AKMV Donation between spouses
The donation of a thing belonging to the BSM by one spouse to the other is not possible.
Spouses acquire everything that could otherwise be the subject of their exclusive ownership into the so-called community property of spouses (hereinafter referred to as the “BSM”). This specific ownership regime can exist only between spouses and officially arises upon the acquisition of the first thing into the BSM.
How do I know that a real estate property is in the BSM?
Often, on the title deed to a common real estate property, the share 1/1 is indicated next to the names of both spouses, which signifies that the real estate property is in the community property of spouses.
According to Section 143 of Act No. 40/1964 Coll. the Civil Code (hereinafter referred to as the “CC”): “The BSM includes everything that may be the subject of ownership and that was acquired by either spouse during the duration of the marriage, with the exception of things acquired by inheritance or gift, as well as things which by their nature serve the personal needs or the exercise of the profession of only one of the spouses, and things restored under property restitution regulations to one of the spouses who owned the restored thing prior to entering into the marriage or to whom the thing was restored as the legal successor of the original owner.”
According to the decision of the Supreme Court of the Slovak Republic, Case File No. 1 Cz 42/1977 (R6/1979): “The donation of, for example, a family house belonging to the community property of spouses by one spouse to the other spouse must be assessed as an evasion (Section 39 of the CC) of the mandatory provisions of the Civil Code on the scope and duration of the community property of spouses.”
According to Section 39 of the CC: “A legal act is void if its content or purpose contradicts the law or evades it or is contrary to good morals.”
Indeed, the peculiarity of the BSM regime is that each spouse has an ownership right to the whole thing belonging to the BSM (thus, they do not dispose of only a certain share); the rights of each spouse are in this regard limited only by the identical rights of the other spouse. For this reason alone, it is not possible for one spouse to donate (i.e., transfer the ownership right to) a thing belonging to the BSM to the other spouse, since from a legal standpoint, the latter is likewise its full owner (just as the donating spouse is).
Moreover, such an act of donation clearly indicates the donor’s will to “get rid of” the ownership of the thing and make the other spouse its exclusive owner, whereby the BSM regime would be disrupted. However, the exclusion of a thing from the BSM cannot occur purely on the basis of concurrent expressions of will by both spouses (a deed of gift).
If the spouses wished to narrow the scope of the BSM predetermined by law, they would first have to conclude a so-called agreement on the modification of the scope of the BSM (Section 143a (1) of the CC). This agreement, however, requires the form of a notarial deed (Section 143a (3) of the CC).
Therefore, donation between spouses is possible only if the gift is a thing belonging to the personal, separate, exclusive property of the donating spouse, never to the BSM (source: Števček et al.: Civil Code I – commentary, 2nd edition, C.H. Beck, 2019).
QUESTION
How is it with donating a thing during marriage, is it also possible that I would transfer our common house into her exclusive ownership?
ANSWER:
In the case of providing a gift to a wife, we must distinguish the person of the donor. If a third party were to donate any thing to only one of the spouses (i.e., even to just the wife), it would not become part of the community property of spouses, as this is excluded by the provision of Section 143 of Act No. 40/1964 Coll. the Civil Code, as amended (hereinafter referred to as the “Civil Code”): “…the community property of spouses includes everything that may be the subject of ownership and that was acquired by either spouse during the duration of the marriage, with the exception of things acquired by inheritance or gift…” A thing acquired by a gift from a third party will become the exclusive ownership of that spouse to whom it was donated. If the thing was donated to both spouses simultaneously, they will acquire tenancy in common to it, unless they have previously modified their community property by agreement in the sense of extending it also to objects that the spouses acquire jointly by gift. It is similar to a gift as it is with an inheritance.
A specific situation arises in the case of donation between spouses. It can be inferred from the statutory provisions that donation between spouses comes into consideration only if the subject of the gift is property belonging to the exclusive ownership of one of the spouses. Otherwise, the donation of property belonging to the community property of spouses by one spouse to the other spouse is prohibited. A deed of gift is, in fact, one of the types of alienation contracts, meaning it is a contract by which ownership rights are transferred. “It follows from the name community property (without shares) that each spouse is a full owner of the thing that forms the subject of their property community, whereby the ownership of one spouse is limited by the identical (full) ownership of the other spouse.” (Judgment of the District Court Pezinok dated 26 April 2013, Case File No. 10C/314/2011). If property belonging to the community property were to be donated, there would simultaneously be no change in the person of the owner, which alienation presupposes. This situation is often bypassed in practice, for example, by the spouses jointly donating a thing belonging to the BSM to their children, and the children subsequently transferring the thing back into the tenancy in common of their parents or to just one of them. However, we do not recommend this procedure.
JUDr. Veronika Michalíková, MBA