The husband, a co-borrower on the mortgage, is bankrupt, what are the consequences? What risks does a borrower with a mortgage face when declaring insolvency? Negative consequences of bankruptcy.

Joint property of spouses in bankruptcy- what will happen to him, is the husband’s (wife’s) property under threat? Almost every one of our clients worries about their significant other and the family capital acquired through joint efforts. These questions really top the popularity ratings. The only topics that can compete with them are topics related to the prospects of life without debt collectors and bailiffs.

The bankruptcy of spouses goes beyond the framework of two parties - “creditor and debtor”; the interests of third parties, first of all, family members of the bankrupt citizen, also intersect here.

Housing problem

In case of bankruptcy of an individual, the only housing in which the debtor's family lives has immunity.

And here it does not matter who the owner is - the bankrupt citizen or his wife (husband), whether it was acquired during marriage or not. By law, such housing is not sold during bankruptcy proceedings.

"Property division? Subtleties of legal formulations

It is necessary to distinguish between two legal concepts - property of each spouse and jointly acquired property. Everything acquired in marriage is understood as joint property in case of bankruptcy of an individual. Property of each spouse

can also be acquired during marriage, but by gift or inheritance rights.

Theory and practice

The Family Code states: property of spouses acquired during marriage is their joint property.

Accordingly, the bankruptcy of a spouse (debtor) presupposes that the property registered in his name is subject to sale. After the sale, a share equivalent to 50% of the total amount goes to the bankrupt’s wife (husband), the rest goes to creditors.

A similar scheme applies if the owner of the property is the spouse of a bankrupt citizen. That's what the law says. National Bankruptcy Center Company

helps citizens carry out the bankruptcy procedure as efficiently as possible from the moment the relevant law comes into force.

General Director of the National Central Bank

Dmitry Tokarev “Our extensive experience in this matter allows us to confidently say: That is, if the husband initiates bankruptcy, the wife does not have to worry about her property. Analysis of the financial status of the spouses is not the responsibility of the arbitration manager. Moreover, if the debtor himself initiated the bankruptcy procedure. In this case, the arbitration manager will be approved by the debtor, and will protect, first of all, his interests, - explained General Director of the National Bankruptcy Center Dmitry Tokarev. – If the manager asks the registration chamber for information about the bankrupt’s spouse, the information is refused. For its part, the financial manager has the right to file a petition with the court to appeal the decision. But, as a rule, no one needs this. Even when checking a spouse’s property, only the actual condition of the property is considered.”

Let us remind you that, by law, transactions with the debtor’s property carried out during the previous three years are subject to verification. Transactions regarding the property of the husband (wife) of a bankrupt citizen are not disputed. So, the apartment or the spouse’s car, which were sold earlier, will not be taken into account.

Life stories

When individuals file for bankruptcy, the property of the spouses is not taken into account. But there are also exceptions. In one of our cases, we were faced with a principal creditor - the client had a debt to an individual. After the court's decision to write off the debts, the borrower filed an appeal, in which he requested an inspection of the spouse's property. The judges' opinions were divided. NCB lawyers played it safe and provided the relevant information to the court - the creditor was denied an appeal against the decision. You can find the materials on this case on the website in the “Living Stories” section (see bankruptcy case No. A41-70582/16).

By the way, family bankruptcy is also possible. In particular, the Arbitration Court of the Novosibirsk Region examined in one case the applications of two insolvent payers, who were a married couple. They were declared bankrupt.

So, judicial practice shows the groundlessness of citizens’ fears, for example, of this kind: “The husband goes bankrupt - the wife’s property can be taken away.” The bankruptcy of a spouse, as a rule, does not entail a review of the financial condition of the wife (husband): only the debtor’s property is considered in the case; the spouse’s consent to the sale of property is not required.

Do you have any additional questions? NCB specialists are always ready to answer any of them. Call and make an appointment right now!

The implementation of the law on bankruptcy of individuals not only allows citizens to free themselves from credit slavery and write off existing debts. But in practice, bankruptcy can affect not only the citizen himself, but also members of his family. For example, spouses, one of whom has been declared bankrupt, may lose all the property accumulated over many years of marriage. These are natural costs of a new law for our country, which citizens intending to begin personal bankruptcy proceedings will have to come to terms with.

As a general rule, spouses are not responsible to each other’s creditors, and for the obligations of one of the spouses, the penalty is applied to the property of this spouse (Article 45 of the Family Code of the Russian Federation). Meanwhile, in some cases, the common property of the family also suffers from bankruptcy. The fact is that, in accordance with family law, our country has a regime of so-called common joint property in relation to the property of spouses. Common property includes the income of each spouse from labor and business activities, all pensions, benefits, as well as other monetary payments. Movable and immovable things, securities, shares and deposits acquired at the expense of the joint income of the spouses are also common. Moreover, the right to common property also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income.

In accordance with the norms of family law, foreclosure is applied to the common property of the spouses for the common obligations of the spouses, as well as for the obligations of one of the spouses, if everything received for the obligations of one of the spouses was used for the needs of the family. If this property is insufficient, the spouses bear joint liability for such obligations with the property of each of them.

If the common property of the spouses was acquired or increased using funds obtained by one of the spouses through criminal means, the penalty may be applied to the common property of the spouses or to a part of it, respectively. In the context of bankruptcy law, individuals. For individuals, the joint ownership regime literally means that this property can also be foreclosed on by the bankrupt’s creditors.

When it comes to the bankruptcy of one of the spouses, it is necessary to understand that jointly acquired property can be subject to collection by separating a share from the common property.

For the obligations of one of the spouses, recovery can only be made on the property of that spouse. But if this property is not enough, creditors may demand the allocation of a share from the common property. Common property can be subject to recovery for common obligations or in the event that one spouse took on obligations for the needs of the family.

Thus, it is unlikely to be possible to “cheat” through bankruptcy by presenting yourself as unmercenary - debts will still be collected at the expense of common property, including indivisible property.

The specific procedure for creditors and the financial manager will depend on which spouse owns the property. So, if the property is assigned to the debtor himself, then such property will be sold according to the general rules established by the Bankruptcy Law. In this case, the debtor’s spouse, including the former, will have the right to participate in the bankruptcy case when considering all issues related to the sale of common property. This has practical implications because once the property is sold, the spouse will receive his or her due share and the remainder will be included in the bankruptcy estate.

The situation will be much more difficult for creditors when the common property is legally registered not in the name of the debtor, but in the name of his spouse. In this case, the bankruptcy estate includes the citizen’s property, which constitutes his share in the total property.

Here it will be necessary to allocate the citizen’s share in the common property in order to foreclose on it. And this is an independent trial. The Bankruptcy Law determines that any creditor of the debtor can file such a claim with the court. Moreover, to allocate the debtor’s share, the creditor will have to go to the district (city) court at the place of residence of the spouse. In addition, with regard to the common property of the spouses, a general rule will apply regarding the exclusion from the bankruptcy estate of property that cannot be foreclosed on in accordance with civil procedure, for example, a single home.

Of course, the family will not lose basic necessities. Thus, the Civil Procedure Code of the Russian Federation establishes a whole range of property that cannot be foreclosed on under executive documents:
the only housing
the plot of land on which this housing is located,
items of ordinary home furnishings and household items,
personal items (clothing, shoes, etc.), with the exception of jewelry and other luxury items,
property necessary for the professional activities of the debtor citizen.

However, with regard to all other property, the legislation does not guarantee anything like this. Under such circumstances, potential bankrupts and members of their families are faced with the acute question of ensuring the safety of common property. Currently, the law provides citizens with several possible ways to solve this problem.

Firstly, this is a change in the regime of common joint ownership. This is done by concluding a special written agreement. In particular, purchase and sale agreements. It should be remembered that in some cases this agreement may seem extremely suspicious to creditors and the manager and may be challenged in court.

There are certainly risks of losing property. The question remains unclear whether it is necessary to allocate the spouses’ shares in their property before its sale or not. On the one hand, selling shares may not be as profitable as selling the entire property. But, on the other hand, perhaps the spouse, who is not bankrupt, does not want to lose his property, in particular, his share in it, and he is not against the fact that the second share will be sold to someone. To preserve property, it can be proposed to change the regime of joint ownership to separate. However, it should be remembered that such transactions (for example, donation, property division agreement) concluded before bankruptcy may be challenged.

The second legal way to ensure the safety of property is to conclude a marriage contract. By means of a marriage contract, spouses have the right to change the regime of joint ownership, establish a regime of joint, shared or separate ownership of all the property of the spouses, of its individual types or of the property of each of the spouses. A marriage contract can be concluded both in relation to the existing and in relation to the future property of the spouses.

A marriage contract can be concluded both before the state registration of marriage and at any time during the marriage. And if the first case is already quite common and no one has any questions about it, then an agreement concluded during the marriage, again, can attract the close attention of creditors. For example, when the debtor spouse concludes a marriage contract, according to which all property is transferred into the ownership of the second spouse, who is not the debtor.

In this regard, the Family Code additionally protects the rights of creditors by establishing a number of restrictions on concluding a marriage contract.

The debtor spouse is obliged to notify his creditor of the conclusion, change, or termination of the marriage contract. If this obligation is not fulfilled, the debtor is liable for the obligations regardless of the content of the marriage contract. The creditor(s) of the debtor spouse have the right to demand changes in the terms or termination of the agreement concluded between them due to significantly changed circumstances. In practice, the debtor spouse often does not notify the creditor of the conclusion of the prenuptial agreement. Therefore, as a result of legal proceedings regarding the debts of such a spouse, recovery is applied to the entire share in the common property of the spouses, regardless of the content of the marriage contract.

Thus, the legislation does not allow for the possibility of outright abuse. Moreover, both on the part of debtors and on the part of creditors. Rather, a certain balance of interests is established - creditors will not be able to deprive the debtor’s family of shelter and essentials, while in relation to bankrupts, obstacles are created to make dubious transactions.

The sale of a spouse’s property during bankruptcy of individuals is possible in the following situations:

• If the property was purchased during marriage and the ownership rights of each spouse were not delimited, and objections from the bankrupt spouse during the sale of a specific valuable item (house, car) were not received by the financial manager and the court.
• If the bankrupt spouse has achieved in court that the sole property of the other spouse is recognized as joint property, due to his personal contribution to this property.
• If the property of the deceased spouse was inherited by the bankrupt spouse.

Creditors and the financial manager have the right to go to court and demand the forced allocation of the share of the debtor spouse.

If the court (as part of the bankruptcy procedure, this issue is decided by the arbitration authority in the constituent entity of the Russian Federation) makes a positive decision on the case, then the registration authority must issue title documents in the name of the bankrupt spouse - a certificate of share, etc.

The allocation of a share by a judicial act does not mean the unconditional possibility of separating it in kind. In such a situation, it will be necessary to foreclose on the nominal share (according to documents), and the counterparty who acquires part of the property through a public auction will have to determine the procedure for using the thing (property) by contractual or judicial means.

A situation is possible when a spouse voluntarily agrees to transfer his property to pay off the debts of another debtor spouse. Then a gift agreement can be signed, or the bankrupt’s spouse independently puts the property up for sale and pays off the borrower’s debts using the proceeds.

The inventory of the financial manager is drawn up on the basis of the register of creditors' claims and identified property. The specialist himself has the right to search for property and submit applications to the registration authorities. Interested parties may object to the inclusion of certain items in the bankruptcy estate. Objections are filed through a claim or judicial procedure.

The debtor's spouse is not obliged to inform the manager about the presence of valuable property, the right to dispose of which belongs only to him. He also, by default, should not be responsible for the debts of the bankrupt, unless by virtue of the loan agreement their obligations are considered joint and several.

An inventory of property drawn up by the financial manager is provided along with the procedure for its sale. The arbitration court approves the provision if it is implementable and it is impossible to implement the debt restructuring procedure.

The regime of common (joint) property between husband and wife does not mean that the spouse must be fully responsible for the debts of the borrower who took out a loan to satisfy his individual property needs.

The spouse also has the right to demand the division of property during marriage or after divorce. This is advisable to do if the debts are large and the procedure for selling the property will be long. If the bank foreclosed on the spouses’ only large home, then dividing the house (large apartment) would also be advisable, as it would eliminate the procedure for repossessing the only home.

Claimants usually pay attention to the financial situation of the spouse. The traces of a gift of valuables to a spouse may also be disputed - if the agreement was signed shortly before the start of the bankruptcy procedure. Suspicious agreements are challenged by the financial manager or interested creditors.

The joint bank account of the spouses can also be divided. If this is not done in a timely manner, he may be seized at the request of the financial manager, and the money will later be written off to pay off debts.

The debtor's spouse, if the debts are significant and there is a fear that the property may be confiscated, should, while still married, file a claim for division of property. This will save the family budget from attacks by creditors and quickly complete the bankruptcy procedure.

A spouse is not obliged to be responsible for the obligations of the other spouse if he did not consent to loans, the sale of property and the occurrence of debts on other grounds. In difficult situations, it is advisable to seek help from a qualified lawyer.

According to the general rules of the family and civil codes of the Russian Federation, all property acquired by one of the spouses during marriage is their common joint property. It does not matter at all in the name of which spouse this property is registered. There are some exceptions. The following property is not common joint property:

• inherited;
• gifted to one of the spouses;
• if this is provided for in the marriage contract.

Common joint property - legal regime

The owners jointly own and use common property; the property is disposed of by the consent of all owners. The consent of all owners is assumed, regardless of which owner makes the transaction.

Bankruptcy of one of the spouses

Here's what the Bankruptcy Law says about this, Article 213.26, paragraph 7:

The property of a citizen, which belongs to him by right of common ownership with his spouse (former spouse), is subject to sale in the citizen’s bankruptcy case according to the general rules provided for by this article. In such cases, the spouse (former spouse) has the right to participate in the citizen’s bankruptcy case when resolving issues related to the sale of common property. The bankruptcy estate includes a portion of the funds from the sale of the common property of the spouses (former spouses), corresponding to the citizen’s share in such property, the rest of these funds is paid to the spouse (former spouse). If at the same time the spouses have common obligations (including if there are joint and several obligations or one spouse provides a surety or pledge for the other), the portion of the proceeds due to the spouse (former spouse) is paid after payment from the money of the spouse (former spouse) for these general obligations .

If spouses have property in common joint ownership, this means the following:

• the property is included in the bankruptcy estate and is subject to sale in the property sale procedure;
• the spouse has the right to participate in the bankruptcy case;
• the spouse has the right to receive part of the funds from the sale of property (half of the proceeds);
• if the spouses have common obligations, part of the money after the sale is paid only after the common obligations have been repaid.

Inclusion in the bankruptcy estate of property registered in the name of the other spouse

If you read the legislation, then common joint property arises regardless of in whose name the property is registered. Here we are talking about real estate or property that is registered with government agencies (vehicles, self-propelled vehicles, boats, etc.) Formally, the debtor is obliged to indicate this common joint property in the inventory of property in order to include it in the bankruptcy estate.

In practice, the following situation arises: the Federal Reserve System and other government agencies refuse to provide the financial manager with information about the property registered in the name of the debtor’s spouse.

That is, if the debtor does not mention such property, the financial manager is refused to provide information about the spouse - as a result, the arbitration court knows nothing about this property.

It would seem like a wonderful scheme. Not certainly in that way. If creditors find out about the common property registered in the name of the other spouse and present evidence to the court, the debtor will be accused of providing false information and concealing property. If the creditors are banks with good security, and the common property is not just forks and spoons, they will receive the evidence they need. In this case, the debtor will be accused of providing false information and concealing property and, as a result, will not be released from debt. But the property, nevertheless, will go to the bankruptcy estate.

Challenging transactions with common property of spouses

Based on the logic of the law, transactions with the common property of spouses can be challenged in the same way as transactions of the debtor. However, the story here is the same as with property. If the debtor does not provide information about transactions made by the other spouse, then the financial manager will receive a refusal in response to his request. The arbitration court can learn about transactions from creditors. In such situations, you need to properly weigh the risks of possible consequences.

Marriage agreement, division of property shortly before bankruptcy

A citizen must attach to the bankruptcy application, including:

• a copy of the marriage contract, a copy of the agreement or judicial act on the division of the common property of the spouses, respectively concluded and accepted within three years before the date of filing the application (if any)

The division of property and the conclusion of a prenuptial agreement are also common transactions for a bankruptcy case. And they will be assessed and analyzed for violation of the property rights of creditors. If such is discovered, these transactions may be challenged and the property returned to the bankruptcy estate.

Joint bankruptcy of spouses

The Bankruptcy Law does not directly provide that the bankruptcy of two spouses can be considered in one case. However, this is exactly what the Arbitration Court of the Novosibirsk Region did in one of the first cases of bankruptcy of citizens. (Case No. A45-20897/2015).

The court combined the bankruptcy cases of husband and wife in one proceeding, taking into account the following circumstances:

• common joint property. Each of the spouses had no personal property that was not common joint property;
• general obligations. The obligations of the spouses completely coincided in amount and in terms of creditors;
• jointly submitted application. The spouses wrote one statement and submitted it to the arbitration court.

The arbitration court indicated that the initiation of two separate bankruptcy cases will only lead to an increase in legal costs for bankruptcy procedures and disputes about which particular bankruptcy case to sell the joint property of the spouses.

However, not all regions have developed such a practice. Most arbitration courts (including the Arbitration Court of St. Petersburg and the Leningrad Region) refuse to combine bankruptcy cases of spouses into one proceeding. Only the Supreme Court of the Russian Federation can finally clarify whether consolidation of cases is possible.

Questions regarding bankruptcy of spouses are individual in each case.

If there is common joint property or there have been transactions, each situation has its own characteristics. There is no standard recipe for all difficult cases.

* This material is over two years old. You can check with the author the degree of its relevance.

“Personal bankruptcy” is the name given to the procedure for recognizing an individual’s own financial insolvency. Can’t pay your loans, are your debts growing like a snowball? Since July 1, 2015, the law offers debtors a way out - initiating personal bankruptcy. However, how personal is it? And if the debtor has a wife, will she be deprived of part of the property jointly accumulated during marriage? What does the law say?

The general rule is as follows (see paragraph 1 of Article 45 of the Family Code of the Russian Federation): spouses are not liable to each other's creditors. The recovery is directed to the spouse who has debt obligations.

However, in some cases, the common property of the spouses also suffers from bankruptcy. What is considered common property? Yes, unfortunately, almost everything. Income of each spouse from labor and business activities, all pensions, benefits, and other monetary payments. And also movable and immovable things, securities, shares and deposits purchased at the expense of the common income of the spouses are also common property.

What if one of the spouses had no income of their own? If one of the spouses did not have independent income, but, for example, ran a household or raised children, then he also has the right to common property.

When will the second spouse be affected by bankruptcy?

In accordance with paragraph 2 of Article 45 of the Family Code:

« Collection applies to the common property of the spouses for the common obligations of the spouses, and also for the obligations of one of the spouses, if the court establishes that everything received by one of the spouses under obligations was used for the needs of the family. If this property is insufficient, the spouses bear for the specified obligations joint liability with property everyone of them".

It is important to understand: " if the common property of the spouses was acquired or increased at the expense of funds obtained by one of the spouses through criminal means, collection can be addressed respectively for the common property of the spouses or part of it."

If bankruptcy is initiated by one of the spouses, the jointly acquired property may be subject to collection by separating a share from the common property.

How creditors and the financial manager will act depends on which spouse owns the property:

1. If the property is registered in the name of the debtor, then it is sold according to the general rules established by the Bankruptcy Law. And the debtor’s spouse (even the former) has the right to participate in the bankruptcy case when considering all issues related to the sale of common property. This is important because after the bankruptcy spouse’s property is sold, his/her husband/wife can receive the share due, and the rest will be included in the bankruptcy estate.
2. If the property is registered not in the debtor’s name, but in his spouse’s name, then the citizen’s property, which constitutes his share in the common property, is included in the bankruptcy estate. This is a separate trial. The procedure for allocating the debtor's share to the creditor takes place in the district (city) court at the place of residence of the spouse. In this case, with regard to the common property of the spouses, the general rule will also apply regarding the exclusion from the bankruptcy estate of property that cannot be foreclosed on in accordance with civil procedure, for example, a single home.

Let us recall the list of property that cannot be foreclosed on:

• the only housing
• the plot of land on which this housing is located,
• items of ordinary home furnishings and household items,
• personal items (clothing, shoes, etc.), with the exception of jewelry and other luxury items,
• property necessary for the professional activities of the debtor citizen.

The law provides several possible solutions to this problem.

1. Changing the regime of common joint ownership. To do this, you need to conclude a special written agreement, in particular, a purchase and sale agreement, a gift agreement. Remember, this may raise suspicion among the financial manager and creditors, which means they may challenge it in court.
2. Conclusion of a marriage contract. You can establish a regime of joint, shared or separate ownership of all property. The prenuptial agreement applies to both the existing and future property of the husband and wife. It can be concluded before or during marriage. Attention: urgently drawing up a marriage contract when you are already married may arouse suspicion among creditors and the manager. Moreover, the debtor spouse is obliged to notify the creditor of the conclusion/change/termination of the marriage contract.