- Division of land in case of divorce
- How to divide a plot of land during a divorce?
- Agreement on the division of a land plot upon divorce
- Claim for division of land between spouses during divorce
- Documents for the division of a land plot during a divorce
- Judicial practice of dividing a land plot during divorce
- Court decision on the division of a land plot between spouses
- Contents of the court decision on the division of a land plot between spouses
- Judicial practice on the division of a land plot between spouses
- Division of land plots during division of property between spouses
- Peculiarities of division of land plot in case of divorce
Division of land in case of divorce
Most often, during the dissolution of marriage, spouses face the problem of distribution of common property. According to the Family Code of Ukraine, common property is all types of things that were acquired by the spouses (including one of the spouses) during the period of marriage.
The land acquired during the marriage period is also the common property of the spouses, therefore the rules of the SC on the division of jointly acquired property apply to it. However, since the land is a special object of civil turnover, the division of the land plot will be regulated not only by the norms of the SC of Ukraine, but also by the Civil Code of Ukraine and the Land Code.
How to divide a plot of land during a divorce?
The Land Code of Ukraine contains a number of requirements that apply to the parameters of a land plot. Among them, the Land Code of Ukraine defines the maximum dimensions of the newly formed part of the land (i.e. when a plot is divided between spouses, two new ones are formed). Each of the newly created ones must meet the requirements of land legislation.
When dividing land between spouses, it is important that the size of the new plots is not less than the indicator established by law. There is no single indicator of the maximum and minimum size. It differs depending on the region of Ukraine. For example:
- In the Kyiv region, the minimum size of land plots for gardening is 0.06 hectares, vegetable gardening – 0.04 hectares, dacha construction 0.06 hectares,
- in the Kharkov region – 0.04 hectares, 0.03 hectares, 0.06 hectares, respectively.
Agreement on the division of a land plot upon divorce
One of the ways to divide the common property of spouses is an agreement on the division of common property (Family Code of Ukraine). An agreement is a document that has legal force and establishes partial or private ownership of the property subject to distribution. The procedure for concluding a transaction is possible if both spouses express their consent to this document.
In the agreement, the parties indicate the last name, first name, patronymic of each, the location of the land plot, the document on the basis of which the land plot came into their common ownership. Both parties sign the agreements and put the date of the document. Then the division method is possible:
- As a result, two plots of land are formed, which become the personal property of each of the spouses.
- One of the spouses retains the land as personal property. The parties may stipulate that the second spouse is paid monetary compensation for this.
According to the Family Code of Ukraine, it is not necessary to certify the agreement with a notary (it is necessary only if both or one of the parties so desires). However, notarization of this agreement in the event of a dispute will be of great importance and in some cases will allow the problem to be resolved without going to court.
An agreement can be drawn up before the dissolution of the marriage, during the divorce, and even after, if the issue was not settled during the divorce. It is possible to create an agreement that would regulate the division of all common property of the spouses or establish the right of ownership of the spouses only to a land plot.
Claim for division of land between spouses during divorce
When a married couple cannot come to a consensus on the distribution of land, one of the spouses should apply to the court with a claim for the division of the land plot. Requirements for the content of the claim are contained in (Civil Procedure Code of Ukraine). It must include:
- The court to which the claim is filed.
- The plaintiff’s (the person filing the claim to the court’s court) last name, first name, patronymic, and place of residence.
- The defendant’s (the person to whom the claim is filed) last name, first name, patronymic, and place of residence.
- The plaintiff’s demands. In this case, the division of a land plot.
- The circumstances on which the demands are based.
- The price of the claim.
- Documents confirming the content of the claim.
- The date of filing the claim.
- The plaintiff’s signature.
Documents for the division of a land plot during a divorce
The documents are attached to the statement of claim. First of all, a copy of the statement of claim for the number of defendants (when dividing a land plot between spouses, statements of claim are filed), a receipt for payment of the state fee.
It is also necessary to provide all documents substantiating the stated claims. These include:
- Cadastral passport for the land plot;
- Documents confirming the acquisition of ownership rights from spouses (for example, a purchase and sale agreement).
The plaintiff files a claim in the court that has jurisdiction over the land plot (according to its location). In this case, the rule on filing a claim at the defendant’s place of residence does not apply.
Judicial practice of dividing a land plot during divorce
Example
Spouses Fedechkin Lyubov and Gennady, living in the Leninsky District of Novosibirsk, had a land plot in common ownership, located in the territory of the Zhovtnevy District of Novosibirsk. The Fedechkin decided to dissolve the marriage and filed an application to the civil registry office. At the same time, Lyubov decided to divide the land plot and filed a claim for the division of the land plot in the Zhovtnevy District Court of Novosibirsk.
The choice of the court considering the dispute depends on the value of the claim (the cost of the land plot). In accordance with the Civil Procedure Code of Ukraine, if the value of the claim is less than fifty non-taxable minimums of citizens’ income, the dispute is subject to consideration in court. If the value of the claim exceeds the specified amount, the district court will consider the claim for division of property. Since the land plot, as a rule, has a high value, almost all disputes are considered by district courts.
Court decision on the division of a land plot between spouses
At the end of the trial, the judge issues a court decision. The decision is based on the evidence of the parties presented during the court hearing. The judge takes into account all the circumstances that are relevant to the case and studies the documentation.
In a court decision, the division of a land plot is possible in two ways:
- The land plot is divided into parts, each of which becomes the personal property of the spouses. According to the Family Code of Ukraine, the spouses’ parts are recognized as equal when dividing common property.
- The land plot is classified as indivisible (if, in the event of division, the size of the new land plots is below the minimum limit established by law), therefore it completely becomes the property of one of the spouses, who must pay monetary compensation to the other.
The court may also conclude that the land plot is not subject to division if it belongs to one of the spouses on the basis of personal ownership. This is possible when the land plot was acquired by one of the spouses before marriage, or was acquired under a gift agreement or by inheritance (Family Code of Ukraine).
Contents of the court decision on the division of a land plot between spouses
In this case, the court decision establishes the boundaries, area, and cadastral number of each land plot. Based on the court decision, the spouses draw the boundary of the land plot, obtain new cadastral numbers from the local government, and then apply to the cadastral registration authority to register the property rights.
After the court decision comes into legal force (one month from the date of its issuance), it must be executed. This means that each man must vacate the land plot of the second spouse, not exploit the personal fate of the second spouse, and not interfere with the use of the land plot by the owner. Some spouses voluntarily perform the following actions.
If one of the parties prevents the execution of a court decision, the other party has the right to contact the relevant authorities. The State Executive Service is the specialized body for the enforcement of court decisions. Therefore, the man, together with the writ of execution, must contact the bailiff service with a statement about the violation of enforcement proceedings. Based on this statement, the bailiffs take appropriate measures.
Judicial practice on the division of a land plot between spouses
Having analyzed the judicial practice of recent years, we can conclude that the possibility of redistributing a land plot depends on a number of circumstances. These include:
- Intended purpose of land. According to the Land Code of Ukraine, lands are divided into certain categories, the legal use of these lands is carried out in accordance with their intended purpose, therefore not all lands can be privately owned by citizens of Ukraine.
- Size of the land plot. As noted above, when divided, the formed land plots must correspond to the minimum and maximum sizes established in the legislation of the subject of Ukraine in whose territory they are located.
- Types of rights to a land plot. In accordance with land and civil legislation, a land plot can be owned not only by right of ownership, but also by right of lifelong inheritable possession and permanent indefinite use (Civil Code of Ukraine).
- The division of such land plots is not allowed.
- The division of a certain land plot in any case should not violate the requirements of the land law.
When making a court decision, the court determines whether all the standards and requirements of the laws will be preserved when dividing the land plot. To do this, all documents containing information about the land plot submitted together with the statement of claim are studied. To obtain such documents, cadastral work must be carried out.
Division of land plots during division of property between spouses
When dividing a land plot, regardless of its method (drawing up a transaction or going to court), it is always necessary to conduct land surveying. Surveying means carrying out certain works to establish the boundaries of a land plot and its other data.
Such works are carried out by special companies, as well as independent cadastral engineers specializing in engineering and geodetic, cadastral and other types of services. As a result of surveying, a boundary plan is drawn up. In accordance with the Law of Ukraine “On the State Real Estate Cadastre”, a boundary plan is a document that contains information about the formed land plots.
As a result of cadastral works, including boundaries, the preparation of documents required for the division of a land plot is ensured. If the division is carried out by agreement, all these documents must be submitted to the cadastral registration authority for registration of land plots.
When resolving a dispute in court, the boundary plan, along with other cadastral documents, should be sent to the court along with the statement of claim. If these documents are not submitted, the judge will leave the statement of claim without action (Civil Procedure Code of Ukraine), providing a certain period for the submission of the necessary documents.
Peculiarities of division of land plot in case of divorce
The division of a land plot has its own peculiarities, since the requirements for land plots are especially regulated by law. As with any division of common property, the following methods are provided: drawing up an agreement on the distribution of common property and filing a claim in court.
The peculiarities of the division are that before starting this procedure, it is necessary to carry out cadastral work, including land surveying. All this is aimed at determining the boundaries, the area of the formed land plots, and also preparing the necessary documentation. Only after surveying and receiving a cadastral plan can you go to court or to the State Register of Rights to Real Estate.
