Preparing a package of documents for the sale of an apartment is a responsible business. After all, if at least one of the required securities is not presented, the transaction may be “stalled” or protested. And, if the owner of the apartment was previously married, in some cases it will be necessary to issue a notarized consent to the sale from the ex-spouse. When is it needed?
By law, all property acquired during a married life is "by default" considered common. At the same time, it does not matter which of the spouses invested how much in the family budget and in whose name the purchases were made - the important thing is that common money was spent on this. An exception to this rule is the property that was received “free of charge” - for example, it was inherited, received by donation, and so on.
If the apartment was purchased in marriage and both spouses are still officially registered as its owners, the issue of obtaining permission to sell the apartment is not even worth it, without the participation of all the owners, the transaction simply will not take place. But if the housing is registered in the name of one of the spouses, in some cases the ex-husband or wife can still claim their share of the property. And the permission to sell in this case serves as a guarantee that the transaction will not subsequently be challenged.
When do you need to take consent, and when can you do without it?
If the apartment was purchased in marriage
Consent to the sale is required if the apartment was registered in the ownership at the time when you were married and there are no legal documents confirming the refusal of your former partner from property rights (marriage contract, property division agreement, etc.). etc.). Even if, according to the documents, only one person from the couple is the owner, the second may demand the allocation of his share in the jointly acquired property for three years after the divorce.
If the apartment appeared before marriage, inherited or as a gift
Immovable property "by default" is considered the personal property of one of the spouses in the following cases:
- The apartment was purchased (or privatized) prior to marriage. In this case, the husband or wife of the owner cannot claim her - the status of a “family member”, registration, living in an apartment for many years does not lead to the emergence of ownership.
- The property was donated to one of the spouses or inherited. In this case, it also does not belong to the category of jointly acquired property, because funds from the family budget were not involved here.
In such cases, obtaining permission from the ex-husband or wife to complete the transaction is not required. However, if less than three years have passed since the divorce, it may still be asked to provide. The fact is that if the former spouse proves that during the years of marriage, serious funds from the family budget were invested in real estate, which increased the "liquidity" of housing (for example, major repairs were carried out), then, according to the law, he will have the right to claim a share in the apartment.
The situation is similar with an apartment purchased with a mortgage - if a significant part of the contributions was already paid from the family budget, the former spouse has the right to claim his share.
In this case, the sale permit serves as a guarantee that the transaction will not subsequently be challenged by the ex-spouse.
If the former spouse has already legally renounced the rights to the apartment
Consent to the sale is definitely not required in cases where there is documentary evidence that the former spouse has previously renounced the rights to the apartment.
- A notarial marriage contract was signed, securing the right of one of the spouses to solely own and dispose of the apartment acquired in marriage.
- In the event of a divorce, an agreement was concluded and officially formalized that this real estate object becomes the property of one of the spouses, and the second will not claim it.
- The apartment was privatized in marriage, and the former spouse at the same time signed a waiver of privatization. It also means waiver of property claims, which does not need to be reaffirmed.
Copies of documents confirming the spouse's refusal of rights, in this case, are attached to the package of documents for the apartment.
