(Analysis of the Resolution of the Plenum of the Supreme Court of Ukraine
of 02.04.2020 in the case № 638/17330/16-ts)
There can be many problems with the division of joint property of spouses. In particular, one of the urgent needs is the division of mortgage property.
First, in accordance with the provisions of the Family Code of Ukraine, the conclusion of a contract during the marriage of one of the spouses, it is considered that the latter acts with the consent of the other spouse.
This rule also applies to mortgage property purchased on credit. That is, if one of the spouses enters into a contract of sale of real estate secured by property, such a contract must be notarized, the consent of the other spouse must also be notarized. Accordingly, such an agreement creates obligations for the other spouse, because with the notarized consent of the other spouse, such property is used in the interests of the family.
Summary of the circumstances of the case:
The house purchased with credit funds was divided between the spouses in court with the determination of equal shares in the right of joint joint ownership. The plaintiff filed a lawsuit to recognize the debt of the former spouse as a joint obligation, recovery in the form of a counterclaim (recourse) of part of the money from the other spouse.
The court found that since after the division of the spouses’ property and determination of the share in the joint joint ownership, the plaintiff fulfilled the obligations of both co-owners of the property acquired for borrowed funds, fully repaid the debt to the creditor, thus fulfilling the defendant’s obligations. reimbursement of part of the funds paid by her.
Based on the above, the Supreme Court in its decision of 02.04.2020 in the case № 638/17330/16-ts notes that the right to joint joint ownership of the apartment presupposes a debt obligation – the return of the amount borrowed for the purchase of this house.
Thus, according to the Supreme Court, the mortgaged property is divided in half between the spouses, as is the joint and several payment of the debt. Provided that the contract was concluded in the interests of the family, and this is confirmed by the written notarized consent of the spouses.
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