It would seem that the dissolution of the marriage has already occurred, there is nothing more to divide. But it was not there. After the divorce is over, an important question arises - how to expel the ex-husband or wife from the apartment if he/she is not the owner? It’s good if the ex-spouse himself is not against being discharged, but this is not always the case. Read the article on how to solve this problem.
When the apartment is owned by the municipality, deregistration is carried out only if there is a corresponding court decision. The fact is that a former family member has exactly the same rights as the employer specified in the social tenancy agreement.
There must be a compelling reason for discharge. All permissible grounds are listed in Art. 83 Housing Code of the Russian Federation:
- Failure to pay rent and housing and communal services for six months.
- Regular illegal actions on the part of the ex-husband/wife, as a result of which cohabitation becomes impossible.
- Destruction of the provided living space, violation of operating rules.
- Use of residential premises for purposes other than their intended purpose. For example, equipment in one of the warehouse rooms.
The listed reasons are grounds for going to court. After considering the claim and making a positive decision, you must contact the territorial branch of the FMS and write an application to remove the person from registration. Documents are reviewed within three days.
As a result, the applicant will receive a departure slip. Extract is free of charge.
If, even after the court decision, the spouse does not plan to leave the premises, you can turn to the bailiff service for help. However, it should be noted that in the absence of other housing, the court may grant the evicted person a deferment.
To make the court more likely to satisfy your claim, you should first write a complaint to the local administration. Authorized persons will have a conversation with the violator and, possibly, influence him by issuing a remark with a threat of eviction. To confirm violation of living conditions, you can involve neighbors as witnesses.
How to expel your ex-husband/wife from an apartment you own?
If it is necessary to remove an ex-husband/wife from a privatized apartment, the situation is different. Here it is very important to take into account whose ownership the housing is located.
If the apartment is not joint property, but belongs only to one of the ex-spouses, he has the right to evict the other. But even in this case, you will need to go to court, although the case will be considered quite quickly.
When housing is jointly owned, that is, it was acquired through paid transactions during the marriage, it will not be possible to simply evict a former family member. Here, too, it will not be possible to go to court. Of course, if the second spouse is categorically against discharge and eviction.
If there is a corresponding court decision, you will need to contact the territorial branch of the FMS. A statement will be issued at the institution. Three days after submitting the documents, the ex-spouse will be discharged, and the applicant will be given a departure slip.
Discharge of an ex-husband or wife is not always possible. The main reason why this becomes impossible is the lack of another place to live and the funds to purchase it. The court may set a period during which the ex-spouse must solve his problems with living space and leave.
How to discharge an ex-wife and child?
The law protects the rights of minors when their parents divorce. So, for example, if after a divorce the father becomes obligated to pay alimony, he is obliged to provide living space for his ex-wife and child. Only after this condition is met is discharge possible.
In such cases, the guardianship and trusteeship authorities are involved in the case. It will not be possible to discharge the child without their permission. If the child is discharged to a smaller living space, the guardianship will not give permission.
It’s another matter if the child actually lives with his ex-wife in another place, but they are still registered in the father’s apartment. In this case, if the father wants to discharge the child, he has every right to do so. However, this cannot be done without obtaining the consent of the guardianship authorities.
Discharge of ex-spouse through court
It doesn't always make sense to go to court. Before spending time on this, it is worth assessing the chance of getting your ex-husband/wife discharged.
Separately, it is worth mentioning the situation when the apartment went to the spouses as a result of privatization. If the ex-spouse who needs to be discharged has refused privatization, then it will be extremely difficult to remove him from the registration register. You definitely can’t do it without the help of a lawyer.
The fact is that in accordance with Article 19 of Federal Law No. 189 of December 29, 2004, a citizen who refuses privatization retains the right to live in an apartment on an indefinite basis.
If there was no privatization or the spouse registered in the apartment after this procedure, deregistration is possible on the following grounds:
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- Resolution of the Supreme Court of the Russian Federation No. 14 of July 2, 2009, paragraph 3. After the divorce, the former husband/wife is no longer a member of the owner’s family.
- Art. 31 Housing Code of the Russian Federation. A former family member does not retain the right to reside in housing that does not belong to him, unless there is an agreement indicating otherwise.
- Art. 304 of the Civil Code of the Russian Federation. The owner may demand elimination of violations of his property rights. The registered ex-spouse violates the owner’s right to freely use his property.
The court will also pay attention to the actual residence of the husband/wife. If he/she does not live in the apartment, most likely the court will grant the plaintiff's request.
If he lives, the fact that he has other living space is important. In case of her absence, the court will postpone the date of the spouse’s discharge and retain the right to use the apartment. Such an extension is possible for a period of three months to a year.
Step-by-step instructions for discharging your ex-husband/wife through the court
If the issue cannot be resolved amicably and the former family member categorically refuses to sign out and vacate the premises voluntarily, the owner has no choice but to go to court. We'll tell you how to do this step by step.
Step 1. Filing a claim
Depending on the situation, a claim is filed for termination of the right to use residential premises (if the spouse does not live) or a claim for termination of the right to use residential premises and eviction (if he does). The application contains the following information:
- identification and contact information about the plaintiff - owner;
- details of the defendant indicating his residential address;
- essence of the claim;
- claim to court;
- legal justification of the requirements;
- date and signature.
It is not recommended to file a claim yourself or use samples from the Internet. Each situation is individual and has its own legal subtleties, so it is advisable to contact a specialist. In addition, the slightest inaccuracy in the claim may cause it to be rejected.
Step 2. Filing a claim in court
The claim is filed in a court of general jurisdiction at the location of the apartment. You will first need to pay a state fee of 300 rubles. You will be given a receipt in court.
In addition to the claim, you will need to provide the following documents:
- general passport;
- power of attorney if the claim is filed by the owner’s representative;
- title document for the apartment - certificate of ownership or extract from the Unified State Register of Real Estate;
- document providing the basis for the emergence of ownership rights - deed of gift, purchase and sale agreement, exchange, certificate of inheritance, etc.;
- an extract from the house register or house register (if you have a private house);
- certificate of divorce;
- receipt of payment of state duty.
The statement of claim and documents are considered, after which a date for a preliminary hearing is set (no later than a month from the date of acceptance of the claim). The parties are notified of this in writing.
Step 3: Preliminary Hearing
This is essentially the preparatory stage before the court hearing. The parties express their demands and provide the required documents.
If you wish to involve witnesses in the trial, you will need to file a separate petition for them. It is also allowed to indicate these persons in the statement of claim.
Step 4: Trial
During the court hearing, the plaintiff should be informed that since the spouse is a former family member, he/she has lost the right to reside and register at this address. The presence of the ex-spouse violates the property rights of the owner by not allowing full use of the premises.
If in fact the ex-spouse does not live in the living space, this will need to be proven. Witness testimony will help with this.
If the spouse lives in an apartment, then it is required to prove that in addition to this housing, the former family member also has other living space. The plaintiff will be helped with this by the extract from the Unified State Register requested at the previous stage. This document indicates which real estate assets a person owns.
Step 5. Obtaining a court decision
Based on the results of consideration of the case materials, the court will make a decision, which will enter into legal force after a month. If the defendant was not present at the court hearing, an earlier date for the entry into force of the decision may be set.
If the decision is positive, you must obtain it from the court office and take it to the territorial office of the FMS to discharge your ex-husband/wife from the apartment.
If difficulties arise, please seek legal advice. You can get free legal assistance on our website. Ask a question to an expert in a special window.
Now you know how to expel your ex-husband/wife from an apartment if he/she is not the owner. It’s not easy to do this in any case, so the help of a housing lawyer won’t hurt.
Divorce is emotionally stressful. Let's talk about its material component. It is worth wisely dividing material wealth, because during your family life you have invested a certain amount of hard-earned money and labor into the family hearth. The stumbling block is usually housing. If the faithful is decent and noble, then no conflicts are expected during the division.
Alas, this rarely happens. Some couples face legal arguments and a painful division. It happens that the hubby considers himself the master, because he was plowing, and you were just babysitting the kids.
Is it possible to discharge my ex-husband without his consent?
Useful facts:
1. If you are the mistress of the house, hubby can easily be discharged through the court.
2.
Shared housing is shared between two people. A valid possibility is an exchange.
3. Don’t skimp on notary services; they will help you win back what rightfully belongs to you.
4. Study the housing code.
5. Hubby lives with you - in such a situation, file a claim for eviction. If he is registered, but does not actually live, a claim is filed to be declared as having lost the right to residential premises.
6. If the home was purchased before the wedding, it is only your property.
7. The beloved is registered after the wedding, then he is discharged in court, guided by the family code.
8. Hubby is not registered, this does not mean that he has no rights to housing. Be carefull.
9. Don't wait for consent to write it out. The owner of the property goes to court and is discharged within 6 months.
10. The ex-husband gave his share to the children, then he can safely be discharged.
11. Aspects that will help in this matter:
- My husband hasn’t paid his utility bills for about 6 months recently,
- written complaint from neighbors
- doesn't show up at home.
12.
Whoever the children live with will be awarded most of the housing.
13. In such a situation: the kids are with their mother, and the husband kicks them out, then the court in most cases makes a decision in favor of the mother and children, because they do not have their own corner.
How to divide property during divorce?
- Jointly acquired property is divided in half within three years after the divorce, so don’t waste time and go to court.
- The husband is eager to get rid of family ties, but you do not support his initiative. For example, your hubby leaves for his mistress, then make him notarize everything to you. Not only is your loved one taken away from you, but they also want to take away all your belongings. Leave nobility, the main task is to ensure your existence.
- The court distributes property, if your hubby was given something expensive, then you are entitled to monetary compensation.
- The children's belongings are inviolable, including what was purchased for the children's education (guitar, violin, computer). This includes bank deposits for children's education. Use this loophole to save money.
- Jointly acquired property is considered to be things taken during cohabitation.
You have the right to claim your share of the following:
Not subject to division:
- what was purchased before marriage;
- inheritance, gifts;
- personal items, except jewelry and valuables;
- items taken from savings set aside before the wedding.
- A loan during a marriage is divided between spouses when the money was taken for something together: vacation, renovation, furniture. Hubby took out a loan for himself, then look for facts that will save you from paying off the loan.
- A prenuptial agreement is a great thing in this situation. Unfortunately, we rarely conclude such an agreement, although this piece of paper would solve many of the nuances. Some spouses stipulate that in case of betrayal, everything goes to the devotee.
- The faithful promise you mountains of gold, then take him to a notary to certify these promises. Oral promises have no legal force.
- If your beloved has presented you with an expensive gift, then he has no right to take it away. We need evidence that this is a gift; in extreme cases, witnesses.
- Items for personal use are not subject to division. So the fur coat, hat, boots belong to you.
- Separate living. If you can prove that the property was purchased during the period of separation, then it belongs to you.
- If the husband is a dependent, then the court's decision is in your favor. You will have to prove that the faithful did not run the house, did not work, did not look after the children, in general, he did not have a good reason not to work while you were married. For example, your hubby drank, was idle, and then also blackmails, here the court may take your side.
Divorce is a procedure that entails the termination of family, legal and property relations. Since the need for a couple to live together disappears, women have a completely logical question of how to get their husband out of the apartment after a divorce. Men are also interested in how to terminate their ex-wife’s rights to housing. There are many nuances in such a seemingly simple question, let’s try to understand them.
The main reason for depriving an applicant of housing is a divorced marriage. If the spouses are divorced, then they are no longer related and there is no need for them to share housing.
Let's consider the nuances that will somewhat clarify the question of whether it is possible to discharge the second spouse from the apartment:
- If the housing was privatized by the owner before the marriage was registered, then the other half will not have any rights to this object. In this case, you can safely request an extract.
- When both spouses carried out privatization in a marriage, the wife will become the full owner of the object. She will have all the rights to the house, apartment, and it won’t be that easy to sign her out.
- The wife refused privatization in marriage in favor of her husband and child. In this case, she receives the right to lifelong residence in the apartment. If she does not want to be discharged voluntarily, then no one can force her to do so.
- The wife has a share in another privatized property. In this situation, we discharge the applicant without any problems.
Important point! The second spouse does not retain the right to live in housing received by the first participant in the relationship as a gift or by inheritance.
What does the law say in this case?
Every citizen has the right to housing. The husband cannot independently deprive his ex-wife of a roof over his head, even if the marriage was dissolved. She can vacate the premises only on her personal initiative or by court decision. Thus, a husband who wants to write a former relative out of his residential area must initiate legal proceedings.
Note! The norm, which states that the loss of kinship is the basis for the loss of the right to housing, is outdated. It has been invalid since 2005.
But at the same time, the woman loses the right to live in her husband’s apartment if she does not have any rights to this housing. But she can receive a reprieve for eviction by court decision if it is recognized that she has nowhere to go.
Initially, with changes to the Housing Code (Housing Code), ex-spouses and children could also be discharged, or kicked out onto the street. But judicial practice made it possible to make adjustments to the law. Since children cannot be recognized as former relatives, they do not lose the right to live in their father’s apartment.
How to still discharge your wife from the apartment after a divorce, procedure
So, if the husband has grounds for deporting his ex-wife, but there is no reason for her to continue living in her husband’s apartment, then you need to act as follows:
- File a divorce and receive a divorce certificate. This is the main document that can be used to confirm that a former relative has no rights to housing.
- Ask the woman to discharge herself voluntarily, leaving her some time to find a new place of registration.
- Initiate legal proceedings in cases where voluntary discharge is refused.
- Receive a court decision on forced discharge. With this document you need to go to the passport office, where, based on a court decision, the applicant will be deregistered.
This is a standard procedure and may change under certain circumstances.
Reason - for debts
In a situation where the applicant retains the right to her husband’s living space, she is obliged to share utility debts with him. If the bills are not paid, while the former relative actually lives separately, then you can try to write her off for debts. This circumstance will serve as a valid basis for making a decision in court.
Attention! But the method of eviction for debt can only be used in a situation where the spouse is not the owner of a share in the apartment. For full owners, debt cannot serve as a basis for discharge.
When a spouse refuses privatization in favor of her husband and children, it will be problematic to write her out. But if it is proven that she is the owner of another privatized property and has not lived in the disputed apartment for a long time, then the plaintiff has a chance.
If the wife is not the owner
When the spouse does not have property rights to the disputed object, then even her personal consent is not required for deregistration. The court makes a decision in favor of the plaintiff, he goes to the passport office and the applicant is removed from the registration register. As a rule, if you have all the divorce papers and title documents for housing, no problems arise.
But it is worth paying attention to the fact that if a woman does not have her own living space, the court may delay her eviction. In this case, the applicant receives a certain period to comply with the court order, namely an extract for new residential meters.
If there is no agreement
In essence, “registration” does not give a citizen the right to the owner’s housing. But eviction from an apartment can only be carried out with the consent of the applicant for eviction or by a court decision. Thus, there are two ways to terminate registration:
- voluntary, by agreement of the parties;
- forced, by court decision.
Note! Without the consent of the ex-wife, she can only be evicted on the basis of a court order.
But again, do not forget about those points that the court will not be able to make a decision on eviction:
- owner of a share in a privatized object;
- a citizen who signed a waiver of privatization in favor of third parties.
- housing was purchased by the second spouse even before the marriage was registered;
- the property was received by the applicant as a gift or by inheritance;
- the applicant for eviction violates public order;
- the ex-spouse, who must be deprived of the right of residence, has debts for utilities in the amount prescribed by law;
- cohabitation becomes impossible due to the alcoholism of the applicant for discharge.
If there is a child
As noted above, a child cannot lose kinship with his father. Divorce from the children's mother is not grounds for the discharge of minor citizens. The Insurance Code clearly states that minors have the right to the living space of both parents. Even in a situation where a decision has been made for the offspring to live together with their mother, the children retain the opportunity to live in their father’s apartment.
When the ex-wife is categorically against the removal of the children from the former spouse’s living space, the court will not be able to satisfy the plaintiff’s request for forced eviction.
In addition, the consent of both parents is not enough to deregister minors. Without the consent of the guardianship authorities, who are obliged to act in the interests of the children, the operation will not be possible.
Going to court
When a peaceful solution to the situation does not bring results, the applicant needs to go to court. To resolve such an issue, you need to choose a district judicial body at the location of the disputed object.
The statement of claim must include the following:
- circumstances of the case;
- peace settlement measures taken by the parties;
- references to legal provisions that confirm the violation;
- a requirement where the plaintiff asks to recognize the loss of the ex-wife’s right to reside in his apartment.
List of documents that the court will require.
The divorce process is accompanied by clarification of property and non-property relations between former spouses. A special place is occupied by disputes regarding living in an apartment. Termination of family relationships is one of the grounds for discharging the ex from the living space (Clause 4, Article 31 of the Housing Code of the Russian Federation). But not everything is as simple as it might seem at first glance. Often ex-spouses create obstacles to discharge and do not want to move out voluntarily. The only option left is to use judicial assistance.
Procedure
How to act in this situation:
- To determine the jurisdiction of the case - the district courts at the place of registration of the apartment (private house) deal with the extract.
- Draw up a statement of claim for termination of the ex-spouse’s right to use real estate. The main basis is Art. 35 of the Housing Code of the Russian Federation, and if the husband is not only registered, but also lives in the apartment, then demand the eviction of the ex-spouse.
- Prepare documents for the court (what is needed is defined in Articles 131-132 of the Civil Code of the Russian Federation). Looking ahead, let's say that you need to confirm the fact of termination of the right to use the residential premises. True, a divorce certificate alone may not be enough - you need an extract from the house register and a certificate of ownership.
- Submit the application and documents to the court office against signature. If something is missing, the secretary will inform you about it.
- Attend preliminary hearings as a defendant (possibly with a lawyer). The judge gets acquainted with the circumstances of the case, studies the documents and demands of the plaintiff.
- Speak at the main court hearing. It is important not just to read the requirements, but to justify them from the position of civil and family law - for example, divorce, the defendant living in another apartment, violation of the rules for using residential premises, etc. The obligations of proof are enshrined in Art. 56 Code of Civil Procedure of the Russian Federation. The factors cited by the plaintiff form the basis of the case before the court.
- Obtain a court writ of execution. The announcement of the final verdict does not mean the ex-spouse will be discharged. The defendant is given 30 days to appeal the verdict. If it is not followed, the decision will come into force. A copy of the writ of execution is given to the plaintiff for further proceedings.
- Sending a copy of the sheet to the department of the Main Department of Migration Affairs of the Ministry of Internal Affairs. The registrars will accept the application and discharge the ex-husband from the apartment.
An additional measure is the forced eviction of the tenant. Even if the ex-spouse is discharged, he may refuse to move to another place. Then the only option left for the wife is to turn to the bailiffs. An unwanted tenant will be discharged in the presence of a bailiff or local police officer.
Statement of claim
Proceedings are initiated on the basis of a statement of claim. The printed form is filled out by the plaintiff or his representative.
Information indicated in the statement of claim:
- name of the judicial authority;
- last name, first name, patronymic, addresses and telephone numbers of the participants in the process.
Main part:
- confirmation of ownership of the apartment (documentary);
- information about living space;
- circumstances of purchasing an apartment (out of marriage/within marriage);
- information about the registration of the defendant (children);
- information about the dissolution of the marriage union (based on a certificate);
- information about alternative housing for the defendant;
- On what grounds is deregistration from housing carried out?
Primary requirements:
- cancel your ex-husband’s registration from the apartment;
- list of documents.
Signature (with transcript) of the applicant.
Date in the format “dd.mm.yyyy”.
A correctly completed application will be accepted for consideration by the court. Next, preliminary and main hearings are scheduled.
Documentation
Documents accompanying the application from the plaintiff:
- Passport – the representative attaches a notarized copy of his passport.
- Documents for an apartment or private house - certificate, extract from the Unified State Register (USR).
- Sale and purchase agreement, deed of gift, inheritance, act of privatization of residential property.
- An extract from the apartment or house register is needed to establish the fact of the defendant’s residence within the residential premises.
- Official certificate of divorce.
- Receipt for payment of state duty.
Usually these documents are sufficient. But sometimes the court may require additional information. For example, a birth certificate for children or a certificate of income - depending on the situation.
Price
The exact cost of the upcoming discharge from the apartment by court is determined by the nuances of the procedure. A single payment of state duty is 300 rubles. There is no need to pay for an extract from the Department of Internal Affairs of the Ministry of Internal Affairs - deregistration is free. Costs are usually associated with contacting a notary or lawyer. It is best to find out the price list individually by region.
Deadlines
The time allotted for discharge is 3 working days. But this is the final stage of our procedure. Before the ex-husband is discharged, the ex-wife must win the court case:
- the period for consideration of the claim is 5 days;
- the next stage of the preliminary hearing of the case takes up to 30 days (clause 1 of Article 154 of the Code of Civil Procedure of the Russian Federation).
- Exactly 30 working days are given for appeal + 7 days for the publication of the writ of execution.
Total Litigation takes 2-3 months, not counting the return of documents due to insufficient evidence.
Nuances:
If the husband is the owner
Alienation of an apartment from the owner occurs extremely rarely. Therefore, if it is not the wife, but the husband who is the owner, he cannot be deprived of his only apartment or house (Article 40 of the Constitution of the Russian Federation). Rather, the husband will register his ex-wife as the manager of the residential premises.
From a privatized apartment
A less troublesome option is to write your ex-husband out of the privatized, i.e. private apartment. There are two options on how to do this:
- Forced ejection from the owner’s apartment – the provisions of Art. 31 Housing Code of the Russian Federation.
- Extract from the apartment with the consent of the ex-spouse is the only possible option for deregistration in the case of jointly acquired property.
As mentioned earlier, the husband’s refusal of his share during privatization gives him the right to lifelong residence in the house. It is impossible to discharge such a person without providing alternative housing!
From a council apartment
Social housing belongs to the municipality. Issues of expelling tenants and tenants through the court are resolved at the level of the city (district) administration. Tenants can only be discharged through the court. Together with the employer, his family members are also removed from the registration register.
The rental agreement will need to be reissued. The procedure requires judicial approval. It is advisable not to take any steps without a lawyer, as it is very easy to get confused in the situation. Persons registered in the apartment are discharged at the request of the owner - the municipal authority.
Possible difficulties
Forced discharge in court has objective difficulties. Therefore, before going to court, you need to take into account all the risks and prepare for a long wait for the result.
Difficulties when checking your ex-husband out of the apartment:
- The district court may recognize the apartment as joint property, even if it belongs to the wife. For example, in the case of serious financial investments of the ex-spouse during family life. The basis is an increase in the cost of the apartment compared to the original condition. It is impossible to discharge a husband from a jointly owned home!
- It is problematic to discharge an ex-spouse from a mortgaged apartment. Considering that the housing was purchased during marriage, it does not matter with whose money, it belongs to both spouses. It doesn’t matter whether the spouses are divorcing or just planning to do so.
- A common situation: a divorced husband has nowhere to live. Then the court has the right to preserve the spouse’s right to live in the apartment until a certain point in time. Of course, this creates additional difficulties in the relationship between two divorced people.
- There is no way to remove the ex-husband from the register if the wife pays alimony in favor of those being evicted (rare cases). It turns out that the discharge will have a negative impact on living conditions. Consequently, the court has every right to block deregistration.
This is not a complete list of difficulties with the discharge of a former spouse. The situation can be aggravated by conflict between spouses or their relatives. Important importance is given to children who cannot be discharged from their apartment “to nowhere.” You should learn about all the nuances in advance.
