2 Is there a statutory matrimonial property regime and if so, what does it provide?
2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?
When concluding the marriage, the spouses are obliged to choose their matrimonial property regime. They can choose between the community of property regime, the community of accrued gains regime or the separation of property regime.
If the spouses have not chosen the matrimonial property regime when entering into marriage or by concluding a marital property contract, it is presumed that the statutory regime of community of property is applicable. According to this regime, the property acquired during the marriage is considered the joint property of the spouses.
Under the community of property regime, the following is considered separate property:
- personal belongings (e.g. clothing);
- property owned by either spouse prior to marriage;
- property acquired during the marriage by disposal without charge, including as a gift or by succession;
- assets acquired on the basis of a right belonging to separate property or in exchange for separate property.
Division of joint property is possible only after the community of property regime has ended (either by death of one of the spouses, by divorce or by concluding a marriage contract establishing a different property regime).
Under the community of accrued gains regime and the separation of property regime there is no joint property of the spouses.
2.2. Are there legal assumptions concerning the attribution of property?
Under the community of property regime , property shall be deemed to be included in the joint property of the spouses until otherwise proved.
2.3. Should the spouses establish an inventory of assets? If so, when and how?
An inventory of assets must not be established under the regimes of community of property and separation of property but it should be established under the community of accrued gains regime (see 5.3.).
2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?
Under the community of property regime, the spouses exercise the rights and obligations related to their joint property jointly or with the consent of the other spouse. For transactions concerning movable property or a right belonging to the joint property of the spouses, the consent of the other spouse is presumed (consent is not presumed for transactions with immovable property). A spouse may enter into transactions with joint property for the satisfaction of everyday needs of the family himself/herself and without the consent of the other spouse.
A transaction with joint immovable property conducted without the consent of the other spouse is null and void.
The spouses shall administer their separate property independently and at their own expense and the consent of the other spouse is not required. Spouse may dispose a dwelling which is the spouse's separate property and is used as a housing of the family or used separately by the spouse who is not the owner and grant the use thereof to a third party or terminate the legal relationship on which the use thereof is based only with the consent of the other spouse with the condition that the ownership of the dwelling was obtained after 01.01.2015. A transaction without the consent of the other spouse is void. That does not apply for dwellings obtained before 01.01.2015.
Under the community of accrued gains regime, property belonging to a spouse is his/her separate property, of which only the owning spouse can dispose independently (without the consent of the other spouse) regardless of whether the property was acquired before or during the marriage. However, for entering into transactions concerning the dwelling used for the housing of the family or used by the non-owning spouse, the consent of the latter is required. If such a transaction is concluded without the consent of the non-owning spouse, it is void and the other spouse has the right to file a claim arising from invalidity of the disposal against the third party.
Each spouse administers his/her separate property independently at his/her own expense.
Under the separation of property regime, with regards to their property relations, the spouses are treated as if they were not married and each spouse administers and disposes of his/her property independently at his/her own expense.
2.5. Are any legal transactions made by one spouse also binding on the other?
Regardless of which matrimonial property regime has been chosen, the spouses incur a solidary obligation from transactions concluded by one spouse for running the common household, in the interests of the children or to cover other ordinary needs of the family (for example, if one spouse takes a loan in the family interest, then the other spouse is solidarily obliged). The amount of the transaction may not exceed a level commensurate to the living conditions of the spouses.
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
Regardless of which matrimonial property regime has been chosen, a spouse shall be liable for the obligations incurred by the other spouse only in so far as the other spouse may represent or obligate the spouse by his/her act.
Under the community of property regime, the spouses are fully liable to third parties with their separate and joint property for the following:
- obligations that either spouse has incurred to satisfy the needs of the family;
- fulfilment of solidary obligations taken by either spouse;
- obligations where a spouse has agreed with third parties to be liable both with the separate and the joint property (consent from the other spouse is necessary).
In the case of other obligations, each spouse is liable with his/her separate property and one-half of the joint property (i.e. his/her share). A creditor may demand the division of joint property if it is proved that the debtor spouse’s separate property is not sufficient for discharging the obligations.
