BSM (Community Property of Spouses) upon the annulment of marriage

In the event that the marriage is declared null and void, it is necessary to perform a settlement of the property that the spouses acquired during this marriage. In the event that the marriage arose despite one of the marital impediments regulated by the provisions of Section 9 et seq. of Act No. 36/2005 Coll. on the Family, as amended (hereinafter referred to as the “Family Act”), and subsequently proceedings for the declaration of the marriage as null and void were initiated, the court will be obliged to examine whether any of the marital impediments occurred. If the court declares the marriage null and void, it must be viewed, pursuant to the provision of Section 16 (1) of the Family Act, as a marriage not concluded. To the property relations after the court’s decision on the nullity of the marriage, the provisions on the property rights of divorced spouses shall apply.

Since the Civil Code does not apply subsidiarily to the provisions on the nullity of marriage, the effects of the nullity of marriage occur ex nunc, i.e., for the future. It follows from the above that during the time from the conclusion of the marriage until it is declared null and void, the marriage is viewed as valid with all the consequences resulting therefrom. Marital rights and obligations arise between the spouses, but also community property (BSM), which will need to be settled after the termination of the marriage declared null and void through the classic procedure as after a divorce, i.e., primarily by agreement.

If an agreement between the spouses is not reached, the settlement can be realized by a court decision, or potentially by a fiction pursuant to the provision of Section 149 (4) of the Civil Code: “If within three years from the dissolution of the community property of spouses it has not been settled by agreement, or if the community property of spouses was not, upon a petition filed within three years from its dissolution, settled by a court decision, it shall apply in respect of movable things that the spouses settled according to the state in which each of them uses the things from the community property for their own need, the need of their family and household exclusively as an owner. In respect of other movable things and real estate properties, it shall apply that they are in tenancy in common and that the shares of both co-owners are equal. The same shall apply mutatis mutandis to other property rights that are common to the spouses.”

We note only marginally that a marriage could be null and void if one of the spouses is already married, or if it is a marriage of a minor older than 16 years without the consent of the court, or a marriage between ancestors and descendants or siblings.

The above, however, applies only to a null and void marriage. In the event that it were a non-existent marriage, a so-called marriage non-matrimonium pursuant to the provision of Section 17 of the Family Act, the community property of spouses does not arise, as such a marriage never produced legal effects, i.e., it was never concluded. A non-existent marriage arises, for example, if the declaration of entry into marriage was coerced by violence, or it was made by a minor under 16 years of age, it was made before an incompetent authority (registry office, before an incompetent mayor, or a deputy of a municipal council or city council), before an unregistered church, or before an unauthorized foreign authority.