The lawyer told about the ways of dividing a mortgage apartment in divorce

Before buying an apartment with a mortgage, it is worth assessing all the associated risks, including the case if the spouses want to terminate the marriage relationship, told "Izvestia" February 22 lawyer, chairman of the "College of Lawyers Victoria Danilchenko" Victoria Danilchenko. She named several options for dividing the apartment.

"The first way - the conclusion of a marriage contract or agreement on the division of jointly acquired property (depending on whether the marriage is dissolved or not yet), which prescribes the property rights of each of the spouses, former spouses. Namely, for whom the apartment remains, who and in what order pays the loan, what share of the apartment belongs to each of the spouses and so on," - said the expert.

According to her, in the second option at the stage of execution of the mortgage agreement, one of the conditions of the bank may be the conclusion of a marriage contract. Thus, the credit organization seeks to protect its interests, as there is a risk that at divorce the spouses will cease to pay the loan due to a decrease in income.

"It is advisable to draw up a prenuptial agreement for a mortgage, if the income has one family member, if this way there is a higher chance of mortgage approval or if the second spouse does not agree to take the mortgage," - advised the lawyer.

The third way is a court proceeding in the dissolution of marriage. All property acquired by the spouses during the marriage is considered joint and is divided equally in a divorce. The same rule applies to housing purchased in the mortgage. However, such an apartment is a mortgaged property, which is the reason for the difficulties in its division, the expert pointed out.

"One of the most common questions is how the court will divide the apartment, if the initial payment was invested by both spouses, but later payments made only one of them? It should be noted that the fact that the spouse during the marriage independently made payments under the loan agreement, is not a reason to increase his share in the ownership of the apartment. The funds paid by the spouses during the marriage are considered their joint property", - explained Danilchenko.

The expert specified that, in accordance with Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers in support of its claims or objections.

"Based on the presumption of joint ownership of the spouses on the property acquired during the marriage, the obligation to prove the fact of payment of the loan only by one of the spouses at the expense of personal funds, is imposed on this spouse," - added the lawyer.

Earlier, on February 16, Danilchenko told Izvestia that, according to family law, the common debts of spouses are distributed between them in proportion to their awarded shares in the common property. According to her, the spouses have the right to distribute such debts both within the framework of the marriage union and after its termination, whether independently of the procedure for dividing the jointly acquired property or within the framework of this procedure.