How to get a mortgage without the participation of a spouse is a fairly common question among mortgage borrowers. Nowadays, many married couples take a responsible step in their lives together - take out a mortgage loan to purchase a home. As a rule, one spouse takes out a mortgage, and the second is automatically a co-borrower (). In other words, both spouses bear the same burden of mortgage debt. Many banks by default include a spouse as a co-borrower if they see that the borrower is married.
In what cases does a spouse not participate in the mortgage?
However, there are cases when one of the spouses wants to take out a mortgage only for themselves, without involving their spouse in this process. A mortgage without a spouse may have the following reasons:
- division of property of spouses, the desire to protect real estate from division in the event of a possible divorce;
- one of the spouses works unofficially and his income is not confirmed;
- one of the spouses has a bad credit history;
- the wife, for example, is a housewife and has virtually no income.
Very often, a family has to take out a mortgage only for the wife if the husband already has several loans.
It is possible and quite legal to take out a mortgage without the consent of your spouse.
Methods for completing an application without taking into account a spouse
Answering the question - is it possible to take out a mortgage without the knowledge of the spouse, we give an unequivocal answer in the negative. Even though one spouse is excluded as a co-borrower, his or her participation will still be required.
To take out a mortgage without a spouse, you need to contact a notary and register your consent to the purchase of real estate by the second spouse. The document contains data on the property and the consent itself.
The notary certifies the identity of the spouse and records this consent. This document has a default term of 3 years, like most notarized documents. Such consent will be required to register the transaction, that is, when registering ownership of the apartment.
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However, the apartment will still be joint property, to which the non-participating spouse has the right to claim. And debt obligations also apply to both spouses.
Consent of the second spouse to pledge property
When planning to take out credit funds to purchase real estate, spouses often wonder not only whether the consent of the other half is needed to conclude such an agreement, but also try to solve other problems that arise.
According to the laws of the Russian Federation, in an official marriage, transactions with common property require notarial consent to a pledge from the spouse, regardless of his share in this property.
When a loan is taken out on the security of real estate already owned, then, in addition to a notarized permission to mortgage the property, the consent of the other half to the mortgage may also be required.
If we are talking about a pledge of the purchased apartment, then this action does not require additional consent to pledge the real estate.
The consent of the second spouse to take out a mortgage loan, as a rule, describes all the nuances associated with its registration. The document for registration of a mortgage must contain the consent of the second spouse, who often acts as a co-borrower or guarantor, that the housing purchased under this agreement acts as collateral. Therefore, the question that arises simultaneously with the decision to take out a mortgage loan is whether the spouse’s consent to the mortgage of real estate in the form of a separate document is necessary, in this case the answer is negative.
However, such a written, notarized document will definitely be required in situations where there is no marriage contract between spouses and the collateral property is common joint property acquired earlier.
The question of whether it is possible to mortgage an apartment without the consent of the spouse has the same negative answer.
Nuances of registering a marriage contract
What kind of document is this? This is an agreement between husband and wife, in which they can establish ownership of certain real estate objects or redefine shares, or generally change the procedure for disposing of joint property (). The agreement is concluded in writing and certified by a notary, who acts within the framework of the rules for performing notarial acts on the basis of the laws of Russia ().
cannot contradict civil legal acts or limit the rights and legal capacity of spouses.
The database cannot be changed unilaterally, that is, on the initiative of only one spouse. The marriage contract is considered invalid after the divorce of the spouses (). When one of the spouses receives a loan, the marriage contract must be presented to the financial institution. A mortgage without a spouse as a co-borrower is formalized through such an agreement.
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.
What does a marriage contract contain?
The husband and wife agreement for a mortgage without the consent of one of the spouses must contain the following:
- information about the person taking out the loan (full name, passport details, place of residence);
- information about who will own the property;
- information about the amount of the down payment and its payer;
- information about who will make monthly payments;
- those responsible for violations of the marriage agreement are identified.
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Let's look at each point in more detail.
The first clauses of the agreement clearly and clearly define which of the spouses is the borrower and who will be the future owner of the home.
About mortgage payments
An important point in a prenuptial agreement when it is drawn up to take out a mortgage without the participation of a spouse is the down payment. After all, unless otherwise stated, all money in the family is considered joint. Therefore, it is important to indicate the source of the down payment.
The point about monthly payments is also very important. It must be indicated that such payments are part of the income of the future owner, and not joint family income.
About the norms of civil contract
A BD is an ordinary civil contract, in this case it decides the question of whether it is possible to take out a mortgage without the consent of the spouse. Therefore, in a situation where the clauses of the agreement of one of the parties are not fulfilled, the norms of the Civil Code of the Russian Federation apply. That is, the second party has the right to make demands for elimination of violations and even compensation for losses, as under any civil contract.
Termination of a marriage contract occurs in connection with the divorce of the spouses, unless other conditions are specified in the agreement
In each specific case, the agreement may contain information about the bank that issued the mortgage, the terms of this mortgage, or additional information about the property itself.
Can a husband take out a mortgage without his wife?
Reveal to the legal amateur the approximate prospects of the participants in the family scene in the current situation, a la Santa Barbara.
Given:
1. Husband and wife separate without filing a divorce. Married since 2008, no children (fortunately),
2. sign a marriage contract according to which the dacha plot and house acquired during marriage belong 100% only to the husband. The sweat-soaked house was built by the husband with money from relatives, state bonuses, and savings received before marriage (the plot of land was purchased by the unfortunate husband a few months after marriage and a honeymoon trip with funds earned before marriage),
3. The wife has an apartment purchased before marriage (the repairs of which were carried out and paid for by the husband),
4. There is also an apartment in shared ownership of 1/2, purchased during marriage, for which the mortgage has not yet been paid, both are co-borrowers, the husband pays for the mortgage (he has all the receipts with his details in his hands). The apartment is not reflected in the marriage contract.
5. When a husband decides to connect his life with another woman, he offers his ex a divorce. The wife avoids divorce and does not come to the registry office.
6. The husband files a lawsuit for divorce, he cannot wait any longer and hope for the adequacy of his wife’s behavior, he is waiting for the birth of a child from a new woman = he wants to legalize the relationship,
7. The wife reports that she is also expecting the birth of a child from another man and demands that, under an agreement on the division of property, a share in the mortgaged apartment be given and that she (the husband) take on the burden of paying the mortgage,
8. The wife’s lawyer informs the husband that if he does not agree to the proposed conditions, then a claim will be filed for the termination of the marriage contract and the division of all property under the marriage contract.
9. The wife’s lawyer believes that the basis for invalidating the marriage contract is the extremely unfavorable position of the wife.
10. The husband gave birth to a long-awaited child (the father accepted paternity, the child’s mother agrees to a genetic examination if necessary),
11. The trial on the husband’s claim should take place in two weeks,
12. According to operational data, the wife should give birth (from another man - this is a fact, unless the biological material was intercepted and frozen by the enemy) in 2 - 2.5 months.
13. For a husband, a mortgaged apartment is not critical; a plot of land is important and the house is a child, because they are elements of full-scale tests of scientific research and the main source of income for a young scientist, winner of numerous competitions in the professional field of activity.
14. My wife really needs a lot of money, because... According to a lawyer and a friend, the man who is the child’s father does not plan to live with his wife and does not recognize the child. The wife counted on the fact that the mortgage debt was small, groundlessly (the mortgage is paid for only 3 years, and the loan term is 15 years), hoping that the husband would pay off the loan at a faster pace.
I apologize for the verbosity... poured out my soul. And now the questions, the answers to which may make an indiscriminate husband sick:
A) how great is the risk of the marriage contract being declared invalid?
B) how should a husband behave in court if his wife tries to take advantage of her magical position (for example, she says that she is not sure from whom she is pregnant)? Are there any chances of divorce now?
C) what is the best way to deal with paying off the mortgage: 1) continue to pay, 2) pay only current interest, without paying off the loan, 3) stop making payments on the loan.
Thanks everyone.
Where to draw up a marriage contract
Although this agreement is registered by a notary, its drafting can be entrusted to a competent lawyer. After submitting the documents, the specialist will quickly and accurately formulate the main points and conditions of the marriage contract relating to a mortgage without the consent of one of the spouses. Documents you will need:
- passports of husband and wife;
- marriage document;
- ownership documents and mortgage agreement.
Only after a competent drafting of the agreement, if there are no contradictions with existing legislation, will the notary register the marriage contract. It will come into force, and there will be a chance to take out a mortgage without the participation of a spouse.
How to increase your chances of getting a mortgage approved without the participation of your spouse?
This will happen if:
- the borrower's income is greater than average (at least twice);
- continuous work experience of more than 3 years;
- a co-borrower with a good stable income, preferably related to the borrower by family ties;
- the borrower will make a large down payment.
If there are two or three such points, there is a possibility of getting a mortgage without a spouse.
It should be noted that at any time the database may be:
- terminated by agreement of both parties;
- renegotiated on different terms.
That is, during the term of the mortgage loan, the spouse not participating in the loan can, for example:
- receive a pre-agreed share in housing;
- make monthly payments under any conditions.
Why is it easier for a young family to get a mortgage?
When considering an application for mortgage funds from a young family, the bank takes into account the total combined income of both spouses. As a rule, the total income is noticeably higher than that of one borrower. This allows the banking institution to quickly make a positive decision on the mortgage.
In addition, a young family is subject to various special programs that are focused on providing benefits:
- state housing subsidy program;
- accounting for maternity capital against a mortgage.
For a single young woman, the bank will most likely refuse to provide funds under a mortgage loan agreement. There is a risk that with the birth of a child she will lose the ability to make monthly mortgage payments on time. There is no such risk in the family.
However, this does not mean that one borrower cannot obtain a mortgage loan. If your income level allows you to draw up a mortgage loan agreement, difficulties usually do not arise.
Which bank can approve a mortgage without a spouse as a co-borrower?
First of all, it must be a large bank. According to statistics, VTB often approves mortgages in such situations. In any case, when you first contact the bank, you should immediately ask the employees the question - is it possible to get a mortgage without the consent of the spouse. Bank specialists can advise the most effective method.
List of banks in which the mandatory participation of the spouse as a co-borrower is not required and only the notarial consent of the spouse is sufficient:
- Sberbank
- House of the Russian Federation
- Gazprombank (even without consent)
- Promsvyazbank
- Sovcombank
- Uralsib Bank
- Absolut Bank
- Bank "Saint-Petersburg
- BJF (Housing Finance Bank)
- Moscow Industrial Bank
- ICD
- Primsotsbank
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Author:
Mortgage specialist Maria Yurievna Sokhan
Publication dateMarch 27, 2020May 11, 2021
