How is a residential apartment acquired through shared participation divided? Does a spouse have the right to claim a share of the market value of the real estate or only a part of the amount specified in the shared participation agreement? Can the other spouse re-register the shared participation agreement to another person?
When dividing an apartment between spouses, acquired through shared participation in housing construction, the following options are possible:
- The apartment has been put into operation and transferred to the ownership of the equity holder by the developer.
- The apartment has been commissioned, but has not yet been transferred to the developer.
- The apartment is under construction and has not been commissioned.
Division of an apartment, the ownership of which is registered
In accordance with Article 32 of the Law of the Republic of Kazakhstan "On Marriage and Family", an apartment acquired under a shared participation agreement is the common joint property of the spouses. Thus, from the moment of registration of the right of ownership of the apartment, it can be divided according to the general rules for the division of property at the suit of one of the spouses.
The division will be made based on the market value of the residential apartment at the time of the claim, determined by the appraisal company or the court expert. One of the spouses will be paid compensation in the form of half the market value of the apartment or awarded other property for this value.
Division of an apartment, the ownership of which is not registered
According to paragraph 2 of Article 32 of the Law "On Marriage and Family", property acquired by spouses during marriage (common property of spouses) includes, along with other property, deposits, shares contributed to commercial organizations, and any other property acquired by spouses during marriage, regardless of in whose name it was acquired or by which of the spouses the funds were contributed.
In accordance with Article 115 of the Civil Code of the Republic of Kazakhstan (General Part), the rights of a shareholder under a shared participation agreement are property rights and also relate to the common property of the spouses.
Thus, when dividing property, a spouse has the right to file a claim in court for the division of money contributed under the equity participation agreement, since this money is common property. In this case, the court will collect compensation from the other spouse in the amount of half the cost of contributions under the agreement.
The market value of the apartment in this case cannot be taken into account, since the apartment is not yet the joint property of the spouses. Therefore, in some cases it may be advisable to wait until the apartment is transferred to the ownership of the spouse-shareholder in order to divide the apartment itself. It should be taken into account that the limitation period for claims for the division of the property of spouses is three years (clause 6 of Article 36 of the Law "On Marriage and Family").
Can a spouse assign rights to a share without the consent of the other spouse?
In the event that the apartment has not yet been transferred to the ownership of the shareholder, there is a risk that the spouse participating as a shareholder in the equity participation agreement may assign his/her rights under the agreement to another person. In order to challenge such a transaction in court, the second spouse will have to prove that the other party to the transaction knew or should have known about the disagreement of this spouse to the transaction (clause 2 of Article 33 of the Law "On Marriage and Family"). But in accordance with clause 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by the courts of legislation on the consideration of cases on divorce", if the court finds that the spouse alienated the common property or spent it at his/her own discretion contrary to the will of the other spouse and not in the interests of the family, or concealed the property, then this property or its value will be taken into account during the division.