How to legally discharge your ex-husband from your apartment. Problem after divorce: how to expel your ex-wife or husband from the apartment? Discharge from husband

The procedure for expelling a husband from an apartment after a divorce depends on who owns the property, as well as the behavior of the ex-spouse. The Housing Code of the Russian Federation determines that without the consent of a citizen, eviction from an apartment is permissible by court decision. However, the algorithm of actions, despite the common element - the trial - is different.

Before you write out, let's familiarize ourselves with the legislation

Grounds and conditions for subsequent discharge

Russian housing legislation defines a list of reasons to evict an ex-wife (husband) from an apartment:

The right of a relative to live in an apartment owned personally has been lost. Spouses are included in the list of family members until the divorce (Article 31 of the Housing Code of the Russian Federation).
The living space is not used for its intended purpose. The rules apply to public housing. The list of grounds is enshrined in Art. 91 Housing Code of the Russian Federation.
Damage was caused to municipal housing.
There are debts on utility bills.
Long-term residence in another place.
Deprivation of parental rights in relation to a minor (Article 91 of the RF Housing Code).

The most common reason is the loss of the right of residence after the dissolution of the marriage. Therefore, the answer to the question: “When to write out - before or after the divorce?” – during a long divorce process, one: “After.”

Exceptions to the rules

When going to court, you should understand that if the husband does not have housing, then at his request the court can set a period during which the former spouse has the right to live in the apartment. In addition, you cannot be discharged if the husband refused privatization, since such a refusal gives the right to lifelong residence. Moreover, this right is retained even if the owner of the property changes (sale).

In Russian housing legislation there is the concept of a “temporarily discharged person.” The term is used in a situation where a person living in an apartment is sentenced to serve a sentence or undergo compulsory medical treatment. In this case, based on the court decision, information about the temporary eviction of the person is entered into the house register. This circumstance gives you the right to subsequently, upon returning from a colony or hospital, restore your registration.

If you have a common child

By terminating family relations with her ex-husband, the wife can remain a family member in relation to the child. If the child is the owner of the home, then the mother has the right to live with him, unless, of course, she is deprived of parental rights.

The father has similar rights. Parents have absolutely equal rights regarding the child, unless otherwise established by a court decision. It is impossible to discharge a child who is the owner. This is a consequence of his ownership of the home. It is possible to discharge a minor child who is not the owner of the apartment, but it is necessary to comply with legal requirements.

The law defines the conditions for how to discharge children in the event of parental divorce:

Availability of other housing if living with the second parent (Article 20 of the Civil Code of the Russian Federation).
Consent of the guardianship authority for discharge.
Availability of a specific address where the child will live.
Conditions in the new place of residence (actual) must be no worse than where you want to be discharged from.

In practice, it is not the number of rooms that matters, but the number of square meters. If the child lived before the divorce with his parents in an apartment with an area of, say, 120 sq.m. but did not have a separate room, then evict him to housing where he will be entitled to a separate room, but the area entitled to him is less than 40 square meters. m., it’s impossible. Even if such a change of registration occurs, it may subsequently be canceled by decision of the guardianship authorities.

How to discharge a wife or husband from a privatized apartment?

The law determines that family members of the apartment owner have the right to live in the apartment. In this case, it does not matter whether the owner wants it or not. Family members (Article 31 of the RF Housing Code):

spouse;
children;
parents;
other relatives.

The rights of the first three on the list are recognized in court in the event of a dispute almost automatically, that is, the court will be on the side of the evicted person. But for other relatives, the rule is that a person must prove his right to reside as a family member. A significant argument in favor of the evicted person will be the fact that he is dependent on the owner of the property.

To evict a former spouse, the homeowner must prepare a lawsuit and file it in court. The date of the right to apply for compulsory discharge is the date of issue of the divorce certificate. A fee of 300 rubles is charged for filing a claim.

To go to court you need the following documents:

Having prepared the documents, the plaintiff needs to apply to the district court in accordance with the territorial location of the property.

Can a wife be discharged from public housing?

Municipal housing is provided under a social rental agreement. The apartment is owned by the municipality, and the residents are tenants. Does the wife have the right to expel her husband from such housing? Yes, but subject to special conditions:

Violation of the rules of use (disorderly conduct, damage to property).
Failure to pay utility bills.
Deprivation of parental rights.
Long absence.

As you can see, the fact of divorce is not enough to discharge a tenant. This is because the social rental agreement is concluded between the municipal administration and the employer. Sometimes citizens worry: “Will they be discharged from the apartment if they don’t live in it?” For the grounds to arise it is necessary:

do not live in the apartment for a long time;
have another place of residence;
don't pay bills.

That is, it is necessary to create conditions stipulating the termination of a social tenancy agreement with a specific citizen. Divorce alone is not enough.

The Housing Code of the Russian Federation determines that the discharge process is always initiated from the pre-trial stage. Anyone wishing to evict must offer in writing to the second tenant to peacefully move out and terminate the tenancy agreement. After which a new contract is renewed, this time with one owner.

Procedure

If you intend to evict your ex-spouse from a municipal apartment where he is a tenant, you must adhere to the following procedure:

Determine whether there are grounds for eviction. Let us remind you that your desire to discharge your husband is not enough.
Find out about the availability of another place for your spouse to live. If there is no other housing where the ex-spouse can live, it will not be possible to discharge him.
Notify the owner of the property - the municipality - about the existence of circumstances allowing eviction. The notification must be sent in writing, in compliance with all requirements for further confirmation of the fact of notification in court.
Prepare a statement of claim to the court. At this stage, it is important to correctly process the available information, and it is motivated to ask the court to make a decision on eviction. It is advisable to enlist the support of the owner or other tenants of the property, for example, neighbors, if the actions of the defendant harm the property.
Take part in meetings.
Based on the court decision, deregister the person.

List of documents sent to the court:

statement;
confirmation of owner notification;
social rental agreement;
receipt;
confirmation of the grounds for eviction;
other documents.

Additional papers may include: receipts for payment of bills, witness statements, examination results if there was damage to property, reports from law enforcement agencies, and so on that may affect the process. Application fee – 300 rubles.

Nuances of judicial practice

Evicting a tenant from municipal housing is a more complex process than from an apartment owned personally by the plaintiff. Although the law provides quite clear and transparent grounds, the circumstances of the case can have a significant impact on the interpretation of the reasons sufficient to make a decision in favor of the plaintiff.

So, for example, such a basis as failure to pay utility bills by one of the employers may not be sufficient if the reason for the debt is the inability to pay money due to serious illness or the need to care for a dependent (disabled person, pensioner). Moreover, the obligation to pay utility bills falls on all tenants and regardless of who pays you or your ex-spouse, both have the right to reside.

A long absence may also not be a sufficient reason if, due to circumstances, the person does not live in the apartment. An example would be long-term treatment, resulting in a stay in a hospital or sanatorium. Or work - watch, cruise, research or geological expeditions, etc. That is, it is necessary to confirm the fact of the defendant’s permanent residence at a different address.

For the success of the process, it is important to pay due attention to the evidence base and the correct execution of documents. Participation in civil proceedings is not an easy task for the average person. Of course, hiring a lawyer to represent interests and fully participate in the process is optimal. But if financial capabilities do not allow you to draw up an agreement with a lawyer, then we advise you to get advice from a lawyer, clarify the list of documents necessary for proof and the procedure for their execution. Do you have any questions? Write!

By getting married, young people hope for a long, happy life together. But circumstances do not always work out the way we would like. If a couple separates by mutual consent, in such cases the division of property occurs painlessly, but when the spouses divorce with scandal, problems cannot be avoided. The question often arises: how to expel your ex-husband from the apartment, can this be done without his consent? It all depends on the specific case.

If the living space is the property of the wife (and she owned it before marriage), then after the divorce the spouse loses the right to it. The husband can be discharged even without his consent. To do this, you need to file a lawsuit to evict the man from the apartment. After a positive answer, feel free to write out your ex-spouse. In cases where the living space was the property of a relative, and then was donated to a woman (even if she was already married at the time of registration of the deed of gift), then the husband is discharged in the same way as in the previous version - by filing a lawsuit in court. If the apartment was purchased (privatized) during marriage, then in this case it is impossible to deprive the ex-spouse of the right to registration without his consent. Despite the fact that the husband could renounce his share at the time of privatization in favor of his wife or another family member, his right of residence is retained.

It is more difficult to discharge a former spouse from non-privatized housing, even if he does not pay utilities and does not live in this apartment. The long absence of the ex-husband is not the reason for his discharge. There are several ways to solve this problem: you can demand that the municipal committee exchange a non-privatized apartment; as an option, file a lawsuit for the ex-husband’s loss of the right to an apartment (although the answer is unlikely to be positive); Solving the problem peacefully is the best option.

The claim is filed in court at the location of the apartment. It must indicate the following information: who is the person who needs to be evicted, and under what circumstances was he moved into the apartment; whether the former spouse left (re-entered) this home; his place of residence at the time of filing the application; whether the ex-spouse married a second time; paid for utilities or not; whether he is the owner of another living space. If there is any evidence, it is better to provide it - this will increase the likelihood of receiving a positive answer.

To avoid confusion after a divorce, even before marriage, the future married couple should discuss the housing issue and it is advisable to conclude a contract or have the agreement notarized.

The need to expel one of your close or distant relatives from your own apartment (without their consent) may arise for almost any citizen of the Russian Federation. At the same time, it is absolutely not necessary for this person to have a criminal record, repeated warnings about violation of law and order, arrears in paying utility bills, etc.

This procedure is often necessary for any real estate transactions. When concluding a purchase and sale agreement, buyers and intermediaries (realtors) strictly monitor the presence of registered third parties, especially minors, because writing them out later will be very problematic. In addition, a person who has not lived at the place of registration for a long time actually shifts his responsibilities for paying utility bills to the rest of the tenants, who, in turn, are unlikely to want to put up with such a situation.

In what cases may it be necessary to deregister a person without his consent?

Among the most common reasons why an owner may need to remove a person from an apartment are the following:

separation of spouses and the move of one of them to a new place of residence;
housing in which third parties are registered, received as a gift or
the person registered in the apartment ignores the obligation to pay part of the housing and communal services;
any of those registered do not live in the apartment for a long period of time and there is no information about his whereabouts;
Living together with other family members in an apartment became impossible due to certain actions of the person registered with them related to drug addiction, alcoholism or violation of the law.
Municipally owned housing is planned to be privatized without including certain persons among the owners.
an adult child who has moved away from his parents does not appear for a long time to complete the de-registration procedure.

In any case, regardless of the situation, the decision to remove a person from an apartment without his consent is made solely by court decision.

Legal ways to expel a person from an apartment without his consent

Often, citizens who want to discharge a person registered with them in the same living space encounter certain difficulties. This applies to both homeowners and municipal property tenants living in a state apartment on the basis of a social tenancy agreement. According to current legislation kick a person out of an apartment without his consent possible in two ways. The first is to convince the person to leave the apartment voluntarily by signing all the necessary documents. The second way is to go to court with a view to making a decision to deregister one of the residents. If a person is not able to personally attend the discharge procedure or in court, then he has the right to use the services of a trusted person with such documented powers.

To go to court, you will need not only a statement of claim, but also evidence. For example, if a person has moved to another city or country, and he urgently needs to be discharged, then in addition to a certificate from the EIRC, testimony from his roommates is required. If the neighbors confirm that the citizen does not actually live in the apartment and does not appear there for a long period of time, then this can be considered sufficient grounds for a positive court decision to remove him from the living space.

Procedure for discharge without consent from municipal housing

If the apartment is owned by the state (municipality), then removal from living space without consent by court decision. This norm is defined by the Housing Code of the Russian Federation, namely Article 91, which defines a list of grounds for the legal discharge of residents and members of their family by the landlord (municipality). Such reasons include:

use of the premises for other than its intended purpose (for example, opening and running a business, store, workshop, etc.);
obvious damage to property or detection of actions that may lead to it in the future;
intentional (neighbors).

Another reason for deregistering a person is determined by Art. 90 of the Housing Code of the Russian Federation. This is a regular failure to pay utility bills. In order to remove such a violator from the living space, you must first file a corresponding complaint addressed to the municipality. State authorities are obliged to respond to the claim by visiting the property, interviewing neighbors, concierges, etc. Next, representatives of the municipality issue a warning to the defaulting tenant demanding payment of the debt and the inadmissibility of such behavior in the future. If the citizen continues to violate, then the next legal step is to go to court.

When discharging a person from municipally owned housing, one should not forget about the existence of some nuances that may harm the interests of the remaining tenants. For example, a complaint requesting an exemption may be filed by the wife of a residential tenant. In this case, according to current legislation, she herself may lose registration, since the defaulter is evicted from the state apartment along with her family.

Eviction of a citizen at the request of another tenant obliges the latter to pay the amount of the existing debt (if he has not done so before). The discharge of the tenant of the living space by court decision is carried out if payment for housing and communal services has not been made for more than six months.

How to discharge a person without his consent from privatized housing

If the apartment is privately owned, i.e. privatized and was acquired by one of the spouses before marriage, then in this case there are no problems with the extract. The Housing Code of the Russian Federation, Article 31, establishes the moment of divorce by the end of the right to use the housing of the second spouse. In addition, together with the husband/wife, other family members, if any, with the exception of joint children, cease to enjoy the right to use the property. These may be parents, brothers, sisters and other relatives of the ex-spouse. To carry out the procedure, the owner of the apartment must apply to the court with a corresponding application.

In the event that the privatization of housing was carried out during the marriage, with the consent of all registered residents, then it is not possible to discharge them without consent. Here the homeowner will have to either negotiate with former relatives or buy back parts of their property rights. Because he won't succeed.

Article 31 of the Housing Code does not apply to persons registered in the apartment at the time of privatization and who renounced it in writing. It is simply impossible to deprive such residents of the right to use housing, even in the event of divorce. You can get out of such a delicate situation by drawing up a gift agreement in favor of a third party. After which the new property owner can legally remove the registered residents through the court. But there is one “but” here too. The court does not always rule in favor of the property owner. If the person who is planned to be evicted is, for some reason, unable to provide himself with other housing, then the outcome of the case may be decided in his favor. Moreover, in some cases, such persons may retain the right to lifelong use of housing, even if part of the apartment was acquired by third parties on a legally valid basis.

Features of the discharge of minor citizens

When might a situation arise in which it is necessary to remove a child from the apartment without consent? One of such cases is the registration of a minor with one of the parents, and actual residence with the other. If the living space is owned by the municipality, then the issue can be resolved through the court. To do this, it is necessary to provide written consent from the guardianship and trusteeship authorities, and in the statement of claim it is necessary to note the fact that the child lives at a different address.

If the apartment was privatized before the birth of the child, then it will most likely not be possible to discharge him. Guardianship authorities and the court may consider the fact of deregistration to be an infringement of the rights of a minor. Especially if the discharge is made from a larger living space to a smaller one or from a new apartment to an older housing stock. In addition, a minor child may have his own share in a privatized apartment if he was already registered in it at the time of privatization. In this case, it will be almost impossible to write him out, even through the court.

Conducting any transactions with such real estate may cause retaliatory measures from government guardianship authorities, which in turn may lead to sanctions such as temporary suspension of any transactions with the apartment or recognition of transactions as invalid.

Legal grounds for expulsion from the ex-spouse’s apartment

Let's say right away that get your ex-husband out of your apartment or a wife is quite difficult, however, there are legal grounds for this. The effect of Art. is also applied to divorced spouses. 90-91 Housing Code of the Russian Federation. This means that they can be evicted from council housing without their consent for a number of reasons. Namely:

disturbing public order causing inconvenience to other residents and neighbors;
damage to state property;
use of residential premises for other purposes;
regular evasion of paying their share for housing and communal services;

In addition, based on a court decision, a convicted spouse can be removed from registration in joint housing. To do this, you need to contact the court or the migration service with an application - a request for an extract from the place of residence and an official copy of the verdict that has entered into force. A convicted person who has returned from prison, in turn, has the right to demand the legal restoration of his registration. If during his absence the apartment was sold, leased or donated, then he retains the right to challenge transactions carried out without his participation in court.

You can remove your ex-spouse from municipal property if you have proof that he does not live in the property. To do this, evidence is provided to the court indicating this, for example, testimony from neighbors or a local police officer. In addition, information from the district clinic or post office that the person has not used the services of the above-mentioned authorities for a long period of time can be used as evidence. You can go to court to have your ex-spouse discharged after one to two years of his actual absence. Based on a court decision, a person is recognized as having lost the right to use this apartment.

However, very often a court decision is made in favor of the person being discharged, legally protecting his rights and interests. For example, if housing was purchased while spouses were living together in marriage, then deregistration without the consent of either of them is unacceptable. The situation is completely different with a privatized apartment, which at the time of marriage is the property of one of the spouses. If the former spouse (husband/wife) was registered after marriage, then the fact of divorce is the basis for his discharge and eviction, even if he has the status of a disabled person.

It is not recommended to register a common-law husband or wife for a long term, even if you are sure of the duration of the relationship. If necessary, to protect your own interests, it is best (up to a year). This way you can avoid many problems with eviction.

In any case, deregistration of persons without their consent requires a mandatory appeal to the court, so it is necessary to stock up on time, patience and the support of a competent lawyer who can explain all the nuances of a particular situation and find the right way out of a difficult situation.