Division of an apartment during a divorce, purchased with maternity capital. How is an apartment purchased with maternity capital divided? Housing purchased with maternity capital after divorce

Maternity capital is the payment of monetary assistance to a family at the birth or adoption of a second and subsequent child. When a marriage is dissolved, maternity capital often becomes a subject of dispute, since not only the mother, but also the father of the child claims the money. In the article we will look at how these funds and property acquired with their use are divided during a divorce, as well as when the father can receive maternity capital.

Who can receive maternity capital and what is it allowed to spend it on?

Payments at the birth of a second and subsequent child are approved by the Law of the Russian Federation of December 29, 2006. No. 256-FZ. The deadlines initially established by law have been extended several times. As of today, the program is officially valid until December 31, 2018.

According to the law, the right to capital has:

a woman who gave birth to or adopted a second child after January 1, 2007;
father or adoptive parent of the child;
child if the parents have lost their right to capital.

The law also defines the purposes for which these funds can be spent. The list is as follows:

improving the family’s living conditions: purchasing, repairing and reconstructing a house or apartment, repaying a mortgage loan, participating in shared construction or a housing cooperative;
child's education;
formation of a funded pension for the mother or father;
social rehabilitation of a disabled child.

How is capital divided during divorce?

Divorce of spouses may give rise to disputes regarding the right to capital. According to Art. 38 of the Family Code, upon divorce, only jointly acquired property is subject to division, and based on Article 34 of the RF IC, family capital is not it. Thus, upon divorce, the certificate will remain the property of the person for whom it was issued.

When can a father issue a certificate in his name?

During a divorce, the father will be able to dispose of the certificate if it was originally issued in his name, or the right to it was transferred due to certain circumstances. This is possible if:

the man independently adopted a second child, provided that the court decision came into force no earlier than January 1, 2017;
the child’s mother died or was declared missing based on a court decision;
the mother has been deprived of parental rights or has committed a crime against the child.

How to divide shares in an apartment purchased with maternity capital

The legislation establishes the basic requirement for registration of the right to housing that was purchased or built using the certificate. Property rights must be allocated to all family members, including children. Thus, in the event of a divorce, the husband and wife still have shares in the apartment, and each of them can only dispose of their own share.

The apartment usually goes to the former spouse with whom the children remain to live. If they live with their mother, the father can issue a deed of gift for his part of the home in favor of the children to pay alimony or by obtaining sole right to other property acquired during the marriage.

When divorcing a marriage, spouses must take into account the following points regarding such housing:

after a divorce, the ex-husband has the right to live in the apartment;
a woman will not be able to register third parties in the apartment without the consent of her ex-husband;
the court cannot make a decision obliging the father to renounce his share of the property.

If the certificate is not issued in the name of the husband, then he has the right to claim the apartment if it was purchased before the divorce. Otherwise, housing is registered only for the mother and children.

Features of the division of housing purchased with a mortgage

When purchasing a home and using maternity capital and a mortgage loan, the housing must still be registered in the name of all family members. Since the property of minor children cannot be mortgaged, at the time the loan is issued, the owner of the certificate signs an obligation. It states that after the mortgage is repaid, shares in the housing will be allocated to all family members.

The issue of repaying the loan and dividing the apartment is resolved by agreement of the parties or in court. So, if a spouse acted as co-borrowers, then they have the same obligations to the bank, regardless of what part each of them receives in the divorce. At the same time, a share of the part of the cost covered by maternity capital, namely 453,026 rubles, must be allocated. Therefore, if one of the spouses proves in court that the loan was repaid to a large extent from his personal funds, he may be awarded more than 1/4 of the housing.

Any questions you may have can be asked in the comments to the article.

Many have already received certificates for material capital from the state. However, questions about how they can be used are not decreasing. One of the relevant topics for discussion is the fate of the received certificate in the event of a family breakdown. We will talk further about whether maternity capital is divided during a divorce.

Maternity capital - what is it and who owns it?

One of the policy areas of our country is support for family, fertility and childhood. Families with two or more children are entitled to special assistance.

Since 2007, the state has provided such parents with special material payments, which are called maternity capital. In fact, these are targeted funds aimed at providing assistance to married couples, as well as single parents with children. They were intended to motivate them to have more than one child.

The recipient does not receive the cash itself, but only a certificate certifying its provision. It is registered and is issued at the local branch of the Pension Fund.

They can only be spent on strictly defined purposes:

improve family living conditions;
use it for the funded part of the pension;
pay for the education (of different levels) of children;
rehabilitation of children with disabilities.

Affiliation

Based on the name of this government program, some believe that capital funds can only be allocated to mothers. Indeed, most often the recipients of the certificate are women who have given birth to a second or next child. But the recipient of the certificate in certain cases may also be other persons. For example, an adoptive parent or father, if the mother died or was deprived of rights in relation to her children.

Despite the fact that these funds are allocated to help families (single parents) with children, the certificate is personal. It is issued only to the recipient of the funds without indicating the other members of the family. It turns out that the purpose of providing mat. capital support for the whole family. But in fact, the one who is indicated by the owner of this document can dispose of it. Therefore, even if the spouses wish the opposite, it will not be possible to divide these funds.

Is maternity capital jointly acquired property?

According to the law, everything received or acquired during the marriage period is considered property common to the spouses. This applies not only to purchased items, but also to income coming into the family. Any type of official income, income from entrepreneurial and creative activities, and pensions are considered common. Other payments and things may also be considered as assets acquired jointly.

In determining the ownership of payments, one must proceed from their nature. If they do not have a specific purpose, they will be joint. Otherwise, they belong only to their recipient.

Since checkmate. capital refers specifically to targeted payments, it does not apply to general income. If the certificate is issued to the wife, the husband will not have any rights to it. And they will not divide it in case of divorce.

Does the father have the right to maternity capital after a divorce?

As it was already clarified earlier, the certificate certifies the transfer of targeted funds to a specific person. In fact, only the owner of the certificate can dispose of it. But married spouses usually decide to use it jointly. But this does not at all classify capital funds as their common marital property. Therefore, neither during the divorce nor after it does the father have rights to this capital.

The exceptions are cases when he himself was its recipient.

Division of property with the participation of mat. capital

The certificate and the funds listed on it are not considered joint for the spouses. Therefore, it is impossible to separate them if the family breaks up.

But in most cases, the funds are used to solve the family’s housing problems. The certificate can be used to pay off an existing loan, make a down payment for its registration, purchase a home, or repair it.

Instead of earmarked funds, members of a given family only own the property purchased with these funds.

During divorces, the division of an apartment purchased using certificate funds raises many questions. Is it possible to divide housing purchased with the participation of financial capital and how to do it correctly, we will consider further.

How is an apartment bought on a mat divided? divorce capital

Many people do not understand whether an apartment purchased with maternity capital is divided or not during a divorce. In order to answer this question, you need to know the following.

The condition for allocating funds for the purchase of housing or obtaining a mortgage is the subsequent registration of rights to it for all family members. After it is completed, each of them, including children, will have their own part.

In fact, they have shared ownership of this property. And the rules of its section are as follows:

it can be divided by agreement between all co-owners;
one of the co-owners may demand the allocation of his share;
if agreement is not reached on this issue, the dispute is resolved in court;
if the allocation of one share is impossible, then its owner is paid compensation.

It turns out that each co-owner has the right to count only on his share. Surprisingly, it is usually impossible to allocate your own part of the apartment in real life. Therefore, you can receive compensation for it or sell it to someone else.

Is mortgaged housing purchased with mat. capital, in case of divorce

Certificate funds help many people buy housing only in mortgage. The purpose of using the funds is to improve the family's living conditions. They can buy housing without taking out loans or with their participation. Regardless of whether mortgage funds were used for its purchase or not, it is required to apply for the whole family. This means that everyone will have the right to a part of the purchased apartment. And, as a result, he can only claim his share.

How to divide if the funds were spent on home renovations

Certificate facilities must be used properly, i.e. as intended.

It is important to understand that using a mat. capital for ordinary repairs is not possible. We are talking only about reconstruction.

Its concept includes improving existing housing, for example, adding an extension, increasing the area, strengthening load-bearing structures. You can receive a certificate for these purposes. But then you will also have to re-register ownership of the home to the parents and child(ren). This means that each of them will receive the right to a part of it. How property is divided in such cases was described earlier.

What to do if the certificate is used as a down payment when buying a house or apartment

Purchase housing with means of mat. capital can be used in different ways. One method involves making these funds as a down payment on the loan. In this case, the funds can be used in whole or in part.

But according to the law, even partial use of capital obliges its recipients to re-register housing for the whole family. Consequently, divorcing spouses can only count on their shares. The shares of the remaining co-owners are not subject to division.

Ask a lawyer a question for free!

Briefly describe your problem in the form, lawyer FOR FREE will prepare an answer and call you back within 5 minutes! We will solve any issue!

Ask a Question

Confidentially

All data will be transmitted over a secure channel

Promptly

Fill out the form and a lawyer will contact you within 5 minutes

Purchasing housing using maternity capital has become quite common practice for Russian families. The capital allocated for the second child in the amount of just under 500 thousand rubles will not help to buy housing from scratch. But it can be a good help as a down payment for a mortgage or closing a loan to purchase real estate. Difficulties begin if the apartment bought with mat capital is born and they want to divide it.

Is an apartment purchased with maternity capital divided during a divorce?

Maternity capital is a type of state assistance, expressed in monetary terms and issued after the birth of the second child in the family. As a rule, these funds can be used to pay for the child’s education, create the most favorable living conditions, and so on. However, the highest priority when allocating this type of assistance is considered to be improving the quality of life of children. To achieve this goal, maternity capital funds are invested in the purchase of an apartment.

Important! If the housing was purchased using this certificate, then the children are required to receive a share of such real estate. The mother of the child gives a notarized obligation when registering real estate when purchasing a home. You can immediately make an entry in favor of the children to save money on re-registration of housing.

In some cases, housing obtained with the help of the specified state assistance must be registered only in the name of the children. Thus, during divorce proceedings, the apartment cannot be an integral part of joint property and, as a result, is not subject to division. The remaining options provide for the division of the apartment between all family members on equal terms.

The rules for dividing this real estate are always the same, regardless of the characteristics of the residential premises.

How an apartment purchased with maternity capital is divided during a divorce

If maternity capital funds were used to purchase new residential real estate, then during a divorce, the disputed apartment can be divided in the following ways:

Sale of residential premises and division of proceeds between all family members based on the principle of equality. This case provides for some nuances, for example, the sale of housing, for the purchase of which funds from maternity capital were used for the birth of a child, is possible only after the approval of the guardianship and trusteeship authorities, which will have to verify the inviolability of the legally protected rights of children during this operation;
If a husband and wife decide to refuse the possibility of selling an apartment, then in this case one of the spouses has the right to receive compensation in the form of other property commensurate with the latter’s share of the divisible apartment, for example, a car, furniture, expensive equipment, and so on. The specified compensation can also be expressed in monetary terms.
One of the most difficult options to implement is considered to be the allocation of shares of the disputed housing in kind, that is. This section is practically impossible due to the fact that in order to carry out this procedure, newly created premises must have separate entrances, bathrooms, kitchens and other similar premises. In most cases, dividing apartments in this manner is not feasible. The most likely opportunity for implementing this method is the division of residential real estate, which previously consisted of two apartments and has all the prerequisites for compliance with the building rules and regulations established by law during its actual division.

How to divide an apartment purchased with maternity capital during a divorce

The most appropriate and appropriate way to divide residential property during divorce proceedings is to enter into a voluntary agreement between the spouses.

Important! According to practice, this document reflects the fact that the common children remain in the care of the wife, while the husband is engaged in drawing up a donation agreement for his part of the apartment for the common children, receiving in return other commensurate property, for example, a garage.

In addition, the agreement may stipulate the husband’s ability to transfer his share of the disputed real estate, in exchange for release from the obligation to pay alimony. Both versions of the agreement must be drawn up in writing and subsequently sent to the judicial authorities. Once the document has been reviewed for compliance with the rights of minors, subsequent division of property will be carried out in accordance with the provisions of the specified agreement.

If the conclusion of a voluntary agreement due to certain circumstances is impossible, the division of the disputed housing is carried out through judicial proceedings. Moreover, in any case, the division of children’s shares is not allowed; the only thing that can be done with them is to sell them by agreement. With the guardianship and trusteeship authorities, or exchange it for equivalent or better real estate residential property.

At the same time, the division of an apartment that was purchased with a mortgage, but part of it or the full amount was closed with the help of maternity capital, is also

Voluntary section

This option involves concluding an agreement between husband and wife, according to which the latter determine the methods and procedure for dividing a jointly owned apartment obtained with the help of maternity capital. Depending on the requirements and wishes of each spouse, this document may contain signs of the unequal nature of the division.

Procedure

In order to divide property using a voluntary agreement, a husband and wife must adhere to the following algorithm of actions:

The parties to the transaction determine the list of property, including housing, which will be subject to further division;
The spouses negotiate the procedure for dividing the disputed apartment, as well as the size of the shares going to each of them. In some cases, compensation may be established for part of the real estate owned by one of the members of the couple;
Direct drafting of a text version of the agreement;
Certification of the document by a notary, as well as payment of the state fee;
Re-registration of property rights to a divisible apartment in accordance with the conditions specified in the transaction.

Documentation

In order to carry out the procedure of notarization of an agreement on the division of property, the notary must provide passports or other personal identification documents of the spouses. In some cases, it may be necessary to request a report on the valuation of housing. Due to the fact that maternity capital funds were used to purchase the apartment, the notary officer will additionally need to provide documents confirming the use of the agreed state assistance in accordance with its intended purpose.

Sample list:

Spouses' passports;
Birth certificates of children;
Documents for the apartment;
Obligation to partition;
Text of the agreement;
Receipt of payment of the registration fee (when filing an agreement for registration).

Price

According to Article 333.24 of the Tax Code of the Russian Federation, the amount of the state fee charged for notarization of an agreement is 0.5% of the transaction amount. At the same time, this tax has certain restrictions, namely, from 300 to 20,000 rubles. At the same time, the spouses will have to incur additional costs for paying for notary services, as well as for carrying out the procedure for re-registration of property rights to the newly created shares of the disputed real estate.

The fee for re-registration of property rights in Rosreestr will be 2,000 rubles, which can be paid proportionally by each spouse.

Trial

This option is an alternative to concluding an agreement if the husband and wife could not find common ground in the survey of the division of residential real estate and is the most common way to resolve these property issues. According to practice, the court makes a decision to divide the disputed apartment in equal shares between the spouses, however, taking into account the fact that maternity capital funds were used to purchase such real estate, the division can only be made in relation to half of the specified housing, due to the fact that the rest is part belongs to the children of the divorcing couple, which the spouses cannot claim.

Procedure

In order to effect a legal division, a husband and wife must take the following steps:

Conduct an assessment of the property subject to division, which includes the disputed apartment;
Prepare all the necessary documentation for applying to the judicial authorities, as well as draw up a statement of claim;
Pay the state fee and send the claim to court;
Take part in the consideration of the claim on the essence of the stated requirements and wait for the court to make an appropriate decision;
Take all necessary actions to comply with the orders reflected in the court decision. If one of the spouses evades fulfillment of these requirements, the interested party has the right to suppress these actions by contacting the executive service authorities.

In the future, after receiving a court decision, the parties to the dispute will have to register the disputed housing again, in the shares determined by the court. Registration is also possible forcibly through a writ of execution.

Statement of claim

This document must be drawn up in accordance with the requirements of Article 131 of the Code of Civil Procedure of the Russian Federation and must contain the following information:

Name of the judicial authority;
Personal data of the plaintiff and defendants such as full name, residential address, contacts;
Cost of the statement of claim;
The circumstances that served as the reason for going to court, information about the pre-trial settlement of the dispute, as well as the procedure for the use of disputed property by spouses in force at the time of consideration of the claim;
The plaintiff’s position regarding the fair division of residential real estate, confirmed by the norms of current legislation;
Evidence and arguments in support of claims;
Formulated requirement for the section;
List of attached documents;
Signature and date of compilation.

In this case, it is difficult to provide a universal template, so you can use any basic template for a claim for division of property. In any case, it is better to enlist the support of an experienced lawyer before going to court.

Documentation

In order for the statement of claim not to be sent for revision, the following package of documents must be attached to it:

Copies of passports of the parties to the case;
Copies of claims for all participants in the process;
Confirmation of payment of state duty;
Certificate of divorce;
Documents confirming the use of maternity capital funds for their intended purpose;
Child's birth certificate;
Report on the estimated value of the disputed apartment;
Other documents that are essential for a full and comprehensive consideration of the case on its merits.

Documents are provided in copies, but the originals must be brought to court in case they need to be shown to the judge.

Price

Taking into account the fact that this category of claims is of a property nature, the applicant must pay the state fee. According to Article 333.19 of the Tax Code of the Russian Federation, the amount of state duty is calculated based on the total amount of the claim price. The amount of this tax cannot be less than 400 rubles or more than 60,000 rubles.

Arbitrage practice

Judicial practice regarding the division of an apartment purchased with maternity capital is extremely ambiguous.

Thus, the Ryazan Regional Court upheld the decision of the court of first instance, which refused to divide the apartment acquired by the spouses in the ownership of themselves and three children, 1/5 share each. The court considered that the shares belonging to the spouses are already separated in the right of shared ownership, and the allocation of housing in kind is impossible.

At the same time, the Moscow City Court recognized as legal the court's decision to divide an apartment purchased using maternal capital, which was registered in equal shares between mother and son, but the husband did not receive the due share and did not give notarized consent to register housing for family members.

Each situation is exclusively individual and without a qualified legal assessment from a lawyer, it is impossible to give a definite answer about whether there is a chance of winning the dispute in your case or not.

Need a lawyer

Dividing an apartment with maternity capital is not an easy task, feasible only for qualified lawyers. Competently drafting a claim is only one of the less difficult tasks, because the main problems await the plaintiff in the legal process.

Contact our lawyers for a free consultation right now and let them solve any of your problems.

Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update the information on the site
In 90% of cases, your legal problem is individual, so independent protection of rights and basic options for resolving the situation may often not be suitable and will only lead to a more complicated process!

Therefore, contact our lawyer for a FREE consultation right now and get rid of problems in the future!

Ask a question to an expert lawyer for free!

Ask a legal question and get a free
consultation. We will prepare an answer within 5 minutes!

Last update: 01/30/2020

Immediately after the divorce, the former spouses are faced with the task of providing both with separate housing. As a general rule, an apartment, provided it is purchased after the wedding, belongs to the spouses on equal rights. It would seem that there is nothing simpler to sell it and divide the money, using the amount due to each to buy a personal apartment. But:

The housing problem of divorced spouses is a little more complicated if there is mortgage agreement valid at the time of divorce.
The situation becomes even more difficult if the mortgage was partially repaid with maternity capital funds.

Use of maternity capital

There are two main ways to realize maternity capital:

make an early payment in its amount on the mortgage loan already in force at the time of the birth of the second child;
register maternity capital as a down payment when purchasing a home.

In both the first and second cases, parents are obliged, after repaying the debt, to provide their children with square meters in an official manner. Note that children are more reliably protected in their rights to housing in the second option, since with an initial contribution of capital, the apartment can be divided into shares, assigning it directly to the children.

What will happen to the mortgage and maternity capital after a divorce?

If the apartment is mortgaged using maternity capital, then after the divorce process is completed, the best solution would be to pay off the debt. In this case, terminating debt obligations with collateral in the form of an apartment will save the former spouses from unnecessary problems. After the encumbrance is removed and the shares are registered, the apartment can be sold, thus solving the housing issue regarding separate residence.

But in more than half of divorce cases, the apartment, partially paid for with maternity capital, remains mortgaged because the borrowers do not have the funds to repay it. In such a situation, you have the following options:

when dividing property in court, raise the issue of drawing up a new payment schedule and mutual repayment of obligations (note that banks are reluctant to agree to such a decision);
in order not to divide the mortgage debt, try to contact the bank with an application to provide two loans to the former spouses, the total amount being equal to the balance of the mortgage: after its repayment, the apartment will cease to be collateral, as a result, both spouses will be personally liable for failure to fulfill their obligation;
do not raise the issue of dividing property and continue to repay the mortgage debt by agreement (written or oral) of the parties. Note that in this case, in the absence of other housing, the problem of separate residence will not be solved.

Who will get maternity capital in a divorce?

According to the law, maternity capital is given by the state not to the child, but to one of the parents in the interests of the child. Will it be taken into account who received the loan and who will live with the children? How is maternity capital divided during a divorce?

It should be recognized that the amount of maternity capital is not directly divided upon divorce, but the general rules of civil law apply when dividing property. Thus, the court may take into account the fact that the children remain living with the mother. Consequently, the right to dispose of the shares of minors received by them due to the obligation to allocate belongs to the mother. It becomes clear that in the event of a divorce, children and the parent who lives with them have the right to maternity capital.

Is it possible to sell an apartment with an outstanding mortgage debt?

Recently, banks are increasingly agreeing to the sale of a mortgaged apartment. A prerequisite for this is the transfer by the buyer of an amount equal to the balance of the debt on the day of the transaction to the bank account. Such a solution during a divorce is completely unacceptable if the apartment was purchased with maternity capital.

Mandatory allocation of shares to children

The fact is that between the stage of lifting the encumbrance and the sale of the apartment, it is necessary to fulfill, otherwise the sale and purchase transaction may be declared void at the request of the prosecutor.

Today in Russia there are already precedents for the forced return to the state treasury of an amount equivalent to maternity capital due to failure to fulfill the obligation to divide shares between all family members, including minors.

Is it possible to sell an apartment without allocating shares to minors, and then allocate shares in the newly purchased apartment?

This unpleasant responsibility (returning the amount of maternity capital to the budget) also applies to those who immediately after selling their home (without following the preliminary procedure for allocating shares to children) purchased another home. Even if children are given shares in the new residential premises, the transaction for the sale of an apartment purchased with maternity capital and not registered as shared ownership with the participation of children is considered invalid.

How to divide shares in an apartment with maternity capital after paying off the mortgage

To fulfill the notarial obligation to allocate shares to children after a divorce, you should know that:

first, it is necessary to determine the shares of the parents (usually ½ each) from a notary, register them with the registry office, and only then, when visiting the notary again, determine the shares for the children using a new agreement;
if, during a divorce, an apartment with maternity capital is divided, registered in shares only between spouses, an agreement with a notary must assign part of the share of each parent to the child;
if the shares were initially determined when purchasing a home (when the mortgage plays the role of a down payment), then state registration is somewhat simplified; a visit to a notary is not required.
Eg, a house purchased with maternity capital as a down payment, initially registered as the shared property of parents and children, does not need to be further divided, it is enough to submit to the registry office the mortgage and a certificate of repayment of the mortgage in full;
know that the obligation to allocate shares to children must be fulfilled within 6 months after the removal of the encumbrance on the housing. This rule is provided for by Federal legislation both for married couples and for those who have experienced a divorce, after which a mortgage with maternity capital remains;
The basic rule for determining the size of the share that should be allocated to the child is the minimum square meters that is provided in the region of residence for one person (for example, in Moscow, Omsk, Belgorod, etc. - 18 m2, Yaroslavl - 17 m2, in Voronezh not less than 14 m2).

When only the court can help

If one parent refuses to fulfill the obligation to provide the child with a share of housing, the second parent should go to court. Moreover, if there has been a divorce, but not a division of property, the claim can raise two questions at once regarding the apartment purchased on a mortgage with maternity capital: determining the shares between the former spouses and at the same time the children (this cannot be done immediately with a notary).

In addition, in practice there are cases when it is impossible for former spouses to allocate shares to children after repaying the mortgage with maternity capital. In such situations, there is nothing left to do but go to court with a statement corresponding to the problem.

Eg, after paying off the mortgage and removing the encumbrance, the notary drew up an agreement on the allocation of shares to the children, but government authorities refuse to register them due to the seizure of the property of the former debtor spouse.

To avoid such a situation, it is necessary to find out during the divorce the presence or absence of a seizure of real estate or other reasons why registration of shares cannot be carried out. The seizure of the shares that were determined in the notarial agreement can only be lifted through a judicial procedure.

Unreasonable refusal of the Registration Chamber to perform registration actions

The refusal of the registration authorities to certify the division of shares in joint housing may become unexpected and unpleasant. So, in case of a written (or oral, this also happens in practice) refusal to perform registration actions, you need to know that the actions of the inspector can be appealed in court. At the same time, it is possible not only to recognize actions to refuse state registration as inconsistent with the law, but also to oblige the court to certify the transaction or allocation of shares.

To avoid possible obstacles at the stage of state registration, you need to know the following:

Registration of an apartment purchased with the help of maternity capital is possible only after the encumbrance is removed in the prescribed manner;
if there is no division of shares at the time of registration of the mortgage, registration will take place in two stages: after determining the shares for the former spouses and the subsequent agreement on the allocation of shares to the children;
if immediately after the divorce and proper registration of the apartment in shares, the possibility of selling it arose, then the registry office will register the transaction only with the consent of the guardianship authority;
When an apartment is initially divided into shares even before the mortgage, the Registration Chamber employees do not have the right to require a notarial agreement for state registration.

If you have questions about the topic of the article, please do not hesitate to ask them in the comments. We will definitely answer all your questions within a few days.

70 comments

The decision to divorce entails a lot of legal consequences: in addition to separation, the husband and wife will have to determine the place of residence of the children, as well as divide jointly acquired property. In this case, a lot of difficult situations arise: in particular, many families do not know how maternity capital is divided when spouses divorce, or whether there are any legislative norms that can protect the wife from the unjustified attacks of her ex-husband.

Since 2007, the Russian government has been carrying out various activities aimed at increasing the birth rate. One of them was the issuance of so-called maternal (family) capital to families. According to Art. 2 of Federal Law No. 256-FZ of December 29, 2006, it represents one of the options for state support for married couples with children.

Although maternity capital has a certain cash equivalent, it cannot be obtained in cash. Those who are entitled to it will receive not money, but a certificate - a personal document confirming the right to receive funds from the state budget.

Who owns maternity capital?

As a legal structure, maternity capital characterized by the following features:

the right to it is indisputable and inalienable;
it is provided to families with two or more children;
issued once in a lifetime;
not subject to division;
indexed in the manner prescribed by federal laws;
has a non-cash form;
is impersonal in nature, although it is issued in the name of a specific citizen.

Maternity capital does not belong to the person in whose name the certificate is issued, but to the family as a unit of society.

Example. In 2020, the Ivanov family, consisting of a wife, husband and three children, was issued a certificate for maternity capital in the amount of 466,617 rubles. These public funds can be spent on purposes specified by law (purchase of housing, education of children, purchase of goods and services for the adaptation and socialization of disabled children), but they cannot be divided among family members. That is, everyone together is due state support in the amount of 466,617 rubles.

When does the father acquire the right to maternal capital?

In the situations listed in Art. 3 of Law No. 256-FZ, the mother is deprived of the opportunity to take advantage of state support, and the father acquires it. Among them:

death of a woman;
deprivation of mother's parental rights;
accusing a woman of child abuse;
declaring the mother incompetent, missing;
cancellation of adoption.

In these cases, the only parent is the father, who manages the family capital. If he dies or ceases to fulfill parental responsibilities for any reason, the right to state support passes to the children (in equal shares). There are no other situations where the right to maternal capital is transferred from the mother to other family members.

There is still no clear answer to this question. Over the course of ten years of practice in the functioning of Law No. 256-FZ, lawyers have not been able to determine what the legal nature of maternity capital is, whether the amount of state support paid by the state should be divided, and if so, on what principles this should be done.

Some lawyers believe that the certificate belongs to the spouse in whose name it was issued. Consequently, in the event of a divorce, the right to receive maternity capital will pass to the person in whose hands the document ends up. If its owner is the mother, the children remain with her, and the father leaves the family, then from a formal point of view everything is correct. The family has decreased by one person, but has not lost the right to state support, then the maternity capital can be used by the mother and children in full. But this situation occurs rarely.

What to do if maternity capital is spent on purchasing a mortgaged home?

There are a lot of situations in which an apartment is purchased with state support. For young families with children, there are practically no other options to improve their living conditions. However, sometimes after a few years the spouses decide to divorce. If the loan has already been repaid, the property will be divided as usual. The fact that the property was purchased, including through maternity capital, does not matter.

Housing purchased using maternal capital is registered as shared ownership between all family members, including children. In other words, in the purchased apartment, everyone will own ¼ (1/5, 1/6 shares). Otherwise, state support funds are considered to have been used for other purposes and must be returned to the state treasury.

If the housing is pledged to the bank, it is not subject to division. We can only talk about the division of loan obligations. Then the dispute regarding the fate of maternal capital will be resolved depending on who decides to keep the real estate.

An interesting legal conflict arises here. Let’s assume that the husband took out the loan, and the only co-borrower under the agreement was the wife. This means that during a divorce, the obligations of the spouses are divided in half, but each of them owns only ¼ share in the mortgaged apartment, which, moreover, remains pledged to the bank until the debt is repaid. How to calculate the size of the share of each spouse and in what proportion to divide the loan obligations?

Option 1. If the wife receives the right to live in a mortgaged apartment, transfers the obligation to repay the loan and takes the children into custody, the state support funds will become her property. However, in this case, the woman will have to compensate her husband for part of the cost of housing and the amount he spent on servicing the loan.

Option 2. Let's say a husband and wife decide to divide the property after the mortgage is paid off. Then they need to contact the bank for loan restructuring. The remaining amount of the debt will be divided equally between the spouses, each of them will sign a new mortgage agreement for “their” part of the debt. Once the mortgage is repaid by both parties, the housing will become common shared ownership. Then it can be divided equally between parents and children.

Option 3. The situation when spouses cannot come to an agreement regarding housing purchased with borrowed funds and maternal capital is more confusing. Law enforcement practice shows that the only way out is to sell the disputed real estate.

With the money received from the transaction, parents will have to buy their children another home, and it should have the same area as they were entitled to in the sold apartment and a comparable market value. Guardianship authorities will ensure that the rights of minors are not violated. The funds remaining after all manipulations are divided equally between the spouses.

The most reasonable way out of the situation when, during a divorce, you have to divide the mortgaged housing purchased at the expense of maternity capital, is to conclude a settlement agreement. It states the rights and obligations of each spouse regarding further servicing of the loan and the algorithm for the subsequent sale of real estate.

For the spouse leaving the family, it is more profitable to receive a kind of “compensation”: he renounces his claims to the mortgaged housing and in return receives other property that is not included in the collateral, for example, or a car.