Allocation of the spouses’ share during the division of property

Allocation of the spouses’ share during the division of property

The issue of allocating a share in property between spouses may arise between them both during their marriage and after its dissolution.

Each owner has the right to determine their share in the property. The law provides for the possibility of such allocation by reaching an agreement, based on a court decision or drawing up a marriage contract.

The difference between dividing common property and allocating a share from it is important. A share is determined without terminating the rights of other owners to the apartment, while division excludes such rights.

Persons who allocate their property are subsequently deprived of the opportunity to claim common property. When the division is made, the property belongs to the previous owners in the amount of their shares.

In the current legislation of Ukraine, there are several ways to allocate a part of the common property of spouses. After choosing one of them, the owners must register their rights with specialized state bodies.

Grounds and procedure for allocation of a share of the spouses during the division of property

Spouses have the right to allocate a share in the common property at the request of either of them both during the marriage and during the divorce process. Part of the property may also be allocated when creditors wish to foreclose on the material share of a person in a marital relationship (Family Code of Ukraine).

Spouses can determine the share in the common property:

1. By mutual consent.
2. By concluding a marriage contract.
3. By applying to the courts.

In order to allocate a share in the property, it is necessary to determine whether it belongs to the common spouse or not.

Non-jointly acquired property:

1. Property owned by a citizen before marriage, as well as gifts, inheritance;
2. Fruits of intellectual activity (for example, scientific works, literary works) (Family Code of Ukraine);
3. Items for personal use (shoes, clothing, hygiene items, etc.).

Joint property is the property that was acquired during the marriage, regardless of whose name it is registered in. This may be: wages, benefits, pensions, real estate, securities, etc. (Family Code of Ukraine). The property of minor common children is not subject to allocation (Family Code of Ukraine).

The limitation period, that is, the period of time when a man and a woman have the opportunity to determine the share after the marriage between them is dissolved, is three years (Family Code of Ukraine).

Allocation of a share of the property of spouses under a marriage contract

A marriage contract is an agreement between persons by which they define their property obligations and rights during their joint family life and upon termination of the relationship (Family Code of Ukraine). Citizens, at their own discretion, may specify in the contract the procedure, grounds and size of shares when allocating them in common property.

This document must be drawn up in writing and certified by a notary; it can be concluded both before entering into an official marriage and during the marriage union. In this case, the agreement, if it is concluded in the state registration of family relations, comes into force from the moment of such registration (Family Code of Ukraine).

The content of a marriage agreement may include the following provisions:

• on the allocation of a share in property, both in general and determining a share in individual types of property (apartment, land plot);
• citizens have the right to establish their obligations and rights on issues related to income, expenses, property relations;
• determine specific timeframes for the implementation of personal opportunities and burdens.

A marriage contract is concluded both in the sense of property already owned by citizens and extends to property that may appear in the future for spouses (Family Code of Ukraine).

It is important that a marriage contract should not limit the legal rights and interests of individuals, it cannot regulate personal relationships, or contain conditions that lead to an unfavorable position for one of the spouses.

Determining the share of property of spouses during divorce: judicial practice

Example

Rykov A.P. and Rykov T.N. contacted a notary to conclude a marriage contract, in which the spouses wanted to indicate in one of the provisions that if one of them does not have personal income during the marriage, then this person does not have the right to claim a share in the common property. The notary explained to the Rykovs that this provision contradicts the norms of the current law of Ukraine, namely, the Family Code of Ukraine states that the right to property is also owned by the person who did not have an independent income for valid reasons, for example, ran a household. The notary explained that the marriage contract, in the event of an appeal to the court, can be recognized as invalid (Family Code of Ukraine). After receiving advice, the Rykovs decided to review the content of the document.

The agreement regulating the relationship in marriage can be changed or terminated by mutual decision of the spouses. The agreement automatically loses its force after the dissolution of the marriage (Civil Code of Ukraine).

Allocation of a share of spouses under a property division agreement

Spouses can divide property into specific parts between themselves based on an agreement (Family Code of Ukraine). During the division, spouses must proceed from the fact that their shares are equal. Although they have the right to determine other sizes at their own discretion (Family Code of Ukraine).

The agreement providing for the allocation of shares is drawn up in writing, it should be executed by a notary, since for the registration of these shares, the registering authority may require a notarized document.

In the agreement, it is important to indicate the place of its preparation, the date, the passport details of the parties, their place of residence, and it is necessary to determine the share size (Civil Code of Ukraine).

The owner of common property may, instead of being allocated a share, receive compensation for a part of what belongs to him. After which he loses the right to this property (Civil Code of Ukraine).

How to allocate a share of the property of spouses during division through the court?

Example

Krymov P.R. and Krymova S.L. decided to dissolve their marriage, and Krymova S.L. wanted to allocate a share in the shared apartment. Krymov P.R. did not want to share housing with his ex-wife, he offered to buy out from her the part of the residential premises that fell to her share. The woman knew that she would not be able to claim the residential premises if the answer was positive, but after thinking it over, she realized that this was an appropriate way out of the situation. Krymova S.L. accepted the offer of her ex-husband and agreed to receive monetary compensation for her share in the apartment.

The agreement must include provisions that do not contradict the current legislation of Ukraine. It is drawn up in the personal presence of both parties and signed by the participants.

Allocation of a share of the property of spouses in court

In the event of a dispute between a spouse and a husband regarding the allocation of shares in common property, they may apply to the court, which will determine the size of the appropriate portion for each (Family Code of Ukraine).

When allocating shares, the judicial body relies on the principle of equality, but this principle may not be taken into account in the interests of the children. The court may reduce the property rights of a person in a marriage if:

• the citizen spent income to the detriment of family interests (lotteries, gambling, drug or alcohol use);
• the citizen did not have personal income for reasons that were not respected (Family Code of Ukraine).

The court determines the shares for the persons in the following expression: etc., and then, at the request of the spouses, the actual division of property in common ownership is carried out in accordance with the awarded amounts.

It is important to know that at any stage of the trial, the spouses can enter into a settlement agreement in which they independently establish the amount of property due to each other and thus complete the consideration of the case (Civil Procedure Code of Ukraine).

If it is not possible to allocate a specific share in the property, the spouses have the right to ask the court to establish a procedure for the joint use of such property.

Allocation of spouses’ shares in an apartment during property distribution

The residential premises may be in common or shared ownership of persons. If the apartment is characterized by shared ownership, then each owner can allocate his share from the common property by:

1. receiving living space in kind (i.e., part of the apartment is provided);
2. receiving payment in the form of monetary compensation for your share of the property.

If the property is in common ownership (i.e. without defining a specific part of the property), then the share can be established only after preliminary distribution of the residential premises between the owners.

When dividing property, the share in the apartment is determined based on its area and the number of owners. In this case, when calculating, the principle of equality of spouses should be taken into account.

Dividing an apartment into parts during divorce and division of property

Example

Husband and wife Egorov E.V. and Egorova R.G. When dividing a common apartment, they decided to establish parts in it for each of them. The area of ​​the living space is square meters, it is owned by two persons (Egorov E.V. and Egorova R.G.).

The allocation of a particle in an apartment occurs by mutual agreement of the parties or on the basis of a court decision.

The allocated property rights are subject to registration with government agencies, for example, in a multifunctional center.

Application, documents for determining the share of property of spouses during division

To do this you need:

• application;
• passport details of persons wishing to register (last name, first name, patronymic, place of birth, residential address);
• certificate of marriage registration or divorce;
• documents of ownership of the apartment;
• court order or agreement, which specifies the specific shares belonging to each;
• receipt for payment of the state fee.

After reviewing the submitted documents, individuals are issued a registration certificate confirming ownership of a certain part of the residential premises.

It is important to understand the difference between dividing common property and allocating a share from it. A share is determined without terminating the rights of other owners to the apartment, and division excludes these rights. Individuals who allocate their property are subsequently deprived of the opportunity to claim common property. When a division is made, the property belongs to the former owners in part of their shares.

Allocation of a part of a land plot during division of property

When dividing property, it is possible to allocate a share in the right of ownership of a land plot, with the consent of the spouses or by decision of the judicial authorities. The land plot must be in shared ownership of the persons.

When reaching an agreement, it is important to take into account the requirements of the law imposed on the changed land plots (LC of Ukraine – Land Code of Ukraine).

To allocate a share in court, it is necessary to apply to the court with a claim indicating the address, area, cadastral number of the property, documents confirming the right of ownership, and the desired size of the land plot parts for each.

The court may require land management, technical and construction expertise to establish the fact of possible allocation of a part on a given plot of land (Civil Procedure Code of Ukraine).

It is impossible to determine parts of a land plot for each of the spouses if the restrictions stored in relation to the formed plots of land do not allow its use in accordance with the required purpose (Land Code of Ukraine).

The actual distribution of a part of a land plot between the owners must comply with the land management project, which is subject to mandatory state expertise.

To register the right of ownership of a share in a land plot, it is necessary to prepare the following documents:

• documents confirming the identity of the spouses;
• application for state registration of rights;
• agreement on determining shares in the right of common property or a court decision;
• marriage certificate or divorce certificate;
• documents on the right of ownership of a land plot;
• cadastral registration documents for a real estate object;
• receipt for payment of state duty.

The documentation required for registration is submitted to the multifunctional center by citizens in person or by mail. The period for consideration of this issue should be more than working days.

Allocation of a share to a child during division of property

When dividing common property, parents should not forget about the rights and interests of their common children. They can allocate a share of the property for the child by agreement, or one of the spouses can go to court to resolve this issue.

It is important that things that are purchased exclusively for minors are not divided, but are transferred to the parent with whom the child will live in the event of a divorce.

Parents can independently determine the size of the child’s share in the division of property and transfer such property rights to children by:

1. Drawing up a mutual agreement;
2. Drawing up a gift agreement.

The court deviates from the principle of equality in the division of property if this is necessary to protect the legitimate interests of children, and may increase the share of the person with whom the child’s permanent place of residence is determined.

During the trial, the share for the child in the common property of the parents may be subject to mandatory allocation, but if such requirements are not stated, the property is divided equally between the spouses.

After the allocation of a share in the right, children become equal owners of the property. The sale of an apartment in which minors are share owners is impossible without obtaining permission from the guardianship and trusteeship authority. The guardianship authority verifies the fact that the sale does not violate the interests of the children.

Share of property of a child in case of divorce of parents

To register the minor’s right of ownership to a share in the property, at the discretion of the parents, it is possible to provide a deed of gift or agreement. These documents are submitted to a multifunctional center or other registration authority, with a list of the following acts:

• application for registration of a share in common property;
• identity documents of the parties (passport, birth certificate);
• copies of the deed of gift or transaction for the number of future owners, and one for the body carrying out registration;
• documents confirming the right of ownership of the property;
• receipt for payment of the state fee.

The review period for this documentation is about working days. After which a certificate of state registration of property rights for minor children with allocated shares is issued.

If the residential premises were purchased by spouses using maternal capital funds, then it is mandatory to determine the share in the housing for each child (ZUvid.. No.) and subsequent registration of this property right.

Answers of the lawyer on the allocation of a share of the property of spouses during the division of property

Determining the share of property of spouses in divorce

The division of property between spouses is one of the most pressing issues during family relations and divorce.

Citizens can avoid conflict situations by concluding a marriage contract, but in our country the use of such a document is still not a common occurrence. To allocate a share in the common property, individuals can enter into a transaction or go to court.

When determining what share of the property falls to the husband and wife, it is important that the common debts are distributed between them in proportion to the shares awarded to them.

The division of property occurs on the basis of the equality of the property rights of the spouses, but equality can be violated in the interests of their common children. In order for a share in the property to be officially recognized for a specific person, it is necessary to carry out state registration of this right in a specialized body.