Community property of spouses effective as of July 1, 2017

The draft of the new Civil Code, which is expected to come into effect on July 1, 2027, brings a number of substantial changes. One of them is the introduction of the institute of community property of spouses (hereinafter referred to as “CPS”), which will replace the current community of property of spouses. It will encompass both assets and debts acquired by the spouses during the marriage.

In accordance with the principle of autonomy of will, which is the cornerstone of the recodified Civil Code, CPS may be established either by operation of law or by contract. Spouses will therefore be able to adjust their property relations within the limits of the law, so to speak, “on their own terms.”

According to Section 293, Paragraph 1 of the new Civil Code: “The statutory community property of spouses includes anything acquired by both spouses or by one of them during the marriage, except for that which, under this Act, constitutes the separate property of each spouse.”

The CPS will therefore include:

In the case of debts incurred as a result of the joint action of both spouses, the creditor may satisfy their claim either from the community property of the spouses or solely from the separate property of one of the spouses.

In the case of debts incurred exclusively by one of the spouses, the creditor shall be “entitled to satisfy their claim preferentially from the separate property of the debtor, and secondarily from the community property, but only to such an extent as to avoid interfering with the justified share of the other spouse.” (Source: Explanatory Memorandum to the Draft Act, Special Part, p. 88).

Property in the community property of spouses will be used by both spouses jointly; likewise, both will be jointly and severally entitled to rights and liable for obligations arising from legal acts related to the CPS. Spouses should agree on the use of property falling under the CPS; otherwise, a court will decide on the exercise of their rights and duties upon the petition of either spouse.

When disposing of community property, it will be necessary to distinguish between ordinary disposal and that which does not fall under ordinary disposal. Each spouse will be entitled to perform ordinary disposal on their own (e.g., ordinary purchases, payment of routine household expenses, etc.). The consent of both spouses will be required for acts beyond the scope of ordinary disposal (e.g., pledging property, selling real estate, etc.), which, according to the submitters, is intended to protect “each spouse from the possibility of a unilateral intervention into the community property that could have serious consequences.” (Source: Explanatory Memorandum to the Draft Act, Special Part, p. 91).

The separate property of only one of the spouses is regulated by Section 294, according to which “the statutory community property of spouses does not include

A significant innovation is the possibility of concluding a contract on the community property of spouses, which may be modified during the marriage. According to Section 299, Paragraph 1: “A contract on the community property of spouses must take the form of a notarial deed, which shall be registered in the central notarial register of modifications to the community property of spouses pursuant to a special regulation. The contract on the community property of spouses shall come into effect on the date of registration.”

By means of this contract, spouses will be able to not only expand but also restrict the scope of their CPS, namely by including certain property or debts into or excluding them from the statutory community property.

The property in question may be specified individually (a specific asset) or by category (in the form of a general clause, e.g., all gifts acquired by a spouse). According to the submitters, this will eliminate the “shortcoming of the current legislation, which does not address this situation, and current application practice allows the expansion of the community of property only in relation to a specific asset.” (Source: Explanatory Memorandum to the Draft Act, Special Part, p. 93).

Pursuant to Section 299, Paragraph 5, spouses will be able to invoke the contract against a third party only if “it is known or must have been known to that party.” In order to protect third parties, a special central register of contracts on the community property of spouses will be established, the public availability of which will be regulated by a separate legal regulation.

Pursuant to Section 302, Paragraph 1, spouses will also be able to do the following in the contract:

A spouse who exclusively manages the entire community property of spouses or a part thereof will be able to do the following only with the consent of the other spouse:

At the same time, the authorized spouse has an information obligation towards the other spouse. According to Paragraph 3 of this provision, they will be “obliged to inform the other spouse in writing about the status of this property and to submit management accounts to them at intervals specified in the contract on the management of the community property of spouses.”

The spouse who does not exercise the exclusive management of the CPS will have the right to revoke the authorization of the other spouse at any time. However, this right cannot be waived in advance; otherwise, the contract will be invalid in this part.

The inception and termination of the contractual authorization for the management of the CPS are regulated in Paragraph 5, according to which “The authorization of a spouse for the exclusive management of a part or the whole of the community property and the revocation of this authorization must take the form of a notarial deed, and its effects shall arise upon registration in the central notarial register of modifications to the community property of spouses.”

The new Civil Code gives spouses the possibility to conclude an agreement on the settlement of the CPS (in whole or in part), which can be concluded both after the termination of the marriage and during its course; in that case, however, pursuant to Section 308, Paragraph 3, “it may only relate to the property that the spouses have as of the date of conclusion of this agreement.” Therefore, it will not be possible to include provisions regarding potential future property in it.

It will be possible to conclude the agreement on the settlement of the CPS in two forms:

In the event that an agreement on the settlement of the CPS is not concluded, or if it does not regulate the settlement of a certain part of the community property, the court shall decide on the settlement of the CPS, or a part thereof. Either spouse may file a petition with the court within a period of three years from the termination of the marriage.

If neither spouse files a petition with the court within this period or if no settlement is reached by agreement, a presumption of settlement shall apply, according to which the former spouses have settled the matter themselves. This may again apply to the entire CPS, or only to that part of it which has not been settled by agreement or by the court.