Property division by military mortgage in Russia

The dwelling received by the participant of the military mortgage, when divided, is divided equally, since despite the payment of property by means of the budget of the Russian Federation, the transaction itself is not gratuitous

Is the apartment received under the military mortgage shared? Does the second spouse have the right to an apartment bought at the expense of a serviceman participating in the savings and mortgage system?

  Such questions often arise among practicing lawyers and family lawyers in disputes over the division of property of military personnel.

  The fact is that, on the one hand, the norms of clause 1 of Art. 36 of the RF IC prohibit the division of property acquired under a gratuitous transaction. Property received in marriage, but under a gratuitous transaction, does not belong to joint property, but is the personal property of the spouse. The property that is transferred free of charge or without any counter grant is considered to be acquired free of charge (Civil Code of the Russian Federation in Art.423)

 It turns out that a soldier buys an apartment free of charge, at the expense of the state budget, providing the serviceman with housing and social guarantees.

This position finds its confirmation in the jurisprudence familiar to our lawyers and lawyers in the division of property, here are some examples:

• Vidnovsky City Court of the Moscow Region in its decision of July 31, 2018 in case No.
117 provide for the acquisition of housing not at the expense of the spouses, but at the expense of the Russian Federation, therefore the apartment is not subject to division between the spouses. "

• Krasnodar Regional Court in its Appeal ruling dated September 20, 2018 in case No. 33-30509 / 2018 indicated that “the funds for a military mortgage are of an exclusively special nature, and the second spouse is not a party to the mortgage agreement, therefore, no he does not have rights and obligations to an apartment "

  However, there is also a completely opposite practice, which is followed by the Supreme Court of the Russian Federation, the decree in the Definition of January 24, 2017 in case No. 58-KG16-25 that “Federal Law of May 27, 1998, that Federal Law No. 76 does not contain any restrictions for the family of a serviceman, if he receives an apartment, using the funds of a military mortgage. The use of budgetary funds of the Russian Federation when buying an apartment does not guarantee that the property belongs to the personal property of one spouse. Therefore, the apartment is governed by the same rules as the joint property of the spouses in marriage.

  At the moment, judicial practice follows two opposite paths when dividing an apartment / dwelling purchased with a military mortgage. Whether the court will divide the living quarters acquired with the money of the soldier, received on the military mortgage, largely depends on the attorney's position.

  Family disputes are a core business of our company. We specialize in family disputes and monitor trends in court practice on the division of spouses' property and can provide you with high-quality legal services and represent your interests in the courts of Moscow, St. Petersburg, Kemerovo and other cities of Russia.

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