Real division of property in kind

Real division of property in kind

The division of property of spouses, as well as the possibility of allocating a part of any of them in kind, is regulated by Art. – the Family Code of Ukraine (Family Code of Ukraine), as well as the Civil Code of Ukraine (CC of Ukraine).

At the same time, this issue is submitted to the judicial body for resolution in the order of claim proceedings, and the period for filing the relevant application is limited to three years, starting from the moment when the applicant learned and should have learned about the violation of his right.

Any property, including real estate, may be subject to allocation in kind, taking into account the features established by the Civil Code of the Russian Federation.

Limitation period for division of property in kind

According to the current legislation of Ukraine, the division of property can be carried out by spouses both during the marriage and after its dissolution. In most cases, this procedure is carried out either during the divorce process itself or immediately after its completion. Everything depends on which body is considering the application for divorce.

As a rule, in the event of a dispute over property, the interested parties apply to the court (Family Code of Ukraine). It is important to note that the “division” of such property can be carried out both in shares in the right and in allocation in kind. The main provisions concerning the procedure for carrying out the above-mentioned procedure are regulated by the Family Code of Ukraine, as well as the Civil Code of Ukraine and the Resolution of the Plenum of the Supreme Court of Ukraine

In turn, “former spouses” who want to divide their jointly acquired property often wonder how long they have to exercise this right, since such persons do not always resort to dividing property during the divorce process itself. To answer this question, it is necessary to remember such a concept as the limitation period.

Law on the actual division of property in kind during divorce

The Civil Code of Ukraine understands it as a period of time during which a person whose right has been violated has the right to file a claim in court to protect it. The Civil Code of Ukraine establishes general and special time limits for protecting violated rights (Article 10.1 of the Civil Code of Ukraine). This period is three years, i.e. equal to the general period provided for by civil law.

The determination of the beginning of the specified three-year period is not related to the fact of divorce, but based on the content of the Civil Code of Ukraine. Thus, this procedure can be delayed for a significant period.

The Investigative Committee of Ukraine does not say anything about cases when this period is missed by the interested party for any reason, but this does not mean that it cannot be restored in accordance with the conditions regulated by the Civil Code of Ukraine.

In exceptional cases, when the reasons for missing the deadline for filing the relevant statement of claim are valid, the court reinstates it and protects the rights of the applicant.

Statement of claim for division of property in kind between spouses

As noted earlier, the issue of dividing the jointly acquired property of spouses is subject to judicial resolution in cases where the parties have not reached an appropriate agreement. In this case, in order to file a claim with a judicial authority, the applicant must remember the requirements established by Art. – Civil Procedure Code of Ukraine (Civil Procedure Code of Ukraine).

Among the requirements for an application of this kind, it is worth noting that it must be in written form, indicating the following mandatory information:

• name of the judicial body (usually, when distributing property worth less, we are talking about a judge, in other cases – a district court);
• name and details of the parties to the case, their representatives (full name, residential address, telephone numbers);
• demands that the plaintiff insists on satisfying (in this case, we are talking about dividing the property and, if possible, in kind, and not just in part);
• circumstances to which the plaintiff refers in support of his claims, indicating evidence of this (i.e. information about the marriage and its termination, about the property acquired during this period of time, its characteristics, cost, who it is registered to, how it was purchased, etc.)
• the price of the claim is mandatory (determined based on the value of the property);
• list of attached documents;
• date and signature of the applicant (or his legal representative).
• The statement of claim for division of property must necessarily include the following documents:
• copies of the statement of claim (with all attachments) according to the number of participants in the case;
• a document confirming payment of the state fee;
• documents attesting to the circumstances of the case specified in the claim (its full list, marriage certificate and its dissolution (if this issue is not considered in the same court session), documents on the acquisition of the relevant property – contracts, checks, receipts, etc.)
• a document confirming the authority of the applicant’s representative;
• a calculation of the price of the claim signed by the plaintiff.

According to the Civil Procedure Code of Ukraine, this statement of claim is filed, as a rule, with the judicial body at the place of residence of the defendant, in some cases – with the plaintiff or at the location of the property.

The price of the claim and state duty for the division of property in kind between spouses

According to the requirements of the Civil Procedure Code of Ukraine, when drafting a statement of claim related to the division of property of spouses, it is mandatory to indicate the price of the claim. This is due not only to the fact that the court correctly determines the shares of the former spouses, but also to determine the amount of the state fee.

Therefore, according to the Civil Procedure Code of Ukraine, depending on the claims put forward, and also the property subject to distribution, the price of the claim may be determined as follows:

1. for monetary funds – based on their amount;
2. on the reclamation of property – based on its value;
3. on the right of ownership of a real estate object – based on the value of the given object.

It is important to note that if there are several demands in one statement of claim, the price of the claim is determined based on their totality. However, if the stated amount of demands clearly does not correspond to the actual value of the property, the price of the claim will be determined by the court itself upon acceptance of the statement of claim (there will be no refusal!).

Judicial practice of division of property in kind during divorce

Example

Zaitseva filed a claim with the court for division of property with her ex-husband. It includes 2 TV sets worth 5,000 UAH each, a 1-room apartment – 300,000 UAH (inventory value) and a cash contribution, which contains 7,500 UAH. In her claim, she noted that she wants to receive half of the specified property. The price of the claim in this case will be determined differently.

With the establishment of the price of the claim, everything is quite simple. However, questions may arise when the applicant determines the amount of the state fee based on it. In accordance with the Civil Procedure Code of Ukraine, the state fee is related to legal costs.

First of all, it is necessary to remember that the state duty is a fee collected from the payer for the performance of legally significant actions in relation to him by an authorized body or official. In this case, if this person applies to a court of general jurisdiction or to a judge, it must be paid before the moment of application.

In turn, the current legislation of Ukraine provides for benefits, deferral or installment payment for a number of categories of payers (Civil Procedure Code of Ukraine).

Settlement agreement on division of property and allocation of shares in kind

During any court proceedings, the plaintiff has the right to both waive the claim and conclude a settlement agreement (Civil Procedure Code of Ukraine). Claims for division of property and allocation of a share in kind are no exception to this rule.

An important circumstance that should be noted is that such an agreement should not contradict the requirements established by the current legislation of Ukraine and violate the rights and legitimate interests of other persons. At the same time, the acceptance of a settlement agreement by the court implies the termination of the case, which in turn deprives the parties of the opportunity to re-apply to the court with these requirements (Civil Procedure Code of Ukraine).

As for the content of the settlement agreement itself, related to the division of property and the allocation of a share in kind, the following information is indicated here:

• the names of the parties and their details;
• the case number and the name of the court where it is being heard;
• the terms on which the transaction is concluded (which property is transferred to which party, both in part and in kind, the amount of compensation if the parts are inappropriate when the allocation is made);
• references to the fact that the parties are aware of and understand the consequences of its conclusion;
• date and place of preparation;
• signatures of the parties (their representatives).

Division of real estate in kind during divorce of spouses

All the basic rules for the division of property of spouses, as well as the allocation of a part of it in kind, are defined in the Civil Code of Ukraine. This also applies to real estate (inextricably linked with land – Civil Code of Ukraine).

When considering this issue, let us dwell on such key points as:

1. The division of property in common ownership, as well as the allocation of a share in kind, can be carried out only after determining the share of each of the participants in such property.
2. In the absence of a corresponding agreement, the spouses’ shares are recognized as equal.
3. If this cannot be done by law or without causing damage to the entire property, the applicant is paid the value of his share (if he agrees to this).
4. If the allocated property and the applicant’s share do not correspond, compensation is also provided for by them to other participants in the property.
5. Upon receipt of the corresponding compensation or the value of the share, these co-owners lose their rights to the property.
6. It is necessary to issue new documents in the registration authority.

With regard to real estate, the rules on the division of property in kind do not apply to apartments (it is impossible to make separate utility rooms, a bathroom, a kitchen for each of the co-owners). For individual residential buildings (or households), this is possible – it is necessary to make a separate entrance, get a new address, and bring in additional communications.

It is also necessary to note in this question the land plot, which also refers to real estate objects. The allocation of their share in kind is possible and does not raise many questions.

Division of property in kind between spouses through the court

The study of the issue of the possibility of dividing the property of spouses, and especially in kind, does not always have an unambiguous interpretation. Therefore, to understand it, it is necessary to refer to the position of the highest judicial bodies. In particular, this includes the Resolution of the Plenum of the Supreme Court of Ukraine “On the application of legislation by courts when considering cases of divorce”, the Resolution of the Plenum of the Supreme Court of Ukraine “On some issues of the application by courts of the Law of Ukraine “On the privatization of the housing stock in Ukraine”, the Resolution of the Plenums of the Supreme Court of Ukraine and the Supreme Arbitration Court of Ukraine “On some issues related to the application of Part One of the Civil Code of Ukraine”, as well as the Resolution of the Plenum of the Supreme Court of Ukraine “On some issues of the practice of considering by courts disputes arising between participants in the common ownership of a residential building”.

They define the following:

• The value of the property subject to distribution is determined at the time of consideration of the dispute.
• The beginning of the expiration of the limitation period is determined based on the moment when the person learned or should have learned about the violation of his right, but not from the moment of the legal termination of the marriage.
• The allocation of property in kind during its division, in particular, when it comes to residential premises, presupposes the allocation to each of the participants in the property of a separate part of the common property, which entails the necessary reconstruction of the object.
• The possibility of determining the allocation in kind of a share of the divisible property is determined based on the conclusion of the relevant expert.
• Compensation for a share in the property during its division is an exception, subject to conditions expressly specified in the law.

Answers from a lawyer about the actual division of property in kind

Peculiarities of division of property in kind during divorce of spouses

When considering the topic of the “real” division of property between spouses, the following points must be noted:

1. The division of property can be carried out by spouses both during the marriage and after its dissolution.
2. This issue is considered by the judicial body on the basis of a statement of claim drawn up in accordance with the requirements of the procedural legislation of Ukraine.
3. In some cases, when the allocation of a share in kind is impossible, the applicant can receive appropriate compensation for it.