Does rental income (rent) count as part of the average monthly earnings (BSM)?

Property acquired during the previous marriage (even if not yet settled) belongs to you and is not included in the joint property of spouses (BSM) of the new marriage. However, the rental income from this apartment will fall under the BSM.

According to expert legal literature (I. Fekete: Civil Code – Large Commentary, Eurokódex 2018): “According to case law, the subject of joint property of spouses does not include property values acquired by one spouse as a result of the settlement of joint property from a previous marriage, even if these values were transferred to them during the new marriage.”

Also, from case law (R 45/1979) it follows that: “If, in the settlement of joint property, real or movable property is assigned to one of the former spouses as individual ownership, even at the time when they entered into a new marriage, this does not constitute acquisition of such property during the marriage into the joint property of spouses (according to § 143 of the Civil Code), even if the payment to the other co-owner to settle mutual claims from the previous joint property was paid wholly or partially from joint funds of the new marriage. However, there is an obligation to compensate what was spent from the joint property of spouses on the property exclusively owned by one spouse.”

If you decide to rent out this apartment, the rental income will be part of the joint property of spouses, as the joint property also includes income, benefits, and increases from the property, regardless of whether it is owned exclusively by one spouse.

“The fact that the rental income from the apartment owned exclusively by the defendant belongs to the joint property of spouses (BSM) has already been established by the case law of Slovak courts. At the time when the defendant rented out his apartment, the plaintiff rented out two garages she owned, and these rental incomes were also consumed together with the defendant during the marriage and thus belonged to the BSM.”

“According to established case law, if the apartment was acquired by only one spouse before the marriage, the rental income from that apartment is still subject to the joint property of spouses. Rental income from the apartment is not part of the joint property of spouses only if the spouses entered into an agreement pursuant to § 143a (1) of the Civil Code to limit the statutory scope and content of the joint property, i.e., if the defendant and plaintiff contractually agreed to exclude rental income from the joint property, which did not happen.” (Judgment of the District Court Galanta file no. 17C/245/2011)

Section 143 of the Civil Code states that the subject of joint property of spouses is: “everything that can be the subject of ownership and that one of the spouses acquired during the marriage, except for items acquired by inheritance or gift, as well as items which by their nature serve the personal needs or profession of only one spouse, and items returned under restitution regulations to one of the spouses who had ownership before marriage or to their legal successor.”

From this provision and expert literature, we can say that all income not excluded by law belongs to this joint property.

However, the principle applies: “Income becomes part of the joint property of spouses only at the time when the entitled spouse actually receives it. The mere claim to receive income is not part of the joint property because it is not a thing but a receivable.” (I. Fekete: Civil Code – Large Commentary, Eurokódex 2018)

More details can be found here: decision R 42/1972 of the Collection of Judicial Decisions and Opinions of the Czech Republic, or the Supreme Court of the Czech Republic ruling dated 7.3.2005, file no. 22 Cdo 798/2004.