Divorce in most cases involves property claims. The most difficult question that arises during the breakdown of a marriage relationship is whether the apartment received by gift is divided when the spouses divorce. The law provides for the division of only property acquired jointly during marriage. As for the personal property of each spouse, it is not subject to alienation after the breakup of the family.

However, the legislative framework specifically reflects exceptional situations that provide for the possibility of one of the parties making claims regarding the allocation of a share from a donated apartment.

Is it possible to divide a donated apartment during a divorce - legislative aspects

Article 36 of the Family Code (FC) of the Russian Federation provides for the recognition of an apartment as the personal property of the spouse who owns it on the basis of a gift, as a result of which it is not subject to division .
The act of donation must be documented by a notary in accordance with Art. 574 of the Civil Code of the Russian Federation and is officially registered in the Unified State Register of Real Estate. Upon divorce, the other spouse does not have the right to claim the allocation of a share of the gifted real estate, in contrast to jointly acquired property, subject to division in accordance with Art. 34 RF IC and Art. 256 of the Civil Code of the Russian Federation.

A donated apartment is not subject to division, regardless of whether it was received before marriage or after registration of the marriage . Only the donee is recognized as its owner.

Even an apartment received as a gift from one spouse to another cannot be divided after a divorce, since it also becomes the personal property of the person for whom the deed of gift is drawn up.

Marital property

Turning to the Legislation of the Russian Federation, you can find a brief and succinct definition of the concept of “jointly acquired property”.

This is any property, income and other material assets acquired during married life. Thus, family property can be considered:

• real estate;
• total income;
• securities;
• business and share in it;
• vehicle.

Article 37 of the Family Code of the Russian Federation states that during a divorce, spouses are obliged to divide everything acquired in everyday life equally. If one of the spouses did not work during the official marriage, then he can claim his share in the following cases:

1. Maternity leave and child care up to 3 years old.
2. Disability.
3. Caring for a sick relative.
4. Housekeeping. Which means not just sitting at home, but doing housework, home repairs, and caring for livestock.

You may find this article about dividing property without divorce useful.
You can read about dividing loans after divorce here.

You may also find this article useful about whether an inheritance is jointly acquired property.

However, there is a category of real estate that does not fall under the general rubric of the section. The following types of property are not subject to division during a divorce, but remain the property of the owner:

• registered before marriage;
• received as a gift;
• inherited;
• purchased on credit or with a mortgage.

Grounds for dividing a donated apartment

Despite the fact that the donated apartment is not divided between the former spouses, there are several options on the basis of which the property claims of one of them can be satisfied through the court.

Such exceptions are legally confirmed in Art. 37 RF IC.

Change in property value

A significant change in the cost of the donated apartment, which was the result of investments made during the period of cohabitation of the spouses, may serve as the basis for recognizing this real estate as common property .

Such investments include major renovations of premises, reconstruction of technical equipment, redevelopment and other types of changes to improve the condition and quality of the donated apartment, which significantly increased its value.

The party making a claim to receive a share from the donated real estate must present documents confirming its financial investments that increase the value of the apartment. Among them:

• presentation of receipts for the purchase of building materials;
• receipts for settlements with workers;
• extracts from personal accounts confirming expenses for repair work.

Proving such investments can be quite difficult, and often almost impossible. In this case, the real estate remains only in the possession of the recipient of the deed of gift and is not divided.

If the apartment is gifted to two spouses

In usual practice, it is assumed that a gift agreement is executed for one owner . An exception is a gift for a wedding or during an official marriage .

If there are two recipients, then the donated apartment is considered jointly acquired property . When dividing property in the event of divorce, it is divided on a general basis. True, the size of the shares of each spouse is sometimes reflected in the gift agreement.

Presence of a marriage contract

Article 40 of the Family Code of the Russian Federation provides for the possibility of dividing a donated apartment, provided that this aspect is reflected in the marriage contract.

The determination of shares depends on the provisions specified in this document, which are the priority source for dividing real estate.

Insolvency of husband or wife

In exceptional cases, the court makes a decision on the division of an apartment received by gift due to the financial difficulties of one of the spouses. As an option in this situation, the property owner is required to provide alternative housing to the husband/wife.

More often, a recommendation is made for the right to common use of a donated apartment after a divorce until problems with material issues are resolved.

Why is a donated apartment not divided during a divorce?

Is a donated apartment divided during a divorce? In general, what property is subject to division under the law? When acquiring property in an official marriage, both spouses have equal rights to it (Article 34 of the RF IC). If real estate was registered in the name of a wife or husband before or after marriage under a gift agreement, it is not subject to division: the recipient is its gratuitous owner. This is legally confirmed in Art. 36 IC RF.

There are two common misconceptions:

1. If the spouses lived in an official marriage in an apartment that one of them received by gift, then after 5-10 years it automatically becomes community property.
2. In case of divorce, the gifted apartment is divided among the children. In both cases, the law primarily applies to “undivided ownership of the gift of property” throughout life.

How is a donated apartment divided?

According to the law, the division of property is carried out within 3 years after the divorce. The allocation of shares to each of the spouses provides several options for resolving this dispute:

• concluding a peace agreement, which involves determining the exact size of shares with the obligatory certification of this document in a notary office;
• an agreement between the parties without official documentary confirmation, which has certain shortcomings - disputes arise regarding common areas;
• filing a statement of claim providing for consideration of the issue of division of the apartment by the court;
• sale of donated real estate with subsequent division of the proceeds;
• you can buy out part of the apartment due to one of the spouses;
• exchange the due share for a car.

Unlike the division of jointly acquired real estate, in which both parties have equal shares after divorce, the division of a donated apartment allows for various combinations .

For example, when concluding a settlement agreement, the parties have the opportunity to independently determine the size of their shares. A prerequisite is the achievement of mutual agreement and the official execution of documents under the contract in strict accordance with established rules .

What the law says

In accordance with Article 36 of the Family Code of the Russian Federation (hereinafter referred to as the Family Code of the Russian Federation), the division of an apartment that one of the spouses received under a gift agreement is impossible. It is precisely based on this norm that grandparents and other relatives often transfer ownership of housing by deed of gift. This ensures that there is no possibility of forced confiscation of housing or part of it. This approach is especially popular when relatives have “mixed” feelings and some hostility towards their son-in-law or daughter-in-law. Regarding the rights of children, the law provides a simple and clear approach - they will be heirs of housing donated to one of the parents. It should be noted that while the parents are healthy and alive, the children in this particular situation do not have any rights to the donated housing. The period of cohabitation of the spouses, registration, and some other features do not matter at all.

If you donate money to buy an apartment

A large sum of money given to a young family at a wedding or after it by the parents of the bride/groom allows them to purchase an apartment. When a family breaks up, objective options for dividing it are also considered.

However, such real estate is not always divided in equal parts and may not be subject to division at all. There are some nuances in resolving the issue through the court, despite the fact that the housing was purchased after the marriage was registered.

The reasons for this are factors such as:

• Documentary confirmation that a gift agreement has been drawn up for one of the newlyweds for a certain amount, for which an apartment was purchased after the wedding. In this case, it is not subject to division.
• Investment in the purchase of part of the money by the second spouse becomes the basis for the share due to him, in proportion to the monetary contribution.
• If the apartment was purchased with funds donated to the bride or groom, but the jointly accumulated amount was added to it, then the property is divided in proportional shares or equally depending on the investment.

Dividing a donated apartment after the termination of a marriage relationship is a long and complex process. When making a property claim to a part of such real estate, it is necessary to provide compelling reasons that have evidence and validity in court.

Is the deed of gift for a house divided in case of divorce?

Advice from lawyers:

1. Can a gift home be divided during a divorce? At least for children, they are 26 and 23?

1.1. During a divorce, jointly acquired property is divided only between the spouses. Children can claim the property of their parents only by inheritance.

Did the answer help you?YesNo

1.2. Good day. When a marriage is dissolved and property is divided, property that was acquired during marriage at the expense of the spouses is divided; property received as a gift is not subject to division.

Did the answer help you?YesNo

1.3. Hello! If the property is transferred by deed of gift, it is not divided. It doesn’t matter whether there was a transition before, during or after marriage. If the children did not participate in the donation, then they have no rights to the shares.

Did the answer help you?YesNo

1.4. Hello. No, during a divorce, only property acquired by spouses during marriage through compensated transactions is subject to division. Children generally cannot claim their parents' property during their parents' lifetime.

Did the answer help you?YesNo

1.5. Property acquired during marriage is divided between the spouses; the court may award one spouse a larger share if there are grounds. But if during the marriage one of the spouses issued a deed of gift, then the property is not subject to division.

Did the answer help you?YesNo

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2. If you wrote a deed of gift for the house. Will the house be divided during a divorce?

2.1. No, it will not. This is the personal property of the donee, because received under a gratuitous transaction.

Did the answer help you?YesNo

3. Will the house be divided during a divorce if the deed of gift for the house is in my name?

3.1. Natalya, no, it won’t. Since the house was given to you, it is not joint property. Sincerely,

Did the answer help you?YesNo

4. My husband’s mother gave a house as a gift, we want to build a new house on this land next to the same house that was donated, will the new house be divided during a divorce? The gift was already married, there is a child.

4.1. The new one will be shared, but the gifted one will not. Sincerely.

Did the answer help you?YesNo

4.2. According to Article 36 of the Family Code of the Russian Federation, the old house will be the property of the husband and will not be divided during a divorce. And here is a new house in accordance with Article 38. The RF IC will be divided equally. Rate the answer

Did the answer help you?YesNo

5. My husband and I are building a house. The land is registered in my father's name. After construction, he wants to issue a deed of gift for me. Can a house be divided upon divorce or death of a spouse? Or the inheritance of his children in the event of his death.

5.1. If the house and land are transferred to your ownership on the basis of a gift agreement, then this will not be jointly acquired property. It will not be divided in case of divorce, it will not be your husband’s inheritance.

Did the answer help you?YesNo

6. Before marriage, my father made a deed of gift for me. He gave me a house and a car. Then I got married and sold this house and with this money I bought another house and a car and registered it all in my name. The question is: in a divorce, will the house and car be divided between the sexes? I bought all this with money from the sale of the house that was given to me before marriage.

6.1. If you can prove that you bought a house and car with money from the sale of your house and car given to you before marriage, then there will be no division.

Did the answer help you?YesNo

7. The house was inherited by the husband through a deed of gift; 2 rooms remained from this house, a kitchen, 2 rooms, a bathroom, and a corridor were added during the marriage. I took out loans for construction because they don’t give them to my husband. Will the house be divided during a divorce?

7.1. The house will not be divided upon divorce. The difference in price of a new and old house will be divided.

Did the answer help you?YesNo

8. A deed of gift was made to the ex-husband for a house of 50 square meters. During the marriage, the house was completed, an extension was made and a second floor was added, which amounted to 120 square meters. Will this part of the extension be divided in a divorce?

8.1. Hello. Yes of course it will.

Did the answer help you?YesNo

8.2. In accordance with Art. 37 of the Family Code, the property of each spouse may be recognized by the court as their joint property if it is established that during the marriage, investments were made at the expense of the common property of the spouses or the property of each of the spouses or the labor of one of the spouses, significantly increasing the value of this property (capital repair, reconstruction, re-equipment and others). That is, not only will part of the extension be divided, but the entire house may also be recognized by the court as joint property.

Did the answer help you?YesNo

8.3. Hello Irina! In this situation, what is not donated property is subject to division. Like shared property.

Did the answer help you?YesNo

9. The house was bought with maternity capital, divided into shares, my husband and children, my husband and I gave our shares to the children (we made a deed of gift). Please tell me now, if I divorce my husband, will the house be divided?

9.1. Good afternoon No, this house will not be divided during a divorce, since you are no longer the owners of the residential premises, and even before the donation, the shares between you were already determined, because Maternity capital funds participated.

Did the answer help you?YesNo

10. In case of divorce, the land plot that is jointly owned by the spouses is divided. On the site there is a house registered in the name of the spouse under a deed of gift. Is the land under the house excluded during division? If so, what documents must be submitted to the court to exclude the land under the house from division.

10.1. Hello! No, the land plot is not excluded from the division under a residential building. If the land plot is jointly acquired, it is subject to division in equal shares.

Did the answer help you?YesNo

10.2. Land is not excluded during division. If a plot of land was purchased during marriage, it is subject to division between the spouses equally. Article 39 of the Family Code.

Did the answer help you?YesNo

11. While married, I sold the house that I inherited from my father on the basis of a deed of gift. In the event of a divorce, is the tax deduction divided between me and my ex-husband?

11.1. Hello, Anastasia. Property received under a gift agreement is the property only of the donee, and not the jointly acquired property of the spouses. It is a little unclear what tax deduction we are talking about. Sincerely.

Did the answer help you?YesNo

12. How will a house be divided during a divorce, which is not a building for use, but the land is registered in the name of the husband as a deed of gift? We have a child. My child and I are registered at this address where construction is underway, but previously there was a resident there. And the child and I are recorded in the old house book of this dugout. Is it possible to sue something in court?

12.1. Everything is divided in half.

Did the answer help you?YesNo

13. Such a question, the land is registered in the name of the husband under a deed of gift, a house is being built on the land during marriage, can the husband register this house in the name of his relatives so that they would draw up a deed of gift for him in order not to share the property with me, can he do so by law, and what will I get in a divorce in this case? (I have been on maternity leave for three years, my spouse’s main income)

13.1. Good afternoon. This property has nothing to do with you and it is not subject to division in any case (Article 36 of the RF IC)

Did the answer help you?YesNo

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14. The mother-in-law draws up a deed of gift for her son for the house in which we live with him and our two children and are registered. Is homeownership divided in a divorce? Or will there be nothing left for me and the children?

14.1. Hello! During a divorce, the house will not be divided.

Did the answer help you?YesNo

15. In case of divorce and division of jointly acquired property, is the house received by gift divided between the husband?

15.1. No, if it is by deed of gift, it is not divided.

Did the answer help you?YesNo

16. After the wedding, an extension was built to the house, which was registered in the name of the mother-in-law. After legalizing the extension, the mother-in-law registered the extension in her husband’s name using a deed of gift. In the event of a divorce, will this extension be divided or will it remain only with the husband? After all, they built it with common money.

16.1. Hello, if the extension was given to the husband, then it is his personal property. It is almost impossible to prove that you built it with common funds, especially since, as I understand it, it was legitimized by your mother-in-law, being the owner of the entire house. Thus, according to the documents, it turns out that the mother-in-law built it, legalized it and donated it.

Did the answer help you?YesNo

17. I have a green deed for the house and a deed of gift from my father (my father is no longer there). Is the house divided during a divorce and does anyone else claim it? Thank you!

17.1. Hello, no, it is not divided during a divorce and no one can claim you are the sole owner.

Did the answer help you?YesNo

17.2. Hello! If the house is already your property under a gift agreement, then it is not subject to division and is not inherited from the father.

Did the answer help you?YesNo

18. I'm married. My parents want to make a deed of gift for the house in my name. Will he share if he divorces his wife?

18.1. Hello! The house will not be divided according to Article 34 of the RF IC.

Did the answer help you?YesNo

19. First - in what cases is a tax deduction allowed when buying a house (we are a young family) and second - if I register the house in my name initially, and then a deed of gift to my mother, and then my mother deeds it back to me, then in the event of a divorce will it be share a house? Thank you in advance.

19.1. 1. You are entitled to it (Article 220 of the Tax Code of the Russian Federation) 2. It will not be shared.

Did the answer help you?YesNo

20. The question is this: the house is donated to his son (given by his grandmother), he has been married for 4 years, they have a 6-month-old son, and his wife and he want to build an extension to the house. Will the house be divided as marital property during a divorce?

20.1. The annex will only be divided.

Did the answer help you?YesNo

Being married to your spouse. We built a house together on land registered in the name of our mother-in-law.

When my husband and I were married, his mother made a deed of land for him.

My mother-in-law is the only owner of a private house, naturally with a plot of land.

In July 2014, my grandmother issued a deed of gift to my mother for an apartment in Ufa.

If a plot of land was inherited by the husband by deed of gift, and a house was built on the plot during marriage, in the event of a divorce, what will be my share?

I, my son, built the house. But so that the house would not be divided between me and my wife during a divorce, the house was registered in the name of my father. My father died suddenly, having previously gotten married.

The apartment was purchased under the Young Family program in 2009, divided into 3 shares.

Please tell me, during a divorce and division of property, how a private house will be divided,

If during the marriage one of the spouses received a deed of gift for the house.

According to the deed of gift, the house is 23 sq. And we demolished it and built a new one of 130 square meters,

Please tell me if my father and his wife bought 2 plots in SNT, one is registered in the father’s name, the second in her name.

I have a question: is it possible to draw up a deed of gift for a share participation agreement in a house under construction?

I'm married and want to get a divorce. My husband has a lot of debts and all sorts of loans and credits,

Do I and my son from my second marriage have the right to part of the house, deeded as a gift to my husband, if we are not registered in it?

Is an apartment given to one of the spouses during marriage divided in case of divorce?

Real estate acquired during marriage is joint property subject to division (clause 1 of Article 256 of the Civil Code of the Russian Federation). However, this rule does not apply to those things or objects that are received as an inheritance or as a gift. Such housing is considered personal property (clause 2, article 256 of the Civil Code of the Russian Federation) and therefore is not subject to division.

In this case, it does not matter who exactly made the gift. Even if it was made by the second spouse, the property will still not be divided during a divorce.

Example : A husband gave his wife an apartment. Is it divided during a divorce if he made the gift for personal funds received as an inheritance? No, it doesn't share. Such real estate is still considered a gift and becomes the sole use of the gifted person.

When a donated apartment is subject to division

Despite the fact that the gifted apartment is the personal property of the owner, in some cases his spouse may be entitled to a share in the event of a divorce.

If during the marriage actions were taken on real estate that led to a significant increase in its cost, the residential premises can be transferred by court decision from personal property to the category of joint property. To do this, the owner’s spouse must prove that he was directly involved in the process of repairing or restoring the home, or invested significant funds in it. Similar circumstances are prescribed in Article 37 of the RF IC.

Article 37 of the RF IC - Recognition of the property of each spouse as their joint property

The property of each of the spouses may be recognized by the court as their joint property if it is established that during the marriage, investments were made at the expense of the common property of the spouses or the property of each of the spouses or the labor of one of the spouses that significantly increased the value of this property (major repairs, reconstruction, re-equipment and others).
Improvements that increase property value typically include:

1. Major renovation.
2. Redevelopment.
3. Re-equipment or improvement of the technical equipment of the premises.
4. Replacement of plumbing and water supply.

The spouse claiming a share in the donated apartment will have to provide evidence of his participation in the renovation work that improved the condition of the living space and, accordingly, increased its price:

• Receipts confirming the purchase of materials;
• Statements from the personal account indicating the costs incurred during the repair;
• Receipts for payment of workers' services.

Other written evidence of material investments may also be provided. But it is much more difficult to prove direct participation in repair work, which is not accompanied by financial expenses. Witnesses should be brought into the case who can confirm the fact that the owner’s spouse was involved in the repairs. It is also necessary to conduct an independent examination and compare the established cost of the apartment with that indicated in the deed of gift.

Typically, a gift agreement involves the transfer of property to one owner. However, in the case of real estate that was given as a gift for a wedding or during a marriage, there may be exceptions. Sometimes both spouses are indicated as donees. In such a case, the apartment will not be considered personal property, but jointly acquired property.

Upon marriage, as well as at any time while the relationship between husband and wife is officially registered, spouses can draw up a marriage contract. The document has an advantage over the provisions of the Family Code of the Russian Federation, and is considered a priority source. This statement is recorded in Article 40 of the RF IC.

Article 40 of the RF IC - Marriage agreement

A marriage contract is an agreement between the persons entering into marriage or an agreement between the spouses that defines the property rights and obligations of the spouses during the marriage and (or) in the event of its dissolution.