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Almost all citizens are faced with obtaining loans, and their purpose allows you to realize almost any goal - the acquisition of real estate, vehicles, etc. Almost every family in the Russian Federation over the past decade at least once applied to banks and other financial institutions for a loan or credit for various needs.

If the spouses decide to end the marital relationship, the presence of credit obligations can become a significant problem, because not every citizen will agree to voluntarily pay the total debt.

Can you split a loan in a divorce?

The legal status of family property assets and the procedure for their division in a divorce are known to everyone. Each of the partners has equal rights to common property, unless a different division procedure is established by agreement of the parties or by a court decision.

However, few people know how debt obligations are divided between spouses if they are not repaid at the time of termination of marital relations.

To find out how the total debt is divided, we will determine the possible loan processing options that will affect the subsequent division of loan obligations.

Note! The Family Code of the Russian Federation provides that the total debt of the spouses in the division of property assets is divided in proportion to the shares awarded to each of the partners. However, in the case of an extrajudicial distribution of common assets, the parties have the right to determine any conditions for the division of debts.

Ways to divide the debt

Current family law allows for both voluntary and judicial division of the property and obligations of the spouses.

Debts, like property, can be divided:

1. On the basis of a marriage contract;
2. Based on a voluntary agreement;
3. Through the court.

At the same time, the use of one method for the division of property does not preclude the use of another method for the division of debt.

So, if the division of property is carried out through the judiciary, the loan can also be divided between the former partners separately, by concluding an agreement. Similarly, the debt and interest on the loan formed at the time of filing claims with the court will be divided.

How are the common debts of the spouses distributed in the division of common property

The division of jointly acquired property assets, as well as debt obligations, can be carried out both after a divorce and in the process of family relations. The requirement to start this procedure can be presented by any of the partners, and in the absence of consent to a voluntary partition, they can file a lawsuit in court.

Despite a clear procedure for the distribution of debts, the following circumstances will affect the procedure for resolving disputes and the final decision of the court:

• if the borrowed funds were spent on the general needs of the family, it does not have legal significance for whom the former spouses issued a consumer loan;
• if the loan agreement was concluded by one of the spouses, and the received loan was used for personal needs or contrary to the interests of the family, the debt obligation cannot be extended to the second spouse;
• the obligation to prove the use of credit funds for general family needs is assigned to the applicant of such a claim.

Thus, the unlawful imposition on the second spouse of obligations to jointly repay loans, if he was taken for the personal needs of the borrower, will now be problematic. Equality of debt repayment obligations will only apply if proof is provided that the credit card or loan was used for a joint purpose.

Based on the provisions voiced in the Review of Judicial Practice of the Supreme Court of the Russian Federation dated April 16, 2016, the burden of proving the spending of funds received on credit for family needs will be placed on the spouse who wishes to recognize the debt as joint.

How to divide a loan during a divorce: procedure

The division of credit obligations by mutual consent of the spouses is formalized in the form of an agreement and implemented without going to court. Let us consider in more detail how to apply for a section if there is a dispute between partners.

Partition of the debt through the court

To apply to the court for a debt division, you must complete the following steps:

• determine the amount of debt and request a certificate from the bank (if the loan is issued to the second spouse, this can be done later at the request of the court);
• issue a statement of claim for the division of common property assets and credit obligations, indicating the division options;
• attract a banking institution to participate in the case as a third party with independent claims, indicating it in the statement of claim;
• provide evidence to the court that the borrowed funds were used for general needs, since such an obligation lies with the spouse, who requires recognition of the debt as a joint obligation;
• obtain a court decision, which will determine the shares of both parties to the dispute in the distribution of property assets and debt obligations.

Note! The participation of the bank that issued the loan is a prerequisite, since its interests are directly affected by the lawsuit. If the plaintiff did not involve the bank as a third party, the court will be obliged to do so. In addition, in a number of cases - for example, when dividing real estate purchased with a mortgage, the bank will also be the pledgee of the subject of the dispute.

If the bank was not involved in the dispute, it can challenge the court decision due to violation of its interests, which will lead to its unconditional cancellation.

The statement of claim is drawn up in accordance with the requirements of Articles 131-132 of the Code of Civil Procedure of the Russian Federation and is submitted to the court at the place of residence of the defendant.

If a claim for the division of debt is simultaneously associated with the division of immovable property, it must be filed at the location of the said property.

For more information about the features of drawing up a statement of claim for the division of a loan, see a separate publication.

For proper judicial protection of your interests, it is strongly recommended to enlist the support of an experienced lawyer. Only a specialist will be able to correctly motivate a claim for the division of debt, correctly identifying the circle of circumstances to be proved. The specialists of our website are ready to advise you free of charge right now on any issues related to the section of debt obligations.

State duty for the division of credit obligations

The procedure for determining the amount of the state duty when dividing credit obligations is similar to the calculation of the duty when distributing property. Since the requirement for the distribution of debts is presented as part of a statement of claim for the division of property assets, the amount of the state duty will be determined based on the value of the claim - the value of the share in the property claimed by the plaintiff and the value of the share in the obligations of the spouses.

The procedure for determining the amount of the state duty is fixed in articles 333.18-333.20 of the Tax Code of the Russian Federation. If the claim for dissolution of marital relations includes a requirement for the division of property or debts, the plaintiff will have to pay the fee provided for claims of a property nature - that is, from the price of the claim.

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IMPORTANT: The traditional mistake in determining the price of a claim in cases of division of property and debts is to reduce the price of the claim by the amount of the debt, that is, the deduction of the share in liabilities from the share of property. This is fundamentally wrong, which is confirmed both by examples from judicial practice and by the explanations of the Ministry of Finance.

An example of calculating the duty on the division of debt

A lawsuit was filed for the division of property in the form of an apartment worth 1 million rubles, and a requirement was also filed for the division of a loan taken for the treatment of a child, in the amount of the balance of 150 thousand rubles. The plaintiff asks to divide the property equally, recognizing by? shares in the apartment for each of the spouses and recognize the debt as common, obliging the second spouse to pay it proportionally.

The price of the claim, from which the amount of the state duty will be calculated, will be:

1,000,000 + 150,000/2 = 575,000 rubles.

Following the provisions of Art. 333.19 of the Tax Code of the Russian Federation, the amount of the state duty will be:

5,200 rubles + 1% of the amount exceeding 200,000 rubles (375,000 -1% = 3,750 rubles) = 8,950 rubles.

Agreement as a way to share debt

Agreements that determine the fate of debt obligations after divorce include:

• marriage contract;
• agreement on the division of property;
• agreement on the determination of shares in common property;
• world agreement.

An agreement is more preferable for the division of debt than a court decision and a marriage contract, as it allows you to take into account all the nuances of personal and property relations to a greater extent, further helping to save on legal costs.

Spouses can establish any shares in the contract, however, if the share of one spouse is so small that it puts him in an extremely unfavorable position, the marriage contract can be challenged in court.

With shared ownership, the spouses themselves determine in what shares they own the property, and therefore, to whom in what shares the debts are transferred after the dissolution of the marriage.

The amicable agreement on the division of property stands apart. It takes place if a lawsuit was initiated, but during the consideration of the case, the spouses decided to make peace and came to a mutual agreement on the procedure for dividing property and debts. In this case, they can determine the fate of debts in a settlement agreement, which will become the final act in the court case, being approved by the court ruling.

The ruling on the approval of the settlement agreement has the force equal to the court decision on the division, and if one of the parties unilaterally refuses to execute the concluded agreement, then the other party has the right to receive a writ of execution to enforce the agreement.

The difference between a marriage contract and an agreement on the division of debts

An agreement on the division of property differs from a marriage contract, first of all, in a narrow scope of regulation. If the marriage contract, among other things, may affect the formation and spending of the family budget, the provision of financial assistance to the spouse during her maternity leave, etc., the agreement on the division of property is devoted only to the division of assets and debts.

The marriage contract is becoming more and more common in modern world. Abroad, the scope of the marriage contract is very wide and even covers the personal relationship of the spouses. In Russia, a marriage contract concerns only property relations and, as a rule, its main task is to change the legal regime of all or part of the property of the spouses from common joint property to separate or common shared property.

In the case of separate ownership, the debt obligation remains exclusively in the sphere of regulation of civil, but not family law. In other words, the debtor under the obligation is the only obligated person, regardless of his marital status.

In case of shared ownership, the property of the spouses is common in certain marriage contract shares.

There are other differences between a marriage contract and an agreement on the division of property - they are indicated in the table below.

Agreement on the division of debt obligations of spouses - sample 2018

Joint property is not only acquired capital, but also common debt obligations. Mortgages and loans are part of modern life. And when a marriage is dissolved, a natural question arises: who and how will be responsible for the bills? This article will explain in detail how to properly draw up an agreement between spouses.

How are the common debts of the spouses distributed during the division of property?

How the loan debt will be divided between the spouses depends on who it was issued to.

There are three ways to get a loan in marriage:

• For one of the spouses;
• One of the spouses acts as a guarantor;
• Co-borrowers - general loan.

When a loan is issued to one person, it is necessary to prove that it was taken for the needs of the family in order to divide it equally. In a divorce, who used this property and to whom it will remain will be taken into account.

If one person in the union acts as a guarantor for a loan, this means that if the lender, to whom everything is issued, stops paying it, the loan burden will fall on the guarantor both after the divorce and during cohabitation. In any case, the guarantor will pay the bills.

Personal loans, for example: buying a car that was used by only one family member, money for education, separate vacations, etc., are not divided equally upon dissolution of a marriage.

It is worth considering that there is a practice of fictitious debts - when one of the spouses signs false IOUs in order to reduce part of the property of the second partner when the union is dissolved. Such situations are resolved through the courts and with the help of qualified lawyers.

Application for the division of debts in a divorce - a list of documents

The main points that are indicated in the application are:

• Full name, passport details of the plaintiffs;
• Period with dates from and to being married;
• Subject of the claim: what and by how much should be divided;
• How much should the property be divided?
• Articles of the legislation of the Russian Federation are indicated on the basis of which the division should occur;
• Date and signature.

The following documents are attached to the application:

• Confirmation of marriage and divorce;
• Papers that confirm payment for things, their possession;
• Copy of the application.

How to file a claim for the division of debts in a divorce?

The statute of limitations for the division of debts after a divorce is 3 years. It starts with two things:

• Dissolution of the marriage union;
• When one of the parties found out about the debt. This may be after the divorce.

Depending on the amount of debt, you must contact:

• To the court at the place of residence, if the amount is less than 50 thousand rubles;
• District or city, if more than 50 thousand rubles.

Partition of debts in case of divorce of spouses - sample application

When filling out this section, you must be treated as accurately as possible. Basic requirements for its completion:

• A complete list of property for division;
• Describe items accurately: with brand, size, color, series, cost. Vague language is not accepted, such as TV. You need to specify: Sumsyng TV, series 2347653, year of manufacture 2002, dimensions 35 inches, cost 8000 rubles.

For real estate, indicate the number of storeys, total and residential footage, number of rooms, location.

It is necessary to prepare proof of the value of things, as the court may request them. If any documents are lost, you can contact an independent appraisal company for an examination. This is more true for expensive things, since you will have to pay extra for the company's services.

Personal items are not subject to division: clothes, shoes, with the exception of expensive and luxurious items.

State duty for filing an application for the division of debt between spouses

The state fee must be paid before filing a claim, proof of payment must be provided along with the application.

The amount of the state duty depends on the price of the claim, paid by the plaintiff. In a winning case, it is possible through the court to share the payment of state duty with the defendant.

The calculation of the state duty is prescribed at the legislative level:

• If the price of the claim is up to 20 thousand rubles - 4% of its value. The minimum fee is 400 rubles.
• If the price of the claim is from 20 to 100 thousand rubles, a minimum payment of 800 rubles and 3% of the value of the property is paid;
• With a total value of divisible things from 100 to 200 thousand rubles, the fee is calculated as follows: the minimum payment amount is 3200 rubles and 2% of the price of the property above 100 thousand rubles;
• In case of a claim for an amount from 200 thousand to 1 million rubles, it is necessary to pay 5200 rubles and 1% of the cost over 1 million;
• If the value of the divisible property is in the amount of 1 million rubles, you need to pay a minimum fee of 13,200 rubles and 0.5% of the amount over 1 million rubles. At the same time, the legislation maximum size state duty - 60 thousand rubles.

Judicial practice on the division of common debts in a divorce

In the case when the spouses are not able to share financial obligations on their own, this can be done in court. Debts are shared only acquired jointly. If they were formed before marriage and the partner was not notified about this, they are not subject to division, as well as loans for personal needs.

The decision of the court on the division of credit debts

The decision of the court may be as follows:

• Divide equally;
• Partial split: someone pays a large amount. Financial status and family are taken into account. For example, if, after a divorce, the children remain with the wife, then it is possible that most of the loan debt will remain with the husband.

For mortgage loans that are difficult to accrue, before filing a claim, you must seek advice from the bank in order to correctly indicate the balance of the debt in the application.

Settlement agreement on the division of debts in the event of a divorce of spouses

The settlement agreement is drawn up by the spouses when they independently decided the issue of dividing the property. It can be both oral and written. Should not infringe the rights of one of the participants. A written agreement must be registered with Rosreestr.

It has nothing to do with the marriage agreement. It is drawn up before marriage, and the world one - already with a joint registered life and after the dissolution of the union.

Debt division dispute

Federal regulatory legal acts

Civil Code of the Russian Federation

• Art. 199 "Application of limitation period"
• Art. 200 "Beginning of the limitation period"
• Art. 244 "The concept and foundations of common property"
• Art. 253 "Possession, use and disposal of property in joint ownership"
• Art. 308 "Parties of obligation"

Family Code of the Russian Federation

• Art. 34 "Joint Property of Spouses"
• Art. 38 "Section of the common property of the spouses"
• Art. 39 "Determination of shares in the division of common property of spouses"
• Art. 45 "Foreclosure on the property of the spouses"
• Art. 46 "Guarantees of the rights of creditors upon the conclusion, amendment and termination of a marriage contract"

Federal jurisprudence

In the event that one of the spouses concludes a loan agreement or makes another transaction related to the occurrence of a debt, such a debt can be recognized as common only if there are circumstances arising from paragraph 2 of Art. 45 of the RF IC, the burden of proof of which lies with the party claiming the distribution of the debt.

(Clause 5 of the section “Resolution of disputes related to family relationships» Review of the judicial practice of the Supreme Court of the Russian Federation N 1 (2016), approved. Presidium of the Supreme Court of the Russian Federation on April 13, 2016)

The common joint property of the spouses, subject to division (clauses 1 and 2 of article 34 of the RF IC), is any movable and immovable property acquired by them during the marriage, which, by virtue of Art. Art. 128, 129, paragraphs 1 and 2 of Art. 213 of the Civil Code of the Russian Federation may be an object of property rights of citizens, regardless of the name of which of the spouses it was acquired or funds were deposited, unless a different regime for this property is established by the marriage contract between them. The division of the common property of the spouses is carried out according to the rules established by Art. Art. 38, 39 RF IC and Art. 254 of the Civil Code of the Russian Federation. The value of the property to be divided is determined at the time of the consideration of the case. The composition of the property subject to division includes the common property of the spouses that they have available at the time of the consideration of the case or that is held by third parties. When dividing property, the total debts of the spouses are also taken into account (clause 3, article 39 of the RF IC) and the right to claim for obligations arising in the interests of the family.

(Clause 15 of the Decree of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 N 15 “On the application of legislation by the courts when considering cases of divorce”)

For the distribution of debt in accordance with paragraph 3 of Art. 39 of the Family Code of the Russian Federation, the obligation must be general, that is, arise on the initiative of both spouses in the interests of the family or be an obligation of one of the spouses, according to which everything received was used for the needs of the family.

(Determination of the Supreme Court of the Russian Federation of 01.03.2016 N 75-KG15-12)

Paragraph 3 of Art. 39 of the Family Code of the Russian Federation is aimed at protecting the property rights of citizens and does not prevent the recovery of funds from the former spouse in favor of another former spouse who fulfilled, including in part, after the dissolution of the marriage, an obligation that arose in the interests of the family before its dissolution.

(Determination of the Constitutional Court of the Russian Federation of December 23, 2014 N 2956-O)

The provisions of the law that, when dividing the common property of the spouses, the total debts and the right to claim for obligations arising in the interests of the family are taken into account, do not indicate the existence of legal grounds for collecting unpaid debts under the loan agreement from the spouse.

Obligations arising during the marriage under loan agreements, the obligations of fulfillment of which after the termination of the marriage lie with one of the former spouses, can be compensated to the spouse by transferring to him the ownership of the corresponding part of the property in excess of the share due to him by law in the jointly acquired property. In the absence of such property, the spouse-borrower has the right to demand compensation from the second spouse for the corresponding share of payments actually made by him under the loan agreement. Otherwise would be contrary to the provisions of paragraph 3 of Art. 39 of the Family Code of the Russian Federation and entailed the onset of obviously adverse consequences for the other spouse in terms of the time period for fulfilling a monetary obligation.

(Determination of the Supreme Court of the Russian Federation of April 12, 2016 N 19-KG16-7)

The norm of paragraph 3 of Art. 39 of the RF IC, according to which the total debts of the spouses in the division of common property are distributed between them in proportion to the shares awarded to them, does not contain a condition on the possibility of filing a lawsuit with a court for the division of the spouses' debts only after their repayment.

(Determination of the Supreme Court of the Russian Federation of 08.09.2015 N 5-KG15-81)

The three-year limitation period for claims for the division of property that is the common joint property of the spouses whose marriage has been dissolved (clause 7, article 38 of the RF IC) should not be calculated from the time the marriage was terminated (the day state registration dissolution of marriage in the book of registration of acts civil status- upon dissolution of marriage in the civil registry offices, and upon dissolution of marriage in court - the day the decision comes into force), and from the day when the person knew or should have known about the violation of his right (clause 1 of article 200 of the Civil Code of the Russian Federation ).

(Clause 19 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 N 15 “On the application of legislation by the courts when considering cases of divorce”)

The plaintiff, who filed a lawsuit against his ex-wife to recognize the debt under loan agreements as a common obligation of the spouses and distribute the debt, was the borrower of funds, therefore, it was he who had to prove that everything he received under loan agreements and the loan agreement was used for family needs. The imposition by the court on the defendant of the burden of proving the fact that the spouse used these funds for purposes other than family needs is contrary to the requirements of the current legislation.

(Determination of the Supreme Court of the Russian Federation of September 13, 2016 N 41-KG16-28)

Claims on disputes arising from family legal relations are considered and resolved by the courts in the manner prescribed by the legislation on civil proceedings. In accordance with Art. 56 Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis of its claims and objections, unless otherwise provided by federal law; the court determines which circumstances are relevant to the case, which party is to prove them, submits the circumstances for discussion, even if the parties did not refer to any of them. Paragraph 2 of Art. 45 of the RF IC does not provide otherwise than the general rules for the distribution of the burden of proof in this category of disputes.

(Determination of the Constitutional Court of the Russian Federation of October 27, 2015 N 2463-O)

A loan under an agreement concluded by a spouse with a bank was provided for financing and construction of an apartment (which is reflected in the loan agreement), the funds under the loan were received during the marriage, therefore, they belong to the joint property of the spouses, and the property acquired on them is their common property . The apartment, as acquired by the spouses during the marriage under a reimbursable transaction for the common funds of the spouses, by virtue of paragraph 1 of Art. 34 of the RF IC is their jointly acquired property; the fact that the defendant repaid the debt under the mortgage loan agreement was made after the dissolution of the marriage does not change the regime of the spouses' common joint ownership of the apartment.

(Determination of the Supreme Court of the Russian Federation of 08.09.2015 N 31-KG15-7)

Paragraph 2 of Art. 34 and paragraph 3 of Art. 39 of the RF IC are aimed at protecting the property rights of spouses and cannot be considered as violating the constitutional rights of citizens. Paragraph 2 of Art. 45 of the RF IC as an exception to general rule on Liability for an Obligation Only of the Debtor Himself provides for the possibility - if the court establishes the circumstances specified in it - to levy execution on the common property of the spouses. Accordingly, it is aimed at protecting the property interests of the spouse-debtor under obligations with other persons and also cannot be considered as violating the constitutional rights of citizens.

(Determination of the Constitutional Court of the Russian Federation of January 17, 2013 N 4-O)

Practice of the Moscow City Court

Since there is no evidence that the loan agreement was concluded on the initiative of both spouses in the interests of the family, and also that the borrowed funds were spent on the needs of the family, the obligation to repay the debt funds is a personal obligation of the borrowing spouse.

(Determination of the Moscow City Court dated June 29, 2016 N 4g-7426/2016)

The provisions of paragraph 3 of Art. 39 of the Family Code of the Russian Federation do not prevent the division of common debt obligations between spouses, regardless of whether there is a dispute between them about the division of jointly acquired property.

(Determination of the Moscow City Court dated December 24, 2014 N 4g / 7-12706 / 14)

The court, at the claim of the lender, collected the debt under the loan agreement only from the spouse-borrower, since there is no evidence that the borrowed funds were spent in full on the purchase and repair of the apartment, as indicated in the text of the agreement.
According to the loan agreement, the funds were transferred to the spouse-borrower on a repayable basis for the acquisition of ownership and repair of the apartment, but he did not provide sufficient and indisputable evidence confirming that the funds received by him were spent specifically for these purposes. The cost of the purchased apartment is clearly incommensurable with the amount of the loan; there is no evidence that the cost of finishing the apartment was more than six times the cost of buying it. In addition, the borrower's ex-wife did not consent to the conclusion of the loan agreement. The court explained that the current legislation does not contain provisions that when one of the spouses acquires debt obligations, the consent of the other spouse is assumed, as prescribed by the provisions of Art. 35 RF IC. On the contrary, by virtue of paragraph 1 of Art. 45 of the Family Code of the Russian Federation, each of the spouses is allowed to have their own obligations to other persons. Thus, the debt under the loan agreement is a personal debt of the borrowing spouse, and there are no grounds for collecting this debt jointly and severally from both former spouses.

(Determination of the Moscow City Court dated December 16, 2014 N 4g / 1-12137)

Debts arising from transactions made by a spouse are common only from the point of view of the internal property relations of the spouses, the need to account for and distribute these debts when dividing jointly acquired property.

(Appeal ruling of the Moscow City Court dated 12/16/2015 in case No. 33-46713/2015)

Obligations assumed by one of the spouses and all received from which was used in the general family interests are determined by law by the obligations of one of the spouses, but liability for them is equated to liability for common marital obligations. The legal significance in this case is the fact (it is subject to establishment by the court) that everything received by the spouse under the obligation must be spent on the needs of the family.

(Appeal ruling of the Moscow City Court dated October 22, 2015 in case No. 33-32707/2015)

The current legislation does not provide for the division of spouses' property as a basis for changing the terms of contracts, including credit ones.

(Appeal ruling of the Moscow City Court dated March 10, 2015 in case No. 33-7352)

Claim

• on the division of the total debt of spouses / total debts of spouses / marital debt;
• on the recognition of debt under credit agreements / loan agreements / other agreements as a general (joint) obligation (debt) of the spouses and the distribution of debt;
• on the division of credit/debt obligations;
• on imposing on the plaintiff and the defendant in equal shares the obligation to repay the debt (remaining debt) under loan agreements;
• on the recovery from the defendant of a part of the debt paid by the plaintiff under a credit or other obligation.

• on the obligation to renegotiate the loan agreement;
• on the division of jointly acquired property;
• about divorce.

Claims for the division of common debts of spouses can be presented as an independent claim (for example, Rulings of the Supreme Court of the Russian Federation of September 13, 2016 N 41-KG16-28, of July 12, 2016 N 85-KG16-6). They can also be indicated as additional requirements for requirements related to the division of property of spouses (for example, Rulings of the Supreme Court of the Russian Federation of 06.09.2016 N 38-KG16-5, of 05.07.2016 N 37-KG16-8).

For more information about the division of spouses' property, see the material "Dispute on the division of spouses' property (based on the judicial practice of the Moscow City Court)".

In addition, claims for the division of the common debts of the spouses may be presented as part of a counterclaim (for example, Ruling of the Supreme Court of the Russian Federation of February 9, 2016 N 78-KG15-45, Cassation ruling of the Moscow City Court of April 22, 2015 N 4g / 2-3581 / 15).

The plaintiff and defendant in this category of disputes in most cases are former spouses. However, a dispute over the division of common debts may also arise between spouses whose marriage has not been dissolved at the time of going to court (for example, Ruling of the Supreme Court of the Russian Federation of 04/12/2016 N 19-KG16-7, Ruling of the Moscow City Court of 04/06/2015 N 4g /4-3104/15, Appeal ruling of the Moscow City Court dated 12/16/2015 in case N 33-47575/2015).

In addition, there are cases of filing a claim for recognition of the debt as the total debt of the spouses by a lender or creditor who has entered into an appropriate agreement with one of the spouses (for example, Ruling of the Moscow City Court of June 29, 2016 N 4g-7426 / 2016, Cassation ruling of the Moscow City Court of June 20 .2016 N 4d-6091/2016). Such a lender or creditor may also act in a dispute as a third party stating independent claims (for example, Ruling of the Moscow City Court dated March 29, 2016 N 4g-2824/2016).

If the debt arose from a loan agreement, then the court attracts, as a third party that does not file independent claims in relation to the subject of the dispute, the bank that issued the loan (for example, Appellate rulings of the Moscow City Court dated June 30, 2015 in case N 33-22440 / 2015, dated 02.03.2015 in case N 33-6589/2015)

By general rule when dividing the common property of the spouses, only their common debts can be distributed between them. They are distributed between the spouses in proportion to the shares awarded to them (part 3 of article 39 of the RF IC).

At the same time, the legislation does not contain a definition of the total debts of the spouses and does not establish clear criteria according to which the debt incurred by the spouse (spouses) during the marriage can be recognized as common.

According to the position of the Supreme Court of the Russian Federation, if one of the spouses entered into a loan agreement or made another transaction related to the emergence of a debt, such debt can be recognized as common only if there are circumstances arising from paragraph 2 of Art. 45 of the RF IC (clause 5 of the section “Resolution of Disputes Related to Family Relations” of the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 1 (2016), approved by the Presidium of the Supreme Court of the Russian Federation on April 13, 2016).

The debt may be recognized as the joint debt of the spouses if one of the following circumstances is proven:

• the obligation arose on the initiative of both spouses in the interests of the family;
• the obligation is the obligation of one of the spouses, according to which everything received was used for the needs of the family.

A legally significant circumstance in cases of this category is the clarification of the question of whether the funds received by one of the spouses under credit and other agreements were spent on the needs of the family. This circumstance must be proved by the spouse, under whose obligations the debt arose and who claims to distribute it (Decisions of the Constitutional Court of the Russian Federation of February 7, 2013 N 116-O, of January 17, 2013 N 4-O). A spouse who is not a party to a debt obligation does not need to prove that the borrowing spouse used the funds for purposes other than family needs. This position is supported by the Supreme Court of the Russian Federation (for example, Rulings of the Supreme Court of the Russian Federation of September 13, 2016 N 41-KG16-28, of July 12, 2016 N 85-KG16-6, of June 28, 2016 N 39-KG16-4).
It should be borne in mind that the fact of being in a marital relationship is not indisputable evidence of the use by one of the spouses of the money received in debt for family needs (Appeal ruling of the Moscow City Court dated November 12, 2015 in case N 33-40299 / 2015). In itself, the indication in the loan agreement of receiving funds for general family needs (for example, to repair an apartment) also does not indicate the intended use of the funds received (Appeal ruling of the Moscow City Court of October 22, 2015 in case N 33-32707 / 2015).

Judicial practice has developed an approach according to which the debt of one of the spouses, arising from the contract concluded by him during the marriage, can be recognized as the total debt of the spouses if the funds received are spent on the acquisition of the common property of the spouses (apartment, car, etc.) This the point of view is supported by the Supreme Court of the Russian Federation (for example, Rulings of the Supreme Court of the Russian Federation of September 15, 2015 N 58-KG15-11, of September 8, 2015 N 31-KG15-7, of March 17, 2015 N 4-KG15-5) and the Moscow City Court (for example , Determinations of the Moscow City Court dated 04/06/2015 N 4g / 5-2736 / 2015, dated 09/10/2014 N 4g / 3-8670 / 14).

In the category of disputes under consideration, the plaintiff usually requires to recognize the general debt arising from the loan agreement or loan agreement.

For more information on debt collection under a loan agreement on the basis of a receipt, see the material “Dispute on debt collection under a loan agreement on the basis of a receipt (based on the judicial practice of the Moscow City Court)”.

In practice, there are also cases of filing a claim for the division of the total debt that arose from the plaintiff from an agreement on the provision of an overdraft concluded with a bank; from the general agreement with LLC, under which the company undertook to make transactions on the securities market on behalf of the plaintiff (Appeal ruling of the Moscow City Court dated January 18, 2016 in case N 33-1057 / 2016), as well as a claim for the division of jointly acquired debts for payment services (Determination of the Moscow City Court dated June 29, 2016 N 4g-7132/2016).

The court should submit documents confirming the occurrence of the corresponding debt obligation. They can be: loan agreements; provision and service contracts bank cards; documents confirming the issuance of a credit card by the bank, the opening of a credit account; loan agreements; receipts for receipt of funds; the claim of the lender for the return of the amount of the debt; agreement to extend the repayment period.
When considering a dispute, the court checks the existence and amount of the plaintiff's debt under a credit or loan obligation, which can be confirmed by a bank statement, a debt calculation provided by the plaintiff or a bank, a plaintiff's account statement, a promissory note, a loan payment schedule, payment and other documents.
If the debt is repaid by the plaintiff and he demands to recover from the defendant the money paid under the obligation, documents proving the fulfillment of the obligation in full will be required. For example, a notarized application of the lender to repay the loan; a court decision that has entered into legal force, by which the amount of the debt under the loan agreement was collected from the plaintiff in favor of a third party; a bank certificate confirming that the plaintiff has no loan debt or that the loan has been fully repaid.
Usually, the amount of debt is established by the court at the time of divorce or at the time of the actual termination of marital relations between the parties, if they ceased before the moment of divorce or if the marriage was not dissolved in the prescribed manner (for example, Ruling of the Moscow City Court of 04/06/2015 N 4g / 4- 3104/15, Appellate ruling of the Moscow City Court dated November 16, 2015 in case N 33-34799/2015).

For the category of disputes under consideration, it is possible to file a counterclaim. In it, the defendant (claimant in a counterclaim) may demand:

• to recognize as a joint debt of the spouses obligations under credit and other agreements concluded by the defendant during the period of marriage with the plaintiff (for example, Rulings of the Supreme Court of the Russian Federation dated 06.09.2016 N 38-KG16-5, dated 05.07.2016 N 37-KG16-8, city ​​court dated May 28, 2015 in case No. 33-17988);
• to recognize the plaintiff's debt as his personal debt, and not the joint debt of the spouses (for example, the Ruling of the Supreme Court of the Russian Federation of 12.04.2016 N 19-KG16-7);
• recognize as unconcluded loan agreements drawn up between the plaintiff and a third party (for example, Cassation ruling of the Moscow City Court dated June 30, 2015 N 4g / 2-6868 / 15);
• divide jointly acquired property (Determination of the Supreme Court of the Russian Federation of 03/01/2016 N 75-KG15-12).

In judicial practice, the opinion is expressed that a spouse (former spouse) has the right to apply to another spouse (former spouse) with a claim for the division of debts only in the event of full payment of funds under credit or other agreements concluded by the plaintiff (for example, the Ruling of the Moscow City Court dated 01.09 .2015 N 4g/4-9477/15).

The Supreme Court of the Russian Federation holds a different point of view on this issue. In his opinion, paragraph 3 of Art. 39 of the RF IC does not contain a condition that it is possible to go to court with a claim for the division of spouses' debts only after their repayment (Determination of the Supreme Court of the Russian Federation of 09/08/2015 N 5-KG15-81). Thus, the plaintiff can apply to the court with a claim for the division of the spouses' debts both before and after their repayment, including partial.

When considering a specific dispute, the court explained that the fact that the plaintiff repaid the debt under loan agreements does not prevent its division, since the funds paid by the plaintiff are the total debt of the spouses (Determination of the Moscow City Court of 04/06/2015 N 4g / 5-2736 / 2015).

At the same time, it is important to consider: if the plaintiff demands the division of a debt that was repaid while the parties were married, the court will refuse to satisfy the claim. Repayment of the loan during the marriage period means that it was made at the expense of the common property of the spouses, and that the debt itself, on the division of which claims were made, was absent by the time the family relations were terminated (Appeal ruling of the Moscow City Court dated July 30, 2015 in case N 33-26978 /2015).

In judicial practice, there is an approach according to which the obligations under loan agreements that arose during the marriage, the obligations of fulfillment of which after the termination of the marriage lie with one of the former spouses, can be compensated to the spouse by transferring to him the ownership of the corresponding part of the property in excess of the share due to him by law in the joint venture. acquired property. In the absence of such property, the borrower spouse has the right to demand from the second spouse compensation for the corresponding share of the payments actually made by him under the loan agreement (Determinations of the Supreme Court of the Russian Federation of 04/12/2016 N 19-KG16-7, of 03/01/2016 N 75-KG15-12).

If the plaintiff has fully repaid the debt, including by court decision, then in the claim he usually demands to recover from the defendant in his favor the appropriate part of the money paid (for example, the Appeal ruling of the Moscow City Court dated March 18, 2016 in case N 33-9321 / 2016 ). The court may recognize as the general debt of the spouses and divide it between them the amounts paid by the plaintiff to the creditor or lender after the dissolution of the marriage or after the actual termination of the marital relationship, if they ceased before its dissolution (for example, Ruling of the Supreme Court of the Russian Federation dated 17.03.2015 N 4-KG15- 5, Ruling of the Moscow City Court dated 04/06/2015 N 4g/5-2736/2015, Appellate rulings of the Moscow City Court dated 09/30/2015 in case N 33-27377/2015, dated 07/30/2015 in case N 33-23993/2015) .

The plaintiff may ask to share between him and the defendant the entire amount of the debt, independently paid by the plaintiff after the dissolution of the marriage or after the actual termination of the marital relationship, if they ceased before its dissolution. In addition to the principal debt, it may include interest for the use of a loan or borrowed funds, as well as interest for the use of other people's funds under Art. 395 of the Civil Code of the Russian Federation (for example, Appellate rulings of the Moscow City Court dated September 16, 2015 in case N 33-33732 / 2015, dated May 28, 2015 in case N 33-17988).

There is an opinion that the amount of the total debt of the spouses is determined according to the documents from which it arose (agreement, receipt, etc.), and not according to a court decision to recover from the plaintiff the amount of debt, including interest under Art. 395 of the Civil Code of the Russian Federation and court costs (Determination of the Moscow City Court of September 10, 2014 N 4g / 3-8670 / 14).

By virtue of paragraph 2 of Art. 391 of the Civil Code of the Russian Federation, the transfer by the debtor of his debt to another person is allowed only with the consent of the creditor and in the absence of such consent is void.

In this regard, the plaintiff, who asks to recognize the general debt arising from the contract concluded by the plaintiff during the period of marriage with the defendant, must provide the court with evidence of the consent of the credit institution or the recoverer under the loan agreement, to which he has debt obligations, to change the conditions concluded with him contracts. The division of the plaintiff's debt obligations by distributing them by shares and attributing part of the obligation to repay the debt to the spouse who was not a party to such an obligation, without the consent of the creditor, violates the norms of the law and the rights of creditors (Appeal ruling of the Moscow City Court of October 22, 2015 in case N 33-32707 /2015).

In addition, such a violation is evidenced by the assignment of the obligation to repay the credit (loan) debt to the spouse who is not a party to the obligation (Appeal rulings of the Moscow City Court dated March 14, 2016 in case N 33-9179 / 2016, dated April 10, 2015 in case N 33 -8763). The division of debt obligations under a loan agreement in the absence of the consent of the creditor (bank) is also impossible if the defendant recognizes the claim (Appeal ruling of the Moscow City Court of December 16, 2014 in case N 33-37675).

In these cases, the court, having established the fact of the absence of the creditor's consent to the transfer of the debt or his objection to the division of the debt, may decide in favor of the defendant (for example, the Appellate ruling of the Moscow City Court dated March 10, 2015 in case N 33-7352).

However, another situation is also possible, when the court, having qualified the plaintiff's debt as the total debt of the spouses, recognizes the plaintiff's right to receive monetary compensation from the defendant in the amount of half of this debt after the plaintiff fulfills the obligation to pay money under the contract (Determination of the Moscow City Court dated 06.04. 2015 N 4g/4-3104/15).

Claims for the division of the common property of spouses whose marriage is dissolved shall be subject to the general limitation period.

Three years (clause 7, article 38 of the RF IC). This period should not be calculated from the time of termination of the marriage, that is, not from the date of state registration of the dissolution of marriage in the civil status register (in case of divorce in the registry office) and not from the date of entry into force of the court decision on divorce (in case of divorce in a court). This period is calculated from the day when the person found out or should have found out about the violation of his right (clause 1, article 200 of the Civil Code of the Russian Federation, clause 19 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated November 05, 1998 N 15 “On the application by the courts of legislation when considering cases of divorce).

For example, from the day when the spouse (former spouse) paid in full the loan that he took during marriage and solely repaid after the actual termination of marital relations (Determination of the Supreme Court of the Russian Federation of September 16, 2014 N 3-KG14-4, Appeal ruling of the Moscow City Court dated December 24, 2014 in case No. 33-40729).

If the repayment of credit debt was carried out by the plaintiff in periodic payments, then the limitation period begins after each payment made. In such cases, the court determines how many payments and in what amounts fall within the three-year period preceding the plaintiff's application to the court with a claim for the division of the total debt. For other payments, the limitation period is considered to be missed (Appeal ruling of the Moscow City Court dated July 30, 2015 in case N 33-26978 / 2015).

The limitation period is applied by the court only at the request of a party to the dispute, made before the court makes a decision (clause 2, article 199 of the Civil Code of the Russian Federation). If the defendant in the court of first instance does not declare that the plaintiff has missed the limitation period, the court has no legal grounds for applying the limitation period (Appeal ruling of the Moscow City Court of September 16, 2015 in case N 33-33732 / 2015). The expiration of the limitation period, the application of which is declared by the party to the dispute, is the basis for the court to decide to dismiss the claim (clause 2, article 199 of the Civil Code of the Russian Federation).

For this category of disputes, there is no mandatory (pre-trial) procedure for their resolution. However, the court, satisfying the claim for the division of the total debt of the spouses, may take into account the appeal of the plaintiff-borrower with a written claim to the defendant about the need to repay the debt under the loan agreement long before filing a claim with the court (for example, the Appellate ruling of the Moscow City Court dated May 28, 2015 to case N 33-17988).

Please note that from 01/01/2017 a statement of claim can be filed with the court both on paper and in electronic form - including in the form of an electronic document signed with an electronic signature - by filling out a form posted on the official website of the court on the network Internet (Part 1.1, Article 3 of the Code of Civil Procedure of the Russian Federation as amended by Federal Law No. 220-FZ of June 23, 2016).

The plaintiff, who during the marriage received money under a loan or other agreement and asks the court to recognize this debt as common and divide it between the plaintiff and the defendant, must provide evidence that the money received was spent on the needs of the family, including:

• for the acquisition of common property, for example, an apartment, cars, for the development of a land plot for the purpose of construction (Determinations of the Moscow City Court dated 04/06/2015 N 4g / 5-2736 / 2015, dated 12/24/2014 N 4g / 7-12706 / 14);
• to organize the wedding of a common child of the spouses (Determination of the Moscow City Court of 10.05.2016 N 4g-4168/2016);
• to repay debts under previously concluded loan agreements (for example, the Appeal ruling of the Moscow City Court dated March 14, 2016 in case N 33-9179 / 2016).

Otherwise, the court will decide in favor of the defendant (for example, Ruling of the Supreme Court of the Russian Federation of 04/05/2016 N 80-KG15-32).

The plaintiff may refer to the fact that his spouse - the defendant knew about the receipt by the plaintiff of a loan or loan, did not object to it, participated in the execution of the contract, entered into a pledge agreement to secure the obligations of the plaintiff under the contract (Determinations of the Moscow City Court dated 10.05. 4168/2016, No. 4g/7-12706/14 dated December 24, 2014, Appellate ruling of the Moscow City Court dated December 24, 2014 in case No. 33-40729).

When deciding in favor of the plaintiff, the court may take into account that the defendant did not dispute the loan agreement concluded by the plaintiff during the marriage (for example, the Appeal ruling of the Moscow City Court dated May 28, 2015 in case No. 33-17988).

In order to make a decision in favor of the plaintiff, when filing a claim for the division of spouses' debts, it is necessary to prove the circumstances indicated in the table.

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Quite often, the dissolution of a marriage ends with the division between the former spouses of jointly acquired property. But for the time life together spouses can acquire not only material values, but material obligations. Moreover, these obligations are often associated with divisible property. Therefore, the division of credit obligations between former spouses is not such a rarity in the practice of Russian courts.

How to split a loan after a divorce?

We note right away that the features of the section of debt obligations between former spouses depend on the type of lending: consumer, mortgage, etc., as well as the behavior of the participants in the section themselves.

With regard to credit obligations, the same procedure applies as when dividing the property of spouses during a divorce: voluntary and judicial. This is specifically indicated in a special Resolution of the Plenum of the Supreme Court of the Russian Federation.

In the first case, the parties enter into an agreement on the division of the loan, certify it with a notary and submit it to the bank. In the second, the division of obligations is carried out in a judicial proceeding. To date, judicial practice in such cases is developing in such a way that loans are divided in proportion to shares in common property. In this case, the plaintiff must prove that the loan was taken for the general needs of the family, and the second spouse knew about the existence of this monetary obligation. However, courts do not always make similar decisions in similar cases. In practice, situations are not uncommon when the court refuses to satisfy the claims of the plaintiff regarding the division of the loan between him and the former spouse, referring to the fact that the replacement of the borrower is allowed only with the consent of the lender. By the way, it is lenders, that is, banks, who are always reluctant to share loans. Therefore, many positive decisions of the courts on the division of credit obligations are challenged by credit institutions precisely on this basis.

In case of refusal in the section of the loan, the borrower subsequently has the right to recover part of the funds for its repayment from the former spouse in accordance with Art. 15 of the Civil Code of the Russian Federation - "Indemnification". This recovery is also carried out in court, while the plaintiff is obliged not only to prove that the loan was taken for the needs of a broken family, but also the ex-spouse's non-participation in its repayment.

Recently, there have been cases when, with the consent of the former spouses, the court determines the property acquired by them on credit to one of them with the imposition of obligations to pay off the balance of the debt. In addition, often during the court session, the parties take actions aimed at terminating the loan agreement, including at the expense of jointly acquired property. These options eliminate most conflict situations when dissolving a marriage, often the judges themselves recommend doing these ways.

Advice: as evidence that the loan was taken for joint needs, you can present sales receipts, invoices for goods, vouchers, etc. At the same time, it is important that the confirmed expenses can be recognized as incurred for the needs of the family.

Mortgage Section

All of the above is typical for small consumer loans, as well as auto loans. But many former spouses still have mortgage lending obligations, where the amounts and value of the acquired property are significant. In practice, the division of a mortgage during a divorce turns out to be much simpler than the division of some consumer loans. This is due to the fact that banks are aware of the complexity of the division of property upon divorce, so they take all measures to reduce their risks in such situations. This is done by obliging the spouse of the borrower to act as a co-borrower or guarantor under the mortgage agreement. Thus, the credit institution insures itself against unscrupulous borrowers, because if one spouse stops paying on the loan, then you can demand repayment of the debt from the other. Even divorce is not an obstacle to the requirements of the bank.

Note that if one of the former spouses regularly repays the debt on a mortgage loan, and the second evades this, the former may go to court demanding to recover the losses caused by the unscrupulous spouse. Judicial practice in such lawsuits is positive for plaintiffs, but it should be remembered that it is possible to recover only if the mortgaged property is recognized as jointly acquired, and the amount of recovery should be proportional to the share in this property.

Advice: the title borrower, that is, the one for whom the mortgage agreement is drawn up, should not stop making payments on the loan, even if the second spouse does not pay. Since this may further lead to foreclosure on the mortgaged property, as well as spoil the credit history. In case of financial difficulties, it is better to contact the bank to revise the terms of the contract.

The division of credit obligations between former spouses is a frequent phenomenon these days. The success of this case depends on the actual circumstances of the dissolution of the marriage, as well as the mood of all participants in the process. Experience shows that in most cases, when considering such cases in court, it is extremely difficult to achieve the most acceptable option for both parties. Therefore, such cases are often dragged out for a long time or become the beginning of a series of litigation not only between former spouses, but between them and the credit institution.

Changed family circumstances may become the basis for revising the terms of a previously concluded loan agreement. These situations include:

• divorce;
• birth of a child;
• disability;
• deterioration of the financial situation of the debtor in the event of job loss, etc.

If the bank is notified in a timely manner of new circumstances, in order to reduce the risk of non-repayment of the loan, the financial institution can meet the borrower halfway. This is especially true for the division of credit in a divorce. Indeed, in this case, many complex issues arise: joint and several liability in a divorce, division of indivisible property (cars, real estate, etc.), determining the presence of a common debt when dividing a loan taken before marriage or dividing a loan taken without the consent of the second spouse, etc.

Bank notice of divorce

The basic rules in terms of communication with the bank during a divorce are as follows:

1. If there is a loan issued during the marriage, it is necessary to report the dissolution of the marriage to the bank.
2. If the loan was issued during the marriage with the consent of both spouses or was spent entirely on family needs, then during a divorce, one of the spouses has the right to demand that the credit debt be recognized as common and subjected to division.
3. If you need to recognize the debts as common and divide them, then you must first contact the bank to obtain its consent to this procedure. Appeal and consent must be in writing.
4. If the bank refuses to section the loan, you can go to court with a simultaneous lawsuit against your spouse and the bank. At the same time, a claim may be brought against the bank regarding the fact that it does not interfere with the division of common debts.

Standard attitude towards the division of debt by a credit institution

In most situations, the position of the banks is always the same.

Financial institutions generally oppose debt sharing.

Banks believe that the division of the loan leads to significant changes in the terms of loan agreements and violates their rights or affects their interests. From the section of the loan, the number of debtors does not decrease, but at the same time, the bank risk of default on the loan potentially increases. Although in fact there is a positive moment in the section for both the financial institution and borrowers or co-borrowers. It is in this case that it becomes clear who and to what extent is responsible for the loan. However, banks believe that the division of the loan deprives them of the right to recover the entire amount of the debt in its entirety from any of the debtors.

Reviewing the terms of loans in a divorce

The bank's position on the change in conditions is as follows:

• The division of the loan debt and interest on it between solidary borrowers violates the banking rights and the original conditions that allowed the loan to be issued.
• To protect yourself from the appearance of overdue debt due to the divorce of the borrower, it is easier for a financial institution to ask to repay the debt of all debtors on the loan at once or each of them separately (partially or completely), rather than dividing the loan.
• The division of the loan is possible only after the agreement of the bank, otherwise there will be a violation of the provisions of Art. 322, 391 of the Civil Code of the Russian Federation
• The existence of disagreements between ex-husband and wife (regarding the division of acquired property) does not act as a reason for editing loan agreements and is not an obstacle to the legal fulfillment by one or two debtors together of their obligations to repay the loan.
• The Bank may appeal court decisions on the division of credit debts between spouses.
• When issuing large amounts, the bank agrees on a loan, focusing on the income of both spouses. Divorce often leads to a deterioration in well-being, so banks are forced to revise lending conditions in some cases (the main possible changes in conditions are shown in the diagram).

Division of collateral: communication with the bank

As a general rule, spouses can share both the debt and the property acquired with borrowed funds. This principle is mainly used in situations where a mortgage is divided in a divorce or a credit car is divided in a divorce. To divide the collateral property you need:

• Notify the bank in writing of your decision.
• Get a written response from the bank.
• Act according to the circumstances, depending on how close the answer of the financial institution is to the desired one:
  • If you agree with the bank's decision, follow the recommendations of the loan officer (remove the borrower or guarantor from the list of property owners, re-sign the loan agreement, etc.). If the bank agrees on the division, then there will be no problems with the division of collateral. Each of the spouses can eventually be registered as the owner of ½ share of the pledge.
  • If the bank refuses to make the decision of interest, apply to the court (provide strong evidence of the expediency of the proposal rejected by the bank, appeal to the text of the agreement, refer to the current legislation, etc.). If the court makes a positive decision, it must be presented to the bank. However, in any case, you should be prepared for the fact that the bank may challenge the court decision as contrary to the interests of the financial institution.

Bank and loan without the consent of the spouse: challenging the facts or accepting them

Financial institutions always proceed from the position of having the consent of both spouses to issue a loan, therefore, they do not require written confirmation of such consent. Accordingly, in most cases, it is necessary to challenge an already issued loan in court. However, the spouse who disagrees with the issued loan may, within a year from the date of issuance of the loan, declare in writing that he did not give consent to the loan, and demand that the loan agreement be canceled. If the bank has nothing against it, then it can terminate the agreement and require the borrower to return what was received under the agreement. Otherwise, you will have to file a lawsuit in court and dispute the contract already there.

Bank consent to the loan section: what is needed to get it, and what to do if it is not received

To obtain the bank's consent to the section of credit debts, you need to contact the creditor bank with the appropriate written application. The bank must respond by giving written approval for the division of the total debt or refusing to do so. If the bank refused, then this is not a reason to be upset. Spouses can legitimately apply to the court with a claim for the division of debt and at the same time ask the court to oblige the bank not to obstruct such a division. Hope for a favorable outcome of the case is given by court cases in which the court made a positive decision on the division of the loan. For example, according to the appeal act dated August 28, 2013 (case No. 33-4986/2013) of the Arkhangelsk Regional Court, establishing the amount of debt on a loan in the form of equal shares for each of the borrowers refers to the regulation of family property relations between spouses. Thus, according to the court, this issue does not concern creditors, since the determination of marital shares in the loan debt does not terminate the main obligations of the debtors within the framework of their joint and several liability.

And if you keep silent about the divorce, but continue to pay as if in marriage?

If you do not notify the creditor of the dissolution of the marriage and continue to repay the loan, as before, then the interests of the bank will not suffer from this. In such a situation, the risks of one of the spouses may simply increase, which, under unfavorable circumstances, will have to repay the loan on their own. In the event that a financial institution is not informed of a divorce, it considers any loan issued during the marriage as the total debt of the spouses until the opposite is proven. Accordingly, if the second spouse completely withdraws from credit obligations, and the first begins to violate the obligations assigned to him, then the bank can exercise its right to apply for debt collection to any of the debtors individually or to both at once.

Participation of the bank in the litigation during the division

When dividing the pledged property and credit debts, the participation of the bank (even as a third party) is mandatory. This is due to the fact that the interests of the bank will be affected in one way or another by the court decision. In most cases, the bank will act as an interested party. In addition, even if the bank was not involved in the case by the parties to the process or the court, it still has the right to challenge the decision as a person whose rights or interests were affected by the adopted judicial act. No one can deprive a bank of its procedural rights of an interested person. Therefore, even a court decision may be eventually appealed by the bank.

Bank versus court: who is stronger?

Judicial practice regarding the division of credit debts is currently heterogeneous and contradictory. Courts decide both in favor of banks and in favor of ordinary citizens. But the balance of justice is gradually shifting towards financial institutions, and an increasing number of judicial acts are passed in their favor. In this regard, neither the borrower nor his spouse has any confidence in the favorable outcome of the case. Even if the court of first instance satisfies the requirements of one of the spouses regarding the division of the debt, the bank can always appeal the decision to the appellate and cassation instances.

Contradictions in the legislation regarding the division of the loan in the absence of consent to such a division by the bank

The main legal problem in the division of property and debts is caused by a clear contradiction between the norms of the IC RF and the Civil Code of the Russian Federation regarding the division of property acquired by the joint efforts of the spouses:

• On the one hand, spouses have every right to share both their property and common debts.
• On the other hand, banks, by all means available to them, prevent the division of common debts, and sometimes the division of property, when it comes to real estate and vehicles pledged to the bank.

Accordingly, the courts, taking the side of banks, thereby violate the legal right of married people to share their property and jointly acquired debts without any restrictions.

In order to avoid problems with the division of debt, it is necessary to build a trusting relationship with the bank and coordinate any of your actions with it. If you enlist the support of the bank and convince it that the division of the debt will not affect the fulfillment of obligations under the contract by the debtors, then the bank can voluntarily revise the terms of the loan and consider the loan as two separate loan agreements.

The review traditionally included the practice of all judicial boards of the Supreme Court. The second chapter is devoted to the practice of the Collegium for Civil Cases. In it, the Supreme Court analyzes disputes arising from contractual relations related to labor, social and family relations, as well as a number of procedural issues.

In particular, the Supreme Court indicates that in the event that one of the spouses concludes a loan agreement or makes another transaction related to the occurrence of debt, such debt can be recognized as common only if there are circumstances arising from paragraph 2 of Art. 45 RF IC. The burden of proof lies with the party claiming the distribution of the debt.

As an example, the case of the joint and several recovery of the amount of debt from the spouses on the basis of paragraph 2 of Art. 45 of the RF IC (definition of the Supreme Court No. 5-KG14-162). In support of its claims, the plaintiff indicated that, under a loan agreement, executed with a receipt and an agreement on the final settlement of financial settlements within the framework of joint commercial projects, he transferred a certain amount of money to the defendant. However, the obligations to return the funds were not fulfilled. Moreover, the plaintiff attracted the spouse of the borrower, with whom he was married at the time of the conclusion of the loan agreement, as a co-defendant in the case.

The case has been repeatedly considered by different courts. When a new consideration of the case, the trial court, satisfying the claims, guided by the provisions of Article. 310, 314, 322, 807, 810 of the Civil Code of the Russian Federation and Art. 34, 39 of the RF IC, proceeded from the fact that since at the time of the conclusion of the loan agreement the defendants were married, and the money received by one of them from the plaintiff was spent on the needs of the family (in particular, on the development of a joint business and the purchase of real estate), then these funds are the total debt of the defendants. The Court of Appeal agreed with these conclusions.

The Judicial Collegium for Civil Cases of the Armed Forces, on the cassation appeal of the defendant's wife, canceled the court decisions held in the case and sent the case for a new trial to the court of first instance on the following grounds. To impose on the spouse a joint and several obligation to return borrowed funds, the obligation must be general, that is, as follows from paragraph 2 of Art. 45 of the RF IC, arise on the initiative of both spouses in the interests of the family, or be an obligation of one of the spouses, according to which everything received was used for the needs of the family.

Paragraph 2 of Art. 35 of the RF IC, paragraph 2 of Art. 253 of the Civil Code of the Russian Federation establishes the presumption of the spouse's consent to the actions of the other spouse on the disposal of common property. However, the current legislation does not contain provisions that such consent is also expected in the event that one of the spouses has debt obligations with third parties. On the contrary, by virtue of paragraph 1 of Art. 45 of the Family Code of the Russian Federation, which provides that for the obligations of one of the spouses, execution can be levied only on the property of this spouse, each of the spouses is allowed to have their own obligations.

Consequently, in the event that one of the spouses concludes a loan agreement or makes another transaction related to the emergence of a debt, such a debt can be recognized as common only if there are circumstances arising from paragraph 2 of Art. 45 of the RF IC, the burden of proof of which lies with the party claiming the distribution of the debt. Meanwhile, having concluded that the funds borrowed by the defendant from the plaintiff were spent on the needs of the family, the court, in violation of this article, indicated that no evidence to the contrary was presented by the defendant's wife.

In this case, a legally significant circumstance was the clarification of questions about establishing the purpose of receiving the said amount by the defendant, the reasons for signing two documents with the plaintiff, and whether the funds received by the plaintiff were spent on the needs of the defendant's family. Satisfying the claims, the court did not take into account the given circumstances, did not determine them as legally significant for the correct resolution of the dispute, they were not included in the subject of proof in the case and, accordingly, did not receive a legal assessment of the court, which is a consequence of the incorrect application of the provisions of paragraph 2 by the court Art. 45 of the RF IC to the relations of the parties, the Supreme Court pointed out.

The full text of the review of the judicial practice of the Supreme Court of the Russian Federation No. 1 (2016) can be found.

Spousal debts are encumbrances that have arisen for one spouse or both. during marriage and were taken to provide for the needs of the family. It is the concept of funds borrowed for the family good that is key in the definition.

• It is possible to determine which debts are joint and which are personal through a voluntary agreement between legal or former spouses. This is the best option for distributing debts. With a sound approach, it saves time, nerves and money for lawyers.
• The conciliation document is allowed not to be registered with a notary, while it will have legal force. Although, if desired, you can apply for notarization.
• A marriage contract can be used as a document regulating the division of debts. It is allowed to conclude at any time of married life.
• Judicial consideration of marital debts for their division can take place at the initiative of not only one of the couple, but also at the suggestion of the organization that issued the loan.
• When dividing the debt through the court, a representative of the bank is invited to the meeting with the help of the agenda.

Section of loans in the bank and in case of divorce

The credit institution is interested in the fact that the debt (especially if it is large) is paid in full. If there are two co-payers in the form of former spouses, this is much easier to achieve than when dividing the debt into two parts. Indeed, in the first case, at the right time, the bank may require the return of credit money from any of the two.

• Due to the fact that when applying for a mortgage, banks want to see spouses as co-borrowers, then after a divorce between them the debt and the mortgage object itself are divided. The problem is that before paying off the debt to sell housing is almost impossible.
• A court decision on the distribution of debts in a divorce does not always lead to such a division of debt in a bank that the plaintiff needs. The opinion of the representative of the financial organization may influence the decision of the judge.
• When concluding a loan agreement, in order to reduce risks, the bank has the right to require that one of the spouses act as a payer, the second as a guarantor. The document may include a condition that in the event of a divorce, the conditions are not subject to change. Such an agreement is not able to cancel even the court.
• On the other hand, in order to ensure the interests of the bank, its representative may demand in court that the debt be paid by the one from the couple who is indicated as the payer.
• The division of debts by means of an agreement is not a decree for the bank to divide the loan obligations between the spouses.

If there is an agreement, the husband or wife can try to re-register the joint liability agreement for one of them. Usually, the one who pays the balance of the debt receives the property of the object of credit.

Claim for division of debts

The claim for the division of debts is filed by the interested party. It refers to the issuance of claims in court that reflect legal rights claimant. In a statement of claim debts are listed, subject, in the opinion of the submitter, to the section, and the desired the way they are distributed. It is in the interests of the plaintiff to indicate only those debts that he considers general. Before filing an application, it is necessary to take care of the documentary evidence base and the testimony of witnesses.

• The claim for the division of debts may be filed with the application for divorce or separately from it.
• The defendant has the right to put forward a counterclaim, in which he will state his vision of the situation and his list of requirements.
• When applying to a state body, citizens are required to pay a fee. A claim for the division of debts is subject to state duty, including. Its size is determined depending on the total amount of the claim - that is, the amount of debt that is supposed to be divided. The fee is calculated in accordance with paragraph 1 of Art. 333.19 of the Tax Code (Tax Code) of the Russian Federation. It can be from 400 rubles. up to 60 thousand rubles

Arbitrage practice

Judicial practice in the division of marital debts is not yet enough to form any generalizing conclusions. In each individual case, the court makes a decision by appealing to the principles of legality.

• Often, as a result of a lawsuit, former spouses award solidarity payment debt without dividing it into component shares.
• When applying to the court, the interested party must collect evidence base depending on how she wishes to split the loan. That is, to prove either that the money was spent on the needs of the family, or in the interests of only the borrower himself.
• When dividing common debts, the court must adhere to principle of proportionality of shares(Clause 3, Article 39 of the RF IC). In practice, this thesis is often deviated from, taking into account the interests of minor children of a couple or one of the spouses (clause 2, article 39 of the RF IC).

Due to the increase in the number of cases of fictitious debts, judges are cautious about recognizing debts as general.

If there is no relevant evidence (checks, receipts) that the debt was formed to ensure the interests of the family, the interested party may appeal to a slight gap in time between taking a loan and buying a certain thing. The court takes into account the total income of the family in order to understand whether it was possible to buy this property without attracting credit funds. If this was not possible at the time of purchase, a decision is made that the loan obligation is common to the spouses.

Questions from our readers and answers from a consultant

My brother divorced his wife in the summer of 2013, and in the fall she was convicted of economic crimes (embezzlement). It turned out that she took a lot of loans for consumer purposes. Now they have a division of property, the brother does not want to pay her loans. She demands the division of these debts. Does it ex-wife brother to that right?

According to the law, she has every right to demand the division of debts. Your brother's task is to prove that the money from these loans was not spent on family needs.

I want to share the debt with my ex-husband. What should I do and can I do it if the bailiffs already have a writ of execution against me?

File a claim for debt division.

The court decided that the ex-husband should return to me part of the paid loan, and divide the rest in half. The bank contract is for me. How to demand this money from my husband, because the bank requires a constant payment from me?

Take a writ of execution, submit it to the bailiffs, let them launch the debt collection mechanism.