Judicial practice of family bankruptcy. Joint bankruptcy of spouses: lack of clear legal regulation and ambiguity of judicial practice

Often, the insolvency of individuals affects not only the insolvent citizen himself, but also his close people. Divorce and division of property in the event of bankruptcy of a spouse are carried out according to a special procedure, which requires additional actions on the part of the wife or husband of the lender.

Common property of spouses in case of insolvency of a citizen

In accordance with Art. 45 of the RF IC, a man and a woman who are married are not liable for each other’s debts as long as the borrower has enough money to fulfill his obligations. When the defaulter's personal funds run out, foreclosure may be applied to the joint property acquired in the family.

In the event of the husband's bankruptcy, the wife's property will not be claimed until the man has enough money.

The specificity of the procedure for declaring citizens insolvent is that going to court occurs because an individual, including an individual entrepreneur, does not have enough funds to repay the debt. That is, one way or another, the wife should be prepared for the fact that the joint property will be included in the bankruptcy estate. A similar conclusion can also be drawn from paragraph 7 of Art. 213.26 of Law No. 127-FZ.

The most important questions that should be resolved during the trial: is the wife’s property taken into account in the bankruptcy estate during the bankruptcy of the spouse and what material assets are considered common?

In accordance with the provisions of the Civil Code, all movable things and real estate acquired during marriage are considered joint property, regardless of who is recorded as their owner.

Property that is not recognized as common:

• a gift or inheritance received by a husband or wife;
• material assets defined as belonging only to a man or woman based on the consent of the parties, certified by a notary;
• personal items, except jewelry;
• purchases made before marriage.

The joint property of spouses in the event of bankruptcy of individuals is considered common until the contrary is proven

Thus, almost all the things of the husband and wife can end up in the bankruptcy estate.

What will happen to common property during bankruptcy proceedings?

For a long time it was believed that if one spouse went bankrupt, his husband or wife was not involved in the process. But now the legislator thinks differently. According to paragraph 7 of Art. 213.26 of Law No. 127-FZ, the joint property of a family couple is included in the bankruptcy estate and is subject to sale.

Part of the proceeds belonging to the debtor goes to pay off the debt. The other share is returned to the solvent spouse.

If the wife is bankrupt, the consequences for the husband may be as follows:

1. The couple took out a bank loan or other loan together. During the trial, the common property of the married couple is sold. Part of the wife's money goes to pay off the debt. If there are not enough funds, the husband adds his share to fulfill the obligation.
2. Spouses separately took out a loan or other loan, for example, after a divorce. If one of them is declared insolvent, the second is not obliged to participate in the repayment of the debt. He has the right to claim money after the sale of property at auction by filing a claim for division of property. This can be done during the period of marriage.

It would be useful to figure out how a former or current solvent spouse can take their own money and not be responsible for the debts of their other half. To do this, it is necessary to apply to the district court during the bankruptcy trial with a claim for division of property. The financial manager can also initiate the procedure in order to form a bankruptcy estate, since it is he who keeps property records and is responsible for satisfying the demands of lenders.

Sometimes ex-spouses think that if they managed to divorce before the bankruptcy case was considered, their joint property cannot be taken away. This is wrong. Until a court decision on the division of property is received, it is considered common.

Unfortunately, additional litigation only complicates the situation. In practice, getting your money back is not easy. The problem is the length of proceedings for the division of property.

By the time the decision comes into force, the common property can be sold and all the money can be used to satisfy the claims of creditors

Other ways to save the property of a solvent spouse

In case of bankruptcy of one of the spouses, the jointly acquired property of the spouses is allocated to personal property in the following ways:

1. By concluding a contract on the division of material assets between husband and wife. Is it possible to save property? In practice, drawing up a marriage contract and the bankruptcy process of a spouse looks very suspicious to a financial manager. In addition, the lender must be informed in advance about the execution of such a document, and this requirement is often ignored.
2. By selling property to third parties.
3. By concluding other transactions between each other or with other citizens.

Although such methods of releasing common marital property are quite legal, the husband and wife need to remember that the financial manager, in the course of his activities, will check for fraud with the property of the insolvent person. All transactions that were carried out within 3 years before the start of the judicial procedure can be challenged.

From the above it follows that the interests of creditors are so protected by law that the spouses will most likely have to part with their joint property.

What property is subject to sale?

All property owned by the debtor will be sold. If the financial manager determines that it is not enough to fulfill obligations to creditors, he includes the joint material assets of the spouses in the bankruptcy estate. The following property cannot be seized and sold:

• residential premises, the only possible accommodation for the bankrupt and his family (except for collateral real estate);
• land plots on which the borrower’s only housing is built;
• household items;
• animals and agricultural products not used to generate income;
• food and a small amount of money for current expenses;
• means of transportation for a disabled person;
• awards and prizes;
• fuel.

The debtor's real estate is subject to recovery if it is not the citizen's only place of residence.

Can spouses go bankrupt together?

The responsibilities of husband and wife are often joint. Therefore, a situation of simultaneous bankruptcy cannot be ruled out. Some lawyers insist that this is a fairly convenient mechanism for declaring insolvency. Its advantage is that it saves money on a financial manager, because one specialist will work, not two.

In case of simultaneous bankruptcy, one register of creditors' claims is compiled, there is a single priority for satisfying the claims of lenders, and in the event of a shortage of property, all debts of the spouses are written off.

If a husband and wife have something to lose, but insolvency is inevitable, you can try one of the following schemes:

1. Carry out a transaction involving the alienation of the main property to a loved one (preferably not a relative). The amount in the agreement between the parties must be market, although the agreement may essentially be fictitious, without the transfer of money. At this time, you need to pay off your debt regularly.
2. Wait a while. Six months to a year is enough. In this case, it is advisable to pay off the debt.
3. Declare your insolvency.
4. The remaining property will be sold. Debts have been written off.

There are many reasons why experts insist on this scheme. As long as the spouses repay their debts regularly, it is very difficult to challenge their transactions. The husband and wife will not have common property. Thus, they will remain with the property (supposedly sold), they will be declared insolvent, and there will be no debts left after the bankruptcy procedure.

What jointly acquired property can be sold in the event of bankruptcy of one of the spouses, see below:

Attention! Due to recent changes in legislation, the legal information in this article may be out of date!

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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

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: The presence of property between spouses is not checked. 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. The National Central Bank's 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!

Would you like to get rid of debt in one fell swoop? This is probably a rosy dream for most Russians, given the crisis and the general financial situation in the country. And such a procedure is possible, moreover, it is also legal. Its name is bankruptcy of individuals. It is no secret that it flows through the sale of property. What does it mean? That's right, all the debtor's property will be sold for the benefit of creditors.

Now let's look at the situation: let's say we have a man, Nikolai, who took out 3 loans, but due to illness was unable to pay them off. Without hesitation, Nikolai filed for bankruptcy. The debtor has property, as well as a wife and 2 children. And now, attention, the question is: is the property of spouses taken into account in bankruptcy?

This is perhaps the most pressing issue that arises when spouses go bankrupt. Agree, not everyone is ready to lose everything they have accumulated over many years. Is the spouse responsible for the husband's debts or the husband for the wife's loan? Let's find out!

Liability of a spouse for the debts of the other spouse in bankruptcy

So, the basic concepts: all property that was acquired during marriage is considered jointly acquired. Except for those given or inherited by spouses. Such property should be considered the personal property of the spouse.

For example, let's return to our debtor. Over the course of 10 years of marriage, Nikolai and his wife Irina acquired an apartment, household appliances, furniture, a car, and a dacha. However, Nikolai also inherited from his grandmother an apartment in the historical part of St. Petersburg, worth 6 million rubles. Accordingly, if the couple decided to divorce, then the grandmother’s property would remain with Nikolai. But! If Nikolai goes bankrupt, the treasured apartment will be sold first. As well as other joint property of spouses in case of bankruptcy of individuals.

If we turn to paragraph 7 of Art. 213.26 No. 127-FZ, then we learn that everything that belongs to the debtor and his wife, and qualifies as common property of the spouses, must be sold as part of a citizen’s bankruptcy. How does this happen?

1. The property is seized and sold.
2. Part of the funds due to the other spouse for the property sold is paid to him (usually 50%).
3. The remaining money is used to satisfy the creditors' claims.

To get a consultation

As the practice of recognizing individuals as insolvent has shown, which, we recall, became possible from October 1, 2015, not all citizens who formally meet the requirements for potential bankrupts (“; hereinafter referred to as the bankruptcy law) can exercise this right. The main reason is a significant amount of expenses: according to experts, the cost of one bankruptcy procedure for a citizen averages 70-150 thousand rubles. In this regard, the Ministry of Economic Development of Russia proposes to introduce, which will make it possible to recognize as insolvent even those debtors who do not have the requirements for at least partial satisfaction. creditors and payment for the bankruptcy procedure itself.

At the same time, when considering bankruptcy cases of individuals, problematic issues are also identified that have not yet been resolved at the legislative level. One of them is joint bankruptcy of citizens. Let's consider what consequences the absence of such regulation has for debtors.

Are there legal grounds for joint bankruptcy of citizens?

If we proceed from the text of the provisions of the bankruptcy law devoted to the bankruptcy of individuals (), no: all relevant articles refer to the consideration of bankruptcy cases of individual citizens, and not of several individuals. Nevertheless, the courts, to which spouses-co-borrowers often apply to declare them insolvent, answer this question differently.

A number of courts, taking into account that applicants have common obligations to creditors, for example, for mortgages, consumer loans, etc., combine the bankruptcy cases of each spouse into a single proceeding (decision of the Arbitration Court of the Moscow Region dated January 18, 2016 in case No. A41-85634/2015, decision of the Arbitration Court of the Novosibirsk Region dated November 9, 2015 in case No. A45-20897/2015).

Is it possible to obtain information from the credit history of a debtor - an individual without his consent? Find out from the material "Credit history of the borrower" in Encyclopedia of solutions Internet version of the GARANT system. Get full access for 3 days for free!

Other courts make the exact opposite decisions - about the impossibility of joint bankruptcy of spouses. Thus, citizen I. was denied a petition to merge her case and the case of declaring her husband bankrupt, since, in the opinion of the courts of first and appellate instances, she did not submit documents confirming the commonality of these cases on the grounds for the emergence of debt obligations, to the circle of creditors and property constituting the bankruptcy estate of debtors. Also, I. did not properly substantiate her statement that the consolidation of cases would reduce the amount of bankruptcy costs and lead to faster satisfaction of creditors’ claims, the courts added. In addition, they noted the difficulty of forming a unified register of claims of creditors of debtors, since at the time of filing the petition the register of claims of citizen I.’s creditors was already closed (decision of the Arbitration Court of the Perm Territory dated December 19, 2016 in case No. A50-19304/2016, resolution Seventeenth Arbitration Court of Appeal dated February 2, 2017 No. 17AP-680/2017-GK).

Quite different conclusions formed the basis for the refusal to accept a single application for declaring spouses N. insolvent. The court noted that the current legislation, including that defining the conditions under which an individual can be declared bankrupt, does not allow a plurality of persons on the debtor’s side, and therefore An application to declare a debtor bankrupt can only be filed against one citizen. Having indicated that the bankruptcy law does not provide for rules on regulating the bankruptcy of two or more debtors within the framework of one case, the court returned their application to the N. spouses and emphasized that refusal to consider it does not deprive the applicants of the right to individually apply to the court with a demand for recognition of the debtor bankrupt (ruling of the Arbitration Court of St. Petersburg and Leningrad Region dated January 10, 2017 in case No. A56-91219/2016).

When filing an appeal against this decision, citizen N. noted that the precedent of joint bankruptcy of spouses already exists in judicial practice. N. justifies the need to introduce a unified procedure for declaring himself and his wife insolvent by the fact that all their credit obligations arose during the marriage and the borrowed funds were used for family needs, and the property of the debtors, through which the claims of creditors common to both spouses can be satisfied , is in common joint ownership. However, the appellate court agreed with the position of the trial court, noting that the subject in legal relations regulated by bankruptcy legislation is not the family, but each of the spouses. At the same time, the law provides for a special procedure for the sale of the debtor’s property, which is part of the common joint property, within the framework of a bankruptcy case (), the court recalled. It assumes, in particular, that the bankruptcy estate includes a portion of the funds from the sale of the spouses’ common property, corresponding to the debtor’s share in it, and the remaining portion is paid to the other spouse. In the case where spouses have joint obligations, first, from the funds due to the second spouse, payment is made for these obligations, and then the balance is transferred to him. This provision also does not provide for the possibility of bankruptcy of two debtors in one case, therefore the conclusions of the trial court are lawful, the court concluded (Resolution of the Thirteenth Arbitration Court of Appeal dated February 22, 2017 No. 13AP-2589/2017).

The Supreme Court of the Russian Federation, to which spouses N. filed a cassation appeal, came to the conclusion that the applicants’ arguments were based on an erroneous interpretation of the provisions of the current legislation, and found no reason to disagree with the conclusions of the lower courts about the absence in the current legislation of the possibility of spouses filing a joint application for bankruptcy().

For similar reasons, the spouses R. were denied a single bankruptcy procedure (decision of the Arbitration Court of the Sverdlovsk Region dated May 18, 2017 in case No. A60-2356/2017).

Thus, the existing judicial practice in cases of bankruptcy of spouses is ambiguous. However, the issuance of the above-mentioned refusal ruling by the RF Armed Forces may change it - towards the inadmissibility of merging the cases of spouses into a single proceeding, practicing lawyers noted during the all-Russian conference “Development of the institution of bankruptcy in response to the challenges of our time”, held at the RF CCI on November 30.

The impossibility of joint bankruptcy, according to experts, creates problems not only for those spouses whose all debts are common - they, in fact, need to find funds for two expensive bankruptcy procedures, but also for the courts themselves. So, according to the deputy director of the legal department of the Siberian Bank of PJSC Sberbank Yulia Voronina, judges do not have a common opinion, for example, about which of the two cases should be used to sell the common property of the spouses, what legal status does a spouse have when he is involved in the bankruptcy case of the other spouse to resolve issues regarding the sale of property, and whether it is necessary in principle his involvement in such a matter.

Issues about establishing the common debt and approving the procedure for selling the common property of debtors should be resolved in one case, but with the mandatory involvement of all participants in the second case, says Associate Professor of the Department of General Problems of Civil Law of the Russian School of Private Law Oleg Zaitsev. Moreover, in his opinion, for this there is no need to make any changes to the legislation - the possibility of considering cases according to this scheme follows from the meaning according to which all participants in the bankruptcy case of a person held vicariously liable in the framework of another bankruptcy case can participate in the latter as third parties. This provision, like all general provisions of the bankruptcy law, can be applied to relations related to the bankruptcy of citizens that are not directly regulated by Chapter. X given law ().

What problems arise when one of the spouses goes bankrupt?

One of the main difficulties when considering such cases is the correct determination of the bankruptcy estate. As a general rule, recovery for the obligations of one of the spouses can be applied to the property belonging to him, as well as to the share in the common property of the spouses that would be due to him upon division of this property (,). The demand for the allocation of a share for the purpose of foreclosure is made by the creditor, and the corresponding dispute is considered in court.

The corresponding rule that the bankruptcy estate may include a share in the general property of a citizen, which may be foreclosed on, and the creditor has the right to make a claim for the allocation of this share, is also contained in. However, the very next article of this law, which defines the specifics of the sale of the debtor’s property, states: the bankruptcy estate includes not the debtor’s share in the property owned by him and his spouse by right of common ownership, but a proportionate part of the proceeds from the sale of this property (). This formulation gives reason to believe that in bankruptcy cases, the common property of the spouses is sold regardless of the possibility or impossibility of allocating the debtor’s share in kind, which, according to many experts, infringes on the rights of co-owners, especially those who are no longer married to the debtors.

At the same time, there is no consensus in the judicial community about which court - general jurisdiction or arbitration - the creditor or financial manager should apply for the division of the common property of the spouses or the allocation of the share belonging to the debtor. Those who believe that the consideration of relevant cases falls within the competence of courts of general jurisdiction are guided by the following considerations:

• categories of cases involving citizens that can be considered by arbitration courts are defined by law, including bankruptcy cases (). However, disputes regarding the division of marital property are not included in the relevant list;
• special rules of the bankruptcy law also do not indicate that disputes related to the division of common property of spouses are within the jurisdiction of arbitration courts, which means that when considering them one should be guided by the general rules of procedural law;
• As a general rule, all disputes arising from civil and family relations fall within the competence of courts of general jurisdiction ().

Based on the foregoing, the courts come to the conclusion that the arbitration court does not have the right to make a decision on the division of property of the spouses, even if it has a bankruptcy case pending against one of them (resolution of the Twentieth Arbitration Court of Appeal dated August 1, 2017 No. 20AP- 3934/2017, resolution of the Fourteenth Arbitration Court of Appeal dated October 19, 2017 in case No. A44-8242/2016, Resolution of the Arbitration Court of the West Siberian District dated June 22, 2017 No. F04-6934/2016).

Other courts, on the contrary, are confident that in cases where the bankruptcy case of the debtor is already being considered, the division of the common property belonging to him and his spouse is possible only within the framework of this case. To substantiate this conclusion, they refer to, according to which the property of a citizen, owned by him by common ownership with his spouse or former spouse, is subject to sale in a bankruptcy case (resolution of the Thirteenth Arbitration Court of Appeal dated May 22, 2017 No. 13AP-7978/2017, appeal ruling of the Supreme Court of the Republic of Bashkortostan dated June 21, 2017 in case No. 33-12859/2017, appeal ruling of the Novosibirsk Regional Court dated July 4, 2017 in case No. 33-6344/2017). At the same time, the courts consider the payment to the spouse or former spouse of the debtor of a portion of the funds from the sale of common property, equivalent to his share in it, to be a sufficient guarantee of respecting the interests of this person (resolution of the Arbitration Court of the West Siberian District of June 14, 2017 No. F04-6873/2016 in case No. A03-22218/2015).

***

To eliminate the problems that arise during the consideration of bankruptcy cases of both spouses or one of them, the expert community proposes to implement several measures. Firstly, legalize the institution of joint bankruptcy of citizens by adding a corresponding norm to the bankruptcy law, which will not only eliminate the possibility of making conflicting court decisions, but will also significantly reduce the cost of the bankruptcy procedure for many spouses. Moreover, it may be more appropriate to enshrine in legislation not just the possibility of joint bankruptcy, but the duties of the courts to combine the bankruptcy cases of each spouse into a single proceeding, says the head of the master’s program “Legal regulation of insolvency (bankruptcy)” at Moscow State University named after M.V. Lomonosov Svetlana Karelina.

Secondly, clearly formulate the specifics of the sale of joint property of the spouses. In particular, to eliminate the discrepancy between the norms of civil and family legislation and the bankruptcy law. At the same time, in order to respect the rights and interests of the debtor’s spouse, it is proposed to grant him a pre-emptive right to redeem the common property sold in accordance with the auction price.

Perhaps the legislator will listen to the opinion of practicing lawyers and, after considering the initiative to introduce a simplified bankruptcy procedure already formulated as a bill, will pay attention to the regulation of bankruptcy of spouses.