Division of the debt of the spouses on the loan judicial practice. Shared debts of spouses? Debt recovery from the debtor's spouse. Agreement as a way to share debt

Common Debt Criteria

Paragraph 3 of Article 39 of the Family Code of Russia (FC RF) contains a laconic rule: the total debts of the spouses in the division of the common property of the spouses are distributed among the spouses in proportion to the shares awarded to them.

The absence of a legislative definition of “general debt” and extremely stingy rules regarding the distribution of such debts pose a number of problems for law enforcement practice. important issues, the answers to which are not always on the surface.

In most cases, judicial acts do not contain references to the criteria to distinguish the total debt of the spouses from the personal debt of each of them. Here are excerpts from some decisions where such criteria are nevertheless formulated:

- “for the distribution of debt in accordance with paragraph 3 of Art. 39 family code Russian Federation it should be established that this debt (obligation) is general, i.e., as follows from paragraph 2 of Art. 45 of the Family Code of the Russian Federation, arose on the initiative of both spouses in the interests of the family, or is an obligation of one of the spouses, according to which everything received was used for the needs of the family "( Determination of the St. Petersburg City Court dated May 23, 2011 N 33-7466 / 2011);

- “general obligations (debts) of the spouses, as follows from the content of paragraph 2 of Art. 45 of the Family Code of the Russian Federation, are those obligations that arose on the initiative of the spouses in the interests of the whole family, or the obligations of one of the spouses, according to which everything received by him was used for the needs of the family "( Decree of the Presidium of the Moscow Regional Court of February 16, 2011 N 52 in case N 44g-16\11);

- “according to Part 3 of Art. 39 of the Family Code of the Russian Federation, the total debts of the spouses, when dividing the common property of the spouses, are distributed between the spouses in proportion to the shares awarded to them. The general obligations (debts) of the spouses, as follows from the content of paragraph 2 of Art. 45 of the Family Code of the Russian Federation, are those obligations that arose on the initiative of the spouses in the interests of the whole family, or the obligations of one of the spouses, according to which everything received by him was used for the needs of the family "( Determination of the Primorsky Regional Court dated March 14, 2011 in case N 33-2147).

Thus, those courts that are trying to establish the grounds for the emergence of a common debt refer to paragraph 2 of Article 45 of the RF IC, which says the following: “The recovery is levied on the common property of the spouses general obligations spouses, as well as for the obligations of one of the spouses, if the court established that everything received under the obligations of one of the spouses was used for the needs of the family. In case of insufficiency of this property, the spouses bear joint liability for the indicated obligations with the property of each of them.

It is obvious that paragraph 2 of Article 45 of the RF IC is formulated unsuccessfully. It is about certain common obligations of the spouses (a history no more definite than the notorious common debts), which, in turn, are clearly opposed to the obligations of one of the spouses.

Thus, the courts are not so much concerned with the interpretation of paragraph 2 of Article 45 of the RF IC, as with the creative transformation of its content, namely:

identify common debts with common obligations;
include among the general debts (obligations) the obligations of one of the spouses, if the court has established that everything received under the obligations of one of the spouses was used for the needs of the family (the general obligations of the spouses, as was said, are directly opposed to the obligations of one of the spouses);
indicate that general obligations arise, including on the initiative of spouses in the interests of the family (not a word is said about such an initiative in the law).

In this case, the creative approach of the courts can only be welcomed: they are trying to correct the obvious mistakes of the legislator.

Consequences of recognizing debt as general

So, the consequence of recognizing the debt as common is its distribution between spouses in proportion to the shares awarded to them in the common property.

And what, in fact, is the distribution, and can it in one way or another affect the rights of the creditor under the obligation?

The interests of the creditor under the joint obligation of the spouses before the divorce are protected as much as possible: the spouses are liable with common property, and if it is not enough, jointly and severally with personal property (paragraph 2 of Article 45 of the RF IC).

After a divorce, debts are distributed. Can it affect the rights of the creditor under the obligation, and can the joint and several obligation, as a result of the dissolution of the marriage, turn into a share obligation (the share of the spouses will be determined in proportion to the property awarded)? This question should be answered in the negative, since such an interpretation of paragraph 3 of Article 39 of the RF IC will inevitably lead to a significant infringement of the creditor's rights under the obligation. In the vast majority of court decisions, the idea is held that the division of marital debts cannot affect the rights of third parties (the courts rarely hold a different opinion: Resolution of the Presidium of the Nizhny Novgorod Regional Court dated June 17, 2010 in case N 44-g-37, Determination of the Moscow City Court dated 08.10.2010 in case No. 33-31748).

Thus, the distribution of debts is an operation that can only matter in settlements between spouses. At the same time, the former spouses must remain joint and several debtors until the full fulfillment of the common obligation that arose in the marriage. Paragraph 2 of Article 45 of the RF IC should therefore be interpreted broadly (to extend its effect to former spouses).

How things work in practice will be discussed in the next post.

Case No. 2-1138/2015

SOLUTION

In the name of the Russian Federation

April 08, 2015 Rostov-on-Don Oktyabrsky District Court of Rostov-on-Don consisting of:

Presiding judge: Nikishova A.N.,

At the secretary: Kartashov E.Yu.,

Having considered in open court a civil case on the claim of V. M. Avdeev against O. P. Avdeeva, a third party of Gazprombank OJSC on the division of the jointly acquired property of the spouses in the form of credit obligations,

SET UP:

Avdeev V.M. He filed a lawsuit against Avdeeva O.P., a third party of OJSC Gazprombank, regarding the division of the jointly acquired property of the spouses. Referring to the fact that by the decision between the plaintiff and the defendant, ... the marriage was registered by the registry office of the city of Bataysk RO, act record No. No. Marriage between the spouses was actually terminated from ... the year. The respondent has filed statement of claim to the divorce court. ... g. magistrate of court district No.<...>The RO made a decision to dissolve the marriage. ... d. the court decision entered into force. The parties cannot come to an agreement on the division of property. There was no marriage contract between the parties. During the marriage, the spouses had credit obligations. Avdeev V.M. issued a loan agreement No. No. dated ... year at Gazprombank OJSC. Due to the fact that the plaintiff borrowed money at a time when he and his wife lived together and ran a common household, and all the above funds were spent on family needs. The balance under the loan agreement dated ... year, executed for Avdeev V.M., as of ... year is 339527.89 rubles.

Based on the foregoing, the plaintiff asked the court to divide the property, which is a common joint property loan agreement № № from... year, executed in the name of Avdeeva The.M. Recognize as equal the debt obligations under the loan agreement No. No. dated ... year, drawn up in OAO Gazprombank. recover from Avdeeva Oh.P. in favor of Avdeeva The.M. the amount of 4595.28 rubles. in payment of the state fee, the cost of paying for the services of a representative in the amount of 30,000 RUB.

Plaintiff Avdeev The.M. at the hearing did not appear, the place and time of the hearing duly notified. The Court considers it possible to consider the case according to Art. .

defendant Avdeeva Oh.P. at the hearing did not come, the place and time of the hearing duly notified. The Court considers it possible to consider the case according to Art. .

The representative of the defendant Avdeeva Oh.P. – Braterskaya O.N. appeared at the hearing, did not recognize the claims, asked the claim to be dismissed.

After hearing the representative of the defendant, having studied the materials of the case, the court comes to the following.

At the hearing, it was established that ... the marriage was registered by the registry office of the city of Bataysk RO, act record No. No. Marriage relations between the spouses were actually terminated from ... the year. ... d. the court decision entered into force. The parties cannot come to an agreement on the division of property. There was no marriage contract between the parties. During the marriage, the spouses had credit obligations. Avdeev V.M. issued a loan agreement No. No. dated ... year at Gazprombank OJSC. The balance under the loan agreement dated ... year, executed for Avdeev V.M., as of ... year is 339527.89 rubles.

The representative of the defendant, at the hearing explained, that Avdeeva Oh.P. on the existence of a loan agreement №№ from... Mr.. concluded between Avdeev The.M. and OJSC Gazprombank for the first time learned from the appeal filed by Avdeev V.M. on the decision of the justice of the peace judicial district №2, Bataysk, Rostov Region from... g. Former spouse did not inform her of the conclusion of the above loan agreement and did not obtain the consent of Avdeeva Oh.P. to conclude a loan agreement., the defendant is not a guarantor under this agreement.

DECIDED:

To satisfy the claims of V. M. Avdeev against O. P. Avdeeva, a third party of Gazprombank OJSC on the division of the jointly acquired property of the spouses in the form of credit obligations - refuse.

The decision can be appealed to the Rostov Regional Court within a month from the date of the decision of the court in final form through the Oktyabrsky District Court. Rostov-on-Don.

The final decision was made on April 12, 2015.

Court:

Oktyabrsky District Court of Rostov-on-Don (Rostov Region)

Judges of the case:

Nikishova Anna Nikolaevna (judge)

Litigation on:

Division of property in a divorce

Judicial practice on the division of jointly acquired property of the spouses, the division of an apartment using the norms of Art. 38, 39 RF IC

This interesting decision was actually made a few months ago and on February 16, 2016.

There are so many details and nuances in any divorce that every time such cases require the most serious attention from judges. So this time, the main problem was the loans taken by one of the spouses before the divorce.

It is difficult now to find a family that does not have at least one loan, so the issue of sharing the borrowed amounts worries many. Moreover, some marriages live less than the deadlines for paying off loans.

So, a certain citizen turned to the Volgograd court with a lawsuit against his already ex-wife. He asked to share the jointly acquired property, including debts on loans.

The marriage between them lasted 13 years. There were two loans: one was taken in 2011, the second - a year later. The plaintiff asked for everything in half: both acquired property and debts on loans.

The ex-wife responded with a counterclaim, where she wrote that the former hid some of the good, including the car, and everything that is needed to be divided.

But the main thing is that the citizen was against the division of two loans, stating that she did not know anything about them during the marriage and did not give consent to the conclusion of these loan agreements. The district court recognized the first loan as general. The regional court did not agree and recognized both loans as common. Ex-wife appealed to the Supreme Court, disagreeing with such a section of loans unfamiliar to her. The Judicial Collegium for Civil Cases of the Supreme Court began to investigate this case.

It turned out the following: the loan in 2011 was received for urgent needs, and a certain man acted as a guarantor there. He and another citizen became guarantors for the loan next year. family boat crashed into everyday life, and the relationship between the spouses ended in 2012. Official divorce - spring 2013.

The District Court, considering this case, said that under the Family and Civil Procedure Codes ex-husband could not prove that the money from one of the loans was used for the needs of the family. The appeal, guided by the same articles, declared that "the occurrence of monetary obligations during the period of marriage in the interests of the family" must be proved by the wife. And she couldn't do it. Hence, debt is a common obligation of spouses.

The Supreme Court in its opinion emphasized that the total debts of the spouses in the division of common property are distributed between them in proportion to the shares awarded to them.

And besides this, the Family and Civil Codes (Articles 35 and 253) establish a presumption of the consent of a spouse to the actions of another in disposing of common property. But the provision that such consent is also assumed in the event that one of the spouses has debt obligations to third parties, our current legislature does not contain. Moreover, the Family Code contains Article 45, which expressly provides that for the obligations of one of the spouses, the recovery can only be on the property of this spouse. That is, you can take the husband's debts only from the property that belonged to him. According to our legislation in marriage, each of the spouses is allowed to have their own obligations. So, according to Article 308 of the Civil Code, an obligation does not create obligations for "other persons", that is, for people who are not participating in the case as parties.

Therefore, the Supreme Court concludes, in the event that one of the spouses concludes a loan agreement or any other transaction related to the appearance of debt, such debt can be recognized as common under certain conditions.

These conditions, or rather the circumstances, are listed in Article 45 of the Family Code. Judging by this article, the burden of proof that the money was spent solely on the needs of the family lies with the party that claims to distribute the debt.

According to Article 39 of the same Family Code, the obligation of the husband and wife will be common if it arose at the initiative of both spouses or was really an obligation of one of them, but everything received was spent on the needs of the family.

As the Supreme Court said, it is legally significant in this case to clarify the question of whether the money received by the husband was spent on the needs of the family. And in our case, the appellate instance did not even bother to clarify this issue. Considering that the ex-husband is a borrower, the Judicial Collegium for Civil Cases of the Armed Forces said, it is he who must prove that all the money he received went to the needs of the family. And the statement of the appeal that the wife must prove it, the Supreme Court said, is contrary to the requirements of our legislation. As a result, the Supreme Court overturned both the decision of the second instance in full and the decision of the district court, which ordered the wife to pay half of the debts of the former only on the first loan. So the loans taken by the legal husband will remain his problem if he does not prove that the money went to the family.

Civil Code of the Russian Federation

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

Family Code of the Russian Federation

Art. 34 “Common Property of Spouses”
Art. 38 “Division of common property of spouses”
Art. 39 “Determination of shares in the division of common property of spouses”
Art. 45 “Foreclosure on the property of spouses”
Art. 46 “Guarantees of the rights of creditors when concluding, amending and terminating 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.

(Item 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 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 in whose name of the spouses it was acquired or funds were deposited, if marriage contract no other regime of this property has been established 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 dated 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.

(Definition Constitutional Court Russian Federation dated 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 spouses whose marriage is dissolved (clause 7 of article 38 of the RF IC) should not be calculated from the time of termination of the marriage (the day of state registration of the divorce in the civil status register - 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 found out or should have found out 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 05.11.1998 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 the general rule on liability for an obligation of only the debtor himself, provides for the possibility - if the court establishes the circumstances indicated in it - to foreclose 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.

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

Main:

/total debts of spouses/spousal 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.

Additional:

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 dated June 29, 2016 N 4g-7426 / 2016,). Such a lender or creditor may also act in a dispute as a third party, stating independent claims (for example,).

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)

- As a 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 that one of the spouses used the money received in debt for family needs (). 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 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, Rulings of the Moscow City Court dated 04/06/2015 N 4g/5-2736/2015, dated 09/10/2014 N 4g/3-8670/14).

- For the category of disputes under consideration, the plaintiff usually requires to recognize as a general debt arising from a 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 utilities(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; contracts for the provision and maintenance of 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 recovered 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 set by the court at the time of divorce or at the time of actual termination 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,).

– 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 09/01/2015 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 ().

– At the same time, it is important to take into account: if the plaintiff demands the division of a debt that was repaid during the period when 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 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 are subject to general term 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 5, 1998 N 15 “On the application by the courts of legislation when considering cases of dissolution of marriage).

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 the form posted on the official website of the court in the Internet (Part 1.1, Article 3 of the Code of Civil Procedure of the Russian Federation, as amended by federal law dated 06/23/2016 N 220-FZ).

– The plaintiff, who during the period of 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 ();
to repay debts under previously concluded loan agreements (for example,).

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 (Decisions of the Moscow City Court dated 10.05.2016 N 4g -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.

		Examples from judicial practice
At the time of the debt obligation, the spouses were married, lived together and ran a common household, family relations were not actually terminated	Divorce certificate (if the marriage has been dissolved) Extract from the register of the registry office (if the marriage was dissolved) Court decision on dissolution of marriage (if the marriage was dissolved in court) A judicial act that has entered into legal force, by which the amount of debt under a loan agreement was collected from the plaintiff in favor of a third party Claimant's explanations Defendant's explanations Witness's testimonies	Determination of the Moscow City Court dated May 10, 2016 N 4g-4168/2016 Determination of the Moscow City Court dated April 6, 2015 N 4g / 5-2736 / 2015 Appeal ruling of the Moscow City Court dated March 18, 2016 in case No. 33-9321/2016 Appeal ruling of the Moscow City Court dated March 14, 2016 in case No. 33-9179/2016 Appeal ruling of the Moscow City Court dated May 28, 2015 in case No. 33-17988
The funds received by the plaintiff were used for the needs of the family (joint needs)	A judicial act that has entered into force, which established that the borrowed funds were spent on the joint needs of the spouses Other documents that confirm the use of borrowed funds for the needs of the family Claimant's explanations Witness's testimonies	Determination of the Moscow City Court dated May 10, 2016 N 4g-4168/2016 Determination of the Moscow City Court of 04/06/2015 N 4g / 4-3104 / 15 Appeal ruling of the Moscow City Court dated March 18, 2016 in case No. 33-9321/2016 Appeal ruling of the Moscow City Court dated March 14, 2016 in case No. 33-9179/2016 Appeal ruling of the Moscow City Court dated November 16, 2015 in case No. 33-34799/2015
The money received by the plaintiff was spent on the acquisition of the common property of the spouses	Loan agreement, loan agreement, other agreement from which the debt arose, which indicates the targeted spending of funds Purchase and sale agreement, agreement on attracting investments in the construction of a residential building, an act of mutual settlements to this agreement, an agreement on equity participation in the construction of an apartment building, an act of acceptance and transfer, receipts, payment orders, other financial documents Certificate of income of an individual (form 2-NDFL) Other documents containing information about the income of the spouses during the acquisition of property Certificate of ownership of real estate (until 07/15/2016), certificate of state registration of rights (until 15.07.2016) Extract from the USRR (from 07/15/2016) Other documents related to the acquisition of property, which indicate its acquisition specifically for borrowed funds	Determination of the Supreme Court of the Russian Federation of March 17, 2015 N 4-KG15-5 Determination of the Moscow City Court dated 06.06.2016 N 4g-3646/2016 Determination of the Moscow City Court dated April 6, 2015 N 4g / 5-2736 / 2015 Determination of the Moscow City Court dated September 10, 2014 N 4g / 3-8670 / 14 Appeal ruling of the Moscow City Court dated 02.10.2015 in case N 33-35243/2015 Appeal ruling of the Moscow City Court dated July 30, 2015 in case No. 33-23993/2015
The defendant consented to the receipt by the plaintiff of funds under a loan or other agreement	Credit agreement, loan agreement, other agreement from which the debt arose Consent of the defendant to the receipt by the plaintiff of funds under a loan or other agreement	Appeal ruling of the Moscow City Court dated November 16, 2015 in case No. 33-34799/2015

– The defendant may object to the recognition of obligations under credit or other agreements executed by the plaintiff as the total debt of the former spouses, referring to the fact that the defendant was not aware of the conclusion of these agreements, he did not consent to their conclusion, as well as the absence of the need to obtain a loan .

In this case, it must be indicated that in 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 a provision that such consent is also assumed if one of the spouses has debt obligations to third parties (for example, the Ruling of the Supreme Court of the Russian Federation dated 09/06/2016 N 38-KG16-5, dated 12/22/2015 N 16-KG15-35). On the contrary, by virtue of paragraph 1 of Art. 45 of the Family Code of the Russian Federation, each of the spouses may have their own obligations to other persons (for example, Ruling of the Moscow City Court of December 16, 2014 N 4g / 1-12137).

At the same time, it should be remembered that the obligation to prove that the spouse is aware of the receipt of borrowed funds for the needs of the family is assigned to the spouse claiming to share the debt (Appeal ruling of the Moscow City Court dated May 18, 2015 in case N 33-15350).
If there is no evidence of the defendant's consent to receive funds under the contract, the court may decide in favor of the defendant (for example, Rulings of the Moscow City Court of March 29, 2016 N 4g-2824/2016, of March 2, 2015 N 4g / 7-1302 / 15 ).

- The defendant also has the right to refer to the provision of paragraph 3 of Art. 308 of the Civil Code of the Russian Federation, according to which an obligation does not create obligations for persons not participating in it as parties (for third parties). Including - indicate that the defendant did not sign the agreement concluded by the plaintiff, from which the debt arose, did not assume any obligations under this agreement, did not participate in it as a party, was not a guarantor (for example, the Appellate rulings of the Moscow City Court dated December 16, 2015 in case No. 33-47575/2015, dated October 22, 2015 in case No. 33-32707/2015).

To make a decision in favor of the defendant in a claim for the division of spouses' debts, it is necessary to prove the circumstances indicated in the table.

Circumstances to be proved	Evidence supporting these circumstances	Examples from judicial practice
The obligation from which the debt arose did not arise at the initiative of both spouses in the interests of the family	Lack of evidence that the loan agreement, loan agreement or other agreement was concluded on the initiative of both spouses in the interests of the family	Determination of the Moscow City Court dated June 29, 2016 N 4g-7426/2016 Cassation ruling of the Moscow City Court dated June 20, 2016 N 4g-6091/2016
The money received by the plaintiff was not used for the needs of the family, for conducting a joint business or for the purchase of common property	Loan agreement, loan agreement, other agreement from which the debt arose, which does not indicate the intended use of funds Receipt for receipt of funds by the plaintiff, which does not contain an indication of the purpose of the loan A loan agreement entered into by the plaintiff with a third party, under which the third party provided the plaintiff with funds for the purchase of housing in the interests of the family A judicial act that has entered into legal force approving a settlement agreement, according to which the defendant undertook to purchase a dwelling for a third party with his own money Agreements and other documents on the acquisition of common property that do not indicate its acquisition specifically for borrowed funds Contracts, acts of acceptance and transfer, receipts, receipts and other documents that do not indicate payment for the repair of the apartment with borrowed funds A judicial act that has entered into legal force, which established that there is no evidence of the direction of the funds received by the plaintiff under the contract for the needs of the family LLC report, according to which the borrowed funds were not used by the spouses for the development of a joint business Lack of evidence that the apartment purchased by the spouses was paid for with money borrowed by the plaintiff from a third party to draw up an agreement for the sale of an apartment The lack of evidence that the spouses did not have other sources of cash receipts (savings, wages etc.), which could be used to pay for repairs in the apartment, for which borrowed funds were taken Lack of evidence that the borrowed funds were spent on the needs of the family Witness's testimonies	Determination of the Moscow City Court dated June 29, 2016 N 4g-7426/2016 Cassation ruling of the Moscow City Court dated June 20, 2016 N 4g-6091/2016 Determination of the Moscow City Court dated March 29, 2016 N 4g-2824/2016 Cassation ruling of the Moscow City Court dated April 22, 2015 N 4g / 2-3581 / 15 Determination of the Moscow City Court dated March 10, 2015 N 4g / 7-13819 / 14 Appeal ruling of the Moscow City Court dated 12/16/2015 in case N 33-47575/2015 Appeal ruling of the Moscow City Court dated 12/16/2015 in case N 33-46713/2015 Appeal ruling of the Moscow City Court dated November 12, 2015 in case No. 33-40299/2015 Appeal ruling of the Moscow City Court dated October 22, 2015 in case No. 33-32707/2015
The contract from which the debt arose was concluded by the plaintiff during the period of termination of actual family relations with the defendant	Credit agreement, loan agreement, other agreement from which the debt arose The act of the leading specialist in the protection of the rights of children of the municipality in Moscow, drawn up as part of a lawsuit pending by the court on determining the place of residence of children, which reflects the defendant's explanations about the moment of the actual breakup of the family A judicial act on the dissolution of a marriage that has entered into legal force, which reflects the fact that the plaintiff recognized the claim for divorce, which means that the plaintiff agrees with the arguments of the defendant about the moment of the actual breakup of the family Defendant's explanations Witness's testimonies	Appeal ruling of the Moscow City Court dated March 2, 2015 in case No. 33-6589/2015
The plaintiff's debt to the creditor under the obligation that arose during the marriage was formed after the actual termination of family relations with the defendant	Credit agreement, loan agreement, other agreement from which the debt arose A judicial act that has entered into force on the approval of a settlement agreement on the division of property between the plaintiff and the defendant, which indicates the time of termination of actual marital relations	Appeal ruling of the Moscow City Court dated January 18, 2016 in case No. 33-1057/2016 Appeal ruling of the Moscow City Court dated December 24, 2014 in case No. 33-40729
The defendant did not give consent to the plaintiff receiving funds under a loan or other agreement	Credit agreement, loan agreement, other agreement from which the debt arose Receipt for receipt of funds under a loan agreement, in which there is no signature of the second spouse (defendant) Lack of evidence of obtaining the consent of the defendant to receive funds by the plaintiff under a loan or other agreement	Determination of the Moscow City Court dated March 29, 2016 N 4g-2824/2016 Determination of the Moscow City Court dated March 2, 2015 N 4g / 7-1302 / 15 Appeal ruling of the Moscow City Court dated November 12, 2015 in case No. 33-40299/2015 Appeal ruling of the Moscow City Court dated June 2, 2015 in case N 33-18809/15

Statement of claim
on the division of the total debt of the spouses

Plaintiff: ___________(full name)______

Claimant's representative: _____ (full name)_____

address: _______________________________,
telephone: _____________________________,
email mail: ____________________________

Respondent: __________ (full name) ___________

address: _______________________________,
telephone: _____________________________,

State duty: ____________________ rubles

Price of the claim: _____________________ rubles

Statement of claim
on the division of the total debt of the spouses

“___” ________ ____ between the Claimant _______________ and the Respondent _______________ in the Registry Office N ___, _________, a marriage was concluded, which is confirmed by a marriage certificate dated “___” ________ _____, N _____.

The marriage between the Claimant and the Respondent was dissolved in the civil registry / by decision of the ______ court dated “___” ________ _____, N _____, as a certificate of divorce was issued from “___” ________ _____, N _____.

This lawsuit is filed in connection with the forthcoming dissolution of the marriage between the Claimant and the Respondent, at the time of filing this lawsuit, the marriage between the Claimant and the Respondent has not been dissolved.

At the time of filing this claim, the marriage between the Claimant and the Respondent has not been dissolved, however, family relations and the conduct of a common household have actually been terminated since ________ _____.

During the period of marriage, the Claimant entered into a loan agreement dated “___” ________ _____, N _____ / loan agreement dated “___” ________ _____, N _____ / another agreement (hereinafter referred to as the Agreement), under which the Claimant received funds in the amount of _____ for the acquisition apartment / residential building / car / other. The funds received were spent on the purchase of an apartment / residential building / car / other, that is, for the needs of the family.

After the dissolution of the marriage / after the actual termination of family relations in ________ _____, the Claimant independently, at its own expense, fully repaid the debt under the Agreement, paying the creditor / lender / other person a sum of money in the amount of _______.

The Claimant considers the debt under the Agreement to be the joint debt of the Claimant and the Respondent, because:

- At the time of the conclusion of the Agreement (the emergence of a debt obligation), the Claimant and the Respondent were married, lived together and had a common household, family relations were not actually terminated. This is evidenced by the Agreement / certificate of divorce dated “___” ________ _____ N _____ / extract from the register of the registry office / decision ______ of the court dated “___” ________ _____ N _____ on divorce / judicial act that has entered into legal force who collected the amount of debt under the loan agreement from the Claimant in favor of a third party / other documents / explanations of the Claimant / testimonies.

By virtue of paragraph 3 of Art. 39 of the Family Code of the Russian Federation, the total debts of the spouses in the division of the common property of the spouses are distributed among the spouses in proportion to the shares awarded to them.

– The funds received by the Claimant were used for the needs of the family (joint needs), which is confirmed by the Agreement, which indicates the targeted spending of funds / a judicial act that has entered into force, which establishes that the borrowed funds were spent for the joint needs of the spouses / other documents, which confirm the use of borrowed funds for the needs of the family / explanations of the Plaintiff / witness statements.

In accordance with paragraph 2 of Art. 45 of the Family Code of the Russian Federation, the collection is levied on the common property of the spouses for the general obligations of the spouses, as well as for the obligations of one of the spouses, if the court has established that everything received under the obligations of one of the spouses was used for the needs of the family. In case of insufficiency of this property, the spouses bear joint and several liability for the specified obligations with the property of each of them.

– The funds received by the Claimant were spent on the acquisition of the common property of the spouses, namely on _______. This is evidenced by the Agreement, which indicates the targeted spending of funds / sale and purchase agreement, an agreement on attracting investments in the construction of a residential building, an act on mutual settlements to this agreement, an agreement on equity participation in the construction of an apartment building, an act of acceptance and transfer, receipts, payment orders, other financial documents / certificate of income of an individual (form 2-NDFL) / other documents containing information on the income of spouses during the acquisition of property / certificate of ownership of real estate (until 07/15/2016), certificate of state registration rights (until 07/15/2016) / extract from the USRR (from 07/15/2016) / other documents related to the acquisition of property, which indicate its acquisition specifically for borrowed funds.

In accordance with paragraph 1 of Art. 38 of the Family Code of the Russian Federation, the division of the common property of the spouses can be carried out both during the period of marriage and after its dissolution at the request of any of the spouses.

In accordance with paragraph 1 of Art. 39 of the Family Code of the Russian Federation, when dividing the common property of the spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses.

According to paragraph 1 of Art. 45 of the RF IC, for the obligations of one of the spouses, execution can only be levied on the property of this spouse. If this property is insufficient, the creditor shall have the right to demand that the share of the debtor spouse, which would be due to the debtor spouse in the division of the common property of the spouses, be allocated in order to levy execution on it.

– The Respondent agreed to the Claimant's receipt of funds under the Agreement, which is confirmed by the Agreement / the Respondent's consent to the Claimant's receipt of funds under the Agreement / other documents.

The Respondent knew about the Claimant's receipt of funds under the Agreement, did not object to its conclusion, participated in the execution of the Agreement, entered into a pledge agreement to secure the Claimant's obligations under the Agreement.

In paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 05.11.1998 N 15 “On the application of legislation by the courts when considering cases of divorce”, the following is explained. 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.

In connection with the foregoing and on the basis of Art. Art. 34, 38, 39, 45 of the Family Code of the Russian Federation, Art. Art. 131, 132 of the Civil Procedure Code of the Russian Federation

Recognize the debt under the Agreement as the total debt of the Claimant and the Respondent and distribute it between the Claimant and the Respondent, recovering from the Respondent in favor of the Claimant 1/2 of the total debt in the amount of ______.

Applications:

1. Evidence confirming the existence of marital relations between the Claimant and the Respondent: a copy of the marriage certificate dated “___” ______ ___, N ___.

2. Evidence confirming the termination of marital relations between the Claimant and the Respondent or the actual termination of family relations and the conduct of a common household between the Claimant and the Respondent: a copy of the certificate of divorce between the Claimant and the Respondent dated “___” ______ ___ N ___ / copy of the decision ______ of the court dated “___” ________ _____ N _____ on divorce / other documents.

3. A copy of the contract under which the Claimant received funds during the period of marriage with the Respondent.

4. Evidence that at the time of the conclusion of the contract, the Claimant and the Respondent were married, lived together and had a common household, family relations were not actually terminated: certificate of divorce dated “___” ________ _____ N _____ / extract from the registration journal the registry office / decision of the ______ court dated “___” ________ _____, N _____ on divorce / a judicial act that has entered into force, by which the amount of the debt under the loan agreement was collected from the Claimant in favor of a third party / other documents.

5. Evidence that the funds received by the Claimant were used for the needs of the family (joint needs): a judicial act that has entered into legal force, which established that the borrowed funds were spent on the joint needs of the spouses / other documents that confirm the use of borrowed funds for family needs.

6. Evidence that the funds received by the Claimant were spent on the acquisition of the common property of the spouses: a contract of sale, an agreement on attracting investments in the construction of a residential building, an act of mutual settlements to this agreement, an agreement on equity participation in the construction of an apartment building, an act of acceptance - transfers, receipts, payment orders, other financial documents / certificate of income of an individual (form 2-NDFL) / other documents containing information about the income of spouses during the acquisition of property / certificate of ownership of real estate (until 07/15/2016) , certificate of state registration of rights (until 07/15/2016) / extract from the USRR (from 07/15/2016) / other documents related to the acquisition of property, which indicate its acquisition specifically for borrowed funds.

7. Evidence that the Respondent agreed to the Claimant's receipt of funds under the Agreement: the Respondent's consent to the Claimant's receipt of funds under the Agreement / other documents.

8. Calculation of the amount of debt under the Agreement, recoverable from the Respondent.

9. Copies of the statement of claim and documents attached to it to the Respondent.

10. Receipt of payment of the state fee.

11. Power of attorney of the representative from “___” ______ ___, N ___ (if the statement of claim is signed by the representative of the Claimant).

"___" __________ ____ G.

Claimant (representative):

(signature) (full name)

Judicial acts attached to the statement of claim:
Determination of the Moscow City Court dated 06.06.2016 N 4g-3646/2016
Determination of the Moscow City Court dated May 10, 2016 N 4g-4168/2016
Appeal ruling of the Moscow City Court dated March 18, 2016 in case No. 33-9321/2016
Appeal ruling of the Moscow City Court dated November 16, 2015 in case No. 33-34799/2015

on the division of the total debt of the spouses

To ____________________________ District Court

Respondent: ___________(full name)______

address: _______________________________,
telephone: _____________________________,
email mail: ____________________________

Representative of the Respondent: _____ (full name)_____

address: _______________________________,
telephone: _____________________________,
email mail: ____________________________

Claimant: __________ (full name) ___________

address: _______________________________,
telephone: _____________________________,
email mail: ____________________________

Case N ________________________________

Objection to a claim
on the division of the total debt of the spouses

“__” _______ ___ in the _________ district court, the Claimant filed a claim for the division of the total debt of the spouses that the Claimant had during the marriage on the basis of a loan agreement dated “___” ________ _____ N _____ / loan agreement dated “___” ________ _____ g. N _____ / other agreement (hereinafter referred to as the Agreement).

The Respondent objects to these claims because:

– The obligation from which the debt arose did not arise at the initiative of both spouses in the interests of the family. There is no evidence that the Agreement was concluded on the initiative of both spouses in the interests of the family.

– The funds received by the Claimant were not used for the needs of the family, for conducting a joint business or for the acquisition of common property. This is evidenced by the Agreement, which does not indicate the intended spending of funds / receipt of receipt of funds by the Claimant, which does not contain an indication of the purpose of the loan / loan agreement concluded by the Claimant with a third party, according to which the third party provided the Claimant with funds for the purchase of housing in in the interests of the family / a valid judicial act approving a settlement agreement, according to which the Respondent undertook to purchase residential premises for a third party with his own funds / agreements and other documents on the acquisition of common property that do not indicate its acquisition specifically for borrowed funds / agreements, transfer and acceptance certificates, receipts, receipts and other documents that do not indicate payment for the repair of the apartment with borrowed funds / a judicial act that has entered into force, which established that there is no evidence that the Claimant received funds under the agreement for the needs of the family / report LLC, according to which the borrowed funds were not used by the spouses for the development of a joint business / other documents. Evidence that the apartment purchased by the spouses was paid for with money borrowed by the Claimant from a third party to draw up an agreement for the sale of the apartment / the spouses did not have other sources of cash receipts (savings, wages, etc.), due to which it could be paid for repairs in the apartment, for which borrowed funds were taken / borrowed funds were spent on the needs of the family, none.

– The Agreement was concluded by the Claimant during the period of termination of actual family relations with the Respondent (family relations were actually terminated from ________ _____), as evidenced by the Agreement / act of the leading specialist in the protection of the rights of children of the municipality in Moscow, drawn up as part of the lawsuit pending place of residence of the children, which reflects the Respondent's explanations about the moment of the actual breakup of the family / a judicial act on the dissolution of the marriage that has entered into legal force, which reflects the fact that the Claimant recognized the claim for divorce, which means the consent of the Claimant with the Respondent's arguments about the moment of the actual breakup of the family / other documents / explanations of the Respondent / testimony.

According to Art. 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property.

– The Claimant’s debt to the creditor under the obligation that arose during the marriage from the Agreement was formed after the actual termination of family relations with the Respondent (family relations were actually terminated from ________ _____), as evidenced by the Agreement / judicial act that entered into force on the approval of the settlement agreement on the division of property between the Claimant and the Respondent, which indicates the time of termination of the actual marital relationship / other documents.

According to Art. 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property.

In accordance with paragraphs 1, 3 of Art. 39 of the Family Code of the Russian Federation, when dividing the common property of the spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses. The total debts of the spouses in the division of the common property of the spouses shall be distributed among the spouses in proportion to the shares awarded to them.

– The Respondent did not consent to the receipt by the Claimant of funds under the Agreement, which is confirmed by the Agreement / receipt of receipt of funds under the loan agreement, which does not contain the Respondent's signature / other documents. There is no evidence of the Respondent's consent to the Claimant's receipt of funds under the Agreement.

– The Respondent did not know about the conclusion of the Agreement, did not give consent to its conclusion, there was no need to receive funds under the Agreement.

According to paragraph 2 of Art. 35 of the Family Code of the Russian Federation, when one of the spouses makes a transaction on the disposal of the common property of the spouses, it is assumed that he acts with the consent of the other spouse. By virtue of paragraph 2 of Art. 253 of the Civil Code of the Russian Federation, the disposal of property that is jointly owned is carried out by the consent of all participants, which is assumed regardless of which of the participants makes a transaction on the disposal of property.

Thus, the said norms establish a presumption of the spouse's consent to the actions of the other spouse in disposing of the common property. However, the current legislation does not contain a provision that such consent is also expected in the event that one of the spouses has debt obligations to third parties. 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.

– The Respondent did not sign the Agreement, did not assume any obligations under the Agreement, did not participate in it as a party, was not a guarantor under the Agreement.

By virtue of paragraph 3 of Art. 308 of the Civil Code of the Russian Federation, an obligation does not create obligations for persons not participating in it as parties (for third parties).

In paragraph 5 of the section “Resolution of disputes related to family relations” of the Review of the Judicial Practice of the Supreme Court of the Russian Federation N 1 (2016), approved. On April 13, 2016, the Presidium of the Supreme Court of the Russian Federation clarified that if 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 of the RF IC, the burden of proof of which lies with the party claiming the distribution of the debt.

Based on the foregoing, guided by Art. Art. 34, 35, 38, 39, 45 of the Family Code of the Russian Federation, Art. Art. 253, 308 of the Civil Code of the Russian Federation, paras. 2, 3 h. 2 tbsp. 149 of the Civil Procedure Code of the Russian Federation

To satisfy the Claimant's claims for recognition of the debt under the Agreement as the total debt of the Claimant and the Respondent and its distribution between the Claimant and the Respondent, to recover from the Respondent in favor of the Claimant 1/2 of the total debt repaid by the Claimant in the amount of ______.

Applications:

1. Evidence that the funds received by the Claimant were not used for the needs of the family, for running a joint business or for the acquisition of common property: an agreement that does not indicate the intended use of funds / a receipt for the receipt of funds by the Claimant, which does not contain indication of the purpose of the loan / loan agreement concluded by the Claimant with a third party, according to which the third party provided the Claimant with funds for the purchase of housing in the interests of the family / a judicial act that has entered into force approving a settlement agreement, according to which the Respondent undertook to purchase a residential building for a third party on their own funds / agreements and other documents on the acquisition of common property that do not indicate its acquisition specifically for borrowed funds / agreements, acceptance certificates, receipts, receipts and other documents that do not indicate payment for apartment repairs with borrowed funds / a judicial act that has entered into legal force, which established that there is no evidence that the funds received by the Claimant under the agreement were used for the needs of the family / LLC report, according to which the borrowed funds were not used by the spouses for the development of a joint business / other documents.

2. Evidence that the agreement was concluded by the Claimant during the period of termination of actual family relations with the Respondent: an agreement / act of a leading specialist in the protection of the rights of children of a municipality in Moscow, drawn up as part of a lawsuit pending by the court to determine the place of residence of children, which reflects the explanations of the Respondent on the moment of the actual breakup of the family / a judicial act on the dissolution of the marriage that has entered into legal force, which reflects the fact that the Plaintiff recognized the claim for divorce, which means the Plaintiff's agreement with the Respondent's arguments about the moment of the actual breakup of the family / other documents.

3. Evidence that the Claimant's debt to the creditor under the obligation that arose during the marriage from the contract was formed after the actual termination of family relations with the Respondent: the contract / judicial act that entered into force on the approval of a settlement agreement on the division of property between the Claimant and the Respondent, in which is indicated at the time of termination of actual marital relations / other documents.

4. Evidence that the Respondent did not consent to the receipt of funds by the Claimant under the agreement: an agreement / receipt on receipt of funds under the loan agreement, which does not contain the Respondent's signature / other documents.

5. Copies of the objection to the statement of claim and the documents attached to it for the Plaintiff.

6. Power of attorney of the representative from “___” ______ ___, N ___ (if the objection to the statement of claim is signed by the Respondent's representative).

"___" __________ ____ G.

Respondent (representative):

________________/_________________________________________________/
(signature) (full name)

Judicial acts attached to the objection to the statement of claim:
Determination of the Moscow City Court dated June 29, 2016 N 4g-7426/2016
Cassation ruling of the Moscow City Court dated June 20, 2016 N 4g-6091/2016
Determination of the Moscow City Court dated March 29, 2016 N 4g-2824/2016
Appeal ruling of the Moscow City Court dated March 2, 2015 in case No. 33-6589/2015

Debt division dispute

The Supreme Court published a review of judicial practice for the first quarter of 2016, from which it follows that when one of the spouses concludes a loan agreement (including a loan agreement), the loan debt can be recognized as general only if it was taken for family needs. In this case, the burden of proof lies with the party claiming the distribution of the debt. Until now, it has been presumed that if one of the spouses takes a loan, then it is for family needs, and, as a result, in the event of a loan default, the bank could require both spouses to answer for it. Now this presumption is, in fact, canceled, and it will be much more difficult to collect a debt at the expense of the property of the spouses, according to participants in the banking market. The review will be brought to all courts of the Russian Federation, which means that they will make similar decisions on similar disputes.

So, the new rule for the distribution of debts between spouses during a divorce (division of property) is now as follows: If one of the spouses concludes a loan agreement or other transaction related to the occurrence of debt, such a debt can be recognized as common only if there are circumstances arising from paragraph 1 of this Article. 2 tbsp. 45 of the RF IC, the burden of proof of which lies with the party claiming the distribution of the debt.

From the review of the Supreme Court of the Russian Federation:

V. filed a lawsuit against M., P. to recover the amount of the debt. In support of the claim, he 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 for the purchase of goods, as well as for the purchase of real estate, he transferred a certain amount of money to M. At the time of the conclusion of the loan agreement, M. was in marriage to P. (M.). Obligations to return funds under the loan agreement M. were not fulfilled. Based on paragraph 2 of Art. 45 of the RF IC, the plaintiff asked to recover the amount of the debt from M. and P. (M.) jointly and severally.

The case has been repeatedly considered by the courts.

In a new trial, the trial court, satisfying the claims of V., guided by the provisions of Art. 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 P. (M.) was married to M. and the funds received by M. from V. were spent on the needs of the defendants' family, in particular on development of a joint business and for the purchase of real estate, then these funds are the total debt of the defendants in the case.

The Court of Appeal agreed with these conclusions of the Court of First Instance.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation on the cassation appeal of P. canceled the court rulings held in the case and sent the case for a new trial to the court of first instance on the following grounds.

In accordance with paragraph 3 of Art. 39 of the Family Code of the Russian Federation, the total debts of the spouses in the division of the common property of the spouses are distributed among the spouses in proportion to the shares awarded to them.

RULE No. 1: According to paragraph 2 of Art. 45 of the Family Code of the Russian Federation, the collection is levied on the common property of the spouses for the general obligations of the spouses, as well as for the obligations of one of the spouses, if the court has established that everything received under the obligations of one of the spouses was used for the needs of the family. Thus, in order to impose on P. 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.

RULE No. 2: 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 M. from the plaintiff were spent on the needs of the family, including the purchase of real estate, the court, in violation of this article, indicated that no evidence to the contrary was presented to P..

According to part 2 of Art. 56 Code of Civil Procedure of the Russian Federation, the court determines which circumstances are relevant to the case, which party must prove them, submits the circumstances for discussion, even if the parties did not refer to any of them. In this case, a legally significant circumstance was the clarification of questions about establishing the purpose of obtaining M. of the above-mentioned amount of money, the reasons for signing two documents by M. and V., and whether the funds received by M. from V. were spent on the needs of M's family Satisfying the claims of V., 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 misinterpretation and application by the court of the provisions of paragraph 2 of Art. 45 RF IC to the relations of the parties. These circumstances were ignored by the Court of Appeal.

(Definition No. 5-KG14-162)

Division of the debt of the spouses on the loan judicial practice. Shared debts of spouses? Debt recovery from the debtor's spouse. Agreement as a way to share debt

Court:

Judges of the case:

Litigation on:

Federal jurisprudence

Practice of the Moscow City Court

Claim

Statement of claim on the division of the total debt of the spouses

on the division of the total debt of the spouses

From the review of the Supreme Court of the Russian Federation:

The case has been repeatedly considered by the courts.

In accordance with paragraph 3 of Art. 39 of the Family Code of the Russian Federation, the total debts of the spouses in the division of the common property of the spouses are distributed among the spouses in proportion to the shares awarded to them.

Statement of claim
on the division of the total debt of the spouses