Does the wife pay the loan for the husband. The husband took out a loan without the consent of his wife and does not pay: what to do

Through a notary or in court

RF IC Article 38. Division of the common property of spouses

""1. The "division of the common property" of the spouses can be carried out both during the marriage and after its dissolution at the request of any of the spouses, as well as in the case of the creditor claiming the division of the common property of the spouses in order to enforce the share of one of the spouses in the common property of the spouses.

"" 2. The common property of the spouses can be divided between the spouses by their agreement. The agreement on the division of the common property acquired by the spouses during the marriage must be notarized.

(as amended by Federal Law of December 29, 2015 N 391-FZ)

(see the text in the previous "edition")

"" 3. In the event of a dispute, the division of the spouses 'common property, as well as the determination of the spouses' shares in this property, are carried out in court.

"" When dividing the common property of the spouses, the court, at the request of the spouses, determines which property is subject to transfer to each of the spouses. In the event that property is transferred to one of the spouses, the value of which exceeds the share due to him, the other spouse may be awarded appropriate monetary or other compensation.

""4. The court may recognize the property acquired by each of the spouses during the period of their separation at the termination of family relations, the property of each of them.

""five. Items purchased solely to meet the needs of minor children (clothes, shoes, school and sports supplies, musical instruments, children's library, etc.) are not subject to division and are transferred without compensation to the spouse with whom the children live.

"" Contributions made by spouses at the expense of the spouses 'common property in the name of their common minor children are considered to belong to these children and are not taken into account when dividing the spouses' common property.

6. In the event of the division of the spouses 'common property during the marriage, that part of the spouses' common property that was not divided, as well as the property acquired by the spouses during the marriage in the future, shall be their joint property.

"" 7. The three-year "period" of limitation applies to the spouses' claims for the division of the common property of the spouses whose marriage has been dissolved. Home Documents Article 39. Determination of shares in the division of the common property of spouses

"Family Code of the Russian Federation" dated December 29, 1995 N 223-FZ (as amended on March 18, 2019)

"" RF IC Article 39. Determination of shares in the division of the common property of spouses

""1. In the "division of the common property" of the spouses and the determination of the shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses.

"" 2. The court has the right to deviate from the beginning of the equality of the spouses' shares in their common property based on the interests of minor children and (or) based on the noteworthy interest of one of the spouses, in particular, in cases where the other spouse did not receive income for disrespectful reasons or spent the common property of the spouses to the detriment of the interests of the family.

"" 3. The common debts of the spouses in the division of the common property of the spouses are distributed between the spouses in proportion to the shares awarded to them.

The debtor on the bank loan went through all the stages of clarifying relations with the bank and the collection firm, and the debt remained unpaid. But in this case he will not have to rejoice. Most likely, the next step will be the filing of a statement of claim by the bank or collection agency against the borrower in debt. The court decision will almost certainly be in favor of enforced debt collection. This means that the debtor's life will begin the most difficult and exciting period in a series of periods associated with "squeezing" the debt out of him, which is called enforcement proceedings.

Trouble will not be limited to just one person of the borrower-debtor. Bailiffs-executors often bother close relatives - they can threaten to confiscate their property. But do their actions comply with legal norms? Let's try to clarify these issues. Also, does a husband's bad credit history affect his wife's loans?

In the course of carrying out his official actions, the bailiff is obliged to determine the owner of the property that is in the debtor's house. He is obliged to do this by Federal Law No. 229-F3 “On Enforcement Proceedings”. According to Article 80 of 02.10.2007, the bailiff has the authority to impose a penalty exclusively on the property of the borrower who is in debt. But this does not make life much easier for relatives living with him. For this situation, the presumption of innocence is invalid. They will have to prove that the things that the bailiff will lay eyes on are their personal property.

All their statements in this regard must be supported by appropriate documents of title. In the absence of such documents, the bailiff has every right to seize any property that is in the debtor's home. Here's one possible example. With the borrower, his common-law wife lives with her, who brought with her expensive things - a premium computer, FUJITSU air conditioner, 4K TV. She bought all these household appliances even before she moved into her husband's house.

In this situation, she needs to make a statement in the presence of attesting witnesses that these things belong to her as her personal property. To prove your words, you need to have supporting documents on your hands - coupons for warranty repairs, all possible checks and receipts. If this is not done, then the bailiff will present his claims to the property - he will arrest him. Subsequently, it will go towards paying off the debt of the civil husband. Having presented the documents, the spouse must check that in the property inventory act her things are indicated as those that belong to her personally.

If the debtor lives in the house of his common-law wife, then the bailiff has no right to confiscate part of the real estate to pay off the debt. This follows from the fact that the common-law husband is deprived of the right to a share in the inheritance of his wife's real estate, since such a marriage is not considered official.

But in addition to Article 80 of Federal Law No. 229-FZ "On Enforcement Proceedings", there is also Article 45 of the Family Code of the Russian Federation, which applies to married spouses. Marriage is meant both official and civil, if the fact of cohabitation is supported by the testimony of witnesses. This article of the Family Code allows, in the event that the loan received was used for family needs, to foreclose on the joint property of the husband and wife. Both by their general obligations and by the obligations of one of them.

If the joint property is not enough to settle the debt, then the spouses are jointly and severally liable - each of them pays with his personal property.This indicates that the wife or husband must also take part in the payment of the debt of their other half. With all the ensuing unpleasant consequences. In addition to selling the property of a family in debt, bailiffs can withhold part of their salaries, block funds, etc. They often voice such intentions to spouses.

But in order for the collection to be levied on the joint property of the spouses, as well as on the personal property of the wife (husband), a court order is necessary. That is, if only the husband was presented in the role of the defendant, and his wife was not determined by the court as a co-defendant, then the bailiff has no right to seize her part of the property. In this case, the debtor's wife must declare her right to a share in real estate and to her personal property, which the bailiff has no right to use to pay off the debt.

But in practice, there are often cases when bailiffs try to behave contrary to clearly prescribed legal norms. For example, the documents presented for the property refuse to be recognized as evidence. Or a spouse who was not a co-defendant in court begins to describe the property. To resist possible arbitrariness on the part of bailiffs, it is necessary to adhere to certain rules. They are further outlined:

The wife (husband), who acted as co-borrowers at the hearing, must convincingly explain that the loan received by one of them was spent not on general family needs, but specifically on the personal needs of the borrower. Even just one statement of the defendant already refers to corroborating facts. The testimony of outside witnesses in this regard also refers to the evidence base.
If the trial is carried out only in relation to the husband (wife), then the second of the spouses must have on hand all the documents for movable and immovable property that does not belong to the defendant. When the bailiff appears, these documents must be presented to him.
If the bailiff commits arbitrariness and begins to describe the property that is not the property of the debtor, then it is necessary to urgently file a complaint with the executive service - on the unlawful actions of an official.
The one of the spouses who is not a debtor, when listing his property, can file a claim to the court for the release of his property and compensation for damage caused as a result of the bailiff's illegal actions.

In order to protect himself, the debtor during the enforcement proceedings must adhere to certain rules (this also applies to his family members):

Do not make transactions with the acquisition of real estate. The court may qualify these actions as malicious evasion from paying off accounts payable, with the ensuing negative consequences (Article 177 of the Criminal Code of the Russian Federation).
If the bailiff has not seized the property (due to the absence of a valuable asset), then you should not buy expensive household appliances and other valuable things, as well as real estate, within the next 3 years. During this period, the plaintiff has the right to re-send his writ of execution to the bailiffs.

According to official information, Russians owe banks over a trillion rubles. Loans are not taken from a good life - the income level is constantly decreasing. It is obvious that family people are concerned about this problem in a special way. Will there be a situation when one of the spouses will pay off the other's overdue loan?

Ownership procedure

According to family law, spouses can determine the procedure for joint ownership: by law or by contract. In other words, the spouses decide in advance whether all acquired property will be common or owned only by one of the spouses. Any loan obligation is part of the property.

If the marriage contract (Article 46 of the RF IC) has been concluded, the personal obligations of the spouse on the loan are reimbursed with personal property. This also means that the share of the spouse who took out the loan will be deducted from the property acquired in marriage.

If the marriage contract has not been signed, all property acquired after marriage will be shared. In this case, it turns out that the responsibility for any loan taken lies with both the husband and the wife. However, there are nuances here.

Does the wife repay her husband's loans

It takes into account that the husband and wife discuss together whether to take out a loan, and if so, for what purpose to do it. The first nuance is that situations regularly occur when, under conditions of joint responsibility, the husband takes out a loan without the knowledge of his wife. At the bank, no one asks the consent of both spouses to receive a loan, and this is true from the point of view of the current law.

It turns out that the husband takes a loan and spends it not on family needs, but on personal needs, or, even worse, drinks the money borrowed from the bank on drink. The only way out for a wife in this situation is prove in court that the money borrowed by the husband was not spent on family needs.

Otherwise, if the loan was really spent on the needs of the family, whoever issued it, both will be responsible. That is, the spouses will pay equal parts to repay the loan. And here it is implied that if one of the spouses has nothing to pay, the other will pay off the debt completely from his own funds.

Large loans

Many banks practice surety for large loans. If the spouse acted as a guarantor and the loan was issued, the debt will be repaid with the wife's funds, if the husband has no property.

As you can see, the consequences can be extremely negative, but at least the wife's salary in this case, the bank has no right to take away. And he will not leave without housing either - real estate, if it is the only home of the family, according to the law, no one has the right to withdraw.

What happens to loans after divorce

Based on article 45 of the RF IC, loans, being part of the property, are divided equally after a divorce.

Mortgage debt can be reissued to another spouse if you sign a new agreement. Mortgaged real estate is not a property until the debt is paid in full. It follows that operations with an exchange or sale are impossible.

The court does not follow the 50/50 rule only in individual cases. For example, if one of the spouses was not employed and did not contribute money to the family budget or did not spend money on family needs and the needs of children (clause 2 of article 399 of the RF IC). The rule of dividing the loan payment in half also does not apply if the loan was taken by the husband or wife before marriage.

How to protect yourself from bailiffs

What can be done to protect your property from the encroachments of bailiffs when the husband has collected loans:

1. Draw up a real estate donation agreement for the wife.
2. Shared property, which can be divided in the event of a divorce or withdrawn as a debt payment, should be presented to close relatives.

If the bailiff violates the law and describes property that cannot be seized, you need to urgently file a complaint with the executive service.

We strongly recommend not to act as a guarantor for the wife when applying for a loan, as this endangers the common property of the family. And it is better to beware of any loans, especially large ones, given the clearly unfavorable credit conditions in Russian banks.

It has become much more difficult to collect retail loans from spouses-borrowers, and it has become much more difficult for borrowers to shift the credit burden onto a life partner. The Supreme Court the other day, in fact, overturned the presumption of joint reckoning on the debts of married partners. Banks are preparing to tighten the risks by advising married borrowers to secure in advance the written consent of a loan partner of several hundred thousand rubles.

Recently, the Supreme Court published a review of judicial practice for the first quarter of 2016, dated April 13. It follows from the review that when one of the spouses concludes a loan agreement (including a loan agreement), the loan debt can be recognized as general only if it was taken for family needs. In this case, the burden of proof lies with the party claiming the distribution of the debt. Until now, it was presumed that if one of the spouses takes a loan, then he is for family needs, and, as a result, in case of non-repayment of the loan, the bank could require both spouses to answer for it. Now this presumption is, in fact, canceled, and it will be much more difficult to collect the debt from the property of the spouses, according to the participants in the banking market. The review will be communicated to all courts of the Russian Federation, which means that they will make similar decisions on similar disputes.

According to bankers, this document changes the established practice. "Now within art. 45 Family Code * the bank, in case of non-payment of the borrower when levying execution on his property, may foreclose on the common property of the spouses when receiving a loan for the needs of the family. If it is not enough, then the spouses are jointly and severally liable for the property of each of them. This is the practice used by banks to collect debt on loans. The new position of the Supreme Court can change the situation, "- said Alexander Bauken, deputy head of the legal department of Chelindbank.

To date, the courts proceeded from the logic that, until the opposite is proven, all loans received by the spouses are taken for the needs of the family, notes the lawyer of SDM Bank Alexander Golubev. "I remember the court dispute when the wife claimed that she did not know about the cash loan received by the spouse for his personal business in Cyprus. But since she could not prove this ignorance, the court distributed the obligation to repay the loan between the spouses. If such a dispute arose after the release of the Sun review, it would not have been possible to transfer part of the credit burden to the spouse, "he says.

Such situations are very common.

"I had a case in my practice when a client took out a loan for 1 million rubles, bought a car and presented it to a friend. The wife was not aware. And during the division of property, when not only the rights acquired in marriage are divided, but also the obligations, the husband tried to shift the loan obligations to the wife", - says the lawyer of the Moscow Bar Association" Nikolaev and Partners "Tamilla Sakvarelidze. Or there was a situation when the wife took out a loan to purchase a vacation ticket for her husband. , but for him. "There was such a thing," she continues. The husband inherited an apartment, which he did not inform his wife about, made repairs in it on credit, but he wanted to pass on the loan obligations in case of divorce to his wife"

Changing the practice of collecting debts in the described situations is associated for banks with an increase in the risks of loans, the issuance of which usually does not require the written consent of the spouse. Now banks enlist them mainly when issuing mortgages. Thus, auto loans and unsecured consumer loans are at risk. "It is not always possible to prove, for example, that a car was bought by a borrower for family purposes," notes Vladislav Kotelnikov, deputy director of the problem assets department at VTB 24.

To mitigate risks, banks are preparing to tighten control over them, namely to introduce a requirement for borrowers to provide spouses' consent to receive a loan. "In this case, as with the mortgage now, the obligation to return will fall on both spouses," notes Alexander Golubev. According to experts, the new approach may make it difficult to obtain loans. At the same time, first of all, the bankers plan to introduce the requirement for the consent of the spouse for car loans as for the largest loans at risk.

“I think that in the future, all car loans will be issued only with the consent of the spouse,” noted Vladislav Kotelnikov. For other loans, the banks will require the consent of the spouse, most likely, selectively. “I think the banks will determine the criteria of materiality, under which the consent of the spouse will be obligatory, for example, on unsecured loans from 500 thousand rubles,” said Alexander Golubev. The largest of the unsecured loans are cash loans.

In most banks, the maximum amount for such a loan ranges from 750 thousand to 3 million rubles. But for consumer loans for the purchase of goods in retail chains (POS loans), most likely, consent will not be requested. "Due to the insignificance of the amount: for example, the maximum amount for consumer credit in our bank is 250 thousand rubles," said the vice-president of Renaissance Credit Sergey Vasiliev. According to Frank Research, at the end of 2015, the total volume of the portfolio of auto loans of Russian banks amounted to 756 billion rubles, the volume of card loans - 1.3 trillion rubles, cash loans - 4.51 trillion rubles, POS loans - 199 billion rubles.

Legal assistance to debtors

Family law allows spouses to determine their own regime of joint property after marriage: legal or contractual. The legal regime presumes a basic rule: all property acquired in marriage is common, jointly acquired property, the ownership of which belongs to both spouses equally. All property relations between spouses in this case are regulated by the legislator.

Responsibility of spouses for a loan taken in marriage

Under the contractual regime, the spouses themselves determine what property will belong to which of them, how they will run the common household, that is, they themselves regulate all the property issues of their family.

Important! The property of spouses includes not only things as such (real estate, vehicles, household appliances, deposits in banks, etc.), but also property rights and obligations acquired in marriage, including loan obligations.

When a marriage contract is concluded, all issues, including "debt", are resolved by the spouses in advance, that is, each of them initially knows whether he will have to answer for his debts (if any), or the spouses will pay together.

If the marriage contract was not concluded, then the issue of liability for monetary obligations is not so easy to solve. As a general rule, both spouses are jointly and severally liable for the debts of one, but life is not so simple.

Does the wife have to pay the loan for the husband?

Recognizing joint responsibility, the legislator proceeded from the fact that the spouses jointly decide on all intra-family economic issues, including whether to take out or not take out a loan, and if so, what to spend it on.

But life makes its own adjustments. It often happens that the wife does not even suspect that the husband has collected loans. In order to get a loan, the consent of the wife is not required, which is completely unnecessary by the legislator. Some husbands take advantage of this gap in the law "to the fullest." And money is not brought to the family, not for general needs.

A spouse can spend borrowed funds as he pleases - play cards, for example, or spend on gifts not to his wife or children, or it is banal to drink. And what - did you spend alone, and pay together? Will the husband's loans be transferred to the wife?

The husband does not pay the loan, what should the wife do?

If such a situation happens, the wife has a way out: go to court and recognize the credit debts as a personal obligation of the husband, referring to the fact that the "credit" money was spent not in the interests of the family. It is rather difficult to prove this fact, but it is worth trying to get the necessary evidence.

In turn, the spouse will have to prove the opposite - that the money was received and spent together. And depending on who manages to convince the court of his innocence and the problem of payment will be solved: will the spouses return the loans together, or one spouse will have to do this, who received these loans.

ATTENTION! Due to the latest changes in legislation, the information in the article could become out of date! Our lawyer will advise you free of charge - write in the form below.