The fate of a mortgage during a divorce depends primarily on how it is issued: for one of the spouses or for both, before or after the wedding, and therefore you need to think about this in advance, before marriage and before applying for a loan. If divorce is inevitable, then it is always better to try to resolve the issue out of court. Going to court is a measure that should be taken as a last resort.

Most often, the mortgage is taken out by one of the spouses, and the other “helps” him pay the loan. In this case, what will happen to the mortgage during a divorce?

Yuliy Rovinsky, Yulawyer at the Yukov and Partners Bar Association:

In this case, the debt between the spouses can be divided by the court, but the situation does not change for the bank. That is, if the second spouse (who is not a party to the agreement) does not pay the amounts due from him, the bank will still file a claim against the spouse who is a party to the agreement, and the latter, in turn, has a recourse claim against the other spouse, who evaded payment. The apartment will be jointly acquired property even if the agreement is concluded with only one of the spouses.

What happens when divorcing an apartment if one of the spouses bought it with a mortgage in their name before the wedding?

Pavel Ivchenkov, lawyer at Delovoy Farvater:

Mortgage payments and the apartment itself, purchased on credit, remain after the divorce to the spouse who took it in his name before the wedding. Everything that was purchased and registered before the wedding is not considered jointly acquired property and after a divorce remains with the spouse who purchased and registered it. The second spouse has no right to claim this. But if he proves that he contributed a significant part to such a mortgaged apartment, he will be able to claim a share in it through the court. An essential part is, for example, payment for expensive repairs or payment of part of the mortgage. But it is necessary to prove that the second spouse spent his personal money on this, and not from the family budget. To do this, you need documentary evidence (payment documents: checks, receipts, bank statements).

In this case, can one of the spouses for whom the mortgage agreement has not been drawn up count on reimbursement of part of the payments?

Yuliy Rovinsky: There are two opposing opinions on this matter: some lawyers believe that the spouse can claim part of the payments, others that he cannot. On the one hand, we can say that the second spouse does not have the right to claim part of the payments under the loan agreement. This is explained as follows: payments are made from the common income of the spouses, and sharing common expenses seems problematic. On the other hand, in judicial practice there are isolated cases of such compensation, but the motivation seems doubtful. In positive cases, the courts give quite ornate reasons for their decisions, but this does not affect the final result. The argument in favor of such a “deprived” spouse is that the rights to claim obligations arising in the interests of the family are taken into account when dividing property. Thus, in this case, a lot depends on the specific situation.

As for judicial practice, there is little on this issue. I have found only one solution recently, and in this decision the court concluded that the spouse has the right to payments. It must be remembered that judicial practice, although it demonstrates the general approach of courts to considering a group of similar cases, is not mandatory for them: only clarifications of the Supreme Court are mandatory. Therefore, even where practice has been formed, there are radically different decisions on the same issue, and even where it has not been formed, it is very, very difficult to predict anything at all.

What should you think about “on the shore” before taking out a mortgage for two?

Yuliy Rovinsky: Before becoming co-borrowers, it is worth thinking about the consequences that may occur in the event of a divorce. In our opinion, the main risk for each of the borrowers is the fact that he [the borrower] remains a joint and several debtor of the loan to the bank, regardless of what rights to the apartment he retains. In other words, even if the apartment became the property of one of the spouses after a divorce, the risk remains that in case of non-payment, the bank may make a claim against the other spouse, who no longer has ownership rights to the housing.

Pavel Ivchenkov: To avoid problems, you need to draw up a written agreement on what to do with the mortgage and apartment in the event of a divorce. It must state who will get the apartment (one of the spouses or will be divided into shares), who will receive compensation (if one of the spouses renounces his share), who will then pay the mortgage. This agreement must be executed by a notary. It is also worth agreeing with the bank and stipulating in the mortgage agreement what will happen to the mortgage and apartment in the event of a divorce of the borrowers. Some banks agree to include these clauses in the mortgage agreement.

How to get a divorce in a civilized manner if there is a mortgage for two?

Yuliy Rovinsky: If the concept of “civilized” implies the ability to divide property and debts without going to court, then doing this is quite problematic. However, when reaching agreement between spouses on property issues, there are ways that will allow you to get by with “little bloodshed.” If the spouses have agreed that upon division each will receive 1/2 of the ownership of the apartment, then after completing the appropriate procedures with the registrar's authorities, they should apply to the court with an application to divide the amount of debt and interest on the loan. Court practice on this issue is ambiguous, but the most recent decisions give a positive answer.

Pavel Ivchenkov: A “civilized” divorce can only be achieved through a peaceful pre-trial agreement. It is better to involve lawyers for this and have all agreements drawn up in writing and notarized. Spouses can either divide the apartment and the mortgage payment into parts (equal or whatever they want), or one of the spouses will give up his share in the apartment in favor of the second, but then the mortgage will be paid by the spouse who receives the entire apartment. In the second option, the spouse who refuses the apartment can do so for free or receive compensation for his share from the second spouse (the so-called “compensation”) - this is at the discretion of the person himself. If he renounces his share in the apartment, the spouse must contact the bank so that it transfers his part of the mortgage debt to the second spouse, who will receive the apartment. There is also a third option - the spouses can sell the apartment purchased with a mortgage, pay the remaining debt to the bank from the amount received, and divide the rest of the money at their own discretion. Any of the actions described above requires permission from the bank, because with a mortgage the apartment is pledged. Thus, Article 391 of the Civil Code of the Russian Federation states that the transfer of a debt from a debtor to another person can be made by agreement between the original debtor and the new debtor. In this case, the debtor's transfer of his debt to another person is permitted with the consent of the creditor and in the absence of such consent is void. And the mortgage law prohibits performing any actions with the collateral without the permission of the mortgagee, i.e. in this case the bank.

What to do if you couldn’t get a divorce in a civilized manner?

Pavel Ivchenkov: If a civilized divorce did not work out when the mortgage was issued for two spouses, then there is only one option left - going to court. In this case, each of the parties will present their demands and their justifications to the court, and the court will decide how to divide the apartment purchased with a mortgage, and who will pay it in what shares. True, in such cases the court always involves a third party - the bank. As a rule, the court makes one of the following decisions:

The apartment becomes the property of one of the spouses together with the obligations to pay the remaining part of the mortgage. In this case, the court collects compensation from the wife in favor of the husband in the amount of half of the paid value of the mortgage. That is, for example, the apartment goes to the wife along with the mortgage debt, and the husband gets compensation.

The apartment is divided between the spouses into shares (most often into equal shares, but the share of the spouse who will directly live with minor children can be increased), and each spouse pays the mortgage for their share independently. No compensation is awarded to either spouse.

How will the paid and remaining payments be divided in the event of a divorce?

Pavel Ivchenkov: If during a divorce one of the spouses abandons the apartment in favor of the other, then he can claim compensation, usually in the form of half the cost of the apartment. In this case, the spouses can agree among themselves on the amount of compensation independently; they know better who is owed what.

There are cases when the second spouse receives compensation in the amount of the mortgage debt already paid at the time of divorce (i.e., the first spouse buys out the mortgage from the second or buys out the part that the second paid from his income), and the remainder of the debt is paid by the one to whom I got the whole apartment. If the spouses cannot agree, the amount of compensation is determined by the court. As a rule, the court simply divides the market value of the apartment in half or divides the cost of the mortgage in half (finds it out from the bank).

If during a divorce neither spouse gives up the apartment in favor of the other, then each receives their own share in it (they agree on it themselves or through the court). In this case, the remaining part of the mortgage unpaid at the time of divorce is also divided into shares that are equal to the shares in the apartment. And each spouse pays their share of the remaining debt. Previous payments (debt already paid at the time of divorce) are not taken into account, and in this case no one is entitled to any compensation.

Have there been cases in your practice when people changed their minds about getting divorced because of the mortgage?

Pavel Ivchenkov: No, there were no such cases. But I can say that here everything depends on the reasons for the divorce and the financial condition of the people: if these are minor quarrels, everyday disagreements that one of the spouses can no longer tolerate, then a mortgage can “save” the family, since too much money is at stake . If the reason for the divorce is some difficult circumstances, then a mortgage will not save the marriage.

The mortgage agreement provides for the possibility of the spouse of the person acting as the main debtor participating as a co-borrower.

However, what if the spouses subsequently decide to divorce?

Legislative aspect of the issue

The issue of division of mortgage obligations during divorce is regulated by the following regulations:

1. Family Code of the Russian Federation;
2. Civil Code of Russia.

Thus, in accordance with the norms of family law, any property acquired during marriage is common property of the spouses.

In case of judicial division of common property between spouses, debts are also subject to division, which were formed during family relationships.

Civil legislation contains a rule according to which the division of a mortgage obligation between spouses is possible only if consent of the credit institution.

Consequences of taking out a mortgage loan by spouses

Based on the norms of the Family Code, when one of the spouses takes out a mortgage loan, the second spouse is automatically registered as a co-borrower.

Acting as a co-borrower, the second spouse assumes the same responsibility for fulfilling the obligation to pay mortgage payments. If the first spouse fails to fulfill the obligation, the credit institution will demand payment of funds from the second family member.

In addition to the emergence of responsibilities, the co-borrower has the right to living space in the form of a share. Typically, this share is equal to half of the total living area of ​​the property. However, the mortgage loan agreement may establish a different ratio of shares.

If one of the spouses does not want to bear a financial obligation to the bank and does not apply for new real estate, a marriage contract must be drawn up, which indicates the types of property of each of the couple, as well as establishes rights and obligations in relation to real estate acquired in the future.

If a marriage contract has not been drawn up between the spouses and they decide to divorce, the mortgaged property, as well as the responsibilities for paying money, can be divided in court.

Options for solving this problem

Spouses who have decided to divorce and are co-borrowers on a mortgage obligation must:

Regardless of the decision made, spouses must must inform the banking organization about divorce.

Changing the terms of the loan agreement

Withdraw the co-borrower There are several ways to get out of a mortgage obligation during a divorce:

Mortgage waiver

Based on the previously stated information, it can be concluded that mortgage waiver implemented in several ways:

1. Voluntarily by one of the spouses, by drawing up a written, notarized refusal to fulfill obligations, as well as a voluntary refusal of ownership of this property. If the banking organization agrees with this request, then it will initiate the re-registration of property rights with the registration authority, and will also draw up an additional agreement to the main agreement;
2. In court on the basis of a decision of a judicial authority. After the relevant decision is made, the main co-borrower acquires the right to re-register the property without the consent of the bank;
3. Based on the marriage contract, which must indicate that one of the spouses does not claim ownership of the mortgaged property during a divorce.

Re-registration of rights to real estate

Since ownership of the mortgaged property is registered until the encumbered loan is fully repaid, the co-borrower spouses cannot independently implement the procedure for re-registration of rights to the property.

In order to re-register property rights bank consent is required. In this case, the bank will issue an agreement in which, instead of the previous co-borrowers, the data of only one spouse (the main borrower) will be indicated. This document will be the basis for the registration authority to re-register ownership and issue a corresponding new certificate of ownership. In this case, the property will continue to be under encumbrance.

Another option for re-registration of property is the entry into force court decisions. For the registration authority, it is also the basis for entering new data about the person recognized as the owner.

The rules for re-issuing a mortgage loan during a divorce are discussed in the following video:

Having an outstanding mortgage and dividing the property encumbered by the mortgage adds a lot of complications to a divorce.

In this situation, divorcing spouses immediately have many questions. How to divide an apartment that is pledged to a credit institution? Who and in what part should pay off the mortgage loan in the future? How to resolve the issue with co-borrowers?

Moreover, each situation has many specific nuances, so there is no unambiguous solution and algorithm for dividing responsibilities for a mortgage and collateral real estate. Moreover, law enforcement judicial practice has not yet developed precedents that would serve as guidelines when courts make decisions in similar situations.

It is not surprising that completely different court decisions are made in similar cases, even opposite ones.

The situation with a mortgage is complicated by the fact that in these legal relations the interests of three parties are affected at once (divorcing spouses and the bank), in contrast to the division of property not encumbered by a mortgage, where it is enough for only the former spouses to come to an agreement. Therefore, finding a solution that satisfies all stakeholders at once can be much more difficult.

In many cases, when dividing mortgage housing and loan repayment obligations, the interests of one of the parties are significantly impaired. For example, there are precedents when a borrower, deprived of an apartment during a divorce, is forced to repay the loan for a long time. Or a bank that wants to sell a mortgaged apartment for which the loan is not being repaid is faced with a situation where the mortgaged apartment, by court decision, is no longer considered the sole property of the borrower.

Legal regulation

These difficulties in dividing mortgaged housing in the event of a divorce are associated, first of all, with insufficient legal regulation of this issue in Russian family and civil legislation.

When considering divorce cases where the issue of mortgage is raised, the courts are guided by the Family Code, the Civil Code and the Federal Law “On Mortgage”, as well as the mortgage agreement drawn up between the bank and the borrower.

The basic principle of the division of mortgage property during a divorce, set out in the above-mentioned legal acts, is that:

• residential premises acquired by spouses during marriage using mortgage funds are jointly acquired property, which entails corresponding legal consequences;
• the joint property of the former spouses should be divided in half, unless a different order is specified in the marriage agreement;
• when dividing property acquired by spouses with borrowed funds, including a mortgaged apartment, it does not matter at all to whom the mortgage loan was issued.

Financial obligations to the bank are also assigned equally to divorced spouses, regardless of whether they were co-borrowers or the mortgage was issued to one of them.

Thus, based on the requirements of Russian family law, the “fifty-fifty” principle applies when dividing any joint property of spouses. However, in practice, dividing a mortgaged apartment in half is quite problematic, since the housing is pledged to a credit institution, and the owners cannot take any legal actions with it.

How to avoid problems during division

Most conflicts and controversial situations related to a mortgaged apartment can be avoided by first concluding a prenuptial agreement. Russian legislation allows you to draw up a marriage agreement both before registering a family and during family life. However, statistics show that, despite all the advantages of marriage contracts, no more than 5% of Russians draw up such contracts.

Another important legal safeguard that is used to protect the interests of all parties to a mortgage is the mortgage agreement. Currently, credit institutions, which have repeatedly encountered problems with mortgage payments by former spouses, have acquired quite a solid experience in legal mortgage disputes. As a result, mortgage agreements drawn up by banks minimize the lender’s risks in the event of a divorce between borrower spouses.

The vast majority of banks try to make both spouses co-borrowers on the loan, which, in principle, is beneficial for the married couple themselves, since they can combine income and receive a larger loan amount.

In addition, many banks began to include an important condition in their mortgage agreement: “If the family relationship between the co-borrowing spouses is dissolved, the terms of the mortgage agreement do not change.” Such a clause in the contract is additional insurance for the bank. If the spouses who agreed to this condition of the mortgage agreement divorce and one of them refuses to pay the mortgage, then financial responsibility for the payments will completely pass to the other.

Such a legal guarantee, unfortunately, protects exclusively the interests of the bank, and divorcing spouses will still have to defend and defend their interests.

In fact, divorcing spouses have only three options:

• continue to pay the loan;
• find the missing cash and pay off the mortgage early. After this, you can sell the apartment at a favorable price and divide the proceeds in half or by agreement of the parties;
• sell a mortgaged apartment with the consent of the bank.

To divide a mortgaged apartment, you can contact the credit institution that issued the mortgage directly with a request to approve the sale of a common matrimonial apartment.

It is difficult to predict the reaction of a particular bank to such a proposal. In this situation, a credit institution can:

• agree to the sale of a mortgaged apartment;
• demand early repayment of the mortgage by the spouses, justifying this by the fact that the upcoming (or already registered) divorce violates the agreed terms of the loan agreement;
• oblige the spouses to pay the mortgage without selling the apartment.

In many cases, the bank agrees to sell the mortgaged apartment, since this reduces the risk of non-payment of debt by divorced spouses. If the bank's consent is received, the spouses need to find a buyer for their mortgaged home who agrees to purchase an encumbered apartment.

In this situation, the buyer, in order to take ownership, must first compensate the bank for the amount of debt on the mortgage loan and wait until the entire process of removing the encumbrance from the purchased apartment is completed.

Of course, not all buyers will agree to such a difficult option, since the risks increase and the time drags on. Therefore, divorcing spouses who want to sell a mortgaged apartment often have to reduce the price of their home in order to interest a potential buyer.

Regardless of the development of the situation with the sale of the apartment, the divorcing spouse must continue to make payments on the mortgage loan. Otherwise, the situation can only get worse. A bank that does not receive loan payments has the right to sell the mortgaged apartment at auction, and the price of the sold housing, as a rule, is much lower than the market price.

From the proceeds from the sale, the credit institution will retain the principal debt, fines, penalties, unpaid interest and expenses for organizing auctions, and only the remaining amount will be divided between the former spouses. As a result, you can be left without housing and without financial compensation.

Another important rule when divorcing persons who borrow mortgage funds is that they must notify the credit institution of the divorce. Under the terms of any mortgage agreement, borrowers are required to immediately notify the bank of significant changes in their lives, including divorce.

If the parties to the mortgage agreement cannot reach an agreement, they must go to court. As already mentioned, there is no clear development of the situation during the trial. The court may force the credit institution to carry out transactions with the mortgaged apartment, oblige the mortgage agreement to be reissued for one of the divorced spouses, and oblige the spouses to continue making payments until the loan is repaid. Other solutions are also possible.

If spouses decide to repay the loan in order to then sell the apartment, it is possible to divide the mortgaged property into shares during the divorce. To do this, they need to contact the creditor bank with an application.

However, problems and pitfalls are also possible here. For example, the bank will refuse this option. He may not be satisfied with the income of one of the spouses, who, when registering shared ownership, must act as an independent borrower. Or the mortgage collateral is a one-room apartment, the division of which into shares in kind is not possible. Such property, according to the Federal Law “On Mortgage,” should not act as an independent subject of mortgage.

The bank's refusal can also be appealed in court.

Another option for division during a divorce is that one of the divorcing spouses, free of charge or for monetary compensation, signs a waiver of his share in the common housing encumbered with a mortgage, and the other agrees to take on all payments on the mortgage loan.

If the bank is satisfied with the solvency of the second spouse, then the transfer of ownership of the mortgaged housing is registered with the territorial registration authority. As a rule, the bank charges a commission for re-issuing a loan agreement (0.5% - 1% of the remaining debt).

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Mortgage for spouses: what options are there?

Mortgage is a highly family-oriented endeavor. Elementary common sense suggests that it is easier to decide on long-term financial “bondage” when there is a person nearby who has vowed to be with you “through thick and thin.” Statistics from real estate companies confirm: about 70% of mortgage holders are married people. And of the remaining 30%, approximately half are in long-term relationships. Those. also kind of like being married, only without a stamp in the “civilian” passport.

What options do the law and market realities provide for potential mortgage borrowers? Sob.ru dealt with this issue.

The most common option is that spouses taking out a mortgage become co-borrowers. According to statistics, this happens in 95% of cases (not all mortgage holders in general are taken as 100%, but only married ones). Moreover, if you, being married, come to a bank or real estate agency and ask to get a mortgage for you, they will prepare documents for you exactly according to this scheme. So to speak, “by default”.

“In most cases, spouses automatically become co-borrowers in the mortgage transaction and are equally responsible for repaying the loan,” notes Tatyana Guseva, director of the mortgage center of the MIEL-Novostroiki company . “In this case, both must provide the bank with the same package of documents.”

In addition to “automatism,” traditions and laws (and equality, including property, of spouses is the cornerstone thesis of many serious documents, including the Civil Code), there are other reasons here. For example, the loan size is calculated depending on the borrower's income. If both spouses work, their total income will certainly be greater than the income of one of them - therefore, you can qualify for more favorable lending conditions.

A fundamentally important point is that co-borrowers will have “everything in half”. They will equally have to confirm their income, take out insurance, and repay the loan together. And - after the happy completion of the whole epic - they will become full co-owners of the apartment.

...In principle, the situation is not prohibited by law when people who have not formalized the relationship (i.e. the same “civil marriage”) can become co-borrowers. However, in practice this almost never happens - probably because couples who have matured to the idea of ​​jointly owning an apartment in the future still enter into an official marriage.

Surety

This scheme is based on articles 361-367 of the Civil Code. Essentially, a guarantor is a person who guarantees that the borrower will fulfill his obligations. While the borrower pays accurately, the lender (bank) has no contact with the guarantor at all. But if problems begin with payments, the relevant services of the bank immediately begin to “shake” it.

A seemingly simple question: “can a wife become a guarantor for her husband’s mortgage loan?” caused controversy. Some of our experts thought that there was nothing terrible here - in any case, we could not find any prohibitions in this regard in the laws. Others, on the contrary, thought that this was impossible. “If we analyze the situation when official spouses participate in the mortgage, then the concept of “guarantor” is lost,” Tatyana Guseva is categorical. The truth, as always, is probably in the middle: some banks are ready to consider such an application, while others believe that there is something incomprehensible or suspicious here - in general, it is better to refuse immediately, just in case.

... Concluding the conversation on this topic, we should mention Art. 256 of the Civil Code - it says that “property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property.” In other words, an apartment purchased by a husband (even if on a mortgage, and even if only for himself personally) becomes joint property. To establish a different “ownership regime” (that is, to make the apartment the property of only one of the spouses, not subject to division in the event of divorce), the parties need to enter into a prenuptial agreement.

As a result, the scheme with a guarantor turns out to be quite cumbersome, and in reality it is not used by married borrowers.

Single loan

In this case, one of the spouses takes out the mortgage on their own, and the other is completely excluded from the process. The reasons for such a decision may be different:

The desire to “not mix” property - in order to avoid its division in a possible divorce. Despite the fact that such thoughts may seem too cynical to some (how is it to “plan” for a divorce in the future?!), they come to the minds of an increasing number of citizens. Especially for those for whom the current marriage is not the first;

The wife does not work and has no officially confirmed income. From the point of view of the bank, which analyzes the family's solvency, such a woman becomes a burden - she does not bring money, but only spends it. It’s easier to remove her from the process of considering a loan application;

One of the spouses has a bad credit history. In such a situation, notes Alexander Moskatov, Managing Director of the brokerage department of MIEL-Network of Real Estate Offices , it is also reasonable to “cut off” such a person from being checked by the bank.

Despite the fact that in this case the wife is seemingly excluded from the process, some participation from her will still be required. She will have to give her husband notarized consent to purchase the apartment.

And one moment. Even if we have completed all the formalities outlined above and issued a loan exclusively to the husband, and the apartment is also purchased only in his name, this property will still be considered “jointly acquired property.” By virtue of the above-mentioned Art. 256 of the Civil Code of the Russian Federation. In order for real estate to truly belong to one of the spouses solely, a prenuptial agreement must be concluded.

Equal, but not quite...

Above we looked at situations where a married man takes out a mortgage. Of course, a “mirror” option is also possible: a woman who has a husband enters into a credit relationship with the bank. Are there any differences here?

At first glance, none - gender equality is enshrined not only in the Civil Code, but even in the Constitution (clause 2 of Article 19). In practice, however, some “nuances” emerge.

So, when applying for a mortgage loan, the fact that women retire five years earlier than men may be affected - so (other things being equal) the bank will assume that they will work and earn less time. On the other hand, obtaining life and health insurance for women is cheaper - the fair sex lives longer, gets sick less, and generally tends to take better care of themselves.

And very radical differences are revealed if there is a marriage contract, which - after a divorce - one of the parties tries to challenge. On the grounds that the document was “enslaving,” that “I didn’t quite understand what I was signing,” etc. According to judicial statistics, a woman (especially if she has children who, naturally, remain with her during a divorce) has a much greater chance of success. However, this is a topic for another conversation...

“Replay” will not work

And the last thing we would like to say. What if a situation arises where the loan was issued in one way (say, the first one, in which the husband and wife became co-borrowers), and then they suddenly wanted to change this - to become, say, a borrower and guarantor? According to our consultants, this is almost impossible. “It turns out to be extremely difficult to “replay”, very few people do this, says Alexander Moskatov . - This means a new financial audit, analysis of all documents. In practice, banks never do this.”

In a word, here you first need to repay the loan to the bank, remove the encumbrance from the apartment - and only after that begin to carry out any manipulations with the ownership of the real estate.

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