Can a husband take out a mortgage without his wife's consent?

Is it possible to take out a mortgage without the consent of your spouse?

According to current legislation, all income of spouses during marriage is considered joint, and payments under the loan agreement, including the mortgage, will be made from the joint budget. If the question arises whether a husband can take out a mortgage without the consent of his wife, banks that provide lending clearly say yes. A loan is a serious burden for any family and both husband and wife will have to bear it.

The bank must be sure that both spouses are fully aware of the responsibility for the emerging obligation. The execution of a loan agreement is subject to mandatory registration with government agencies; the second spouse’s permission to take out a mortgage must be formalized, i.e., notarized.

This requirement is imposed on spouses by all banking organizations that provide loans for the purchase of real estate. A mortgage without the consent of the spouse is impossible. If the consent of the second spouse is not included in the overall package of documents, the registration of real estate may be suspended until it is received.

Decor

When purchasing an apartment or other real estate with a mortgage loan, there are several registration options:

• in the shared ownership of both spouses;
• for a husband or wife, while the second spouse becomes a co-borrower and is required to have a notarized consent to the actions taken.

General order of registration:

• Choosing a bank with a suitable mortgage program;
• Approval by the bank of the borrower applying for a mortgage or both borrowers, husband and wife;
• Finding a suitable property, banks usually give about 3 months;
• Approval of real estate by the bank. The decision takes about a week;
• The actual deal.

All registration is necessarily accompanied by the collection of a package of documents, each stage has its own.

Package of documents:

• A form provided by the bank to fill out. Its form must be located on the official website of the organization or directly in the bank or its branch;
• Passport;
• Information about employment;
• Information about available income, including various pensions, regular compensation, alimony, maintenance of a life order, rental property, proof of rent, etc.

Documents have a limited validity period, usually up to one month.

In the future, you will need documents for the purchased apartment, and you will need to take the notarial permission of the second spouse for a mortgage. The agreement must be notarized in accordance with Art. 35 IC RF . The document will confirm that the second spouse not only knows about the family’s debt obligations, but also agrees with them.

From the moment the bank approves the candidacy for a loan and concludes the final transaction for the purchase of an apartment, the borrower has 4 months to prepare all the documentation.

Notarial consent

When applying for a loan for an apartment, it is required to take the notarized consent of the spouse to purchase real estate with a mortgage. You can contact any notary office; you should have a passport and a certificate of official marriage with you, even if there is a corresponding stamp in the passport of both spouses. The certificate must be readable, despite the age of the document, without typos or other inconsistencies with the main document - the passport.

Consent is of a one-time nature . In this regard, the document must indicate the address of the exact property being purchased with a mortgage.

The cost of a written document certifying a spouse’s consent to the other spouse taking out a mortgage will consist of:

• the tariff established by the notary chamber on the day of execution of the document;
• tariff for related technical services.

Sample agreement

A document expressing the spouse’s permission to purchase real estate with a mortgage must contain the following mandatory components:

• Date/place of document preparation.
• Full name, place of registration, passport details of the person giving consent.
• Full name, place of registration, passport details of the person receiving consent.
• Information from the marriage certificate.
• Data on real estate purchased as collateral.
• Details of the notary who issued the consent.
• Registration number.
• Signature of the consenting spouse, signature of a notary.

Sample Consent of a spouse to purchase an apartment with a mortgage

Spouses buying an apartment with a mortgage, completing the transaction

Clarification: “By the way, the purchase will require a notarized permission from the second spouse.” Notarized consent of the spouse in a transaction formalized by an agreement in simple written form requires consent not to purchase, but to pledge the apartment to the bank.

Of course, when purchasing an apartment with a mortgage, you must remember the possibility of receiving a refund of previously paid income tax, as well as excluding deductions from wages and a refund of personal income tax on the amount of interest paid to the bank

07 Jun 2020 etolaw 691

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Who pays the mortgage after divorce?

A mortgage loan is a long-term commitment for a family. If the spouses separate long before the final settlement under this agreement, then the question arises: how is the mortgage divided during a divorce?

According to the law, all joint property, including collateral, is divided in half, as well as financial obligations and debts. This does not depend on who officially issued the mortgage. Therefore, the bank has the right to demand equal repayment of the remaining payments by both spouses, regardless of whether they are married or no longer.

At the same time, the apartment itself is not always divided between spouses in equal shares, for example, if one of the spouses made a down payment from their own pre-marital funds.

If you have questions, consult a lawyer

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The law does not stipulate that when one of the spouses receives a loan, it is necessary to strictly obtain consent from the other. Civil law only enshrines the presumption that the actions of a spouse are always considered to be committed with the consent of the second spouse.

However, if a loan is issued without the consent of the wife or husband for their own needs, then they must be responsible for their repayment independently.

• Spouse's consent to the loan
• Total loan debt of spouses
• Participation of the bank in court
• Personal debts of spouses
• Spouse guarantor
• Division of debts after divorce

Who has the right to a mortgage apartment after divorce?

What other options can you offer? Theoretically, you can divide the remaining loan amount in half. However, to do this, you will have to obtain the consent of the bank, since this kind of action refers to significant changes to the loan agreement. It is not profitable for the bank to divide one loan, secured by one collateral, into two loans. There is still only one collateral, and the bank’s financial risks are increasing. In practice, credit institutions do not welcome this kind of decision and it is often simply impossible to obtain the bank’s consent in this matter.

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The only possible option for obtaining sole ownership of property in our country is by concluding a marriage contract. Only in this case will one spouse be indicated in the loan agreement. Accordingly, division of property, in our case an apartment purchased with a mortgage, as well as loan payments will be impossible. All responsibility for repaying the debt will fall on the spouse specified in the contract, and the second spouse during a divorce will not have any rights to the apartment decorated in this way.

Spouse's consent to the loan

In Art. 33 of the RF IC stipulates that all acquired property during marriage (except for property received by inheritance or as a gift) is recognized as the common property of the spouses, that is, the joint ownership regime is applied to them. However, spouses can enter into a marriage contract between themselves and establish a different procedure for the ownership and disposal of property. Also, the RF IC (Article 35) enshrines the rule that spouses must use common property by mutual consent.

In addition, in Art. 253 of the Civil Code of the Russian Federation stipulates that spouses must dispose of property jointly. However, it is not necessary to obtain written consent from the husband or wife.

Therefore, when receiving a loan, obtaining written consent from the second spouse is not a prerequisite. True, when applying for mortgage loans, banks, as a rule, require that the second spouse act as a co-borrower in the agreement. For other types of loans, this practice does not exist.

The question of the fact of obtaining consent from the husband or wife usually arises only when it is necessary to establish whether this debt is common or whether it is a personal debt of one of the spouses. This usually happens during a divorce and division of property, because debts, if any, are also subject to division. If spouses have common debts, they are distributed on the basis of Part 3 of Art. 39 of the RF IC – in proportion to the shares awarded to the spouses.

Important: the division of spouses' debts can be carried out not only in case of divorce, but even during marriage. A demand for the division of common property can be made not only by spouses, but also by creditors if, for example, the property of the debtor spouse is not enough to repay the loan. In this case, the penalty may be applied to the spouse’s share in the joint property of the husband and wife.

Marriage contract

With this document, the husband and wife establish ownership of existing real estate, as well as the property that will be acquired in the future.

The agreement is concluded in writing and certified by a notary (RF IC, Article 41). The main thing here is that one spouse does not infringe on the rights of the other. Although the notary will tell you how to register it correctly.

A marriage contract also cannot be changed unilaterally, and it terminates only after a divorce (RF IC, Article 43).

Thus, if one of the spouses decides to take out a mortgage without the consent of the other, he must provide the bank with a prenuptial agreement. A mortgage without a spouse-co-borrower is issued only through this document. But the husband will have to take care of another co-borrower or guarantor. Otherwise, the application may be rejected.

IMPORTANT! If the marriage contract is drawn up specifically in order to take out a mortgage without the participation of the second spouse, it is necessary to include a clause on the down payment and monthly payments. Indicate the source of the funds being sent, otherwise all money in the family will be considered joint.

Total loan debt of spouses

Neither civil nor family legislation specifies the concept of common debt of spouses; courts determine whether a loan debt is common in each individual case. In this case, the following signs are important for the court:

• Both spouses are debtors on the loan. For example, under a loan agreement, both the wife and husband are co-borrowers, or one of them is indicated as a guarantor for the loan obligation. Then both of them are responsible for repaying the loan.
• Has the second spouse's written consent to receive the loan been obtained?
• The debt is registered in the name of one of the spouses, there is no written consent of the second of them, but the money received on credit was used for the needs of the family. True, this fact is difficult to prove in some cases, so the courts, when deciding this issue, proceed from the intended purpose of the loan.

That is, obtaining consent from the second spouse does not always play an important role when recognizing a debt as common; if money received under a loan agreement, for example, is spent on renovating a joint apartment, then such a debt is considered common, since it was spent in the interests of the family.

However, in order for the spouse to whom the debt is registered to achieve recognition of the debt as common, he must provide evidence that the money actually went for common family needs (purchase of real estate, repairs, vacation, etc.).

Such evidence may be:

• Checks.
• Various contracts.
• Acceptance certificates.
• Testimony of witnesses.
• account statements.

If the second spouse declares that he did not know that the husband or wife took out a loan and the plaintiff cannot provide evidence of this fact, the court may refuse to recognize this debt as common and the spouse who took out the loan will be responsible for paying it off independently.

Transaction without consent and prenuptial agreement

Of course, there are different situations in life, especially when people are about to get divorced. A surprise for a wife can be not only a woman on the side, but also an unexpectedly formed loan, to which she did not consent, and a marriage contract was never concluded in the family. In this case, what is most frightening is the impressive debt that suddenly falls on her shoulders as well. What to do and who to contact?

It is necessary to prove that she did not agree to the loan, experts say. To do this, you must send a corresponding written application to the bank, preferably by registered mail with acknowledgment of receipt and a list of investments. In the future, it will be useful when considering this dispute in court.

One of the parties has the right to demand that a transaction be declared invalid in court within a year from the day when it learned or should have learned about the completion of this transaction.

Here it is important not to waste time, find an experienced family law lawyer and prepare as much evidence as possible. For example, invite witnesses who can testify that the wife did not know about the apartment, did not live there and did not pay for it, that the husband managed the property solely and exclusively for his own purposes.

Participation of the bank in court

When considering a case on the division of debts of spouses, the court must involve a banking institution in the case. Very often, banks do not benefit from such a division, because the more debtors there are under a loan agreement, the greater the likelihood that it may not be repaid. Therefore, many banks refuse to divide the loan between spouses, even if the loan was taken with the consent of the second spouse. However, the final decision on debt division is made only by the court.

But most often, as practice shows, the division of common debts is carried out according to the following scheme: the loan is repaid by the spouse for whom it was issued, and the second spouse undertakes to pay him compensation for part of the loan.

Even if the spouse repaid the joint loan on his own, he has the right to go to court after this to demand monetary compensation for part of the repaid loan from the second spouse.

Mortgage in marriage

Alas, families very often break up, and the question arises about the division of property and debt obligations. As mentioned above, a mortgage acquired during a marriage is recognized as joint property, regardless of the personal monetary contribution of each spouse, therefore each spouse has the right to claim 50% of the money paid to the bank or the share of the apartment. But to do this, you need to transfer the property into ownership by paying off the existing debt. The personal relationship of the couple is nothing to the bank; the credit institution is only interested in the agreement and banknotes, so payment obligations must continue. There are three possible solutions:

An official family is considered to have many children, in which there are three or more minors (up to 18) children. There is no single preferential program for large families, but for such families the government or state organizations partially assume the obligation to repay payments, and interest rates are reduced by 50% or more. In addition, many banking institutions offer their favorable conditions for this category of the population. Repayment of a mortgage with such benefits is also possible using maternity capital funds, as mentioned above.

Personal debts of spouses

At the same time, not all debts that spouses take on during marriage are automatically considered their joint debt. If one of the spouses took out a loan for his personal needs, this money was not spent on the family and the second spouse did not give consent to this, then the second spouse should not be liable for such a loan.

Let's say that during the marriage, the wife took out a loan for a trip to Paris. She went on the trip herself without her husband. In this case, although the loan was taken out during the marriage, these funds were spent exclusively on the wife’s personal needs, so this loan cannot be classified as the spouse’s common debts.

Only the debtor spouse is responsible for personal debts. If his own property is not sufficient to pay off the debt, the creditor may require the husband/wife's share of the joint property to be allocated to cover the debt. However, the share of the second spouse cannot be withdrawn to cover the loan amount.

Mortgage on the husband property on the wife

The apartment was purchased with a mortgage and is registered in the name of the husband and wife as joint ownership (not shared ownership). The main borrower is husband. He is a working pensioner. My wife does not work and receives a pension. How to properly register and receive a tax deduction from a purchased apartment?

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Hello, Natalia. Yes, you will inherit this money. According to Art. 1112 of the Civil Code of the Russian Federation The inheritance includes things and other property that belonged to the testator on the day the inheritance was opened, including property rights and obligations. Contact a notary within 6 months of the death of your spouse so as not to miss the deadline for accepting the inheritance. If you have any questions, please contact us.

Spouse guarantor

If one of the spouses is a guarantor for the loan of the second spouse, then his situation is aggravated, because if the debtor is not able to repay the debt, then the obligation to pay it falls on the guarantor.

However, the guarantor has every right not to repay this amount until a court decision is received. Without a court decision, bank representatives do not have the right to force the second guarantor spouse to repay the husband/wife’s loan.

If the guarantor has received a demand from the bank to repay the loan, then he can, at his own discretion, repay this debt without a court decision. After the loan is repaid, the guarantor spouse has the right to file a lawsuit with a request to collect the debt from the debtor spouse.

If the loan was secured by collateral, then the guarantor may demand through the court foreclosure on the collateral property, with the exception of the only housing that is taken on mortgage.

We issued a mortgage for my spouse, the bank approved it but with a prenuptial agreement

1. Property acquired by spouses during marriage is their joint property. The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds.

recover from these legal expenses arising on the basis of a court decision, if it is possible to deprive her of the right to inherit by law or by will, and a share in the right to an obligatory share or for his debts of the testator. In this case, it is necessary to obtain in accordance with paragraph 1 of Art. 1156 of the Civil Code of the Russian Federation, the owner has the right to a deduction when selling real estate from a buyer in the absence of a will. This means that for the acquisition of an inheritance, the first priority heirs are the children, spouse and parents of the testator.

11 Mar 2020 lawurist7 430

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Division of debts after divorce

It also happens that citizens divorced, but the debts were not divided during the division of property. For example, a husband took out a loan without his wife’s consent during marriage to open a business, but he stopped paying the loan and bank employees are now calling his wife and demanding repayment of the loan from her.

In such a situation, the wife needs to:

• Contact the bailiff service that the loan was issued to the spouse without her consent; you must also provide the name of the bank where the loan was taken, if such information is known.
• Despite the fact that each spouse must be responsible for their personal loans, personal property, former spouses, for example, may have a joint apartment. To prevent bailiffs from seizing your personal property, it is better to prepare warranty cards, checks, contracts, etc., which confirm ownership, so you will avoid the possibility of seizure of your things.
• If a spouse took out a loan of several million, then it is better to sell the shared housing in advance and purchase a separate one, otherwise they may foreclose on the spouse’s share in the joint house, apartment, or cottage.

As judicial practice shows, foreclosure on the share of a husband or wife in joint housing does not happen often.

This is only possible when it comes to a multi-million dollar loan. If this is your only home, then the court cannot apply it to the debt only if the home was not taken out with a mortgage. In all other cases, it is possible to allocate a share in the joint property of the debtor spouse.

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When real estate acquired during marriage is put up for sale, the notarized consent of the spouse is required. It doesn't matter who the owner is.

When purchasing living space with a mortgage, there are other requirements. In 2005, the mandatory notarization of mortgages was abolished.

But some banks put forward these requirements. Therefore, it is worth paying special attention to this point - it contains many nuances.

Features of obtaining a housing loan

When a financial institution requires consent for mortgage lending, this means that the final cost of the transaction will be higher.

Because you need not just a statement with a signature, but a notarized and correctly drawn up document.

In addition, this procedure creates some difficulties for the bank itself and the client. The consent itself has no legal force without certification.

Legislation

According to Article 35 of the RF IC, transactions requiring state registration must be notarized.

And in accordance with Article 20 of the Federal Law “On Mortgage”, a housing loan is precisely the procedure in which state registration is carried out, which means the consent of the spouse is required.

In addition, Article 7 of the Federal Law “On Mortgage” states that a loan for the purchase of real estate can be issued with the consent of all owners.

Requirements

If a mortgage transaction is being drawn up, the spouse's consent to the mortgage must be provided.

It should be:

• in a written form;
• must be certified by a notary.

In judicial practice, there are cases where a mortgage agreement was declared invalid due to lack of consent. At the same time, it is worth paying special attention if the apartment is not purchased, but sold.

After the court’s decision, the bank will have the right to terminate the contract and collect costs and commissions from the evader from the rules and laws.

Required documents

To apply for a home loan, a standard package of documents is required. If a husband and wife take out a mortgage, then the consent of the co-borrower spouse must also be included.

The following documents are required:

• passports of each spouse;
• certified copies of work records;
• 2-NDFL certificates;
• Marriage certificate;
• child's birth certificate (if available);
• certified consent of one of the spouses to complete the transaction.

Here is a sample of a 2-NDFL income certificate.

If at least 1 of the above documents is missing, then the financial institution has the right to refuse to consider the application.

Can a mortgage be approved if one family member does not work?

• questionnaires;
• passports;
• TIN and SNILS;
• military ID;
• income documents;
• work book and employment contract;
• documents characterizing the client’s marital status (birth certificates of children, marriage or divorce, death of a spouse, etc.);
• information about the amount of the first payment (certificate of maternity capital or bank account statement).

In order for a mortgage to be approved on one income, you need to try to reduce the size of the loan as much as possible. How? For example, make a large down payment (more than the minimum allowable 20% of the purchase price) or choose the cheapest offer for purchase.

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Spouse's consent to mortgage

Almost all banks require a document confirming the spouse’s consent to a mortgage loan. And this is completely justified.

If there is no agreement, the transaction may be canceled by a court decision.

If necessary?

The consent of the spouse to enter into a loan for the purchase of real estate is necessary. Although this complicates the loan application procedure, banks still require this document.

Any type of home lending requires consent.

The entire procedure can cost quite a hefty sum – up to 2% of the cost of living space.

To conclude an agreement

Concluding a mortgage loan agreement is a transaction. Some banks take risks by issuing a loan to purchase a home without the consent of one of the spouses.

In the event of a controversial situation, the financial institution risks that the transaction will fall through.

But, if you look at it objectively, the worst thing will happen to the main borrower - the apartment will be taken away, the costs will have to be compensated, and the bank will have to pay penalties.

In this case, insurance will not cover anything.

For an apartment deposit

If the marriage is official, then any transactions with common property require the consent of one of the spouses, regardless of the share.

Consequently, when a loan is taken out on the security of an existing property, then, in addition to a notarized permission to mortgage the property, consent to the mortgage may also be required.

When the apartment being purchased is mortgaged, no additional agreement is required for this action; everything is spelled out in one.

For the military

A military mortgage differs from a regular one only in that this type of lending is supported by the state.

But the consent of the spouse is still required. If the marriage is official, then one of the couple will be a co-borrower.

Sample

The application is written strictly according to the sample.

The following information is required:

• Full name of the spouse - the main borrower and yours;
• what apartment the couple is going to buy - the exact address.

An important point: it must be indicated that consent is given to transfer the property as collateral to the bank, and the name of the financial organization should be indicated.

The number of the loan agreement and the date of conclusion are also indicated.

And there must be a phrase confirming permission to issue a mortgage loan.

Here you can get your spouse’s consent to conclude a mortgage agreement.

Notarization

Without notarization, this consent will be considered invalid. The bank can provide its own notary, but this does not happen everywhere. Therefore, it is worth finding a specialist in advance.

The notary indicates that the consent is certified.

Particular attention should be paid to the fact that information with the specialist’s license number must be present, and the city must also be indicated.

Is it possible to take without the participation of a husband or wife?

It is theoretically possible to take out a mortgage loan without the participation of a husband or wife if there is a prenuptial agreement. But serious difficulties may arise in the future.

In addition, sometimes lenders refuse to issue a loan, even to those who have an agreement. This is justified by the fact that in the event of a divorce, when dividing property, the judge may not take into account the fact that the mortgage was issued by 1 person without co-borrowers.

As a result, the apartment will be divided. The financial institution sees this as a risk of non-payment of the debt obligation.

Another way is to be not the main borrower, but a co-borrower. But in this case, the property will be registered in the name of another person. Therefore, if it is possible to sign an agreement, then it is better to do so.

There were cases when a loan was issued, but there was no agreement. As a result, one of the spouses filed claims against the bank.

And this is completely justified. After all, everything, including debts, that is acquired during marriage is joint property. During a divorce, they can divide the apartment, and, consequently, the mortgage.

If one of the spouses did not consent to the conclusion of the transaction and there is no prenuptial agreement, then the mortgage loan may be considered invalid.

Are there banks that provide loans without consent?

Today, financial organizations are trying to minimize risks. And if you approve a loan without the consent of one of the spouses, then everything may end in non-payment of part of the debt.

Therefore, even at high interest rates and with a down payment, such transactions are not concluded.

Mortgage for spouses: execution of an agreement and division of property

It is worth noting that a decision on the procedure for obtaining a loan and real estate should be made before submitting the papers. Subsequently, changing the terms of the agreement, changing the status of a co-borrower to a guarantor will be quite difficult. It is unlikely that the bank will agree.

Obtaining a mortgage entirely without the participation of a husband or wife is impossible for the reason that it involves the purchase of real estate. According to the law, a husband or wife cannot take property “for themselves” without notice. Everything that was purchased will be divided between two. Lack of properly executed consent will prevent the purchase of real estate and registration of the transaction.

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