the Situation which was studied in Judicial Board on civil cases of the Supreme court looked to the standard – the couple decided to divorce after marriage more than ten years. However, the property failed to reach an agreement. And they had to divide it in court.
there Are cases when the court may derogate from equality of shares, if there are serious grounds
According to ex-wife, she was supposed to get two-thirds of the jointly acquired. Her argument – a child remains to live with her. And the ex-spouse will cost quite a third.
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There is a General rule, codified in law, all property of the spouses, which acquired by them during marriage considered joint until until proven otherwise.
the Exception to this rule will be only the personal property of each spouse. All assets purchased by either spouse during the family life, as a General rule are also divided equally. Indeed, there are circumstances under which the court may deviate from dividing equally. Such “circumstance” can be children. Because after the divorce they will live either with dad or with mom. There are no other options. Therefore it looks reasonable that the parent with whom the child will live, may ask the division of property more.
a division of property according to the suit engaged in Industrial district court of Smolensk. Common divorced had two cars and a plot of land. And wife bought an apartment on the mortgage. A year before the divorce, they paid off the loan. But the issue of housing in the common property with their children have not yet.
According to the man, plot and cars should be divided equally. Version of women, it is necessary to give more because her live two incompatibleminor children, their General’s son and the woman’s daughter from a previous marriage.
District court heard the parties and decided that all good things should be divided. The court left the ex-wife the car “Toyota”, and the husband received a “Mazda”.
the district court Also ordered the husband to pay his ex-wife 60 000. It was the difference for the excess of the cost of its share in the common property. Plus, the man should the verdict of the court monthly transfer child support in the amount of a quarter of their earnings. About the same land, the court ruled: to recognize the parties ‘ right of the common ownership of land in equal shares.
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With such decision the ex-wife did not agree. The woman challenged it in the Smolensk regional court, where her arguments have been heard.
the Appeal came to the conclusion that in this debate the lady still owed two-thirds of the marital property. In support of such conclusion of the regional judges referred to the presence of “personal hostile relations” between the parties and the need to derogate from the principle of equality of shares of spouses in common property in the interests of the children.
Another important reason for the regional court was the fact that the ex-husband not issued to her son share their apartment, for which he and his wife paid off the loan. Smolensk regional court ruled that the entire plot should take the wife, and the ex-spouse still have to pay 176 666 rubles.
Now with such a topic does not have agreed to that spouse. He appealed the decision of the regional court in the Supreme court of the Russian Federation.
There is a dispute studied, and the Judicial Board on civil cases of the Supreme court stated the following.
Smolensk regional court had not clearly explained – he violated in any way the rights of the father of her child. And why DLI the interests of the minor son should be awarded to his mother two-thirds of the total assets. Still appeal recognized the relations of the spouses “mutually unfriendly”. On this basis, the regional court decided to reduce the share of only husband. That was a mistaken decision noticed by the Supreme court.
in addition, the Judicial Board on civil cases of the acknowledged incorrect and a link to the non-discharge of the share of the son in the apartment. First, the wife was not to do it, and secondly, the disputed property is not in dispute.
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In the end, the Supreme court reversed the decision of the Smolensk regional court upheld the district court’s decision. This decision means that, in the opinion of the high court, the right was the decision of the district judges to divide the property equally specific in this scenario.
But it’s not set in concrete. In fact, there are cases when the court may deviate from the principle of equality of shares, finding a good reason. And they may be the rights of the child. As a rule, the courts “stand on the side of” unequal division of property, if there is a disabled child and it stays with one parent, if that parent income is small, if the second parent does not help the person with whom the child lives. The identity of parents also affect the decision of the court. But it is necessary to take into account: the unequal division of jointly acquired property is the right but not the duty of the court.