Mortgage before marriage and BSM (undivided co-ownership of spouses)

No, it cannot. Debts that arose before marriage (whether during the single life of one of the spouses or during a previous marriage of one of the spouses) cannot be satisfied from property that belongs to the undivided co-ownership of the current spouses (BSM). Therefore, a bailiff (exekútor) cannot target the common property of the current spouses if it concerns a debt of one of them that arose before the marriage.

A similar situation was also addressed by the Supreme Court of the SR, which in its decision Case File No. 3 Cdo 8/2010 clearly stated that: „The claim of a creditor against a spouse, which arose during the duration of their earlier marriage, cannot, during the execution of a decision, be satisfied from property belonging to the undivided co-ownership of spouses that was acquired during the duration of their later marriage.“

The Supreme Court of the SR also expressed this in its resolution Case File No. 3 Cdo 8/2010, stating: „A claim against only one of the spouses that arose before the conclusion of the marriage of this debtor with their spouse – the undivided co-owner (likewise which arose after the dissolution of their marriage), cannot be satisfied from property belonging to their BSM.“

Simply put, only debts that arose during this marriage (not before or after it) will be paid from the common property of the spouses acquired during the marriage into the BSM.

At the same time, it is necessary to state that a mortgage of only one of the spouses, which one of the spouses “took out” before the conclusion of the current marriage, should be repaid from the exclusive funds of that spouse. If it were repaid from the common property in the BSM, the wife would, in the event of a settlement of the BSM, have the right to demand half of what the husband paid toward this mortgage from the common property. However, the husband’s salary also belongs to the BSM. Therefore, if the husband repaid the mortgage from his salary, the wife would, in the event of the dissolution and settlement of the BSM, have the right to demand half of the funds paid toward the mortgage. The solution is a restriction (zúženie) of the BSM.

The fact that one spouse’s mortgage from before the marriage is paid during the marriage does not automatically mean that the real estate for which the husband took the mortgage also belongs to the wife. Since the husband acquired it himself before the marriage, it will belong exclusively to him. In order for the wife to become an owner of the real estate, it is possible for him to gift the real estate to her in a certain share (for example, a half). By doing so, they will become its tenants in common (podieloví spoluvlastníci).

Apartment Bought Before Marriage

An apartment bought before the conclusion of marriage belongs to the exclusive ownership of the spouse who bought it, even if at that time they already lived together with their future spouse or even if the future spouse contributed from their own funds to the purchase of the apartment. The fact that one of the partners loaned money to the other to buy a thing that they will also use jointly by no means means that as soon as they enter into the bonds of marriage, the thing becomes the subject of their undivided co-ownership (BSM).

Mortgage of One of the Spouses

According to what is now settled case law, the consent of both spouses is not required to conclude a mortgage loan agreement. Although the provision of Section 145 (1) of Act No. 40/1964 Coll., the Civil Code (hereinafter referred to as the “OZ”), stipulates that „ordinary matters concerning common things may be handled by either spouse“ and in other matters the consent of both spouses is required, legal acts such as, for example, a loan contract, a credit contract, a guarantee obligation of one of the spouses, or a borrow-use contract are not acts directly concerning a common thing, since on their basis property is only just being acquired into the BSM. A mortgage loan agreement can thus be validly concluded by only one of the spouses without the consent of the other spouse, despite the fact that it is certainly not an ordinary matter. Even in such a case, however, the values acquired on the basis of the credit agreement will be the subject of the undivided co-ownership of spouses (BSM).

The above is also confirmed by professional literature: „Although the obligations (debts) of the spouses themselves are not the subject of their undivided co-ownership, the values acquired for the funds obtained in this way (e.g., from a loan contract) already belong to the undivided co-ownership of spouses, even if it is an obligation of only one of the spouses. If a certain property value was acquired for a debt concerning exclusively one of the spouses, which belongs within the meaning of Section 143 of the Civil Code to the undivided co-ownership of spouses, such a debt of the spouse is subsequently taken into account during the settlement of the undivided co-ownership (R 57/1970, cited in Števček et al.: Civil Code – Commentary, 2nd edition, C. H. Beck, 2019).“

Mortgage and Divorce

In the event that one of the spouses “takes out a mortgage,” i.e., concludes a mortgage loan agreement, such an act will be valid even if the other spouse does not agree with it; the money obtained on the basis of this agreement will be the property of both spouses – it will form the subject of the BSM (e.g., R 57/1970). However, since the mortgage loan agreement was concluded by only one spouse, it will be their individual obligation, and the spouses will not be obliged and entitled under the agreement “jointly and severally” (Section 145 (2) of the Civil Code).

The regime of the BSM simultaneously dissolves upon the divorce of the marriage. The property belonging to the BSM must subsequently be settled according to the principles specified in Section 150 of the OZ. According to the decision of the Supreme Court of the SR, Case File No. 3 Cdo 330/2006: „If, during the duration of the marriage, a loan contract was concluded as a debtor by only one of the spouses, they do not need the consent of the other spouse for this. Such a debt concerning exclusively one of the parties (spouses) shall be taken into account during the settlement of the undivided co-ownership, provided that a certain property value was acquired for it, which belongs within the meaning of Section 143 of the Civil Code to the undivided co-ownership.“