Like all other property acquired by spouses during marriage, a jointly acquired apartment is their common joint property, regardless of which of the spouses such an apartment is purchased in (Article 34 of the Family Code of the Russian Federation, hereinafter - the IC RF). The regime of joint ownership is characterized by the absence of certain shares in the right of common ownership (part 2 of article 244 of the Civil Code of the Russian Federation, hereinafter referred to as the Civil Code of the Russian Federation).
Instructions
Step 1
However, situations in life are different, for example, a spouses need to live separately. How, in this case, for example, can a wife get a change of an apartment or receive a monetary compensation commensurate with the share in the apartment on which she has the right to count?
Step 2
To begin with, the apartment must be transferred from the common joint ownership regime to the common shared ownership regime. This can be done by agreement of the spouses or by a court decision (part 5 of article 244 of the Civil Code of the Russian Federation). In the case of determining shares by agreement of the participants in common property, the law establishes the right of the participants to independently determine the share of each of them (Part 1 of Article 245 of the Civil Code of the Russian Federation) The ratio can be either 50/50 or any other.
Step 3
In the event that the shares are determined by the court, then the court will proceed from the presumption of equality of the spouses' shares in common property (Part 1 of Article 245 of the Civil Code of the Russian Federation). If the wife wants to ensure that her share in the ownership of the apartment is more than 50%, she must submit to the court the appropriate evidence, depending on the circumstances of the case, for example, a certificate of her high income in the period immediately preceding the purchase of the apartment and certificates that that at the same time the spouse was not employed and was undergoing treatment for alcoholism; evidence that the wife, at her own expense, made inseparable improvements in the apartment (part 2 of article 245 of the Civil Code of the Russian Federation) and so on.
Step 4
It should be borne in mind that an apartment is an indivisible property, and the shares that will be established by an agreement between spouses or a court decision are not shares of an apartment as a physical object (for example, the wife's share is a kitchen and a corridor, but a husband's share is a living room and a bathroom), and shares in the ownership of the apartment, not tied to specific parts of the apartment. Changes in the legal regime of a dwelling as an object of real estate are subject to state registration in the unified state register by institutions of justice (part 1 of article 131 of the Civil Code of the Russian Federation) After the shares are determined, they can participate in civil circulation as independent objects of civil rights, that is, such a share can be sold or exchange.
Step 5
When selling a share in common property, it must be borne in mind that the spouse has the preemptive right to purchase such a share (Part 1 of Article 250 of the Civil Code of the Russian Federation) The overriding right of purchase corresponds to the wife's obligation to notify her husband in writing of her intention to sell her share in the apartment, indicating the price and other conditions on which the wife wants to sell her share. If the husband refuses to buy or does not buy out his wife's share within a month, the wife has the right to sell her share to any person (Part 2 of Article 250 of the Civil Code of the Russian Federation).
Step 6
When exchanging, the spouse's preemptive right to acquire a share will also apply (Part 2 of Article 246 of the Civil Code of the Russian Federation), since it is difficult to find those willing to acquire a share in an apartment where a stranger lives, and the cost of such a share in the actual sale will be significantly lower than half the cost of the whole apartment, in most cases, it makes sense for spouses to jointly sell their shares in the apartment to one person, and divide the proceeds among themselves in proportion to their shares in the common property right.
