The procedure for evicting a former spouse from an apartment without a residence permit. Court decision to evict ex-husband Ex-husband evicted from privatized apartment
Oddly enough, this question is relevant. The main answer to it is as follows: in cases where the evicted person has no rights to an apartment. For example, housing was purchased before marriage, bought during marriage, but with personal money, when the property was already divided or assigned to the owner by a marriage contract, inherited, received as a gift, and in other similar cases.
The law does not emphasize that the marriage of the parties must be terminated. That is, a claim can be filed both during the period of marriage and in the event of its dissolution.
It doesn't matter whether the spouse is registered in the apartment or not, whether a residence contract is signed or not, whether the apartment is mortgaged or not, etc.
Thus, will not be an obstacle to eviction:
- registration in the apartment
- having an undissolved marriage
- lack of written registration of residence by agreement of the parties
- the presence of various types of encumbrances on housing
The ex-spouse does not have his own housing, read more about this in the text below.
If the move-in took place under a written agreement, such as a gratuitous tenancy agreement, the move-out process depends on the wording of the terms of the deal. Although if the standard option was used, then it is not difficult to evict, but you need to carefully comply with all the requirements of the law.
A typical situation from questions to a lawyer in housing disputes:
Question
The ex-husband filed a claim for recognition of the loss of the right to use the living quarters of me and my child from my first marriage. The situation is as follows: we are registered in the apartment of our ex-husband, who has a 1/3 share in it, the rest is in the hands of his son from his first marriage, but we have nowhere to register if we are discharged. Our common child of school age also lives with me, to whom, by court order, he must pay alimony, which, by the way, he does not pay.
I found in his statement of claim a mention of Article 31, paragraph 4 of the LCD, which, having looked it over on my own, I found a clause that it is possible to stay registered in this apartment for a period determined by the court due to financial situation. And as much as possible to oblige him to provide us with housing. Factors play in our favor: he initiated the dissolution of the marriage, he is liable to alimony, we have been married for about 10 years, my financial situation, besides, my son is studying from his first marriage. However, we moved out of it last year, at first we lived with family friends and after that we were forced to rent rented housing, which we still rent with difficulty. Will this factor affect anything? What is the best thing for us to do?
Lawyer's answer
In your case, you have the right to file a counterclaim for moving in, determining the procedure for using the apartment (in order to secure a specific room for living), motivating this with the circumstances that you indicated and a reference to Article 31 of the Housing Code. Courts often apply this article, securing the right to urgent residence. An alternative requirement in the form of an obligation to purchase housing or payment of compensation is less common in judicial practice, that is, it is much less likely to count on success in such a claim.
Unfortunately, such an argument that we do not want to be discharged because it is not convenient for me, the child is not accepted by the courts. Only such an objection can be relevant, connected, firstly, with the fact that you really need housing, and, secondly, with the fact that the ex-husband, other tenants, prevent living in the apartment (they do not allow you to enter the apartment, categorically enter your room, etc.).
The fact that I prevent you from using the apartment is enough for you to simply declare in a lawsuit that it plays to your advantage.
All relations of spouses in a civil marriage or official are regulated by the laws of the Russian Federation - the Housing and Family Codes. In the event of a divorce, a woman has the right to legally evict her ex-husband from the apartment. How to do this later in the article.
Procedure
How to start the process of evicting an ex-husband from an apartment? The question can be answered in two ways:
- voluntarily;
- forcibly.
Initially, you should use the voluntary method. It is concluded in an agreement between the former spouses. The voluntary method is effective if the former spouse is not the owner of the house, and is not registered. When housing is the property of a woman and the apartment of residence is privatized, then the situation of evicting the former spouse will not become a problem. The main condition is that the privatization of housing was registered before marriage, or during marriage, but only by the owner.
If it was not possible to voluntarily agree on a peaceful eviction with the former spouse, it is worth using the second option - forced eviction from the place of residence. In this case, you should apply to the court at the place of residence of family members.
If the husband is registered in the apartment
When the ex-husband is registered in the apartment of the woman with whom he was married and refuses to leave it on a voluntary basis, in order to be evicted, he must be discharged from the premises. After the official dissolution of the marriage, a woman needs to seek the help of a family law specialist.
A lawyer will tell you how to properly file a claim in court, even when the apartment that the wife inherited, and the husband is registered in it.
An attorney can help you present your claim in court. With the correct preparation of the claim, the court will force the ex-spouse to move out of the woman's place of residence. According to the issued decision, the man will be obliged to leave the house.
On the basis of a court decision, the bailiffs will ask the man to voluntarily leave the address of his wife, in case of refusal to evict, they will apply coercive measures. After the application of which, the ex-husband will be discharged from the apartment.
If the husband is not registered
How to evict an ex-husband if he is not a homeowner? In this case, all family members who are owners and registered in the apartment can ask the person to move out, legally -. Even when they lived in a civil marriage, and there are common children (child). If the ex-spouse refuses to voluntarily leave the home, the wife has the right to threaten to call the police to help with the eviction.
When calling the police, a woman or other owners of the house must present the following documents:
- passport, where the registration in the apartment is indicated;
- home ownership papers;
- documents proving the privatization of housing (if any).
After making sure that all the documents for the eviction process correspond to the ownership of the wife's property rights to the apartment, the police will proceed with the eviction.
Husband homeowner
When a former spouse is a homeowner, his wife and children have problems with his consent to eviction. If a situation arises, you should file a claim with the court, after consulting with an experienced lawyer.
The court may order eviction from the ex-husband's housing if the following factors are present:
- the utility bill is not paid for a long period of time;
- the ex-husband behaves inappropriately towards other tenants of the house;
- after the divorce, the wife and children have nowhere to move.
The inappropriate behavior of the ex-husband includes:
- frequent alcohol intoxication;
- beating of family members - wife, children;
- occasional use of illicit substances.
Based on the above criteria, the court is more likely to forcibly evict a former man from an apartment, even if he is the owner.
Owner's wife
The Housing Code of the Russian Federation contains rules on resolving issues of former joint housing. The legislative act says that if the wife is the owner of the home, then she has every right to expel her ex-husband from the apartment, even if he has a residence permit in it.
A wife has the right to evict her ex-husband from her own home under the following conditions:
- The husband does not have a share in the ownership of housing, unless otherwise provided in the marriage contract (agreement);
- The husband violated the rules for using housing three times within one year. The rules are saved in the LCD.
A person - the owner of housing, according to the legislation of the Russian Federation, has the full right to evict adult people from the apartment, which are registered in it, if there is another residential premises on the rights of ownership in the same region.
How to evict an ex-husband through the court?
When the former spouses cannot voluntarily agree, one should seek the help of lawyers and solve the problem with eviction in court. The legal basis for a woman for such actions is provided by the RF LC - and 31.
Litigation procedure:
- filing a claim;
- collection of a package of documents confirming the ownership of a municipal apartment;
- filing an application with the court in her place of residence.
Help you write your application.
What does the court's decision depend on?
The court concludes a decision depending on the availability of grounds and evidence that the wife will bring in her favor in the courtroom. To be sure of a positive outcome of the case, the plaintiff is advised to seek the help of a lawyer.
A qualified specialist will bring all the available arguments that will be used against the ex-husband in the courtroom. Competent arguments of a lawyer will lead to the resolution of the issue of cohabitation as soon as possible.
How long does it take for a husband to move out after the court decision is announced?
The judge resolving the issue of eviction of the ex-husband at the request of his wife puts forward a decision that the dissenting party has the right to appeal within one month. If no appeal was filed by any of the parties to the trial, then the verdict enters into force on the day after the expiration of the period in which it was allowed to file a complaint.
The issued court order is transferred to the bailiffs to supervise the execution of the decision. The term for the eviction of a man from the apartment of his ex-wife can be from 0.5-1 year.
This period depends on the circumstances:
- financial position;
- the duration of living together in this housing;
- the presence or absence of children (son, daughter);
- health status;
- lack of suitable housing.
What to do if the ex-spouse refuses to move out?
If the ex-spouse refuses to evict from the residential premises, it is necessary to contact a lawyer for help. In such cases, all legal experts advise to go to court.
The legislation of the Russian Federation allows you to evict the former spouse - unless of course he is a co-owner of the home.
Otherwise, the property will be divided. There are two ways to resolve the situation here:
- voluntary eviction;
- evict through court.
If in the first case the former life partner himself comes to the Management Company and submits an application for an extract-registration, then with the second it is already more difficult. The matter is going to be difficult. If he was not a co-owner of square meters, he will be evicted but the case can take a long time.
On the features of eviction from non-privatized housing. Learn also about how to evict without his consent.
Ways
As already mentioned, you can try to negotiate peacefully (and many succeed), or you can go to court to break spears. If the “ex” (or even not registered) - the judge will not have any problems with his eviction.
But this is possible only if the owner of the "squares" is the second spouse, the apartment cannot be qualified as jointly acquired, and the outgoing husband or wife did not refuse to privatize housing at one time (if so, he has the right to live in the specified territory until the end of his days).
But even if everything is simple and husband or wife do not have any property rights to this territory, not so simple.
In court, they can say that, or rather, there is only one alternative - to beg.
I must say that no court sets a task.
He will hear this request and grant a reprieve (usually a month) for citizens to solve their housing problems- for example, renting another living space and moving.
But that doesn't make it any easier for the owner. An extra month, or even more than one, will have to endure the faces that have become unbearable in your house.
Therefore, in order to avoid trouble and exclude the possibility of sharing with the greedy half, the owner is just selling the home(Art., Art.), buys a new one with the proceeds, where, of course, he won’t add anyone extra (although a dwelling with an encumbrance will significantly lose value when sold).
Well, the new owner will safely write out a stranger to him by judicial procedure (or voluntarily).
They also offer this option: donate property to the right person, he writes everyone out and gives them back to the former owner. Better not to use it this way. Why? The fact is that such a deal is much easier to recognize as sham.
And secondly, you can never be sure that that “necessary” person will give Vater back, having done his good deed.
To challenge a donation that was made by a sane and reasonable person is from the obvious-incredible series.
How would this happen?
The former life partner must be warned that there will be a trial and eviction. There is a high probability that already at this stage, he will be deregistered himself.
After that, general jurisdiction is submitted in the number of copies based on the number of participants in the procedure. The ideal option is not to rely on yourself, but to entrust the representation of interests in court to an experienced lawyer.
The slightest mistake of the initiator can be decisive and the case will drag on. The judge will hear and consider the case for two months. More one month is given as an opportunity to appeal.
Then the court decision is sent to the Federal Bailiff Service (if the former lover stubbornly does not want to move out).
The initiator of the procedure - the homeowner - is sent to the passport office with a copy of the court decision and the procedure will be completed definitively.
Documentation
What documents are required:
- general passport;
- papers confirming the ownership of the area;
- divorce certificate;
- certificate of family composition from the registry office;
- state duty check (art.).
Court refusal
When the Judge Says No:
What are the specifics of moving out of mortgaged housing purchased before marriage? Not everything is so clear in the case of a mortgage loan.
First, the payment procedure will be determined, based on the wishes of the former spouses themselves, and only then it will be possible to talk about leaving.
The eviction of former "loves" is a very difficult procedure. This is understandable, because we are talking about the constitutional right of a person to housing. That is why need to trust a lawyer This greatly increases the plaintiff's chances of success.
You can learn how to evict an ex-spouse from your apartment from the video:
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The problem under consideration is hundreds of years old, love goes away forever, but what to do with real estate? How to write out someone who is no longer a member of the family from the apartment? Is it even possible to evict a person against his will?
Lawyer Oleg Sukhov (Legal Center of Lawyer Oleg Sukhov) talks about the legal aspects of the eviction of a former spouse (wife).
The former spouse can be evicted through the court if he himself does not want to leave
The Housing Code of the Russian Federation (Article 31) states that if family relations are terminated, then the right to use the dwelling is lost if there are no additional agreements with the owner of the apartment. Thus, the ex-spouse can be evicted through the court if he himself does not want to leave. Although if everything were so simple ... To prove in court that family ties have lost their relevance, it is not always necessary to have a divorce stamp. Civil marriage also has the right to exist. In this case, you will have to provide other evidence, which includes a change of residence by one of the spouses, the absence of a common budget, the testimony of witnesses and relatives. In each case, this issue is resolved individually. The provisions of the law in question, of course, do not apply to children. They can in no way lose the right to housing, no matter what their parents think, who, under any life circumstances, are obliged to continue to take care of their children. This is spelled out in detail in Articles 55 and 63 of the Family Code.
The court can meet the needs of the evicted spouse
If a former family member of the owner refuses to leave the place of residence as soon as possible, the court may meet and determine the period of cohabitation, for which the former spouse is obliged to find a new place of residence and move out. In this case, the court also takes into account the financial situation of the spouse and the availability of any other housing. In relation to each specific case, the period is set on an individual basis, all influencing factors are taken into account at a time (on average 6 months - 1 year). However, if a woman is forced to leave the house, the court may impose on the spouse the obligation to provide her and the children with housing in the presence of obligations to pay alimony. Of course, such a decision is not made unreasonably. The court is obliged to take into account the duration of the relationship, the duration of cohabitation, the material component, the age of the children, the state of health and other factors. The court also determines the minimum area of a dwelling, but does not designate its location. It can be another city, or even a house in the village. By the way, it is not at all necessary to donate an apartment, it can be a contract of employment or gratuitous use. All these nuances are decided in court.
A few touchy moments
If housing was privatized at a time when both spouses had equal rights to it, the above rules do not apply to such a situation (Article 19 of the Federal Law "On the Enactment of the Housing Code of the Russian Federation"). The law even provides for a situation where several persons gave consent for the privatization of an apartment, all of them retain the right to use it, even if they have changed their place of residence.
If housing is a premises under a social tenancy agreement, then all members of the tenant's family, as well as former ones, have every right to occupy it (Article 69 of the LC RF).
If the owner loses his right to the dwelling, for example, due to death or as a result of any transactions, then the former family members are obliged to leave the premises within the specified period (with the exception of the privatization example). If this does not happen, then the new owner will resolve this issue in court (Article 292 of the Civil Code of the Russian Federation).
Eventually
It is very easy to evict an ex-husband or wife from an apartment. To begin with, threaten the court, because he will definitely be on your side. Secondly, go to court, submit documents stating that your family life has ended, and wait for a decision. At the same time, remember that children have every right to an apartment in any case. If housing has been privatized, then it will have to be divided among all those who are documented in it. If the apartment belongs to your husband, seek to ensure that you and the children are provided with new housing, and do not settle for the first option offered. In general, try to resolve disputes peacefully, but you should not be afraid of the courts either.
See also freeconsultations on the topic
Divorce proceedings begin only after any possibility of coexistence has been exhausted. Naturally, living in a divorce in the same apartment or house is painful, there is an urgent need to leave. However, agreement is not always reached between the parties on this issue, especially if one of the spouses has nowhere to go. More often problems arise if it is necessary to evict the former spouse from the living space, but she does not leave.
What determines the possibility of eviction
Before you kick your wife out of the house, you need to consider the situation from a legal perspective. Not always even the direct owner of the apartment has the right to do so. You should be aware that this right depends on:
- registration with the former spouse;
- to whom the living space is officially registered;
- on what rights did the spouses live if the apartment is not their property;
- whether there are common children and to whom the court allowed to become a guardian;
- whether the woman has another living space to live in.
Common situations
There can be many options, since legal aspects depend on many little things. However, there are several frequently encountered, one might say basic, most transparent:
- Housing is real estate left by inheritance or in the form of a gift, or acquired personally before the wedding. In this case, the spouse does not have the right to an apartment and living in it after the divorce. However, if there are minor children, as well as the woman does not have her own housing and income, the court may decide to allow residence for a certain period (more often than 1 year).
- Property acquired in marriage, even privatized or acquired for one spouse, is divided during property disputes, no one can write a wife out of there. The division of property can last about 3 years, and during this time it is impossible to sell an apartment or exchange it, unless the consent of the parties is formalized in a court order, which will actually become a court decision. In such cases, the most painless and quick option is to resolve everything amicably and document these decisions so that none of the parties subsequently go to court to challenge.
It is noteworthy that if the wife has not dealt with this problem for 3 years, the husband can register housing in full ownership, and the ex-wife will no longer be able to challenge the right to it.
- In the absence of her own living space and the presence of a lease agreement, the eviction of a woman is possible only in case of violations of public order, damage to real estate, non-payment of utilities or misuse of the premises. In other cases, the eviction of the spouse is impossible by law, the former has equal rights.
It is necessary to carefully check whether a share of property is registered for the spouse according to the documents, because in this case, eviction is definitely impossible. In addition, more and more often we are talking about apartments purchased with a mortgage. If the loan was taken before marriage, but part of the mortgage was paid after cohabitation, then the apartment cannot be considered as purchased out of wedlock. The wife cannot be discharged, she has the right to a share in real estate and she will have to pay at least a certain part of the funds, which will be established by the court.
If there are minor children
If a woman who has minor children is expelled from the living space, the situation becomes much more complicated. On the one hand, the court has no right to leave children without a roof over their heads, on the other hand, it must defend the rights of the husband, whose property is housing.
Children must live and be registered with the parent under whose custody they were given by the court. This is easier if the guardian is the owner of the property. And if not?
You can apply for child custody. In our time, men began to trust children more often. A stable financial situation and the availability of housing in this business will be an additional argument in favor of winning.
If the woman is a guardian and is not provided with housing, the court may order the man to provide her and the children with living space with conditions no worse than those they previously had. However, in this case, he will not pay child support. Without such an opportunity, the spouse runs the risk of staying in one family for some more time, which the court will establish.
If the wife has her own real estate, or the opportunity to get a service apartment, she is simply discharged along with her children, and later they are registered at a new place of residence.
Given the circumstances, the court may order the residence of a woman with children with her parents, both her and her ex-spouse.
If the period specified by the court expires, the woman must move out, and circumstances such as lack of housing and low material income are rarely taken into account.
Discharging a woman does not mean unequivocally discharging children. They do not lose their ownership of their father's living space, they are not required to write out immediately. This issue requires separate consideration, since it has many complex issues. If there are disputes between a man and a woman over real estate, especially if there are minor children, it is important to use the services of experienced lawyers, since every little thing can be important, affecting the decision of judges.
Influence of the type of right of residence
Apartments can be privatized and not, rented, or owned by citizens. All this matters too.
With general privatization, both spouses have the right to property and the division of real estate will follow in a court order. But if the parties agree, the husband can redeem part of his wife and become the full owner. No more questions will arise.
If the apartment is in municipal ownership, eviction is not possible. In fact, from the moment of the divorce, it will be considered communal. The only way is the deprivation of maternal rights.
A service apartment is temporary housing provided while certain obligations are being fulfilled. If the wife does not have any agreements with the tenant, and is no longer a family member, she loses the right to personal living space in this apartment.
It is important to know that the eviction of a woman from an apartment on legal grounds after a court decision does not require consent, but it is impossible to forcefully evict without a court. An extract is possible only after obtaining consent from the state body. In addition, she has the right to challenge the court verdict in higher instances, and before the application is considered, the eviction is also incompetent.
Everyone has a personal space, but it does not have to have a material embodiment in the form of a part of the ex-husband's living space, especially if there are no legal rights to it. The former is also a citizen, and no matter what troubles lead to the divorce process, his civil rights are always preserved.