Eviction of an ex-spouse by court. Is it possible to evict an ex-spouse from an apartment or house? How to do it correctly. How to evict your ex-husband from an apartment through court

2.1. the apartment is the property of the spouse

Let me start by saying that I am against divorce. But if this happens, then the spouse becomes a former spouse. And, unfortunately, the question arises about the eviction of the former spouse from the apartment or residential building in which the spouses previously lived together.

What will we talk about?

Today we will look at the following questions:

— what laws must be followed when evicting an ex-spouse and protecting the ex-spouse from eviction;

- when a spouse can file a demand to evict a former spouse;

- when the spouse cannot file a claim to evict the former spouse;

— what actions must the spouse take in order to evict the ex-spouse;

— what actions can the spouse who is being evicted take?

1. Regulatory regulation grounds for eviction of a former spouse and protection of a former spouse from eviction

When evicting a former spouse, first of all, they are guided by the norms of Article 31 of the Housing Code of the Russian Federation “Rights and obligations of citizens living together with the owner in residential premises belonging to him.”

Part 1 of Article 31 of the Housing Code determines that members of the family of the owner of a residential premises include his spouse living together with this owner in the residential premises belonging to him.

Part 4 of Article 31 of the Housing Code established that in case of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member (former spouse) of the owner of this residential premises is not retained.

However, former spouses have the right to enter into an agreement that establishes the rights of the former spouse to use residential premises, owned by the owner.

If the former spouse of the owner of the residential premises does not have grounds for acquiring or exercising the right to use another residential premises, and also if the property status of the former spouse of the owner of the residential premises and other noteworthy circumstances do not allow him to provide himself with another residential premises, the right to use the residential premises belonging to the said owner , may be retained by the ex-spouse for a certain period of time based on a court decision.

In this case, the court has the right to oblige the owner of the residential premises to provide other residential premises for the former spouse, in whose favor the owner fulfills alimony obligations, at his request.

When evicting a former spouse, it is necessary to take into account the provisions of the article 19 Federal Law dated December 29, 2004 N 189-FZ “On the entry into force of the Housing Code Russian Federation", according to which:

The provisions of Part 4 of Article 31 of the Housing Code of the Russian Federation do not apply to former family members of the owner of the privatized residential premises (in our case, the former spouse), provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it .

In addition to the above, when considering the grounds for eviction of a former spouse, it is necessary to take into account the explanations given in Resolution of the Plenum Supreme Court Russian Federation dated 07/02/2009 N 14 “On some issues that arose in judicial practice when applying the Housing Code of the Russian Federation”.

Clause 13 of the Resolution. By general rule, in accordance with part 4 of article 31 The Housing Code of the Russian Federation, in the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises is not retained. This means that former family members of the owner lose the right to use the residential premises and must vacate it (Part 1 of Article 35 of the Housing Code of the Russian Federation). Otherwise, the owner of the residential premises has the right to demand their eviction in judicial procedure without providing other living quarters.

Within the meaning of parts 1 and 4 of Article 31 of the Housing Code of the Russian Federation, former family members of the owner of a residential premises include persons with whom the owner’s family relations have been terminated. Under the termination of family relations between spouses you should understand the divorce in the registry office civil status, in court, declaring the marriage invalid.

Paragraph 15 of the Supreme Court Resolution. When considering a claim of the owner of a residential premises against a former family member for termination of the right to use the residential premises and eviction, the court, if the defendant objects to the satisfaction of the claim, in order to ensure a balance of interests of the parties to the disputed legal relationship, based on the provisions of Part 4 of Article 31 of the Housing Code of the Russian Federation, must resolve the issue of the possibility of preserving the property. by a former family member the right to use residential premises for a certain period of time, regardless of whether they present a counterclaim for this.

A court decision to preserve the right to use residential premises for a former family member for a certain period is allowed part 4 of article 31 The Housing Code of the Russian Federation when the following circumstances are established:

a) the former family member of the owner of the residential premises has no grounds for acquiring or exercising the right to use another residential premises (that is, the former family member of the owner does not own another residential premises, does not have the right to use another residential premises under a lease agreement; the former family member is not party to a share participation agreement in the construction of a residential building, apartment or other civil legal contract for the purchase of housing, etc.);

b) the inability of a former member of the owner’s family to provide themselves with other residential premises (buy an apartment, enter into a rental agreement for residential premises, etc.) due to their property status (no income, insufficient funds) and other noteworthy circumstances (health status, age-related disability or health status, the presence of disabled dependents, loss of work, study, etc.).

When determining the length of the period for which the former family member of the owner of the residential premises retains the right to use the residential premises, the court should proceed from the principle of reasonableness and fairness and the specific circumstances of each case, taking into account the financial situation of the former family member, the possibility of the parties living together in the same residential premises and other noteworthy circumstances.

Paragraph 16 of the Supreme Court Resolution. When deciding the issue of preserving the right to use residential premises for a certain period of time for a former family member of the owner of the residential premises, the court, in accordance with Part 4 of Article 31 of the RF Housing Code, also has the right, at the request of a former family member of the owner, to simultaneously impose on the owner of the residential premises the obligation to provide other residential premises for the former the spouse in whose favor the owner fulfills alimony obligations.

Article 90 of the Family Code “The right of the former spouse to receive alimony after divorce.”

The following have the right to demand alimony in court from a former spouse who has the necessary means for this:

— ex-wife during pregnancy and within three years from the date of birth of a common child;

- a needy ex-spouse caring for a common disabled child until the child reaches the age of eighteen or a common child who has been disabled since childhood, group I;

- a disabled, needy ex-spouse who became disabled before the dissolution of the marriage or within a year from the date of dissolution of the marriage;

- a needy spouse who has reached retirement age no later than five years from the date of divorce, if the spouses have been married for a long time.

When deciding on the possibility of imposing on the owner of residential premises the obligation to provide other residential premises for the ex-spouse, the court must proceed from the specific circumstances of the case, taking into account, in particular:

— the duration of the spouses’ marriage;

- duration of cohabitation of the owner of the residential premises and the former spouse in the residential premises;

- age, state of health, financial situation of the parties;

- the period of time during which the owner of the residential premises has fulfilled and will be obliged to fulfill alimony obligations in favor of the former spouse;

- the owner of the premises has cash to purchase another residential property for a former family member;

- the presence of the owner of the residential premises, in addition to the residential premises in which he lived with a former member of his family, other residential premises in the property, one of which can be provided for residence by a former family member, etc.

If the court comes to the conclusion that it is necessary to impose on the owner of the residential premises the obligation to provide the ex-spouse with another residential premises, then the court decision must determine:

- the deadline for the owner of the residential premises to fulfill such obligations,

- the main characteristics of the other residential premises provided and its location,

— and also on what right the owner provides the ex-spouse with other residential premises.

With the consent of the former spouse of the owner of the residential premises, another residential premises provided to him by the owner may be located in another locality. As for the size of the living space provided by the owner to the former spouse, the court, taking into account the financial capabilities of the owner and other noteworthy circumstances, should determine only its minimum area.

Taking into account that in Part 4 of Article 31 of the Housing Code of the Russian Federation there is no indication in what order, on what conditions and right the owner of a residential premises must provide a former member of his family, in respect of whom he fulfills alimony obligations, with another residential premises (on the right property, tenancy, law free use), the court must decide this issue based on the specific circumstances of each case, guided by the principles of reasonableness, and execute the court decision. Therefore, the court has the right to oblige the owner of a residential premises to provide a former member of his family with another residential premises, both under a rental agreement or free use, and on the right of ownership (i.e. buy residential premises, donate, build, etc.).

Paragraph 17 of the Supreme Court Resolution. The operative part of the court decision on the claim of the owner of a residential premises for the termination of the right of use of the owner's former spouse of this residential premises and his eviction must contain exhaustive conclusions of the court, arising from the factual circumstances of the case established in the reasoning part, on the satisfaction of the claim or on the refusal to satisfy the claim in full or in part. It must clearly state what exactly the court ruled both on the initially stated claim of the owner of the residential premises and on the counterclaim of the former family member (defendant), if one was stated. The court must also resolve other issues specified in the law so that the decision does not cause difficulties in its implementation.

Paragraph 18 of the Supreme Court Resolution. At the same time, when considering the claim of the owner of a residential premises to recognize the ex-spouse as having lost the right to use this residential premises, it is necessary to keep in mind that, in accordance with Article 19 of the Introductory Law, the provisions of Part 4 of Article 31 of the RF Housing Code do not apply to former family members of the owner of a privatized residential premises provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it. According to parts 2 and 4 of Article 69 of the Housing Code of the Russian Federation, equal rights with the tenant of residential premises under the contract social hiring in the state and municipal housing stock, including the right to use this premises, have members of the tenant’s family and former members of the tenant’s family who continue to live in the occupied residential premises.

Paragraph 2 of Article 292 of the Civil Code of the Russian Federation cannot be applied to the former family members of the owner of the residential premises named in Article 19 of the Introductory Law, since when giving consent to the privatization of residential premises occupied under a social tenancy agreement, without which it would have been impossible, they proceeded from the fact that that the right to use this residential premises for them will be of an indefinite nature and, therefore, it must be taken into account when transferring ownership of the residential premises on the appropriate basis to another person (for example, purchase and sale, exchange, donation, rent, inheritance).

2. Cases when a spouse can file a demand to evict a former spouse

2.1. the apartment is the personal property of the spouse

Let's consider when a spouse can file a demand to evict a former spouse?

When the apartment (residential building) is the property of the spouse who is demanding the eviction of the former spouse.

In accordance with the Family Code of the Russian Federation (Article 36 of the Family Code of the Russian Federation), property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (the property of each spouse ), is his property.

Let's look at an example. The wife owned the apartment before marriage. After marriage, the spouse began to live in the apartment. A few years later, the marriage was dissolved and family relationships were terminated. The husband became a former spouse, and the spouse, in accordance with Article 31 of the Housing Code, demanded that the former spouse’s right to use the apartment be terminated.

The court satisfied the wife's demands, since the apartment was purchased before marriage and was her personal property, and the ex-husband had no reason to continue to use this apartment.

Similar to the example given, the spouse’s demands for eviction of the former spouse are subject to satisfaction if the apartment or residential building was received during the marriage as a gift or by inheritance.

3. Cases when a spouse cannot file a claim to evict a former spouse

Now let's look at cases where a spouse cannot file a demand to evict a former spouse, and if he does, he should be denied this.

3.1. the apartment is the common joint property of the spouses

The first case is when the apartment was purchased during marriage and registered in the name of one of the spouses.

In accordance with the Family Code, property acquired by spouses during marriage is their joint property, regardless of which spouse it is registered in the name of.

If a claim is filed against the ex-spouse for termination of the right to use the apartment, he has the right to object on the grounds that he is also the owner of the apartment and lawfully uses the apartment. Without being listed as the owner, but actually being one, the former spouse can protect his right by filing a claim in court to recognize the right to a share in an apartment registered in the name of the other spouse.

What happens if the ex-spouse does not know that a claim has been brought against him for termination of the right to use the apartment, and for this reason he does not appear in court? The position taken by the Presidium of the Moscow City Court (that is, the third court) in several court cases.

Let's consider one of them as an example. During the marriage, an apartment was purchased in the name of the wife. The husband gave notarized consent to its acquisition. Subsequently, the marriage was dissolved. The wife filed a claim against her ex-husband to terminate the right to use the apartment and deregister him. The ex-husband did not appear in court and, accordingly, did not object to the stated demands. The district court refused to satisfy the spouse's claim, citing the fact that the apartment was acquired during the marriage, therefore, it was property jointly acquired with the former spouse. The second instance upheld the decision, but the third instance overturned the court's decision, since the defendant did not declare any counterclaims for the division of the apartment and recognition of ownership of a share in the apartment. The case was sent for a new trial to the district court, which was recommended to take additional measures to establish the actual location of the defendant in order to notify him of the claims presented.

In connection with the case considered as an example, it can be recommended that spouses, when purchasing an apartment (residential building and other real estate) during marriage as joint property, draw up documents in such a way that Unified register rights to real estate and transactions with it, both spouses were indicated as owners.

This is done when:

— in the contract for the purchase of real estate, both spouses are indicated as buyers;

- if one spouse is indicated in the contract, but both spouses apply for registration of joint property rights;

- if one spouse applies for registration of the right of joint ownership, but asks to register the right of joint ownership indicating both spouses.

3.2. the apartment was privatized with the consent of the ex-spouse

The next case when a spouse cannot file a claim to evict a former spouse is when the apartment was privatized by the spouse who owns the apartment with the consent of the former spouse.

Let's also consider this situation with an example.

The wife lived in the apartment under a social tenancy agreement, got married and the husband began to live with her in this apartment. Next, the wife decided to privatize the apartment, the husband gave his consent to this, and the apartment was privatized. Subsequently, the marriage was dissolved, and the wife filed a claim to recognize the former spouse as having lost the right to use the apartment.

In this situation, it must be borne in mind that, in accordance with Article 19 Federal Law of December 29, 2004 N 189-FZ “On the implementation of the Housing Code of the Russian Federation” The provisions of Part 4 of Article 31 of the Housing Code of the Russian Federation (on termination of the right to use the apartment of a former spouse) do not apply to former family members of the owner of a privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it .

According to parts 2 and 4 of Article 69 of the Housing Code of the Russian Federation, members of the tenant’s family and former members of the tenant’s family who continue to live in the occupied residential premises have equal rights with the tenant of residential premises under a social tenancy agreement in the state and municipal housing stock, including the right to use this premises. .

Having established that at the time of privatization the defendant lived in the residential premises, was registered there at the place of residence and had an equal right to use this premises with the plaintiff, the courts refuse to satisfy claims for termination of the right to use the residential premises.

Thus, it is impossible to evict a former spouse who was using it at the time of privatization of the residential premises.

This must also be taken into account when the spouse - the owner of the premises as a result of privatization - chooses such a method of terminating the right to use the apartment by the former spouse as purchase and sale, donation, rent.

Paragraph 2 of Article 292 of the Civil Code of the Russian Federation (which establishes the rule on termination of the right to use an apartment upon transfer of ownership) cannot be applied to the former spouse of the owner of a residential premises, since by giving consent to the privatization of residential premises occupied under a social tenancy agreement, without which she was would be impossible, he proceeded from the fact that the right to use this residential premises for him would be of an indefinite nature and, therefore, it should be taken into account when transferring ownership of the residential premises on the appropriate basis to another person (for example, purchase and sale, barter, donation, rent, inheritance).

However, the rule of Art. 19 of Federal Law No. 189-FZ of December 29, 2004 applies only to former spouses of the owner of privatized residential premises who live together with the owner in the residential premises belonging to him. If a former family member of the owner of a privatized residential premises has moved to another place of residence, then the right to use the residential premises in which he lived together with the owner of the premises may be terminated from the former spouse, regardless of the fact that at the time of privatization of the disputed premises he had an equal right to use this premises with the person who privatized it.

4. Actions of the spouse who evicts the ex-spouse

What actions must be taken by a spouse who wants to evict his ex-spouse?

I am for peaceful out-of-court solutions to issues.

To begin with, just try to calmly invite your ex-spouse to voluntarily move out and register at his place of residence in another apartment. Nobody needs long, exhausting, nerve- and money-consuming litigation. It is possible that your spouse will follow your request.

Another peaceful option is to enter into an agreement with the ex-spouse, which establishes the rights of the ex-spouse to use the residential premises belonging to the owner. Agree on some period of time convenient for both parties, during which the ex-spouse will continue to use the premises and then voluntarily vacate it.

If peaceful options do not work, you will have to file a lawsuit.

4.1. What lawsuit should a spouse file to evict her ex-spouse?

Main claim:

- on recognition of the defendant as having terminated the right to use the residential premises and eviction.

Additional claim:

- on deregistration of the defendant at the address of the residential premises.

The defendant in this claim is the former spouse of the owner of the residential premises, that is, the person with whom the owner’s family relationship has been terminated. The termination of family relations between spouses means the dissolution of a marriage in the civil registry office, in court, or the recognition of a marriage as invalid.

4.2. What circumstances must a spouse prove in order to evict her ex-spouse?

1. There is no agreement between the owner of the residential premises and the former spouse on preserving the right to use the residential premises for the former spouse.

It is assumed that the agreement to retain the right to use residential premises for the defendant as a former family member must be made in writing.

2. Family relations with the owner of the residential premises have ceased, which is confirmed by the following circumstances: the marriage of the owner of the residential premises with the spouse (former member of the owner’s family) was dissolved by the civil registry office, in court, or declared invalid.

This can be confirmed:

— Certificate of divorce

— A copy of the court decision on divorce that has entered into legal force (in case of divorce by court decision)

— An extract from the civil register declaring the marriage invalid (if the marriage is declared invalid) and a copy of the court decision declaring the marriage invalid (if the marriage is declared invalid).

3. The former spouse of the owner of the residential premises refused (does not maintain) a common household with the owner.

4. The former spouse of the owner of the residential premises and the owner do not have a common budget or common household items.

This can be confirmed by witness testimony.

5. The former spouse of the owner of the residential premises does not fulfill the obligation to pay for the residential premises and utilities.

This can be confirmed by receipts for payment of housing and utilities.

6. The ex-husband of the owner of the residential premises moved to another place of residence

This can be confirmed:

— Certificate of registration of ownership of another residential premises;

— Social tenancy agreement for another residential premises;

— A lease agreement for another residential premises;

— A certificate of the former spouse entering into a new marriage (when the former spouse of the owner of the residential premises lives with the new family in another residential premises);

— Financial personal account, extract from the house register, other housing documents;

— Information from the passport office;

— Documents confirming the defendant’s registration at the new place of residence.

7. There are no personal belongings of the owner’s former spouse in the residential premises (in particular, due to their removal).

This can be confirmed:

— Witness testimony;

— An act of inspection of the living conditions of the disputed residential area.

8. There are conflicting relationships between the owner of the residential premises and the former spouse that preclude the possibility of them living together.

This can be confirmed:

— Witness testimony;

— Copies of applications to law enforcement agencies and copies of decisions made on such applications.

9. The former spouse creates obstacles for the owner of the residential premises in using the premises.

What is confirmed:

— Appeal of the owner of the residential premises to the internal affairs bodies;

— An application from the owner of the residential premises to the authorized local authorities regarding the fact of obstruction in using the premises;

- Witness testimony.

5. Actions of the ex-spouse who is being evicted

However, the ex-spouse may not agree that he is being evicted from his apartment or residential building. He can object by filing a counterclaim against the owner of the premises.

5.1. What counterclaim should a spouse who is being evicted file?

In this category of disputes, the defendant may file counterclaims claims(counterclaim) on the possibility of preserving for him, as a former family member of the owner of the residential premises, the right to use this premises for a certain period.

If the defendant has not filed such a counterclaim, but objects to the satisfaction of the claim of the owner of the residential premises to terminate the defendant’s right to use the residential premises, then the court must decide the issue of the possibility of preserving the defendant’s right to use the residential premises for a certain period.

If, by a court decision, the defendant is granted the right to temporary use of residential premises for a certain period and this period has expired, but the defendant does not vacate the residential premises voluntarily, then the plaintiff has the right to file a lawsuit in court and evict the defendant and remove him from the registration register.

It should be borne in mind that the length of the period for which the defendant, as a former family member of the owner of the residential premises, retains the right to use the residential premises is determined by the court in each specific case. This takes into account:

- financial situation of the defendant,

- the possibility of his living together with the owner in the same residential premises;

- length of stay of the defendant in the premises,

- the fact that the defendant bears the costs of paying for housing and communal services,

- the defendant has a disability,

- the defendant is retired,

- small income of the defendant,

— the presence of a dependent adult disabled child,

- the defendant is on parental leave,

- the working age of the defendant,

- the presence of the defendant in property real estate on the territory of another state.

If the owner of a residential premises fulfills alimony obligations in relation to the defendant, a former spouse, then in addition to a counterclaim to preserve the defendant, as a former member of the owner’s family, of the right to use the residential premises for a certain period, one can also demand that the owner be obliged to provide the defendant with another residential premises.

In the oncoming statement of claim, in addition to the requirement that the defendant, as a former family member of the owner of the residential premises, retain the right to use this premises for a certain period, it is also possible to indicate the requirements for the defendant to move into the residential premises and the obligation not to interfere with his use and residence in the residential premises.

5.2. What circumstances must be proven to the spouse who is being evicted in order to extend the right to use the apartment?

1. The former spouse of the owner of the residential premises has no grounds for acquiring or exercising the right to use another residential premises, that is:

- the former member of the owner’s family does not own any other residential premises;

- the former family member of the owner does not have the right to use another residential premises under a rental agreement;

- a former family member is not a party to an agreement on shared participation in the construction of a residential building, apartment or other civil legal agreement for the purchase of housing.

This can be confirmed:

— Certificate, notification from the Rosreestr Office;

— A certificate from the Department of Housing Policy and Housing Fund or other authorized body;

- Witness testimony.

2. The former spouse of the owner of the residential premises does not have the opportunity to provide himself with another residential premises, that is:

— buy an apartment;

— conclude a rental agreement for residential premises;

— conclude an agreement on shared participation in construction

due to property status(no income, insufficient funds, a former family member bears the cost of renting another living space) and other noteworthy circumstances(health status, disability due to age or health condition, presence of disabled dependents, loss of job, study, etc.).

This can be confirmed:

— Documents confirming the income of the owner’s former spouse;

— Documents confirming the health status of the owner’s ex-spouse, including the presence of chronic diseases, the defendant’s being under treatment (certificates, extracts, medical records from a medical institution);

— Documents confirming the incapacity to work of a former member of the owner’s family due to age or health status (retirement age, disability, etc.);

— Documents confirming that the former family member of the owner has disabled dependents;

Documents confirming that the former family member of the owner does not have a job (certificates from the employment service, etc.);

Documents confirming that a former member of the owner’s family has completed training (certificates, extracts from an educational institution).

3. The residential premises are the only permanent place of residence of the former family member of the owner of the residential premises.

This can be confirmed:

— Certificate, other documents from the Office of Rosreestr for the city of Moscow;

— An extract from the house register.

In conclusion, I would like to note that at present, extensive judicial practice has already developed in the category of disputes between former spouses we have considered. And before filing a claim, we recommend contacting lawyers in order to study previously adopted judicial acts and formulate a winning position for you.

Boytsova E. A.

Lawyer of the Moscow Bar Association

"Center for Legal Expertise"

The problem under consideration has been around for hundreds of years, love goes away forever, but what to do with real estate? How to discharge someone from an apartment who is no longer a family member? Is it even possible to evict a person against his wishes?

Lawyer Oleg Sukhov ("Legal Center of Lawyer Oleg Sukhov") talks about the legal aspects of eviction of a former spouse.

An ex-spouse can be evicted through court if he himself does not want to leave.

The Housing Code of the Russian Federation (Article 31) states that if family relationships are dissolved, then the right to use residential premises 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 relevance, you do not always need 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 place of residence by one of the spouses, the absence of a common budget, testimony of witnesses and relatives. In each individual case, this issue is resolved individually. The provisions of the law in question, of course, do not apply to children. They cannot in any way lose the right to housing, no matter what their parents come up with, 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 may accommodate the evicted spouse

If the former family member of the owner refuses to leave the place of residence as soon as possible, the court may meet halfway and determine the period of cohabitation, during 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. For each specific case, the period is set individually, all influencing factors are taken into account at the same time (on average 6 months - 1 year). However, if a woman is forced to leave home, the court may impose on the spouse the obligation to provide her and the children with housing if there are obligations to pay alimony. Of course, such a decision is not made without reason. The court is obliged to take into account the duration of the relationship, the duration of cohabitation, the financial component, the age of the children, health status and other factors. The court also determines the minimum area of ​​living space, but does not indicate its location. It could be another city, or even a house in the village. By the way, it is not at all necessary to give an apartment as a gift; it can be a rental agreement or free 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 a similar situation (Article 19 of the Federal Law “On the entry into force of the Housing Code of the Russian Federation”). The law even provides for a situation where several persons gave consent to privatize an apartment; all of them retain the right to use it, even if they changed their place of residence.

If the housing is a premises under a social tenancy agreement, then all members of the tenant’s family, as well as former ones, have the full right to occupy it (Article 69 of the Housing Code of the Russian Federation).

If the owner loses his right to residential premises, for example, due to death or as a result of any transactions, then former family members are obliged to leave the premises within a specified period (except for the example with privatization). If this does not happen, then new owner will resolve this issue in court (Article 292 of the Civil Code of the Russian Federation).

In the end

Evict ex-husband or a wife from an apartment - very simple. First, threaten to sue, because he will definitely be on your side. Secondly, go to court, present documents stating that your family life ended and wait for a decision. Please remember that children have every right to an apartment in any case. If the housing was privatized, then it will have to be divided among everyone who is documented in it. If the apartment belongs to your husband, ensure that you and your children are provided with new housing, and do not agree to the first option offered. In general, try to resolve disputes peacefully, but you should not be afraid of the courts.

See also freeconsultations on the topic

Is it possible to evict an ex-wife (husband) from an apartment?

Deprive a former relative of the right to use housing possible in clearly defined cases.

Municipal authorities will not help here.

There is also another way - application of administrative measures. This is possible in a situation where, although he uses it.

How to evict a husband from an apartment if he is not registered in it? In such a situation, the owner or other residents can give the citizen his belongings and prohibit him from appearing in the apartment. In case of disagreement Can resort to calling the police.

Under no circumstances should the evicted person's belongings be thrown out of the premises or allowed to be damaged. Such actions will result in legal liability.

If a citizen evicted in this way does not agree with the actions of the owner, then he will have to file an application with the court.

The owner will have to make counterclaims during the process, which is much simpler than filing a claim.

How to evict your ex-husband from your apartment?

How to evict your ex-wife or ex-husband from your own apartment? The process should begin by obtaining a divorce certificate and attempting to resolve the issue voluntarily. If this does not work out, then you can proceed to file a claim.

The application is submitted to the district court at the location of the property. This order has been established. The document must reflect the following information:

The following documents must be attached to the application:

• a copy of the claim for the defendant and third parties, if any;
• receipt for payment of state duty;
• document confirming ownership;
• marriage certificate and divorce certificate.

You can draw up the document yourself using a sample, or seek help from lawyers.

The cost of considering an application today is 300 rubles in accordance with.

Cases in this category of cases are considered fairly quickly, within 1-2 meetings. If the defendant decides to appeal a decision made not in his favor, the process will last for several months.

Circumstances may also arise, indicating existence of a legal dispute.

For example, difficulties will arise in the case where a citizen purchased an apartment before marriage using a mortgage and during life together made the appropriate payments. How to evict a mortgaged apartment purchased before marriage?

In such a situation, it can be argued that payments came from the general budget, and the defendant has the right to part of the residential premises.

The claim may be reclassified as a case of division of jointly acquired property.

The court decision on this claim can be of 2 types. In one case, the citizen must vacate the premises within a few days.

If the person, for reasons of an economic nature, then the court makes a decision granting him the right to reside in the premises for a limited period. Typically from 6 to 12 months.

In case of violation of a court decision, interested person the right to resort to the assistance of bailiffs. How to evict your ex-spouse?

The situation is a little more complicated. The legislation provides that the spouse, who at the time of completion of the process of denationalization of housing had the right to use the apartment, will retain it in any case in the future.

This provision is contained in Article 19 of Law No. 189-FZ of December 29, 2004 “On the entry into force of the RF Housing Code”.

If the apartment was privatized before the ex-wife moved in, then termination of the right to use is carried out on a general basis.

Eviction from a municipal apartment

Article 69, paragraph 4, expressly states that after divorce ex-spouse becomes self-employed parts of the living space.

A citizen can be deprived of the right to use this apartment in the following cases:

1. He fails to fulfill his duties as a tenant, for example, for the use of real estate (read about eviction).
2. Face carelessly treats property, allows it to be damaged, which entails the risk of destruction of property.

In such a situation, it will be necessary to refer to the provisions, as well as provide evidence of the described facts.

There are no obstacles to evict a citizen from a residential premises owned by another citizen. However, if the apartment is municipal, It will be extremely difficult to terminate the right to use real estate.

How to evict your ex-husband from the apartment if he? Find out about it in the video:

Housing law lawyer Evgeniy Volkov is with you.

Eviction of ex-spouse- a fairly pressing question for many residential property owners who have recently divorced their significant other.

And this question arises only because in the overwhelming majority of cases, the former spouse of the owner of the residential premises voluntarily refuses to leave the apartment or house in which the spouses (now former) previously lived together.

Why did I decide to write a detailed article about eviction of an ex-spouse?

The fact is that before writing the article, I spent a long time studying what was written on other legal and legal-related websites about the eviction of an ex-spouse from an apartment, and came to the conclusion that a good, detailed, high-quality article on the topic of eviction from a residential premises ex-husband on RuNet at the moment simply not.

In addition, as my experience of communicating with clients shows, our citizens in the overwhelming majority of cases (97% of clients who contact me) do not distinguish between the eviction of a former spouse from an apartment and the termination of the right to use residential premises.

For them it is the same thing. However, legally, these are two completely different legal categories.

I will talk about the termination of the right to use the residential premises of a former spouse in a separate article, but here I will only touch upon it in passing.

So, the right to housing is enshrined in Part 1 of Article 40 of the Constitution of the Russian Federation, which contains a number of guarantees for its implementation, including the inviolability and inadmissibility of arbitrary deprivation of housing to citizens.

As stated in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14 “On some issues that arose in judicial practice when applying the Housing Code of the Russian Federation” (hereinafter referred to as the Resolution of the Plenum of the Supreme Court of the Russian Federation),

this right is recognized not only in Russia, but throughout the world, which is reflected in international legal acts, in particular in the Universal Declaration of Human Rights (Article 25), the International Covenant on Civil and Political Rights (Article 12), the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 8).

Main regulatory legal act regulating housing legal relations in the Russian Federation is the Housing Code of the Russian Federation, which came into force on March 1, 2005.

In terms of legal force, it ranks second after the Constitution and is in fact the foundation of all housing legislation.

In this article:

Grounds for termination of the right to use residential premises by a former spouse

It is no coincidence that in my article on eviction I included a section on the grounds for termination of the right to use residential premises.

Why? Because the grounds for eviction of the former spouse arise from the grounds for termination of his right to use the residential premises.

So, the current housing legislation of the Russian Federation provides that the basis for the right to use the residential premises of family members of the owner of the residential premises are only family relationships.

Let's consider two situations.

Situation No. 1. The residential premises are owned by one of the spouses

Is the spouse a family member of the owner of the residential premises?

In accordance with part 1 of Art. 31 Housing Code of the Russian Federation

Members of the family of the owner of a residential premises include his spouse living together with this owner in the residential premises belonging to him

Accordingly, the former spouse is already a former family member of the owner of the residential premises.

In the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises is not retained, unless otherwise established by an agreement between the owner and the former member of his family.

If a former family member of the owner of a residential premises has no grounds for acquiring or exercising the right to use another residential premises, and also if the property status of a former family member of the owner of a residential premises and other noteworthy circumstances do not allow him to provide himself with another residential premises, the right to use the residential premises owned by to the specified owner may be retained by a former member of his family for a certain period on the basis of a court decision.

In this case, the court has the right to oblige the owner of the residential premises to provide other residential premises for the ex-spouse and other members of his family, in whose favor the owner fulfills alimony obligations, at their request.

So what you need to remember is that the only one legal basis termination of the former spouse's right to use residential premises is the termination of family relations (unless otherwise established by agreement between the owner and the former spouse).

The termination of family relations between spouses means the dissolution of a marriage in the civil registry office, in court, or the recognition of a marriage as invalid.

If a dispute arises, the issue of recognizing a person as a former family member of the owner of the residential premises is decided by the court, taking into account the specific circumstances of each case.

At the same time, I note that since maintaining general economy between the owner of the residential premises and the person moved into this residential premises by him is not prerequisite recognizing him as a member of the family of the owner of the residential premises, then the absence of the owner of the residential premises maintaining a common household with the specified person or their termination of maintaining a common household, for example, by mutual agreement, cannot in itself indicate the termination of family relations with the owner of the residential premises.

This circumstance must be assessed in conjunction with other evidence presented by the parties to the case.

Refusal of other persons to maintain a common household with the owner of the residential premises, lack of a common budget or common household items with the owner, failure to provide mutual support to each other, etc., as well as departure to another place of residence may indicate the termination of family relations with the owner residential premises, but must be assessed in conjunction with other evidence presented by the parties.

Taking into account the above, the right to use the residential premises of a spouse with whom the owner has not dissolved his marriage, although family relations with him have actually been terminated, cannot be terminated on the grounds of Part 4 of Article 31 of the Housing Code of the Russian Federation.

Situation No. 2. Residential premises are provided to spouses under a social tenancy agreement.

As in the first case, the spouse is a member of the employer's family. This is indicated in Part 1 of Art. 69 Housing Code of the Russian Federation

Family members of a residential tenant under a social tenancy agreement include his spouse living with him, as well as the children and parents of this tenant

In accordance with part 4 of Art. 69 Housing Code of the Russian Federation

If a citizen ceases to be a member of the family of the tenant of the residential premises under a social tenancy agreement, but continues to live in the occupied residential premises, he retains the same rights as the tenant and members of his family.

The said citizen is independently responsible for his obligations arising from the relevant social tenancy agreement.

Thus, “by default,” the ex-spouse’s right to use residential premises in this situation does not automatically terminate.

Circumstances that the court determines when considering a case of eviction of a former spouse

Based on my own judicial practice On the issue under consideration, I can say that the legally significant circumstances in disputes about the eviction of a former spouse are the grounds for acquiring ownership of residential premises.

Such grounds may be:

- agreement of purchase and sale, donation of an apartment, etc.

If this basis is a privatization agreement, the court determines whether the former spouse at the time of privatization had an equal right to use this premises with the owner.

In this case, the stated claims will be resolved by the court, taking into account the provisions of Article 19 of the Federal Law of December 29, 2004 No. 189-FZ “On the entry into force of the Housing Code of the Russian Federation”, according to which

Part 4 of Article 31 of the Housing Code of the Russian Federation does not apply to former family members of the owner of a privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it, unless otherwise established by law or agreement.

- the presence of previous family relations between the plaintiff and the defendant, the fact of termination of these relations;

- absence of an agreement between the owner and a former member of his family on the former family member retaining the right to use the residential premises;

- absence (presence) of a former member of the owner’s family of grounds for acquiring or exercising the right to use another residential premises;

- the property status of the former family member of the owner of the residential premises, as well as other circumstances indicating his ability to provide himself with other residential premises.

What requirements should the plaintiff present in court?

If you are familiar with judicial practice on this issue, you probably could have noticed that apartment owners, trying to evict their ex-spouse, make a variety of demands.

Some owners, for example, simply declare the termination of the right to use the residential premises by their former spouse and the removal of the former spouse from the registration register.

Others add to these same requirements a requirement for eviction.

So which is correct? To answer this question, let us turn to judicial practice.

Decision of 04/11/2016 of the Perm District Court Perm region in case 2-875/2016

Requests for eviction, removal of the defendant Pichugin D.I. from registration records are derived from demands to recognize the right to use residential premises, which the plaintiffs were denied, as having lost their right to use. Consequently, these requirements cannot be satisfied either.

Decision dated June 21, 2016 Kineshma City Court of Ivanovo Region in case No. 2-1140 (2016)

Claims for deregistration of the defendant are derived from claims for termination (loss) of the right to use residential premises. If the defendant is recognized as having lost the right to use the residential premises, he must be deregistered from the disputed residential premises.

The court considers that the defendant’s right to use the disputed residential premises has been terminated and, accordingly, he does not have the right to have registration at the address of the specified residential premises.

Appeal ruling by the judicial panel civil cases Supreme Court of the Republic of Mordovia dated November 12, 2015. in case No. 33-2807/2015

The requirement for deregistration at the place of residence is derived from the initially stated requirements for the loss of the right to use residential premises.

Also, let's take a look at Part 1 of Art. 35 Housing Code of the Russian Federation

If a citizen’s right to use residential premises is terminated on the grounds provided for by this Code, other federal “laws”, an agreement, or on the basis of a court decision, this citizen is obliged to vacate the corresponding residential premises (stop using it).

If this citizen does not vacate the said residential premises within the time period established by the owner of the relevant residential premises, he is subject to eviction at the request of the owner based on a court decision.

At the same time, the decision on what claims to make in the statement of claim does not depend on whether your ex-spouse currently lives in your apartment or has already vacated the premises.

It doesn’t matter whether your ex-spouse lives with you, whether he is registered in your apartment, or if the spouse does not want to vacate the apartment, or his things remain in the apartment, or the spouse does not give up the keys to the apartment, etc. - in any case, your initial action should be to file a claim on termination of the right to use residential premises by the former spouse.

At the same time, in the claim you need to ask the court to indicate that the court decision is the basis for deregistering the former spouse.

Yes, that's exactly what you should ask. But you should not ask to remove your ex-spouse from registration, as this is contrary to current legislation.

In this case, the court, if there is sufficient evidence presented by the plaintiff, will make a decision recognizing the defendant as having terminated the right to use the apartment and indicate that the decision is the basis for deregistering the defendant.

Here is a correct example from judicial practice.

Recognize Kozhevnikov FULL NAME8, DD.MM.YYYY year of birth as having terminated the right to use the apartment<адрес>. This decision is the basis for deregistration of Kozhevnikov FULL NAME9 at the address:<адрес>(see Decision dated 08/09/2015 of the Pravoberezhny District Court of Lipetsk in case No. 2-2701/2015)

Then, having received a court decision to satisfy your claims, you give your ex-spouse a period for him (she) to pack his things and vacate the apartment.

And only if the ex-spouse did not comply with your demand on time (that is, he did not voluntarily move out) - you file a second statement of claim, but it will be called “ On the defendant’s obligation to vacate the apartment and on eviction from the apartment«.

I will also present you with a sample of this claim in the next section of my article.

This simple procedure is provided for by the current housing legislation of the Russian Federation. By the way, here is an example from judicial practice to confirm my words.

The court found that since no agreement was concluded with the owner of the disputed apartment on the defendants’ use of this apartment after the court decision dated DD.MM.YYYY recognizing them as having lost the right to use the apartment, the plaintiff, as the owner of the residential premises, has the right to demand elimination of the violation of his rights, including by vacating the apartment and eviction of the defendants from the residential premises belonging to him.

Court decision dated DD.MM.YYYY recognizing Mironova G.N. and Full Name2, who have lost the right to use the disputed residential premises and the owner’s demand to vacate the apartment, are grounds, by virtue of the provisions of Part 1 of Article 35 of the RF Housing Code, for satisfying the plaintiff’s claims to oblige the defendants to vacate the disputed apartment and evict them from this apartment (see Decision dated 18.05 .2016 of the Konakovo City Court of the Tver Region in case No. 2-665/2016).

You can ask me: Evgeniy, why is it not possible to state in one statement of claim a demand for termination of the right to use residential premises by the former spouse, for the removal of the former spouse from registration and for eviction?

I answer. The court does not have the right, in one decision, to terminate the former spouse’s right to use residential premises and at the same time evict the former spouse.

Because the court's decision on eviction must be based on the former family member's refusal to vacate the premises.

That is why, if a former family member has not actually stopped using the residential premises, the issue of his eviction must be resolved in court when an independent claim for eviction is brought against him.

I told you how everything should be “according to the letter of the law.”

However, in our practice Russian ships There is still no consensus on what kind of demands should be made by the plaintiffs, which causes certain inconveniences for the Plaintiff, the owner of the apartment.

To give you an idea of ​​what kind of decisions judges make, let us again turn to examples from judicial practice.

Claims of Mishina L.S. satisfy.
Terminate the right to use the residential premises of Otroshka I.I. residential premises located at:<адрес>.
Evict Otroshka I.I. from a residential premises located at:<адрес>.
This decision to evict Otroshka I.I. is the basis for deregistration in a residential premises located at the address:<адрес>. (see Decision of May 21, 2013 of the Ust-Ilimsk City Court of the Irkutsk Region in case No. 2-1166/2013).

In this decision, the judge terminated the right to use the residential premises and at the same time evicted the Respondent, indicating that the decision was the basis for deregistering the Respondent.

The claim of the administration of the Stodolishchenskoye rural settlement ... to be satisfied.
Recognize V.P. Sidorenkova who lost the right to use residential premises at the address: ....
Evict V.P. Sidorenkova from ... located in ... without providing other residential premises.
Remove Sidorenkova V.P. from registration at the address: .... (see Decision dated February 24, 2016 of the Pochinkovsky District Court of the Smolensk Region in case No. 2-169/2016

And in this case, the court generally ordered to remove the defendant from the registration register. Not only did the court not involve the relevant registration body of the Federal Migration Service to participate in the case as a third party, resolving a dispute about the responsibility of a person not involved in the case, but it also violated the requirements of the law.

The court had no right to indicate in the court decision Remove Sidorenkova V.P. from registration

Because the removal of a citizen from registration at the place of residence if he is recognized as having lost the right to use residential premises is the competence of the registration authorities and is not subject to court approval.

To confirm my words, an example from judicial practice

At the same time, the demands to deregister the defendant at the specified address should be refused, taking into account the fact that the plaintiff does not challenge the legality of the actions of the territorial branch of the Federal Migration Service of Russia to register S.V. Shelest. in the disputed residential area.

In accordance with paragraph 31 of the Decree of the Government of the Russian Federation of July 17, 1995 N 713 “On approval of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation and the list officials, responsible for registration”, the removal of a citizen from registration at the place of residence is carried out by the registration authorities in the event of eviction from an occupied residential premises or recognition as having lost the right to use residential premises - on the basis of a court decision that has entered into legal force.

Thus, the removal of a citizen from registration at the place of residence if he is recognized as having lost the right to use residential premises is the competence of the registration authorities and is not subject to permission by the court, and therefore, in satisfying the specified claims, Boldyreva S.E. the judicial panel finds it necessary to refuse (see the Appeal ruling of July 12, 2016 of the Kemerovo Regional Court in case No. 33-8529).

As you can see, judicial practice on the issue of termination by a former spouse of the right to use residential premises, eviction and deregistration is not uniform and is characterized by one capacious definition: who cares what!

By the way, if you dig deep and not on the surface, then according to Article 7 of the Federal Law “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation”,

A court decision is the basis (obligation) for the registration authority to remove a citizen from registration.

Also, in accordance with subparagraph “E” of paragraph 31 of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation and the list of officials responsible for registration, approved by Decree of the Government of the Russian Federation of July 17, 1995 No. 713,

The deregistration of a citizen at the place of residence is carried out by the registration authorities in the event of eviction from an occupied residential premises or recognition as having lost the right to use the residential premises - on the basis of a court decision that has entered into legal force.

That is, in the Rules there is not a word about termination of the right to use residential premises, and in the law (Housing Code of the Russian Federation) - not a word about recognition as having lost the right to use residential premises.

Idiocy, isn't it?!

The courts come out of this situation as follows:

In accordance with clause 31 of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and place of residence within the Russian Federation (approved by Decree of the Government of the Russian Federation of July 17, 1995 N 713, deregistration of a citizen at the place of residence is carried out by the registration authorities in case: eviction from an occupied residential premises or recognition as having lost the right to use residential premises - on the basis of a court decision that has entered into legal force.

Since deregistration due to termination of the right to use is not expressly stated in the Rules, a court decision cannot be the basis for deregistration, and leaving the defendants on the register will not contribute to the full protection of the plaintiff’s rights.

The court believes it is possible to apply this rule to controversial legal relations by analogy (see the Decision of the Ust-Ilimsk City Court of the Irkutsk Region dated May 15, 2013 in case No. 2-1192/2013).

If you do not want to prolong the dubious pleasure of visiting the courts, it is better to entrust the preparation of the statement of claim to a professional and be sure that everything will go like clockwork.

Otherwise, it is far from a fact that the court will satisfy all your demands.

So, a lot has been written in this section. Let me sum it up.

When formulating the operative part of decisions, judicial practice proceeds from completely different considerations.

There is no unity of judicial practice on this issue, as my analysis of court decisions showed.

If you want your ex-husband to virtually disappear from your apartment (take your clothes, give the keys to the apartment, move to another place of residence) and the author of the article, housing law lawyer Evgeniy Volkov https://site legally (checked out of the apartment, that is deregistered), then in my opinion, you need to take three steps:

1. First file a claim to terminate the ex-spouse’s right to use the residential premises and ask the court to indicate that the court’s decision will be the basis for deregistering the ex-spouse.
2. Request in writing from your ex-spouse that he or she vacate the premises within the time period you set. If the ex-spouse has not voluntarily vacated the living space after the expiration of the period set by you, then proceed to the third step.
3. File a claim with the court to oblige the ex-spouse to vacate the apartment and to evict the ex-spouse from the apartment.

The strategy I have proposed is entirely based on the norms of the Housing Code of the Russian Federation and is confirmed in judicial practice. In any case, if you follow the path I suggested, your chances in court will increase dramatically.

But I don’t want to say that I’m the smartest and you need to do as I advise you.

On the contrary, I strive to ensure that in each of my major studies the issue is examined from different angles, different approaches to solving the issue are presented, etc.

I have shown you that most plaintiffs do not always adhere to the scheme I indicated, but declare all their claims at once.

That is, they make demands for termination of the right to use residential premises, deregistration and eviction.

And the courts, surprisingly, are quite loyal to the claims made by the plaintiffs. And satisfy them. But still not always.

Therefore, if you decide to file a lawsuit and state all the demands en masse in one lawsuit, then whether the court will satisfy all the demands you made in one lawsuit is a big question.

But here you must decide for yourself how you will act.

My task was to show you what the law says on this issue and how things currently stand in judicial practice.

I hope that my analysis of judicial practice will help you make the right choice.

Statement of claim for eviction of ex-spouse (correct sample)

Finding a sample statement of claim to evict a former spouse on the Internet is not difficult.

Why do I say this?

As a housing law lawyer, I have helped dozens of my clients win similar disputes.

However, among my clients there were often those (Plaintiffs) who needed my help in appealing a court decision to reject a claim to evict a former spouse, or my help in a situation where the court satisfied the plaintiff’s demands only in part.

In preparation appeals I always ask my clients for a copy of the statement of claim, according to which the court made a decision to refuse eviction or a decision to only partially satisfy the plaintiff’s demands.

An analysis of all these claims showed that all these claims are based on templates taken from dubious sources on the Internet. Copied exactly, only dates and names changed.

Therefore I say again: free cheese only in a mousetrap.

Save money on preparing a claim and get a court decision that is not the one you would like to receive.

You can check the correctness of my words in practice, unless of course you want to appeal the court decision later, instead of immediately preparing a competent statement of claim for the eviction of your ex-spouse the first time and winning the case.

But decide for yourself whether to turn to a pro and be confident of victory, or prepare a claim yourself and then be in nervous tension.

Unfortunately, many of our citizens do not pay much attention to the fact that they use a crooked template to win in court.

And, of course, the template for the statement of claim for the eviction of the ex-spouse, subsequently taken from the Internet, will also affect the court’s decision, of course, not in favor of the plaintiff.

What should a lawsuit to evict a former spouse look like?

I can show you my version of the statement of claim, but only in terms of volume and design, so that you can roughly imagine this document.

The texts and wording that I use in my version of the statement of claim for the eviction of my ex-spouse are hidden from reading by me.

The logic here is simple: thoughtlessly copying wording from someone else’s claim will not lead to anything good.

And, by the way, I did not present to you a template, but one of the many eviction lawsuits I prepared, in which the plaintiff’s demands were fully satisfied by the court.

Whether to follow me, trust my experience or not is up to you to decide. One thing I can say quite definitely:

Do you need a professionally drafted claim to evict your ex-spouse from an apartment, taking into account your specific situation? - Contact me, I’ll make it up. And together we will win the case! The contact details for contacting me are below.

Okay, we have more or less sorted out the claim for eviction of an ex-spouse, and I hope it has settled in your head that template claims for eviction of a former spouse will not be suitable for winning in court.

Only the painstaking work of a professional to study your personal situation and choose the right strategy for preparing a claim, taking into account the latest trends in judicial practice in your region, can bring you success in the case of evicting your ex-spouse from your apartment.

I hope you understand this. If not, then I sincerely sympathize with you.

Where to file a claim to evict your ex-spouse?

In accordance with Art. 46 of the Constitution of the Russian Federation

everyone is guaranteed judicial protection his rights and freedoms.

Based on this constitutional norm, Part 1 of Article 11 of the Housing Code of the Russian Federation establishes the priority of protecting violated housing rights by the court in accordance with the jurisdiction of cases established by procedural legislation.

According to clause 1, part 1 of Art. 22 Code of Civil Procedure of the Russian Federation

courts general jurisdiction consider and resolve cases with the participation of citizens, organizations, bodies state power, organs local government on the protection of violated or disputed rights, freedoms and legitimate interests in disputes arising from housing legal relations.

According to Art. 24 Code of Civil Procedure of the Russian Federation

Civil cases on the eviction of citizens, taking into account the subject composition and the nature of the legal relations that have arisen, are subject to consideration by the district court as a court of first instance.

According to paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 N 14 “On some issues that arose in judicial practice when applying the Housing Code of the Russian Federation”

housing disputes (on recognition of the right to residential premises, on eviction from residential premises, on termination of the right to use residential premises of a former family member of the owner of this residential premises, on maintaining the right to use residential premises for a former family member of the owner of this residential premises, on the seizure of residential premises from owner through redemption in connection with seizure land plot for state or municipal needs, on the provision of residential premises under a social tenancy agreement, on the invalidation of the decision on the provision of residential premises under a social tenancy agreement and the social tenancy agreement concluded on its basis, on the forced exchange of occupied residential premises, on the invalidation of the exchange of residential premises and others) based on the provisions of Art. Art. 23 and 24 of the Code of Civil Procedure of the Russian Federation are considered at first instance by the district court.

Thus, you file a claim for eviction in the district (or city, if your city does not have a district division) court at the defendant’s place of residence.

What is important for a defendant in an eviction case to know?

My article would be incomplete if I focused only on caring for the interests of the plaintiff.

I also saved a lot of useful information for defendants in eviction cases.

So listen, taste, absorb what I have written below.

So, keep in mind that the length of the period for which the defendant, as a former family member of the owner of the residential premises, retains the right to use the residential premises is determined by the court in each specific case.

At the same time, the financial situation of the defendant, the possibility of his living together with the owner in the same residential premises and other circumstances are taken into account (clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 N 14).

Thus, when determining the period of temporary use of residential premises in relation to the defendant, the court may take into account the following factors:

- length of stay of the defendant in the premises;
- the fact that the defendant bears the costs of paying for housing and communal services;
- whether he has a disability;
- the defendant is retired, his income is small;
— the presence of a dependent adult disabled child;
— the defendant is on parental leave.

Also, when establishing the specified period, the court may take into account the defendant’s working age, whether he owns real estate in the territory of another state (see, for example, the Appeal Rulings of the Moscow City Court dated July 2, 2014 in case No. 33-25531, dated March 26. 2014 in case No. 33-9683).

A defendant who does not voluntarily vacate the residential premises after the expiration of the period of temporary use of the premises determined by the court should take into account that in such a situation the plaintiff has the right to apply to the court with a claim to evict the defendant and deregister him (for example, the Appeal Ruling of the Moscow City Court dated 08/06/2014 in case No. 33-31195).

If the owner of the residential premises fulfills alimony obligations in relation to the defendant, then in addition to the counterclaim for the preservation of the defendant, as a former member of the owner’s family, of the right to use the residential premises for a certain period, one can also demand that the owner be obliged to provide the defendant with another residential premises (clause 16 of the Resolution of the Plenum Supreme Court of the Russian Federation dated July 2, 2009 N 14).

In the counterclaim, in addition to the requirement to preserve for the defendant, as a former family member of the owner of the residential premises, the right to use this premises for a certain period, it is also possible to indicate the requirements for the defendant to move into the residential premises and the obligation not to interfere with his use and residence in the residential premises (see, for example, Determinations of the Moscow City Court dated July 23, 2013 No. 4g/5-6557/13, dated February 6, 2013 in case No. 11-1683, Appeal determinations of the Moscow City Court dated February 26, 2014 in case No. 33-4296, dated 02/14/2014 in case No. 33-6738, from 12/20/2013 in case No. 11-41090, from 05/20/2013 in case No. 11-13242).

In order for the court to make a decision in an eviction case in favor of the defendant, you, as the defendant in the case, must prove the following circumstances:

№1. The former family member of the owner of the residential premises has no grounds for acquiring or exercising the right to use another residential premises, that is:

- the former member of the owner’s family does not own any other residential premises;
- the former family member of the owner does not have the right to use another residential premises under a rental agreement;
- the former family member is not a party to an agreement on shared participation in the construction of a residential building, apartment or other civil legal agreement for the purchase of housing;
- another.

These circumstances can be confirmed by a certificate or notification from the Rosreestr Office, as well as by witness testimony.

Here are examples from judicial practice in eviction cases for your own study:

— clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14.
— Determination of the Moscow City Court dated December 18, 2014 No. 4g/3-13052/14.
— Determination of the Moscow City Court dated December 12, 2014 No. 4g/8-12472.
— Determination of the Moscow City Court dated 09.09.2014 No. 4g/6-9332/14.
— Determination of the Moscow City Court dated June 30, 2014 No. 4g/1-6466.
— Appeal ruling of the Moscow City Court dated June 30, 2014 in case No. 33-23054.
— Appeal ruling of the Moscow City Court dated June 24, 2014 in case No. 33-22656\14.
— Appeal ruling of the Moscow City Court dated February 26, 2014 in case No. 33-4296.

№2. The former family member of the owner of the residential premises does not have the opportunity to provide himself with another residential premises, that is:

— buy an apartment;
— conclude a rental agreement for residential premises, etc. due to property status (no income, insufficient funds, a former family member bears the cost of renting another residential premises) and other noteworthy circumstances (health status, disability due to age or health condition, presence of disabled dependents , loss of job, study, etc.)

The defendant can confirm these circumstances:

Documents confirming the income of a former family member of the owner;

Documents confirming the health status of the former member of the owner’s family, including the presence of chronic diseases, the defendant’s being under treatment (certificates, extracts, medical records from a medical institution);

Documents confirming the incapacity to work of a former member of the owner’s family due to age or health status (retirement age, disability, etc.);

Documents confirming that the former family member of the owner has disabled dependents;

Documents confirming that the former family member of the owner does not have a job (certificates from the employment service, etc.);

Documents confirming that a former member of the owner’s family has completed training (certificates, extracts from an educational institution).

To help for self-study Here are a few more examples from judicial practice in eviction cases:

Clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14;
-Decree of the Supreme Court of the Russian Federation dated November 20, 2012 No. 38-KG12-11;
-Decree of the Moscow City Court dated December 18, 2014 No. 4g/3-13052/14;
-Decree of the Moscow City Court dated December 12, 2014 No. 4g/8-12472;
-Decree of the Moscow City Court dated 09.09.2014 No. 4g/6-9332/14;
-Appeal determination Moscow City Court dated June 24, 2014 in case No. 33-22656\14;
-Appeal ruling of the Moscow City Court dated February 26, 2014 in case No. 33-4296;
-Appeal ruling of the Moscow City Court dated November 6, 2013 in case No. 11-34026.

No. 3. The residential premises are the only permanent place of residence of the former family member of the owner of the residential premises

This can be confirmed by a certificate, as well as other documents from the Office of Rosreestr, as well as an extract from the house register (see, for example, Determination of the Moscow City Court dated December 18, 2014 No. 4g/3-13052/14).

That's all! We exhaled. In any case, let me complete my article, I hope the materials in my article will help you in your practical activities.

Attention: I do not provide telephone consultations on the issues outlined in the article. The article outlines my vision of the situation and provides a working solution to the problem. If you still have questions about the topic of the article, please ask them in the comments below. Thank you!

Art. 31 of the RF Housing Code regulates housing relations between former spouses. After the divorce, the spouse who is not the owner of this living space loses the right to use it. However, the issue of eviction of an ex-spouse is much more complicated than it might seem. Today we will take a closer look at how to evict your ex-husband from your apartment.

If the ex-husband is not registered in the apartment

​This situation is the simplest, since the absence of permanent registration in an apartment does not in itself give the right to live in it. According to Art. 19.15 of the Code of Administrative Offenses of the Russian Federation, citizens are prohibited from residing without temporary or permanent registration at the place of stay for a period of more than 90 days. But on the other hand, Art. 25 and art. 40 of the Constitution of the Russian Federation prohibits depriving anyone of housing.

This situation can only arise if the ex-husband has other housing, or he is registered in the apartment, for example, of his parents or other relatives. However, the following points are important for the order in which eviction will occur:

1. Is the ex-husband a co-owner of the ex-wife's apartment?
2. Was the housing privatized, or did the family live in it under a social tenancy agreement?
3. Was the apartment purchased during the marriage, or belonged to the wife before marriage, or did she receive it by will or as a gift?

If the ex-husband is not registered in the apartment, but is its co-owner, since the family bought this housing during the years of marriage, no one will be able to forcibly evict the ex-husband, except if the living space is sold to third parties in its entirety, or by a court decision the husband sells his share of the apartment to his wife, or he sells his share to third parties.

When it comes to public housing, then one of the spouses is the responsible tenant. The eviction of the ex-husband will become possible if he is not registered in this apartment, and since he does not have registration, he no longer has any grounds for living with the loss of his status as a family member.

If the apartment is the unconditional property of the wife(bought before marriage, or given to her, or inherited by her), then she has the right to move in and out of it at her own discretion. Since the ex-husband is not registered in the apartment, and it does not belong to him, and family relations were interrupted by divorce (there is a certificate of divorce), he can only be in the apartment with the permission of his ex-wife (for communication with joint children).

Otherwise, when the ex-husband resists expulsion from the apartment, it would seem that there is every reason to contact the police to forcibly remove the ex-husband from the apartment. But in reality, you will have to get a court decision, since the district police do not have the authority to evict citizens on such grounds. It’s a completely different matter when the ex-husband does not comply with the court’s decision, then the ex-wife will have every reason to contact law enforcement agencies.

If the ex-husband is registered in the apartment

To resolve this controversial situation of fundamental importance is the fact that does the ex-husband have ownership rights to this housing or not?. Depending on this, the eviction procedure will be implemented.

Permanent or temporary registration in an apartment in itself does not currently give, by law, property rights to housing, since it is in no way connected with them. However, if there is registration, it will not be possible to quickly and simply evict, if only because it is possible to remove a citizen from the registration register only with his direct participation, except if this citizen is declared missing or dead (there is a corresponding court decision).

The ex-wife will have to file a lawsuit for eviction, but she will have to prove that there are all grounds for such an extreme measure. The court will definitely take into account whether the ex-husband has any other housing, and if there is none, it will give him time to resolve housing problems (up to 1 year). But the defendant will need to prove that he has compelling reasons to ask the court to do so. It is especially worth noting that the sale of the apartment in this case can be carried out without hindrance. New owners will be able to kick out the previous tenant without any difficulty, even if the court has given him time to find a new home.

It would be a mistake to simply contact the police and demand eviction.. There will be only one answer: citizens can only be evicted by a court decision, since the police without such a decision have no authority to carry out such a procedure.

If the ex-husband is not the owner of the apartment

For this situation, it matters what type of housing we are talking about. When moving out from privatized apartment , in which the ex-husband is registered, it is important when it was privatized - before marriage or after. If before, then the ex-wife has the right to file a claim for eviction and the court will consider the case, taking into account all other circumstances: the financial situation of the ex-husband, the presence of children together, whether he has other housing, etc. But eviction will occur if the husband did not take part in privatization, has other housing, and if there is no other housing, the court will give time to find it.

If the ex-husband had the right to privatize the apartment, but did not take part in it, did not properly formalize the refusal to participate in it, and 3 years have not yet passed since this event, then he will be able to challenge the previously carried out procedure in court and demand privatization to be carried out again. But you cannot demand privatization if you have already participated in it once, so the ex-husband’s participation in the privatization of other housing will make such a claim void.

This happens quite often. Both spouses have parents who have their own home. Children, along with their parents, can take part in privatization. After this, if at the time of registration of privatization the children were already adults, the law will consider that they have exercised their right to privatization. Children who took part in the privatization of their parents’ housing before reaching adulthood will once again be able to take part in privatization after reaching adulthood.

An apartment bought by an ex-wife before marriage (inherited, accepted as a gift) belongs only to her, and the ex-husband does not have any property rights to it, even being registered in it. No statute of limitations applies to this situation. Regardless of how long the ex-husband lived in this apartment, this in no way becomes a reason for recognizing his property rights to this housing. The court can only accommodate his plight (illness, no work) and give him some time to find a new home, but the court has no legal grounds to challenge his ex-wife’s property rights.

In almost all cases, eviction occurs on the basis court decision . The party filing such a claim will have to bear all associated costs, including payment of state fees. It will not be possible to recover this money from the defendant. The court decision will indicate the terms and order in which the ex-husband is obliged to evict, and if the eviction is refused, in what order this procedure will be carried out forcibly. However, eviction is not always possible even in court.

The former spouse fully retains the right to reside and dispose of the apartment in which both former spouses live under a social tenancy agreement (Clause 4, Article 69 of the RF Housing Code). Divorce does not affect the right to reside, since the apartment was received by the spouses on the basis of an agreement with the municipality, but not due to marriage. Therefore, the right to residence can be terminated by terminating the social tenancy agreement, but not by registering the divorce. Even if the wife is a responsible tenant, this does not change the essence of the matter. It will not be possible to evict your ex-husband; only voluntary separation is possible.

The ex-wife can, on her own initiative, find two apartments (rooms) for exchange in the same or in another locality. The categorical refusal of the ex-husband to make an exchange with the ex-wife having found options can easily be challenged in court, which in such a situation will make a decision on a forced exchange. Of course, the other party will have to wait until the end of the lawsuit to complete the exchange.

If the ex-husband is the owner of the apartment

The most difficult situation is when the ex-husband is registered in the apartment and is its co-owner. Termination of family relations (divorce) does not change anything in his rights to use and dispose of the real estate belonging to him. However, there are different ways to own an apartment together with your ex-spouse.

When spouses purchase an apartment while legally married, then, as a general rule (Article 39 of the RF IC), the property becomes their common property and each is assigned half by law. However, under the terms of the marriage contract or under the terms of the purchase and sale agreement itself, another division of shares may be provided, not necessarily in half.

For example, a marriage contract may indicate that all real estate acquired during the marriage becomes the property of only one of the spouses. During a divorce, the court will accept this condition as a guide to action when dividing property acquired jointly during the marriage. The contract is valid voluntary agreement when both spouses certify their consent to a certain procedure for dividing property with their signatures.

However, even without a marriage contract, an apartment can be purchased for several persons. For example, nothing prevents spouses from including their parents, children, and other relatives among the buyers when completing a transaction. When dividing property during a divorce, the court will necessarily take into account the rights of the remaining co-owners, as well as the minor children of the former spouses.

In addition to the marriage contract, the reason for refusing to allocate a share to the ex-spouse in jointly acquired property may be the behavior of the ex-husband, who has spent the common property, and not to the benefit of the family. A typical example is the love of gambling. Waste of family savings may serve as a valid reason for the court to refuse to allocate a share in the apartment. The court will also take into account the fact that the ex-husband did not bring income to the family and did not have good reasons for this (illness, disability, etc.).

For the court great value has a deadline limitation period . Thus, spouses are given only 3 years from the date of divorce to file claims for the division of joint property, which includes real estate. If this is not completed within 3 years, the court will not accept the claim, leaving all property in the possession of the person in whose name it was registered at that time. For the same reason, 3 years after the divorce, you can safely file a lawsuit to evict your ex-husband if the apartment is registered in the wife’s name.

Judicial practice regarding the allocation of shares in the common real estate of former spouses is very confusing. The desire of former spouses to live separately from each other is quite understandable, but it is not always so simple. For example, an ex-husband may not want to voluntarily sell his share to his ex-wife and leave the apartment. In such a situation, the ex-wife can file a lawsuit and demand the allocation of a share in kind, which cannot be done in relation to the apartment. The court will be forced to force the ex-husband to pay the plaintiff compensation for her share in the apartment. If the ex-husband himself makes such a demand, then the court may forcibly award compensation in his favor.

At the same time, the ex-wife cannot force her ex-husband through court to sell his share to her or anyone else. She can sell her share to third parties, having previously notified her ex-husband of her intentions and inviting him to buy her share on the same terms and for the same amount.

Finding consensus in all cases is extremely difficult. Everything is usually complicated by the reluctance of the parties to negotiate with each other. In such a situation, the help of a qualified family lawyer will help find a way out of a difficult situation and resolve the conflict of interests by mutual agreement.

If you have any questions about the eviction of your ex-spouse from an apartment, our duty lawyer is ready to answer them promptly.