Division of property in shared ownership

Division of property in shared ownership

The division of property of spouses, which is in their common shared ownership, is carried out:

• by signing an agreement;
• in the absence of consent – in court.

The division agreement is a document by which the parties independently regulate the procedure, methods and volumes of property to be allocated. For judicial resolution, one of the owners must file a claim.

A requirement for division may also arise when considering other property and non-property disputes between spouses. If it arises for the defendant, he has the right to file a counterclaim. However, if the subject of the dispute is an apartment, this will not give any result – its natural division is impossible. In such cases, as well as in cases where the allocation of a share is not allowed by law, the allocated person has the right to claim monetary compensation.

Agreement (contract) on the distribution of property in common shared ownership

According to the marriage contract signed by the spouse, their common property can be transformed into common shared property. The spouses’ shares in common property are established as ideal, etc. If they wish, they have the right to carry out an actual division of their property or allocation of a share in kind, which will terminate the common property regime.

According to the Civil Code of Ukraine, spouses have the right to divide their property or allocate parts of one of them by mutual consent. To do this, they must conclude an agreement under which they will carry out a subject-by-subject division of property.

Such an agreement concluded between spouses will take the form of a bilateral agreement.

Contents of the agreement on the division of property of the common shared property of spouses

Since family law does not regulate such legal relations between spouses, the norms of civil law will apply to the agreement. The agreement between spouses on the division of shared property must contain:

• the date and place of its conclusion, as well as full details of the spouses;
• the subject of the transaction, which is the division of shared property with an indication of each item included in it and subject to distribution;
• the method of division or allocation of a share in kind used by the spouses. Please note that the division of shared property or the allocation of a share in kind is only permissible in cases where this is not prohibited by law and when the division will not cause undue damage to the thing. If the division and allocation of a share in kind are not permissible, the spouses may provide for other methods, for example, the sale of a specific item and the distribution of proceeds or compensation (Civil Code of Ukraine);
• the rights and obligations of the parties, within the framework of which the spouses determine, item by item, which items from the common property are allocated to the private property of each of them. The indication of the items must contain individualizing characteristics of each of them, allowing it to be distinguished from other items. In the event of a discrepancy between the allocated property and the size of the share, the agreement must provide for the amount, procedure and terms of payment of compensation;
• the procedure for transferring the divided property to each of the parties, the moment the agreement comes into force, the moment of termination of shared ownership of property, etc.

Judicial practice of dividing the common shared property of spouses during divorce

According to the marriage contract, all property acquired by B and K during the marriage was subject to the regime of common shared ownership. Over the years of marriage, they acquired: a home theater, a washing machine, kitchen furniture, a refrigerator, an armored entrance door, mobile phones, for a total cost.

After two years, B and K decided to get a divorce. They divided the common property by signing an agreement, according to which B received a refrigerator as part of her share, as well as compensation, and K, in turn, received everything else and paid compensation.

Statement of claim for division of property in shared (shared) ownership

If the spouses cannot agree on the method of dividing the shared property and allocating the share of one of them or on the amount of property to be allocated to each of them, the issue is resolved in court. To do this, the wife to be allocated must file a claim with the court at the defendant’s place of residence (Civil Procedure Code of Ukraine) or at her own discretion (Civil Procedure Code of Ukraine) with a demand for the allocation in kind of the share in the common property due to him (Civil Code of Ukraine).

The submitted statement of claim is drawn up as a written document, its content must meet the requirements of the Civil Procedure Code of Ukraine, otherwise the claim for the correction of the deficiencies established by the court will be left without action.

Before filing such a claim that a wife is allocated, it is necessary to pay a state fee, the amount of which will be determined according to the rules established by the Civil Code of Ukraine, based on the price of the claim. The price of the claim, in turn, will be determined based on the value of the property, the allocation of which, in lieu of his share, the male plaintiff will claim (Civil Procedure Code of Ukraine).

Statement of claim for division of joint property of spouses

In addition, the plaintiff must take into account that:

• The statement of claim must contain a detailed description of the circumstances of the emergence of shared ownership of common property between the spouses, the size of the shares belonging to each of them and the circumstances requiring the allocation of the share in court (failure to reach a mutual agreement on distribution).
• The claim must also contain a description of the property included in the shared ownership, a demand for their distribution and the allocation in kind of specific things, which, in the opinion of the plaintiff, will be proportional to the share due to him in the right of common ownership, as well as justification for the correctness of the calculation of the price of the claim and the justification of such requirements by the norms of legislation.

Documents for the division of shared property of spouses through the court

Along with the statement of claim, the plaintiff must provide the court with a number of documents, an approximate list of which is established by the Civil Procedure Code of Ukraine.

Among them we can highlight:

1. Copies of the statement of claim in accordance with the number of parties;
2. Receipt for payment of the state fee;
3. Title documents for each of the items included in the common property
4. Documents confirming the right of ownership of the common property, indicating the size of the spouses’ shares;
5. Documents confirming the value of the common property;
6. Other documents, depending on the circumstances set out in the statement of claim.

Counterclaim for division of property in common shared ownership

A claim for division of property in common shared ownership may arise for one of the spouses in the course of legal proceedings on other matters, for example, divorce, disputes over the place of residence of children or any other property disputes between spouses. If such a claim arises for a man who is a defendant in the case, he has the right to file a counterclaim for the distribution of shared property within the framework of this process.

According to the Civil Procedure Code of Ukraine, a counterclaim is filed by the defendant for a decision on the original claim and is accepted by the court according to the general rules for accepting a statement of claim specified above. At the same time, regardless of jurisdiction, a counterclaim for the distribution of shared property is considered by the court considering the original claim (Civil Procedure Code of Ukraine).

The provisions of the Civil Procedure Code of Ukraine define the list of conditions, in the presence of one of which, consideration of the claim for the division of the shared property of spouses is permissible within the framework of a counterclaim.

Acceptance of a counterclaim for the division of the common shared property of spouses

Thus, acceptance of a counterclaim is permitted:

• If the counterclaim is aimed at offsetting the claims of the original claim. In particular, if the original claim included a claim for recovery of the amount of debt from the spouses, then the counterclaim may include allocation in kind of common property, taking into account the debt under the original claim.
• If the satisfaction of the counterclaims will completely or partially exclude the possibility of satisfying the original claims. Such a situation may arise, for example, if the original claim included a claim for recognition of the right of ownership of real estate of one of the spouses, while the counterclaim for the distribution of shared property requires the allocation of part of such property to the other man.
• If there is a connection between the counterclaim and the original claim, and their joint consideration will speed up and allow for the correct resolution of disputes. This is the most common condition that allows filing counterclaims for any disputes arising from the family law relations of the spouses.

Division of an apartment in shared ownership between spouses

Real estate that is in the shared ownership of spouses can be divided in kind between them, by concluding an agreement or by court order (Civil Code of Ukraine). Such a division will involve the transfer of parts of the apartment to the ownership of each of the spouses, proportionally to the shares allocated to them. In this case, the resulting parts must have the characteristics of an individually defined thing, that is, be separate real estate objects, in relation to which an inventory and technical accounting have been carried out.

At the same time, the Supreme Court of Ukraine established that the allocation of a part of an apartment in kind to the owner of a share in the right of common ownership is permissible only if there is a technical possibility of isolating not only the rooms, but also other premises – the kitchen, bathroom, corridor, as well as a separate entrance.

Thus, the possibility of dividing in kind their shared apartment between spouses depends on the ability to allocate in kind utility rooms and a separate entrance.

Its absence excludes the possibility of dividing the property between spouses, even if it is allocated by a person, the question of distributing utility rooms is not raised, and only living rooms are allocated. At the same time, the court, at the request of the plaintiff, has the right to determine only the procedure for using the shared apartment.

Judicial practice on the division of property of spouses in common shared ownership

The division of property of spouses, which is in common shared ownership, is carried out by the court only in cases where the parties are unable to independently resolve these issues by concluding a mutual agreement. In such cases, law enforcement and judicial practice is unambiguous, even despite the need to take into account the specifics of each case and the interests of each of the spouses. Let us consider the main aspects arising from court decisions on cases of division of shared property:

1. Only those things are subject to distribution between spouses in kind, the division of which is not prohibited by law or will not cause the thing undue damage, as a result of which it can be used for its intended purpose (Civil Code of Ukraine). If division in kind is impossible, the courts, by agreement, allocate, assign him compensation for that part of the thing, the allocation of which in kind is impossible (Civil Code of Ukraine).
2. The allocation of property from shared ownership is carried out by the courts in proportion to the shares owned by the parties to the process. If the volume of things included in the shared ownership does not allow for an equal division, one of the spouses is awarded a larger part, and the other is awarded compensation for the discrepancy (Civil Code of Ukraine).
3. According to the courts, the actual division of residential real estate is permissible only if there is a technical possibility of isolating living rooms, utility rooms and equipping a separate entrance. Thus, division in kind is permissible only with respect to residential buildings – with respect to apartments and rooms, the allocation of their part is not permissible. In any case, the possibility of allocation must be determined based on the results of a forensic technical examination of the premises.
4. Often, along with the actual division of residential premises, the courts carry out the division of land plots. In this case, the fate of a land plot can only be determined after the actual division of the residential building located on it. The division itself is carried out taking into account the unity of the land plots and the objects firmly connected to them.

The issue of dividing the shared property of spouses is considered by the courts on an equal basis with other legal entities, which excludes the possibility of taking into account certain features established by the Family Code of Ukraine, for example, the possibility of deviating from the principle of equality of shares.

Answers from a lawyer on the division of common shared property of spouses

Division of joint property of spouses in case of divorce

Property issues often become the cause of quarrels between spouses and, subsequently, family breakups. The regime of shared property of spouses, established, in particular, by a marriage contract, allows to avoid such problems. However, the division in kind of such property is carried out according to civil law, which does not allow, in particular, to take into account the rights of children during the division. At the same time, this is quite logical, since the partial property of spouses is in different planes of law compared to family relations.