According to the law, foreclosure on the property of the debtor's spouse is directed at what belongs to him alone. Judicial practice states that foreclosure on the property of spouses occurs when the second spouse is a co-borrower, debtor or guarantor. When the property is not sufficient to pay off the debt in full, a certain share belonging to one spouse is allocated from it to pay off the debt.
Our lawyers in enforcement proceedings will advise you and draw up a statement of claim for the allocation of the debtor’s share in jointly acquired property with a requirement to foreclose on the share.
The procedure for foreclosure on the property of spouses
It is not always possible to carry out the procedure. For example, if during marriage the spouses acquired an apartment or a car, the claimant can use the right to allocate the debtor’s share in this property and, after selling the objects, reduce the debt. If an apartment, purchased before marriage by the second spouse, who is not a debtor, is used for living for family members, the sale cannot be carried out, exclusion from the inventory for the sale of real estate is possible. Also, this property cannot be sold if it is the only place of residence of the borrower and his family members.
To foreclose on the property of the debtor spouse, you can use the following algorithm of actions:
- Property search . It is necessary to establish whether the debtor has property that belongs only to him, for example, property received by inheritance or gift. To do this, the bailiff must request information from Rosreestr about the debtor’s real estate, and from the traffic police about the availability of vehicles.
- Analysis of property mass . Determine whether there is enough property that belongs only to the debtor to satisfy the claims of the claimant.
- The claimant has the right to apply to the bailiff to seize the debtor's property in order to prevent its sale to third parties.
- Sale of property . If the debtor does not satisfy the demands, the applicant can contact the bailiff with an application to foreclose on the debtor's property and further sell the property at auction, with the transfer of the proceeds to the recoverer, taking into account the amount of debt.
- Property of the debtor's spouse. It is necessary to establish the property acquired by the spouses during marriage, i.e. is joint property. To do this, the bailiff must send a request to the registry office about the existence of a registered marriage with the debtor, and then a request to Rosreestr to obtain information about the registered rights to real estate of the debtor's wife.
- Allocation of shares in the property of spouses. If the spouses have common joint property, apply to the court with a claim to separate the debtor's share in kind from the common property and foreclose on it, to divide the common property. Both the claimant and the bailiff can file a claim in court. Subsequently, if the share of the debtor spouse is allocated or the property is divided, the bailiff forecloses on the property and sells the relevant property at auction. When selling a share in property, the purchase of the corresponding share must first be offered to the owner of the other share.
- Cash from the sale of property, taking into account the amount of debt, is transferred to the claimant. In addition, the bailiff has the right to go to the debtor’s place of residence and seize (seize) his property.
How to object to foreclosure on your spouse’s property?
The claimant may file a claim for the allocation of a share in the common property of the spouses, which may be subject to foreclosure. Not all property will be considered joint property; in particular, the debtor spouse will not have ownership of the property in the following cases:
- if the property was not acquired during marriage, therefore it does not belong to the debtor by right of ownership, and he does not have a share in the said property;
- if the property was received by the spouse by inheritance or donated to her, then the debtor spouse has no rights to this property,
- and also if the property, although acquired during marriage, is from the personal money of the spouse, which belonged to her before marriage.
When considering the claim by the court, the spouse must provide evidence confirming that the debtor spouse does not own any share in the property, the allocation of which is requested by the claimant. As evidence, a certificate of inheritance, a gift agreement, a property purchase and sale agreement concluded before marriage with the debtor, and an account statement can be presented.
Also, a marriage contract may be concluded between spouses before marriage or during marriage, according to which the debtor spouse may not own the property acquired during the marriage. BUT! The debtor spouse is obliged to notify his creditors about the conclusion of the marriage contract; otherwise, the creditor has the right to foreclose on the debtor’s property.
In a situation where several real estate properties have been acquired during a marriage, and the creditor makes a demand for the allocation of a share in kind in the specified property, the debtor’s spouse may object to the stated requirements, citing the impossibility of allocating a share in kind.
The creditor may file a claim to recognize the debtor's debt as a common debt with the spouse. In this case, the spouse must prove that, for example, the debtor did not spend the money on the needs of the family, that she did not give her consent to a particular transaction and did not know about the transaction.
But, as they say, every story has its exceptions, so get detailed advice from us before drawing conclusions. It happens that the only housing has too many square meters and it is possible to allocate part of it in court. There is more information about this later in the article.
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Responsibility of spouses for obligations
In accordance with Art. 24 of the Civil Code of the Russian Federation, a citizen is liable for his obligations with all the property belonging to him, with the exception of property on which, in accordance with the law, cannot be levied. In relation to married persons, but acting in civil obligations not in the interests of the family, but in personal interests (for example, when buying a coat) or for obligations that arose before marriage, the law establishes that recovery for the obligations of one of spouses apply first of all to the property of the given spouse, and only if this property is insufficient, the creditor has the right to demand the allocation of the share of the debtor spouse from the common property in order to foreclose on it
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The right to demand the allocation of the share of the debtor spouse essentially means the division of the common property of the spouses.
From Art. 255 of the Civil Code of the Russian Federation it follows that if the allocation of a share in kind is impossible or the spouse objects to this, the creditor has the right to demand that the debtor spouse sell his share to the other spouse at a price commensurate with the market value of this share, with the proceeds from the sale being used to repay the debt. If the spouse refuses to acquire the share, the creditor has the right to demand in court the foreclosure of the share of the debtor spouse in the right of common ownership by selling this share at public auction.
For obligations aimed at the needs of the family, both spouses act as joint and several debtors. In such cases, foreclosure is applied to the common property.
If the common property is insufficient, the creditor has the right to foreclose on the property of each spouse separately, both in full and in part of the debt. If the property of one of the spouses is not enough to repay the debt, then the creditor has the right to demand what was not received from the other spouse.
In cases where the court determines that the common property contains things acquired by criminal means, or the property has increased due to funds obtained in this way, the penalty is applied to the common property. In accordance with the civil procedural legislation, a court verdict in a criminal case that has entered into legal force is obligatory for the court considering the case on the civil consequences of the actions of the person in respect of whom the court verdict took place, only on questions of whether these actions took place and were committed whether they are the given person. The amount of compensation for damage is determined when considering a civil claim. At the same time, as stated in paragraph 9 of the Resolution of the Plenum of the Supreme Court of the USSR of March 31, 1978 No. 4 “On the application of legislation when courts consider cases on the release of property from arrest (exclusion from the inventory)” <1>, the share of each of the spouses there must be both property that can be seized and property that is not subject to seizure.
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<1> See: Collection of decisions of the Plenums of the Supreme Courts of the USSR and the RSFSR (Russian Federation) on civil cases. M., 1995. P. 53.
Civil legislation establishes a general rule according to which their parents are responsible for damage caused by minor children. Moreover, if the parents are married, then according to Art. 31 of the RF IC, the penalty is applied to their common property. In accordance with paragraph 4 of Art. 1073 of the Civil Code of the Russian Federation, the obligation of parents to compensate for harm caused by minors does not cease even when the children reach adulthood.
Some exception to the general rule is the provision regarding the liability of spouses for damage caused by their minor children aged 14 to 18 years, if they have any income or other property sufficient to compensate for the damage. In this case, the parents answer subsidiarily (additionally) only for the missing part. As follows from paragraph 3 of Art. 1074 of the Civil Code of the Russian Federation, the obligation of parents to compensate for damage terminates:
- upon these children reaching adulthood;
- when children, before reaching adulthood, have income or other property sufficient to compensate for the harm;
- when children, before reaching adulthood, acquired full legal capacity (married or emancipated, i.e. declared fully capable).
Before the enactment of the Family Code, the law provided for certain cases of notification by the debtor spouse of his creditors. We are talking about changing the surname. In accordance with paragraph 2 of Art. 19 of the Civil Code of the Russian Federation, the risk of consequences caused by the lack of information from creditors about the change of surname lies with the debtor.
According to paragraph 1 of Art. 46 of the RF IC, the spouse is obliged to notify his creditor (creditors) of the conclusion, amendment or termination of the marriage contract. If this obligation is not fulfilled, the spouse is liable for his obligations, regardless of the contents of the marriage contract.
As can be seen, the legislator has made an attempt to guarantee the rights of creditors when concluding, amending and terminating a marriage contract by establishing the obligation of the debtor spouse to notify his creditors about this, regardless of the amount of the debt. Considering that civil legislation refers to creditors as persons who have the right to demand from the debtor the fulfillment of his obligations, a literal reading of Art. 46 of the RF IC it follows that the debtor spouse has an obligation to notify, for example, the organization with which the bicycle rental agreement was concluded, about the conclusion of a marriage agreement. Apparently, the practice of applying Art. 46 will follow the path of guaranteeing the rights of creditors only for transactions that are long-term or concluded by a citizen - an individual entrepreneur, or for obligations arising from contracts requiring notarization or state registration.
If the obligation to notify his creditors about the conclusion, amendment or termination of the marriage contract is not fulfilled, the spouse is liable for his obligations regardless of the marriage contract. At the same time, the Family Code provides for the right of creditors to demand changes in the terms or termination of an agreement concluded between them due to significantly changed circumstances.
Source: Textbook "FAMILY LAW" edited by P.V. KRASHENINNIKOVA. Authors: Gongalo B.M., Krasheninnikov P.V., Mikheeva L.Yu., Ruzakova O.A.
Foreclosing on the common property of spouses in court
The court interprets the provision differently. If the borrowed amount of money was used for common needs, then foreclosure on the common property of the spouses is executed in full. In this situation, repayment is possible in the amount of property that belongs to the spouses on the basis of common ownership rights.
In some situations, the procedure for foreclosure on the property of the spouses is aimed at the second spouse, but only after the adoption of an appropriate resolution and analysis of the property available to the debtor, which can be used to pay off the debt. The allocation of a part of the property is made taking into account the people living on its territory.
If this is the only property where the debtor’s dependents and spouse live permanently, such property cannot participate in the repayment of debts. The sale of a share is carried out taking into account its market value and is carried out with the consent of the people living there. Collection is made only after collecting the necessary information confirming this fact.
Husband's debts on a loan he took out for personal purposes
This is a completely different question, which often caused many problems and headaches. Previously, whether the husband was obliged to pay the loan for his wife or vice versa was not even specified. Debts acquired during marriage were joint by default, no matter what. But since 2016 this situation has changed.
During the trial of a family conflict, which concerned specifically the division of debts between spouses, the case reached the Supreme Court, which put an end to the controversial issue of whether the wife was responsible for her husband’s debts.
In 2021, the Supreme Court made an important decision. He determined that a loan debt is recognized as joint only if the money was spent on the needs of the family. If otherwise is not proven, then the debt is recognized by the one who took it.
The collection of evidence in such cases is carried out by the party interested in the distribution of the debt.
Lawyer for recovery of property of spouses in Yekaterinburg
Guarantees of the rights of creditors when concluding a marriage contract are provided for by the relevant provisions and are regulated by this document.
If the amount from the sale is not enough for repayment, bailiffs may require the couple to review and re-register the document, clarifying the procedure for repaying debts.
If the debts arose before the marriage, then the one who issued them and used them without involving joint property is responsible for them.
If the debt being collected arose at the initiative and with the participation of both family members, then it will also be collected from both.
