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The Issues of consolidation of the right of use of premises for a child after parents divorce

We all know that when a marriage is one of the urgent issues – the right to housing of the former family member, if he is not the owner of the premises. Since the adoption of the civil code of the Russian Federation and to this day the legal status of family members of the owner of the dwelling remains a matter of debate. In the last decade in the civil law were discussed and proposed various ways of development of these relations. On the basis of statistical data it can be concluded that over the years, the divorce process becomes more and more. The increasing flurry of divorces allows to systematize the problems most often encountered in the practice of law today. And, despite the fairly large range of problems arising from this, the most important and difficult is still the issue of housing. Pursuant to part 1 of article 34 of the Family code (SC) of the Russian Federation, property acquired during the marriage is joint property of both spouses. During the marriage and after its dissolution jointly acquired property can be divided between the spouses upon a voluntary agreement or, in the absence of consent, in court. You should note that the approach to solving the housing problem after divorce is a complex legal nature and in addition to family law requires the application of the rules of the housing and civil legislation. In accordance with item 4 of item 31 ZHK the Russian Federation in case of divorce with the owner of the premises for former spouses (and their relatives) the right of use of premises is not maintained, unless otherwise provided by agreement between the owner and a former member of his family. In short, the former spouse no longer has the right to live in this apartment. The law links the termination of the right of use of the living space of the former family member of the owner only with the dissolution of the marriage or its recognition as invalid. But what about the children in this case? Alexei Golovan, the Commissioner for children’s rights in Moscow, when adopted Housing code as part of a package of laws on formation of the market of affordable housing, officially warned about the severe social consequences of the adoption of the LCD. His message read: “. the bill amends paragraphs 2 and 4 of article 292 of the civil code, which will lead to mass violations of constitutional rights of citizens, primarily juveniles, as well as severe social consequences, which will require significant funds for overcoming them. It is proposed to deprive the minor children of the owner of premises the protection of bodies of guardianship and guardianship in the foreclosure, except when living in the dwelling minors are under the care or guardianship or they were left without parental care, what is known to the body of guardianship and guardianship”. Established by the current legislation of the special procedure for the alienation of housing premises in which children live, in conformity with the constitutional principle of the protection of children (article 38, 45 of the Constitution of the Russian Federation) and ensures the protection of minors and public protection of their rights and legitimate interests, including protection from abuse by parents (paragraph 2 of article 56 and paragraph 2 of article 64 of the Family code). “No developed legal state is not eliminated from the control of the alienation of housing, if this affects the rights and legitimate interests of children. Moreover, in most European States the alienation of housing premises in which minors reside, is allowed only with the permission of the court. Social impact the proposed bill changes: worsening of living conditions of the juvenile members of the family of the owner, complete loss children housing and, as a consequence, a significant increase in homelessness and crime, the increase in the number of children left without parental care. In addition. the transfer of ownership of housing is grounds for termination of the right of tenure of members of the family of the former owner. Consequently, the family members of the owner of premises deprived of essential social guarantees, based on the constitutional right of everyone to housing. This violates the constitutional principle of the inadmissibility of violation of the rights and freedoms of one person’s rights and freedoms of others (article 17 of the Constitution of the Russian Federation). Users of residential premises will be taken in absolute dependence on the will and mercy of the property owner. In disposing of the homeowners users will move out into the street, to lose reception. On the bill were given a negative opinion of the State legal Department of the State Duma, the Ministry of education and science of the Russian Federation, state institutions under the President of the Russian Federation “the Center of private law”, the presidential Council of the Russian Federation on codification and improvement of civil legislation, Institute of legislation and comparative law under the Government of the Russian Federation, the Commissioner for human rights in the Russian Federation”.

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