conclusion:

In accordance with Art. 34: The car, as acquired during the marriage, refers to the joint ownership of the parties.

The income of each of the spouses from employment, entrepreneurial activity, the results of intellectual activity, pensions and benefits, cash payments that do not have a special purpose also constitute joint property. Jointly acquired property is also movable and immovable property, deposits in banks, shares in the authorized capital purchased from the income of a particular spouse, it does not matter who it is registered in, in whose name it is registered.

The judges of two instances, who incorrectly interpreted the norms of substantive law when dividing the property of former spouses, were corrected by the Supreme Court of the Russian Federation in the case, which was included in the new 160-page review of the court practice of the Supreme Court, for the current year.

As the Supreme Court notes in the chapter devoted to the analysis of the practice of the collegium for civil cases, property acquired during marriage, but funds that belonged to one of the spouses personally, are not subject to the joint property regime of spouses.

U. filed a lawsuit against P. for the division of jointly acquired property, referring to the fact that he was married to P. During the marriage, under a contract of sale, the spouses acquired an apartment in joint ownership. Since the marriage contract was not concluded between the parties, an agreement on the division of the jointly acquired property was not reached, U. asked to divide the apartment between him and P. and to recognize his ownership of 1/2 of the share in the common shared ownership of the disputed apartment.

Defendant P. did not recognize the claim, asked to recognize for the plaintiff the right of ownership to 1/15 of the share in the right of common shared ownership of the disputed apartment, and behind it - the right of ownership to 14/15 of the share, taking into account the acquisition of the apartment for the defendant's personal funds in the amount of 1 RUB 750,000

The court established that since December 23, 2010 U. was married to P.. During the marriage, on the basis of a sale and purchase agreement of February 11, 2011, the spouses acquired an apartment, the joint ownership of which was registered with them on March 10, 2011. The price of the purchased apartment was 1,995,000 rubles.

As it was established during the consideration of the case and the parties were not contested, part of the funds in the amount of RUB 1,750,000 spent on the purchase of this apartment was received by P. as a gift from P.L. (P.'s mother) under a donation agreement dated 11 February 2011 This amount was received by P.'s mother from the sale of the apartment she owned. All of the above transactions were completed on the same day - February 11, 2011.

The marriage between U. and P. was dissolved on October 9, 2014. The division of the spouses' property after the dissolution of the marriage was not carried out between the parties.

In resolving the dispute and satisfying the claims for the division of the disputed apartment between the spouses in equal shares, the court of first instance proceeded from the fact that an agreement was reached between the parties on the acquisition of the apartment in common joint ownership, and since the money received as a gift was contributed by P. at the discretion of the common needs of the spouses - the purchase of an apartment, then this property is subject to the regime of joint ownership of the spouses.

The appellate court agreed with the findings of the first instance court.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized that the courts' conclusions were made in violation of substantive law.

In accordance with Art. 34 of the RF IC, property acquired by spouses during marriage is their joint property. The property acquired by the spouses during marriage (common property of the spouses) includes the income of each of the spouses from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose (the amount of material assistance, amounts paid in compensation for damage due to disability due to injury or other damage to health, and others). The common property of the spouses is also movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was acquired or in the name of whom or by which of the spouses the funds were deposited.

In accordance with paragraph 1 of Art. 36 of the RF IC, property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or other gratuitous transactions (property of each of the spouses), is his property.

As established by the court, the source of the acquisition of the disputable apartment was the funds received by P. under a gratuitous transaction, as well as partially jointly acquired funds of the spouses.

According to the explanations contained in the fourth paragraph of clause 15 of the resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 15 "On the application of legislation by the courts when considering cases of divorce", it is not common joint property, acquired although during marriage, but on the personal funds of one of the spouses that belonged to him before marriage, received as a gift or by way of inheritance, as well as things for individual use, with the exception of jewelry and other luxury items.

From the above provisions, it follows that a legally significant circumstance in deciding whether to classify property as common property of spouses is what funds (personal or common) and by what transactions (paid or gratuitous) the property was acquired by one of the spouses during marriage. Property acquired by one of the spouses in marriage under gratuitous civil law transactions (for example, by inheritance, donation, privatization) is not the common property of the spouses. Acquisition of property during marriage, but with funds personally owned by one of the spouses, also excludes such property from the common joint property regime.

At the same time, the court mistakenly ignored such a legally significant circumstance as the use of funds belonging to P. personally to acquire the disputed apartment.

Concluding that the disputed apartment belongs to the joint property of the spouses, the court proceeded from the absence in the agreement on its purchase of conditions for the distribution of shares in the apartment.

However, the court did not take into account that P. received as a gift monetary funds in the amount of 1,750,000 rubles. and those spent on the purchase of the apartment were P.'s personal property, since they were not acquired together during the marriage with the plaintiff and were not the common income of the spouses.

Entering these funds to buy an apartment does not change their nature of P.'s personal property.

Thus, the parties' shares in the ownership of the apartment were to be determined in proportion to the deposited personal funds of the defendant and the joint funds of the parties.

This was not taken into account by the courts and led to the issuance of illegal court decisions (determination No. 45-KG16-16).