Eviction of ex-wife and child from apartment

Features of forced eviction

So, how to evict your ex-wife from your own apartment? Coercion is the deprivation of a person’s right of residence or forcing him to actually vacate his home against his will. This is regulated by the Housing Code (LC RF), family and civil legislation.

As with any other coercion, eviction in this manner requires compelling reasons. After all, when a spouse does not want to evict himself, it means that he has good, and sometimes even absolutely legal, reasons.

To find out what may become the basis, it is necessary to find out the powers of the evicted person, according to which he lives in the relevant apartment.

Such grounds may include:

right of ownership of housing as a whole or a share in it;
permanent or temporary registration of a person at the appropriate address.

But in any case, the eviction of a former spouse under duress is carried out exclusively by court order. So after establishing the reason for this, you need to go to court with a claim.

It must contain the following information:

information about the spouse who needs to be evicted;
his rights to appropriate housing;
the basis on which the spouse is subject to eviction;
request for forced eviction.

In addition to the application itself, the court may require copies or originals of documents that prove the legality of coercion. Without them, there is no point in going to court.

Eviction of a former family member by a court decision is quite common. Courts usually satisfy such demands, and enforcement is carried out by specialized government agencies with the participation of police officers.

So, even if the court issued an appropriate decision, there is no need to force the spouse to leave, use force, and so on. It is enough to go to the passport office with the appropriate decision and deprive him of his right of residence and registration.

Eviction of ex-spouse from owner's apartment

The current legislation in the Russian Federation establishes the right of every person to housing; for this reason, a former family member is evicted according to a certain procedure, which must take place in strict accordance with the requirements of the law.

Eviction of a member of a broken marriage is carried out by court decision. When a former family member is evicted, witnesses must be present.

3 ways to get a free legal consultation 01

online free

Call toll-free line 8 (Moscow and regions of the Russian Federation)

Leave a request to our lawyer in the online chat, he will call you back in 5 minutes

Free consultation with a lawyer on housing issues Prices for lawyer services on housing issues

The necessary condition for eviction is divorce. The official document for divorce is a certificate of dissolution of marriage; upon receipt of this document, the former family member no longer has the right to be in the home, and the second spouse can initiate his eviction.

It is important to note that this rule does not apply to children; when parents divorce, the child does not become a former family member and retains all his rights.

If the marriage relationship is actually terminated, but not dissolved by the registry office or in court, it is almost impossible to evict a family member. Problems can happen when the apartment is occupied by a former “common-law spouse”.

You will have to prove the termination of the relationship with evidence and provide information that the former cohabitant does not maintain a common household with the plaintiff. In this case, the former spouse can raise objections, which the court will consider.

Here you can read about eviction from non-residential premises

If the spouse is the owner

How to evict your ex-husband from an apartment if he owns the property? When he is not the owner, they evict him as usual. The right of ownership is universal and gives the owner the basis for disposing of the relevant property, and in the situation with residential premises, also the right of residence. Thus, the owner cannot be kicked out of his house.

In what cases will a spouse have the right to own an apartment?

According to family law, spouses will have the right of ownership of property used by them in the following cases:

when this or that property, including an apartment or house, was acquired by them before marriage;
when an apartment or house was purchased by spouses during a marriage relationship;
when the property was received by one of them as a personal gift, as well as remuneration for the author's work.

It is worth noting that wedding gifts are considered community property, even if they were addressed to one of the spouses.

In each of these cases, you need to act in a unique way. So, if a spouse had the right to own housing even before the marriage was registered, then it is almost impossible to kick him out, because he is the full owner and manager.

However, the Housing Code of the Russian Federation allows the following reasons for eviction of a former spouse from the owner’s apartment:

systematic or gross violation of the rules of residence;
violation of neighbors' rights;
non-payment of utility bills.

In this case, nothing useful will happen for the second spouse, since the apartment will be forcibly sold, and the money will be given to the spouse himself, minus the debts.

We recommend that you read:

Eviction of citizens from residential premises

If the apartment or house is their joint property, then you can evict the other spouse in one of the following ways:

divide the common property into equal shares and buy out the spouse’s share;
deprive him of parental rights;
evict him due to violation of the rules of residence with the subsequent sale of his share.

It seems difficult to evict a spouse who has the right to own at least part of the home. But if there are sufficient grounds, then the court can take into account the interests of the child.

What legislative acts regulate

Before considering the grounds for eviction established by the Family Code, you should pay attention to the norms of housing legislation. Thus, the code enshrines Article 31, according to which not only the owner, but also his relatives (family members) have the right to live in an apartment. Taking into account that when a marriage is registered, a new “unit of society” is formed, a non-blood relative legally appears in the life of each of the spouses. The spouse who has the square meters is required to register and move into his or her own living space, provided that the owner himself lives there.

The same Article 31 indicates that the loss of the right to reside in the acquired apartment of the owner is determined by the termination of the “relative” status. By law, spouses who have divorced are called “former relatives.” In some cases, termination does not entail eviction, and the spouses establish a regime of cohabitation, formalizing it in writing.

On issues of eviction of a former spouse, judicial practice is replete with examples when a husband or wife, by a court decision, is left to live in a living space for a certain period of time. Until the evicted citizen “corrects” his property situation. A special category of evictees are children, as well as that family member who, by court determination, becomes the only parent. In this case, the court may oblige not only to leave the issue of eviction alone, but also to establish a requirement to provide such a spouse (with a child) with other living quarters.

Returning to the regulatory framework, a couple of reservations should be made in favor of the Housing Code. In particular, Article 19 of Law No. 189-FZ, which introduced the provisions of the code, states that apartments previously privatized for one of the spouses “fall out” of the general rule on the eviction of a former spouse. This happens because at the time of privatization actions, relatives “not by blood” had equal rights of use and ownership.

Later, the Supreme Court of Russia clarified how the norm of Article 31 of the RF Housing Code should be interpreted in Resolution No. 14 of July 2, 2009. Thus, there may be only 2 grounds for eviction of a person who has “left the family”:

divorce;
recognition of the civil status record of marriage as invalid.

The same Resolution established a guarantee to ensure the interests of both parties to the dispute, namely the fixation of the right to maintain a place of residence until a certain point or until the occurrence of special circumstances (persons with health difficulties: mute or deaf, unable to earn enough to move to another home ).

Of course, we are talking about infringement of the rights of the owner, but the court usually proceeds from considerations of fairness and reasonableness.

This Resolution gives clear recommendations on how to evict your ex-husband from an apartment if he is not the owner.

If the spouse has a residence permit

How to evict your ex-wife from an apartment when she is registered there? Registration or registration at the appropriate address gives the right of residence. Such registration may be temporary or permanent. If the registration of the spouse was temporary, then at the end of the specified time, the deregistration is carried out in an uncontested manner.

However, when the spouse has a permanent residence permit, then first he must be discharged. Only the owner of the relevant premises can do this against his will and only by court order. When the second spouse does not own the property, you will need to obtain the consent of the owner.

The eviction of a spouse who has a residence permit is forcibly carried out in the following order:

First, you need to apply to the court with an application for the discharge and forced eviction of the person.
Upon receipt of a satisfactory decision, the person must be discharged by submitting this decision to the passport office.
After discharge, you need to contact the police or bailiffs to actually forcibly evict your spouse.

In order for the court to make a satisfactory decision, the following documents must be submitted to it:

a certificate certifying the termination of the marriage relationship;
documents certifying ownership.

The court will make a positive ruling only if the housing is not the joint property of the spouses.

To discharge a person through the passport office, you must submit the following documents:

relevant court decision to evict the former spouse;
title documents for housing.

It is enough for the FSSP (Federal Bailiff Service) or the police to submit a writ of execution, which is issued by the court when a person does not vacate the home of his own free will within a month.

It must be remembered that neither the other spouse nor the owner of the property has the right to independently evict a person from the living space he occupies. And under no circumstances should force be used against such residents. This will be regarded as a violation of his rights, thereby becoming the basis for a complaint against the owner.

In turn, the owner may demand in court to reimburse the costs incurred for the forced eviction of the person.

Claim for eviction from ex-spouse's apartment

Since the unlawful and willful eviction of a person from a home is prohibited, the owner must indicate his intention to evict a member of a broken family and give time for eviction. If the former family member does not voluntarily vacate the premises within the prescribed period, you will have to file an eviction claim with a judicial authority.

An application to evict a former family member can be filed with the court at the defendant’s place of residence. The document is filled out in accordance with established requirements and contains the following information:

Full name, residential address of the plaintiff.
Full name, residential address of the defendant.
Contact details of the parties.
Number of the purchase and sale agreement for the premises of the spouse-owner.
Address of the apartment and its area.
Grounds for eviction.
Date of divorce.
Name of the body that dissolved the marriage.
Plaintiff's signature.

The text of the eviction claim states that the defendant was warned of eviction, however, did not leave the premises within the allotted time. You can include in the text of the statement the data of witnesses who can confirm the fact of family breakdown.

Copies of the following must be attached to the eviction notice:

Documents for the apartment confirming ownership.
Extracts from the house register.
Birth certificates of children.
Purchase and sale agreements.
Divorce certificates.
Extracts from the Unified State Register.
Court decisions on divorce.
A marriage contract, if it was concluded between spouses.
A written eviction notice with a receipt stamp.
Receipt of payment of the duty.

The plaintiff may attach any other documents if he believes that they are important for an objective consideration of the eviction case when the former family member continues to live in the apartment.

If the apartment is privatized

A privatized apartment is usually not subject to the rules of family law. Thus, the procedure for disposing, using and owning it is regulated in a special manner.

In general, there are two ways to resolve the problem of removing a spouse from a privatized apartment:

if the housing was privatized before marriage, then the eviction of the former spouse is carried out in accordance with the general procedure;
if privatization was carried out after marriage, then eviction is carried out only in the manner prescribed for the eviction of owners.

When housing was privatized during marriage, it is not subject to the rules regarding joint property of spouses. By definition, when carrying out this procedure, property is divided equally among all residents. This means that the shares are already allocated.

In such cases, it is necessary to buy out the share or present to the court other grounds on which the owner can be evicted. In the absence of such grounds, it will not be possible to evict such a spouse.

It is not necessary that the ransom be carried out by the other spouse. In most situations, other adult residents also receive a share in privatization. When the spouse does not have enough funds for the ransom, this can be done jointly with other participants.

However, to do this, you need to force the spouse to sell his share. According to the general rule of civil law, when selling a share in property, other owners have a pre-emptive right to purchase. So if a spouse sells a share, then only to other owners first.

When you can't evict

In accordance with judicial practice, eviction of a former spouse from some premises is almost impossible. Thus, all cases about privatized apartments that were provided to spouses during marriage or about municipal (official) apartments, where the status of a former family member as a “responsible tenant” is indicated, end in the denial of claims. In both cases, spouses are equal in terms of the right to use residential premises; moreover, children registered in such apartments are also unofficial owners of shares.

However, below we will consider some subtleties and nuances that will help bring us closer to the goal of eviction of an unwanted tenant, even subject to compliance with the principles of civil procedural law.

Some say that it is impossible to kick out a spouse who owns part of the apartment. However, there are grounds when the courts meet halfway and remove such a person from registration, retaining his right of ownership (that is, possession and disposal, excluding actual use).

If a marriage contract was concluded between the spouses, which stipulates the regime of ownership and use of the apartment, then it is almost impossible to challenge this document. This is due to the consensual procedure for concluding and expressing mutual consent for signing this document. It should be noted that in cases where prenuptial agreements are involved, the defendant always loses the case.

Eviction of a spouse from a municipal or rented apartment

The characteristic of eviction from rented housing, including municipal housing, is that the owner is another person or the state.

We recommend that you read:

Cases of eviction from an apartment for non-payment of utilities

Depending on this, when depriving the right of residence and eviction from a municipal apartment, you must act as follows:

You need to agree with the owner if he is a private person. If he agrees, then you need to re-register the transaction in the name of the other spouse. If the lease is registered in the name of the evicting spouse, then it is enough to simply demand eviction through the court, that is, deprive him of his registration.
If we are talking about a social rental agreement from the municipal housing stock, then things are somewhat different. If the spouse is a responsible tenant, then he is unlikely to be evicted on general grounds. To evict him, you need to prove that the actual payment for housing is made by other persons and re-register the lease to another person.

If for private landlords it does not matter who actually pays the rent, then for the state it is the payment of the rental agreement and utilities that is the decisive factor. If payment is made by someone other than the responsible tenant, then the tenancy can be re-registered to him upon a simple application to the municipality.

Municipal housing is subject to privatization. If the evicted spouse, being a responsible tenant, has begun the privatization procedure, then his eviction may suspend the process for an indefinite period. The new responsible tenant will have to start collecting documents all over again.

The same rules apply to other temporary housing provided. Thus, if housing is provided on the basis of an employment agreement, then only the spouse with whom the corresponding employment agreement was concluded will have the right to reside in it.

Re-registration in this case is not possible. If a spouse lives without an employment contract as a family member, then he is subject to eviction.

Conditions for eviction of ex-husband

Many factors influence the court's decision as to whether the ex-husband will be evicted or not. The court considers each case individually, taking into account the special circumstances of the case. Judicial practice in eviction cases contains many decisions that satisfy the plaintiff’s demands.

There are situations when the law is on the side of the defendant and it is not possible to forcibly evict him, the former family member remains at the same place of residence.

Let's consider possible scenarios for the development of events with the eviction of a former family member:

Registered in the premises, but not its owner.
Lives in an apartment that was donated to the second spouse or accepted by him by inheritance.
Lives in an apartment under a social tenancy agreement.
Lives in an apartment purchased in a joint barque.

In a situation where a former family member is registered in the premises, the court stands up for the protection of property rights and decides to evict, the former family member is forced to leave the living space. However, several factors may influence the situation.

Problems with eviction are likely if the former family member does not have another home, or the spouse has alimony obligations towards him. The court may delay the eviction until the former family member finds a new place to live.

The owner of a residential property can dispose of it at his own discretion, and can donate it or sell it. At this point, the former family member loses the right to reside in the home, even if the court has established a deferment of eviction.

If a former family member lives in premises that were donated to the plaintiff or received as an inheritance, it will not be difficult to evict him. In such situations, the court makes a decision on eviction and the ex-husband vacates the housing, since all rights to it belong to the plaintiff, and it does not matter when the housing was purchased, during marriage or before it.

In a situation where housing is not the property of the spouses, or one of them, but is provided by the state for residence, the eviction of the former spouse is unlawful. The former family member has equal rights with the second spouse to live in such premises and eviction is unacceptable.

Even if the former spouse is not officially the tenant, he can own the premises and live freely in it. However, eviction is possible if a former family member leads an immoral lifestyle and disturbs other residents and neighbors with his behavior.

The fact of such behavior must be proven, so the plaintiff will have to secure serious arguments in the form of documents and testimony that the ex-husband is behaving unlawfully.

If a former family member lives in an apartment that was purchased during an official marriage, then the former spouses have equal rights to housing, which has the status of joint ownership.

Upon divorce, members of the former social unit have the right to equal shares of housing, unless otherwise established by the marriage agreement. The ex-husband cannot be evicted from such premises.

Author of the article: Petr Romanovsky, lawyer Work experience 15 years, specialization - housing, family, inheritance, land, criminal cases.

Useful information on housing issues

Eviction of a non-owner
Eviction from non-residential premises
Eviction from service housing
Illegal eviction from housing
Forced eviction
Eviction from a mortgaged apartment
Eviction of ex-spouse
Eviction of debtors from an apartment for non-payment
Eviction from public housing
Claim for eviction from an apartment
Eviction from the hostel
Eviction from residential premises
Eviction of a minor child from an apartment
Eviction without provision of other accommodation

If the marriage is not dissolved

The Housing Code of the Russian Federation states that family members of the owner have the right to live in his home only if they have not reached the age of majority. The same rule may apply to close relatives. Once they reach the age of 18, the owner of the property has the right to evict them, including forcibly through the court.

A prerequisite, therefore, for the forced eviction of a spouse is the existence of property rights. Typically, the court will not grant the other spouse's request for eviction if the marriage has not yet been dissolved.

The following cases are exceptions:

if the spouse actually lives in another place and is not the owner, the court makes a decision to deregister the person;
if living together between a spouse and children is considered dangerous to their life and health;
if cohabitation is considered impossible for other reasons.

Usually the following circumstances are sufficient grounds for the court:

mentally unbalanced state of the spouse, posing a threat to others;
alcohol addiction of the spouse, as well as drug addiction;
violation of space standards per person when a large number of people live in one room.

However, the RF Housing Code does not exclude other circumstances. So any reason can be sufficient grounds for the court to evict a spouse.

In any case, the main consideration for the court will be the interests of the children. Children are usually not evicted. If the interests of children are infringed in any way, the court may refuse to evict or, conversely, satisfy the demands. So if you need to evict your spouse if you have children, then divorce is mandatory.

The Housing Code of the Russian Federation indicates that minor children must live with their parents. Until the age of 10, priority is given to the mother. Then the mother can be evicted if the court considers that the children will live without a mother at their own request.

So until the children turn 10 years old, the court will not evict the mother if she has no other place to live. This is only possible after the end of the marriage.

Grounds for eviction

So, one of the grounds for evicting an ex-wife from an apartment is an official divorce.

Not all spouses have separate housing, so they often live in a municipal apartment. The manager of the property is not the husband, but the municipal authority. Therefore, a divorce certificate alone will not be enough to evict an ex-wife. The employer (husband) will need to provide compelling reasons for his ex to move out.

Reasons for eviction of the ex-wife from a municipal apartment:

Long-term absence from the place of residence (for example, if a woman moved to a new partner);
Systematic violation of the rights of neighbors (see “How to evict noisy neighbors from an apartment”);
Abuse of alcohol, drugs, and illegal substances are grounds for deprivation of parental rights if there is a child;
Debt for housing and communal services for more than six months (see “Eviction from an apartment for non-payment of utilities loses its meaning. One option with eviction is allowed - voluntary.
Example: The Kovalevs lived in a municipal apartment for 5 years, after which they submitted documents for privatization. Since there were no other applicants for the apartment, the Kovalevs transferred the property into joint ownership. The subsequent divorce raised the question head on: how to divide a privatized apartment? Kovalev wanted to evict his ex-wife, believing that he had more rights to housing. The man provided the court with receipts for utility bills, checks for repairs, as well as for the purchase of furniture and equipment. However, the court turned him down - the privatized apartment is jointly owned by both spouses. When dividing property, you will need to allocate the shares of the husband and wife, and if this is not possible, exchange the apartment. Kovalev could not evict his ex-wife from a privatized apartment, just as the ex-wife could not do the same in relation to her former chosen one.
From a council apartment
Just living in a municipal apartment does not give spouses ownership rights to residential premises (at least until privatization). Both spouses have permanent registration. It does not matter who is the responsible employer under the social tenancy agreement - the husband or wife.
It follows that the spouse will not be able to expel his ex from the municipal apartment on the grounds of divorce alone . You will need a whole list of reasons that we reported above. Let us remind you that this is deprivation of parental rights, damage to property, non-payment of utilities, violation of silence, etc.
If registered
Registration of a wife in her husband's apartment is limited by the latter's wishes. If the owner wants to evict his ex-wife, no difficulties will arise.
The basis is clause 4 of Art. 31 of the Housing Code of the Russian Federation, from which it follows that in the event of termination of family relations, the wife loses the right to use her husband’s apartment. Before you evict your ex-spouse, you first need to sign her out:
- through OVM or MFC - with consent;
- by filing a claim in court - if you do not want to evict yourself.
Difficulties arise if the ex-wife has nowhere to live. For example, she is experiencing financial difficulties or needs constant care for health reasons. In such situations [anchor href=»law-divorce.ru/otsrochka-ispolneniya-resheniya-suda-o-vyselenii-iz-zhilogo-pomeshheniya/»]eviction will be delayed for at least six months.
If not registered
The simplest development of events is if the ex-wife does not have registration in her husband’s apartment. This happens quite rarely, for example, if the wife is registered in her parents’ apartment in the same locality.
The ex-husband can evict his wife from his apartment without involving the court. It is enough to write a statement to the district police officer, draw up a report on the persons living in the apartment, and then oblige the wife to vacate the living space.

With alimony and lack of other housing

When, after a divorce with eviction or while married, someone files for alimony, he has the right to demand in court that the other spouse provide him and his children with a place to live. Of course, the costs of such security will be taken into account towards the total amount of payments. But still, judicial practice allowed such phenomena.

In addition, if the other spouse does not have another place to live, the court may delay the eviction or refuse it altogether. The whole essence of which family relationships are made is living together. So if the marriage is not dissolved, there is a high chance of getting a refusal from the court.

In such cases, the following grounds may be convincing to the court:

you can sell or donate the apartment to another person and carry out the eviction through him;
wait for the period appointed by the court for the voluntary vacancy of the living space.

Unfortunately, there are no other ways to evict a spouse even after a divorce. So all such risks must be assessed even before the official registration of your relationship. Otherwise, these difficulties cannot be avoided.

If you have doubts about your own abilities, then consultation with a specialist and the support of a lawyer in court will help. It is worth noting that even in the event of a divorce, there is a high risk of not receiving the due half of the property. So the help of a qualified lawyer in divorce cases is never superfluous.