Division of property sold by a man

Division of property sold by a man

The sale of joint property by one of the spouses without the consent of the other spouse does not prevent its division. However, for the actual division of the sold things, it is necessary to recognize the invalidity of the transaction by which they were alienated. If such a transaction concerned real estate, the fact of the absence of consent of the spouses to the sale will be sufficient for denial, but if other things – it is necessary to prove that the buyer knew about the absence of consent of the second spouse.

If it was not possible to recognize the invalidity or there were no conditions for this, then the interested man has the right to demand compensation from the male seller, the amount of which will be calculated in proportion to his share in the common property based on the market value of the item sold. 

Family lawyer

Skryabina Darya Sergeevna

Candidate of Law

Hello! In this article I will talk about the division of property sold by a man, whether it is possible to divide common property sold by a husband without the knowledge of his wife, judicial practice of dividing property sold by a man during a divorce, the basis for invalidating a transaction for the sale of property made by one of the spouses.

Is it possible to divide common property sold by the husband without the knowledge of the wife?

According to the Family Code of Ukraine, the ownership, use and disposal of common property is carried out by spouses by mutual consent, which, however, when making transactions with such property is presumed (initially provided for).

The presumption of consent of one of the spouses to dispose of joint property allows the second spouse to sell jointly acquired things to anyone freely, legally and without any obstacles, without asking the consent of the other spouse.

However, even after the sale of common property, the man whose rights have been violated can demand the division of the sold thing. To do this, he must be against the sale of the thing. Let’s consider the methods of division in more detail:

• Thus, if the buyer of the common property knew that the seller had a former spouse who had claims to this property, knew about the controversial nature of this property or about the lack of consent of the spouses to sell it, then in accordance with paragraph. of the Family Code of Ukraine, such a purchase and sale agreement may be recognized by the court as invalid. However, for this, the second spouse will need to prove that the buyer really knew about the lack of consent.
• If the court finds the evidence provided sufficient, it will recognize the agreement as invalid, which, according to the Civil Code of Ukraine, will entail the restoration of the legal regime of joint property of the spouses over the sold thing. Then it will be divided in the usual manner – by concluding a transaction or by filing a claim for distribution in court.
• If the buyer did not know about the presence of a man, the controversial nature of the property or the lack of marital consent to the alienation of common property, the court will definitely refuse the claims for recognition of the purchase and sale as invalid. In this case, it should be considered that the male seller, who received a larger share of the property than fate assigns to him.
• According to the Family Code of Ukraine, if one of the spouses receives property whose value exceeds their share in the right of common property, the other spouse is awarded compensation to cover such discrepancy. Such compensation may be expressed in cash or a larger share of the common property.

Judicial practice of dividing property sold by a man during divorce

Example

Citizen B filed a lawsuit with her ex-husband T to divide their jointly acquired property, one of the demands of which was to recover compensation from T for a portion of the apartment sold by him after the divorce. She substantiated her claim by the fact that the apartment was purchased during the marriage, and therefore was joint property (Family Code of Ukraine). The divorce did not terminate the regime of joint ownership of the apartment, therefore its sale, according to the Civil Code of Ukraine, required B’s consent. Since T sold the apartment without her consent, he received a portion of the property greater than his ½ share, which, according to the Family Code of Ukraine, required B to be awarded compensation.

Agreeing with B’s arguments, the court divided the spouses’ property in half, and also obliged T to pay B compensation equal to half of the proceeds from the apartment.

Invalidation of a transaction for the sale of common property during division

The recognition of the invalidity of any agreement, including the transaction for the sale of common property, as well as the application of the corresponding consequences of its invalidity, according to the Civil Code of Ukraine, is carried out in court. To do this, a man whose property rights are violated by such an agreement must file a claim in court, in which he will lay out the essence of the problem and ask to recognize its invalidity.

If the man can prove his case and the court rules on the invalidity of the sale of joint property, then according to the Civil Code of Ukraine, each party is obliged to return everything they received under the agreement. So, returning back to the seller, the previously sold thing again acquires the regime of common property.

The absence of general grounds for invalidity specified in the Civil Code of Ukraine when concluding a purchase and sale transaction is not an obstacle for the interested spouse when appealing – for the purposes of dividing common property, a completely different special ground arising from the legal regime of the spouses is subject to application. Let us consider it in more detail.

Grounds for invalidating a property sale transaction made by one of the spouses

To recognize an agreement concluded by one of the former spouses regarding their jointly acquired property as invalid, the legislator has provided a special basis. Thus, according to the Family Code of Ukraine, an agreement on the disposal of joint property may be recognized by the court as invalid due to the lack of consent of one of the spouses to its execution. In this case, the following aspects must be taken into account:

1. In general cases, when such an agreement is aimed at alienating the spouses’ movable property and does not require either registration or notarization, the condition for recognizing invalidity is proving the fact that the buyer knew or should have known about the lack of consent of the second spouse to the sale of such property.
2. The burden of proving this fact rests with the male plaintiff. Obviously, the possibility of proving the buyer’s awareness of the lack of consent of the second spouse depends on the circumstances of each specific case, but in any case it seems quite difficult. Indirect evidence of such awareness may be the fact that the buyer knew about the procedure for distributing property and its controversial nature.
3. If the agreement on the alienation of joint property is aimed at selling real estate and requires registration or notarization, then for its implementation a notarized consent of the second spouse is required (Family Code of Ukraine). The absence of such consent is also grounds for recognizing the invalidity of such an agreement, however, the condition of proving the fact of the buyer’s awareness of its absence does not require compliance.
4. The invalidity of the transaction may be recognized by the court even if the second spouse gave oral consent to the alienation of common property, but the conditions on which it was given were not met (for example, the sale of an item at a price significantly lower than that considered by the spouses). The procedure for recognizing the invalidity of a contract for the sale of a joint plot of land between spouses during division.

Recognition of the invalidity of a transaction with common marital property is possible only by a court, within the framework of ordinary litigation. To do this, the interested man initiates the appropriate consideration of such a case in court by filing a statement of claim.

Agreements concluded by one spouse regarding common property without the consent of the other spouses are contestable. Based on this, the limitation period for appealing them in court is one year (Civil Code of Ukraine), from the moment when the man whose rights were violated learned or should have learned about the conclusion of this agreement.

An analysis of judicial practice in considering such cases allows us to identify a typical procedure for recognizing the invalidity of transactions for the sale of jointly acquired property of spouses, consisting of the following stages:

• Collection of evidence and preparation of documents. Since the burden of proving the facts to which he refers in support of his claims will be placed on the applicant, according to the Code of Civil Procedure, the plaintiff-wife must prepare in advance all possible documentary evidence, as well as other documents that may be required, in particular:

1. a copy of the statement of claim;
2. a copy of the contested agreement or other documents confirming the conclusion of the disputed agreement;
3. a ​​copy of the marriage certificate;
4. documents confirming the owner of the disputed property, as well as its being in the joint ownership of the spouses;
5. other documents confirming the circumstances set out in the application.

• Payment of state duty. Before filing a claim, the plaintiff wife must pay a state duty for the consideration of the case, which is being prepared. A receipt for its payment must be attached to other documents and submitted to the court along with the claim (Civil Procedure Code of Ukraine).
• Drawing up and filing a statement of claim. The claim must set out in chronological order all the events of the situation, starting from the moment of acquisition of the disputed property. It is imperative to indicate the absence of the plaintiff’s consent to the sale of the property, as well as the awareness of both the second man and the buyer about this. The claim itself is filed with the court at the place of residence of the defendant (Civil Procedure Code of Ukraine) or at the choice of the plaintiff (Civil Procedure Code of Ukraine).
• Consideration of the case and rendering of a decision. During the process, all the circumstances specified in the claim will be studied in detail. If the plaintiff’s claims are valid and the necessary evidence is available, the agreement will be declared invalid. The court decision will enter into force after ten days from the date of its issuance (Civil Procedure Code of Ukraine). Then the property regime of the spouses will be restored, which will allow dividing the disputed property in the general manner.

Compensation for a share in the sold property of spouses during divorce

In cases where the plaintiff wife was denied recognition of the invalidity of the disputed agreement or the conditions for its recognition were simply absent, the man whose property rights were violated can only claim compensation for her share in the disputed property sold. The right to such compensation arises for the man, given that in fact the male seller received a part of the property in excess of his share (Family Code of Ukraine).

As a rule, the amount of such compensation is determined in monetary terms based on the market value of the property at the time of its sale. In this case, it does not matter for what specific price the property was sold – the plaintiff has the right to demand compensation in the amount determined specifically by the market value.

The legislator allows for the provision of such compensation in another form, for example, by allocating to such a wife a larger amount of property, proportional to the cost of the part of the sold item. To obtain such compensation, it is necessary to take into account other nuances:

• Allocation of compensation is possible by agreement. This can be done by concluding an agreement on the payment of compensation, and if all other property has not yet been divided, by concluding an agreement on the division of property. The amount of compensation determined by such an agreement can be any – compliance with the proportionality of the share in the sold item is not mandatory.
• If it was not possible to agree by agreement, recovery of compensation for the share in the sold property is possible in accordance with the procedure. In this case, the man must file a corresponding claim with the court.
• If the division of the rest of the property has also not been made, compensation for the share in the sold item can be obtained by filing a claim for the division of common property with an additional requirement for the allocation of compensation. In this case, its amount will be proportional to the size of the share due to the plaintiff, which in general cases is equal to / of the cost (Family Code of Ukraine).

The mechanism for dividing property sold by a man before divorce

The existence of mechanisms for dividing common property sold without the consent of one of the spouses gives grounds to assert the full protection of the property rights of former spouses. At the same time, the implementation of these mechanisms in life, especially in the actual division of sold movable property, seems quite problematic.

In particular, the biggest problems for spouses whose rights are affected arise when proving the knowledge of former spouses and buyers in transactions about the lack of consent to the sale of common property, which is a mandatory condition for the restoration of the joint ownership regime over the sold item. In cases where the payment of compensation does not cover the losses of such a man, there is no need to fully protect his rights.

Answers from a lawyer about the division of property sold by a man during a divorce

Family lawyer

Alexey Nikolaevich Skryabin

Doctor of Law

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